A critical analysis of the mechanisms available to the accused for effective judicial protection against measures ordered at EU level.
The European Public Prosecutor's Office has introduced into Spanish criminal procedure a figure with no prior equivalent: a prosecutor who investigates under an EU regulation but who acts, in practice, with the tools of national procedural law. From that dual nature arises the practical problem addressed here: when the European Delegated Prosecutor orders a measure affecting the rights of the accused, before whom and on what basis is it challenged?
The starting point: Article 42 of the Regulation
Article 42 of Regulation (EU) 2017/1939 assigns judicial review of the EPPO's procedural acts to national courts, in accordance with domestic law, reserving to the Court of Justice the preliminary-ruling procedure and certain defined situations. The consequence is that the protection of the accused is, in practice, built with the categories of Spanish criminal procedure, even where the challenged act is of EU origin.
This is not a technicality. It means the defence must translate the European Delegated Prosecutor's act into the corresponding domestic procedural category in order to identify the available remedy and the applicable time limit. A mistaken characterisation at this stage cannot be corrected later: it closes the route to challenge.
The guarantee judge
Organic Law 9/2021, implementing the Regulation in Spain, resolves the institutional fit by entrusting to a guarantee judge the review of measures requiring judicial authorisation. The defence therefore has an identifiable court before which to raise nullity or disproportionality, but must do so within the procedure and using the technique the law itself provides.
Practice shows a tendency to challenge the investigation as a whole rather than attacking the specific measure and its legal basis. That is a strategic error: the guarantee judge's review operates on determinate acts, and a diffuse challenge is usually dismissed — a dismissal later invoked as validation of everything done.
Consequences for defence strategy
A rule of conduct follows for counsel: intervene early and document. The European Delegated Prosecutor's investigation phase concentrates the decisions that later determine the trial — access to corporate records, interception of communications, measures over assets — and many of them are materially irreversible once executed.
Technical defence at this stage is not about arguing the facts prematurely, but about verifying, measure by measure, the legal basis invoked, its proportionality and its reasoning. It is a matter of procedural rigour, not rhetoric, and it decides most of these proceedings.
Note
These analyses are published for academic and informational purposes and do not constitute legal advice on any specific case. Any procedural strategy requires study of the actual file.
Document downloaded from perezrojasabogados · /en/insights/impugnacion-decretos-fiscal-europeo-delegado
These analyses are published for academic and informational purposes and do not constitute legal advice on any specific case. Any procedural strategy requires study of the actual file.