Opinion of the Advocate General — ECLI:EU:C:2023:510
Date: 2023-06-22
Language of the case: German
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-281/22 – 1 
Case C-281/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 April 2022 
Referring court: 
Oberlandesgericht Wien (Austria) 
Date of the decision to refer: 
8 April 2022 
Accused and appellant: 
G. K. 
B. O. D. GmbH 
S. L. 
  
Subject matter of the main proceedings 
Appeals against the court approvals of the warrants of the Austrian European 
Delegated Prosecutor to search the residential and business premises of the 
appellant and to seize items 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular the first subparagraph of Article 31(3) and 
Article 32 of Council Regulation (EU) 2017/1939 of 12 October 2017 
implementing enhanced cooperation on the establishment of the European Public 
Prosecutor’s Office (‘the EPPO’); Article 267 TFEU 
Questions referred 
1. Must EU law, in particular the first subparagraph of Article 31(3) and 
Article 32 of Council Regulation (EU) 2017/1939 of 12 October 2017 concerning 
the implementation of enhanced cooperation with a view to the establishment of a 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-281/22 
 
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European Public Prosecutor’s Office (EPPO), be interpreted as meaning that, in 
the case of cross-border investigations  in the event that a court must approve a 
measure to be carried out in the Member State of the supporting European 
Delegated Prosecutor, all material aspects, such as criminal liability, suspicion of 
a criminal offence, necessity and proportionality, must be examined? 
2. Should the examination take into account whether the admissibility of the 
measure has already been examined by a court in the Member State of the 
European Delegated Prosecutor handling the case on the basis of the law of that 
Member State? 
3. In the event that the first question is answered in the negative and/or the 
second question in the affirmative, to what extent must a judicial review take 
place in the Member State of the supporting European Delegated Prosecutor? 
Provisions of EU law cited 
Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced 
cooperation on the establishment of the European Public Prosecutor’s Office 
(EPPO) (‘the EPPO Regulation’); in particular, Articles 30, 31, 32, 42, recitals 72 
and 73 
National legislation cited 
Bundesgesetz zur Durchführung der Europäischen Staatsanwaltschaft (Federal 
law on the implementation of the European Public Prosecutor's Office, ‘the 
EUStA-DG’); in particular Paragraph 11(2) 
(Austrian) Strafprozessordnung (Austrian Code of Criminal Procedure, ‘the 
Austrian StPO’); in particular Paragraphs 117, 119, 120 
Brief summary of the facts and procedure 
1 The European Public Prosecutor’s Office, represented by the European Delegated 
Prosecutor in the Federal Republic of Germany (Munich) handling the case, is 
conducting preliminary investigations, inter alia, against G. K., S. L. and the B. O. 
D. GmbH on the grounds of Article 3(2)(a) and (c) of Directive 2017/1371; 
Paragraph 370(1) no. 1, (2) no. 3 and Paragraph 373(1) and (2) no. 3 of the 
Abgabenordnung (German General Tax Code, ‘the German AO’); Paragraph 129 
of the Strafgesetzbuch (German Criminal Code, ‘the German StGB’). The accused 
are suspected of having circumvented customs provisions by making false 
declarations when importing biodiesel (of US origin) into the European Union 
and, in doing so, causing a loss totalling approximately EUR 1,295,000. 
2 On 9 November 2021, in the context of supporting these investigations pursuant to 
Article 31 of the EPPO Regulation, the Austrian European Delegated Prosecutor 
G. K., B. O. D. AND S. L. 
 
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issued a warrant under point I./ to search the residential and business premises of 
the accused company B. O. D. GmbH and of the accused G. K. at the M. address 
(Landesgericht Korneuburg [Regional Court, Korneuburg, Austria]), the business 
premises of the accused company B. O. D. GmbH at the K. address 
(Landesgericht Krems an der Donau [Regional Court, Krems an der Donau, 
Austria]), the residential premises of the accused G. K. at the R. address and those 
of the accused S. L. at the S. address (Landesgericht Wiener Neustadt [Regional 
Court Wiener Neustadt, Vienna, Austria]) as well as the business premises of the 
accused company B. O. D. GmbH and/or its ‘parent company’ B. O. D. s.r.o & Co 
KS at the S. address (Landesgericht für Strafsachen Wien [Regional Court for 
Criminal Matters, Vienna, Austria), applied to the single judge responsible in each 
of the aforementioned regional courts for the court’s approval and ordered, under 
point II./, the seizure of order and purchase order receipts, account records, 
correspondence and corresponding hardware and documents. 
