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The contested decision is not an isolated fact, but rather the conclusion of a sequence of decisions by ECA, all aimed at denying the EPPO the possibility to carry out its mission under the Treaties (Article 86 TFEU) to investigate criminal offences affecting the Union budget.

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As such, the denial of the request under Article 19 of the Staff Regulations, and the consequent impossibility for the EPPO to pursue its mission to ‘seek all relevant evidence, whether inculpatory or exculpatory’ amounts to an undue interference with the EPPO’s powers under the Treaties and, therefore, to a violation of the duty of sincere cooperation.

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When sending a request for authorisation to lift confidentiality for the purpose of hearing a witness, the requesting party must provide the concerned EU institution with the information necessary to enable the latter to verify that the interests of the European Union are not seriously prejudiced.

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That review does not, however, confer on the concerned institution an unrestricted right of access to the information contained in the criminal investigation file. The latter is indeed covered by the secrecy of investigations, as recalled in Article 108 of the EPPO Regulation.

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By repeatedly seeking direct or indirect access to information held by the EPPO in the context of the ongoing criminal investigation – in particular by requesting the organization of meetings at technical level with officials not authorised to know about the criminal investigation – the ECA exceeded the limits of its mandate and disregarded its obligations under EU law, in particular, the respect for the confidentiality of criminal investigations.

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The conduct of criminal investigations is a purely judicial prerogative, lying exclusively with the EPPO and the competent national authorities as regard the protection of the Union’s financial interests.

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The procedure laid down in Article 19 of the Staff Regulations cannot allow the institution to which the application is made to claim a right of scrutiny over the conduct of criminal investigations.

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The ECA argues that there is no criminal offence in the present case. Substituting its own assessment for that of the EPPO, the ECA also refused to grant its authorisation on the ground that it considered that the case should be closed without further action.

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In this context, ECA has consistently sought to influence the conduct of the investigation by proposing and conditioning its possible cooperation on the prior organisation of ‘meetings’ with the central services of the EPPO.

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The immunity provided for under the Protocol on privileges and immunities does not cover witnesses, who do not enjoy any particular immunity under EU law. Only their hearing must be authorised in advance as provided for by the Article 19 of the Staff Regulations.

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The persons targeted by the request for a hearing are not the same as those for which the EPPO had sent a request for waiving their immunity. There is therefore no contradiction in the EPPO’s approach and it affects in no way the immunity enjoyed by other protagonists in the proceedings.