3 The single judges responsible in each case approved the warrants issued by the 
supporting European Delegated Prosecutor with reference to the respective 
identical warrants under point I./ for the reasons stated there. 
4 The actual conduct of the searches of the premises was ordered by the supporting 
European Delegated Prosecutor in each case and subsequently conducted by the 
competent tax authority. 
5 According to the prosecutors’ warrants – which are identical in content apart from 
the place of investigation and the persons involved – there is a suspicion that the 
following offences have been committed: 
‘The European Public Prosecutor’s Office, through its European Delegated 
Prosecutor in Germany, is conducting criminal investigation proceedings into 
1.000080/2021 on suspicion of continued tax evasion on a large scale and 
membership of a criminal organisation aimed at tax evasion pursuant to 
Paragraph 370(1) no. 1, (2) no. 3 and 373(1) and (2) no. 3 of the German AO as 
well as Paragraph 129 of the German StGB. According to the suspicious 
circumstances known to date, an organised criminal organisation has set up a 
broad system for importing biodiesel from Bosnia and Herzegovina to the EU, 
which was allegedly produced from used cooking oil of the local company S. E. 
D.O.O. This ‘used cooking oil’ was allegedly previously imported from the US to 
Bosnia and Herzegovina. In reality, this biodiesel had already been produced in 
the US without any intermediate processing or production steps in Bosnia and 
Herzegovina. In many cases (see below), companies of the B. O. Group entered 
into contractual relationships with S. E. D.O.O. for the purchase and import of 
biodiesel ‘produced in Bosnia and Herzegovina’, and that group boasted on its 
website of its European-wide business activities, including the collection and 
trade of used cooking oil throughout Europe and the production and trade of 
biodiesel. In at least 40 cases, a total of approximately 1,000 tonnes of this fuel, 
allegedly produced in Bosnia and Herzegovina, was then transported by land via 
Croatia and Austria to Germany using the T1 transit procedure and presented for 
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customs declaration in Dresden in order to be handed over to the local company 
B. S. GmbH (managing director R. R. Μ.) on behalf of the Austrian company 
B. O. D. GmbH (managing directors S. L. and G. K.), which was the contractual 
partner of the exporter S. E. D.O.O. In 62 further cases, a total of approximately 
1,500 tonnes of the same biodiesel was transported by land via Croatia to Austria 
and presented for customs declaration in Spielfeld, Austria, in order to be 
delivered to the local company B. O. D. GmbH, established in Μ., Austria, under 
the direction of its managing director, S. L. The Incoterms selected for both 
deliveries and the underlying contracts were ‘DAR (Delivered at Place)’, which 
means that a delivery was to be made in Germany/Austria by S. E., while the 
import procedure, including customs declarations, was the responsibility of B. O. 
D. GmbH, which is why this company was the responsible taxable person under 
Article 77 of the Union Customs Code despite using the services of a specialised 
transport company (Article 77(3)). 
However, as the customs declaration in question incorrectly referred to a non-
preferential origin in Bosnia and Herzegovina and a TARIC code, which would 
have exempted the biofuel from anti-dumping duties and countervailing duties 
even if its true place of production (USA) had been accurately declared, the 
competent customs authority levied solely VAT on the import. This resulted in a 
loss of at least EUR 1,295,151.11 (EUR 445,151.11 in uncollected duties in 
Germany and EUR 850,000 in Austria). A 25% share of the company B. S. GmbH 
is owned by the Slovakian company B. O. D. s.r.o. & co KS (managing director 
S. L., an Austrian national), which is also the parent company of the Austrian 
company B. O. D. GmbH (management director also S. L. as well as the Austrian 
national, G. K.). B. O. D. s.r.o. & co KS was sometimes represented by G. K. even 
though his official role was only with B. O. D. GmbH. B. O. D. GmbH itself was 
both the contractual partner of the alleged manufacturing company S. E. D.O.O. 
in Bosnia and Herzegovina and responsible for the customs declaration in 
Dresden as well as the recipient of some of the goods that were declared in 
Dresden, although they had to be transported back to Austria afterwards in order 
to reach the consignee. Furthermore, there are indications that the same type of 
arrangement was also in place with other recipient companies in Germany and 
B. O. D. GmbH was the ultimate recipient of these deliveries declared in Austria. 
The managing director of B. S. GmbH (recipient in most cases where biodiesel 
was cleared for customs in Dresden/Germany), R. R. Μ., was the original founder 
and sole owner of the company in question, which was to produce biodiesel and 
was subsidised with EU funds. Ultimately, due to market developments, this had 
become commercially non-viable, which led Μ. to participate in a scheme that 
exploited differences between national tax laws to produce mineral diesel and sell 
it as ‘lubricant’ to Eastern European recipients, thus evading energy tax and VAT 
amounting to approximately EUR 73 million (indictment of the Public 
Prosecutor’s Office in Frankfurt/Main, file number 7550 Js 216177/15 of 31 July 
2018). 
G. K., B. O. D. AND S. L. 
 
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In 2018, as a result of these developments, a 25% share in B. S. GmbH was 
acquired by the Slovakian company B. O. D. s.r.o. (managing director S. L.). This 
company is the sole owner of B. O. D. GmbH (managing director also S. L.). 
The US citizens B. V. and N. K. are owners of the company S. E. D.O.O., which in 
turn is also owned by the US suppliers of the prefabricated biodiesel (B. E. S. and 
W. O. Trade LLC), which supplied S. E. D.O.O. under the guise of ‘used cooking 
oil’ that was subsequently re-exported to the EU as ‘biodiesel produced in Bosnia 
and Herzegovina’. S. E. D.O.O. itself is a subsidiary of B. E. S. 
All this leads to the accused Μ., who attempted to deal with the economic 
difficulties of his company by participating in an illegal scheme to commit large-
scale customs and tax fraud and by allying himself with the other accused in a 
criminal organisation dedicated to such activities to the detriment of the EU and 
its Member States, thereby bringing artificially ‘discounted’ fuel to the common 
market. 
In the meantime, a confirmation of the ‘authenticity’ of the certificate of origin 
from Bosnia was obtained by the Austrian customs authorities by way of 
administrative assistance. However, since this had been issued by S. E. D.O.O. 
itself, which was obviously involved in the offences, this procedural result is not 
suitable to refute the other evidence. 
On the basis of the facts described above, the accused natural and legal persons 
are suspected of having committed offences that fall within the jurisdiction of the 
European Public Prosecutor’s Office pursuant to Article 22(1) of the EPPO 
Regulation in conjunction with Article 3(2)(a) (c) of Directive 2017/1371 (‘the 
PIF Directive’). In Germany the offences are criminal pursuant to 
Paragraph 370(1) no. 1, (2) no. 3 and 373(1) and (2) no. 3 of the German AO, 
Paragraph 129 of the German StGB. In Austria [they are criminal] pursuant to 
Paragraphs 135(2), 39(1)(a) of the Finanzstrafgesetz (Austrian Financial 
Criminal Code), Paragraph 278 of the Austrian Criminal Code.’ 
The following explanations were provided regarding the necessity and legality of 
the measures ordered: 
‘The addresses affected by the warrant are either business addresses of the 
accused group and/or the accused natural persons. Based on the existing 
suspicion that a criminal offence has been committed, it must be assumed that the 
seizure of the items listed in point II. is necessary for reasons of collecting 
evidence (Paragraph 110(1) no. 1 of the Austrian StPO) because it allows for 
reliable conclusions to be drawn as to whether the invoices were in fact 
inaccurate or had been forged and whether they were used to mislead customs 
that the value of the goods was too low with a view to evading import duties. 
The search warrant is necessary to deal with the offences because, with regard to 
the suspicion that an offence has been committed by the accused G. K., S. L., B. O. 
D. GmbH, the investigation requires that the documents sought are seized in their 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-281/22 
 
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entirety, without delay and without jeopardising the investigation. The measures 
are not disproportionate to the importance of the matter in view of the penalty 
provided for in relation to the offences in question.’ 
Principal arguments of the parties in the main proceedings 
6 The appeals of B. O. D. GmbH, G. K. GmbH and G. K. K. GmbH of 1 December 
2021, each of which were filed in due time and are identical in content, are 
directed against the court approvals of the search warrants (searches of premises), 
in which – put briefly – the lack of suspicion of a criminal offence or a grossly 
inadequate justification of the same, an inadmissibly wide time limit for the 
seizure and an infringement of Article 8(1) ECHR (breach of the relationship of 
trust between lawyer and client) are contested and an objection is raised against 
the order and execution of the seizure on the grounds of a legal infringement. 
Finally, an ‘objection’ was raised against the forwarding of the seized documents 
to the German authorities until a legally binding decision is made on the 
complaints and the objections. 
7 The supporting European Delegated Prosecutor for Austria stated in his opinion of 
15 February 2022 that the complaints should not be upheld because – in 
summary – the substantive objections would fail, in particular since the EPPO 
Regulation had created a new type of legal framework for cross-border 
investigative measures, which differed from the previous case of mutual 
assistance between two authorities of different Member States, while in substance 
constituting a further development of the principle of mutual recognition in 
criminal matters, which is why, following the Directive on the European 
Investigation Order, factual reasons for the investigative measures could only be 
reviewed in the issuing State. Accordingly, the conditions of admissibility, which 
were to be determined in accordance with the law of the European Delegated 
Prosecutor handling the case (Article 28(1) and (2) EPPO Regulation), could only 
be examined by the courts of the State in question. The same applied in relation to 
a clarification of the exercise of the jurisdiction of the European Public 
Prosecutor’s Office. In the Member State of the supporting European Delegated 
Prosecutor, only the formal law applicable there had to be examined when 
carrying out the investigative measures, but not any aspects of substantive law. 
With regard to the case in question, the European Delegated Prosecutor pointed 
out that the suspicion that an offence had been committed had already been 
examined in the Federal Republic of Germany by the competent investigating 
judge at the Amtsgericht Munich (Local Court, Munich, Germany). The appeal 
should therefore be dismissed. 
8 The appellants countered this and essentially argued that, in their view, no 
criminal offence had been committed in Austria and/or that there was no sufficient 
reasonable suspicion against the named accused, which is why the Austrian 
customs authority had rightly pointed out a ‘problem in terms of criminal evidence 
G. K., B. O. D. AND S. L. 
 
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and traceability’. In any event, based on this, there was a lack of proportionality 
and necessity of the ordered searches (statement of 14 March 2022). 
9 The Oberlandesgericht Wien (Vienna Higher Regional Court, Austria) has to 
decide on the appeals against the search warrants of premises approved by the 
aforementioned courts of first instance. 
Brief summary of the basis for the reference 
10 Based on Articles 31(3) and 32 of the EPPO Regulation in conjunction with the 
considerations stated in this regard, the view might be taken that in the case of a 
measure to be approved by a court in the Member State of the supporting 
European Delegated Prosecutor, the measure to be carried out must be examined 
on the bases of all formal and substantive provisions of this Member State. This 
would, however, mean that the court applied to by the supporting European 
Delegated Prosecutor would have to be provided with all the necessary documents 
or files from the Member State of the European Delegated Prosecutor handling the 
case by way of basis for assessment, which, particularly if several Member States 
are affected, would entail – apart from the necessary translation work – the 
examination of one and the same criminal investigation proceedings for the 
purpose of approving a measure in different Member States with different legal 
systems. This is the case, above all, if no court approval is required for the 
measure in the Member State of the European Delegated Prosecutor handling the 
case. 
11 Although this would take into account the fact that the European Public 
Prosecutor’s Office is one single Office (cf. Article 8(1) EPPO Regulation) and 
that, accordingly, legal instruments of mutual recognition should only be used in 
exceptional cases (Article 31(6) EPPO Regulation), in practice however this 
would constitute a massive step backwards. For, in contrast to a European 
Investigation Order (EIO), for example, which must be examined in the requested 
State according to only a few formal aspects, a complete examination of the 
previous criminal investigation proceedings would have to be carried out in each 
Member State concerned (depending on national law) for the purpose of 
approving the requested measure (this according to the national law of the State of 
the European Delegated Prosecutor handling the case; Article 31(2) EPPO 
Regulation). During the implementation of the measure, the law of the Member 
State of the European Delegated Prosecutor handling the case must also be 
observed to the greatest possible extent (Article 32 EPPO Regulation). This in 
turn requires that – as already described – not only a certificate in the sense of an 
EIO, but the entire file necessary for the respective assessment would have to be 
forwarded because otherwise the courts concerned would not have the necessary 
basis for a decision to carry out a formal and substantive examination of the facts. 
12 When interpreting the present EPPO Regulation in the light of a quick, efficient 
and economic prosecution, the conclusion is therefore obvious that a judicial 
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approval of the measure in the country of the European Delegated Prosecutor 
handling the case should be limited to formal aspects only. This should be the 
case, at the very least, if a judicial review has already taken place in the Member 
State of the European Delegated Prosecutor handling the case. 
13 However, such an interpretation is opposed by the merely subsidiary use of the 
instruments on mutual recognition of such decisions, which is expressly enshrined 
in the law (Article 31(6) EPPO Regulation). 
14 Therefore, the European Court of Justice is requested to clarify the legal situation 
in this regard.