Brussels asks the EU Court to resolve the conflict between the European and Spanish Public Prosecutors

The president of the Community of Madrid, Isabel Díaz Ayuso (on the left), visits the Amazon logistics center in Alcalá de Henares (Madrid) this Friday. Chema Moya (EFE)

The serious conflict of powers between the European and Spanish Public Prosecutors over the case of Isabel Díaz Ayuso's brother has risen this Friday in tone with the irruption of the European Commission.

The community body has defended that the Court of Justice of the EU, based in Luxembourg, be in charge of settling the dispute, a position that clearly coincides with that defended by the European chief prosecutor, Laura Kövesi.

The case could even lead to a file against Spain because national regulations do not make it easy to appeal to Luxembourg a decision of the State Attorney General such as the one adopted by Dolores Delgado in the investigation into Tomás Díaz Ayuso, brother of the president of the Community of Madrid , Isabel Diaz Ayuso.

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The harsh writing of Anticorruption: "The competence of the European Public Prosecutor's Office cannot be glimpsed"

Delgado, with the unanimous support of the Chamber Prosecutors Board, decided that the Spanish Anti-Corruption Prosecutor's Office investigate the existence of a possible crime in the contract for the purchase of masks in which Tomás Díaz Ayuso participated, and that the European Prosecutor's Office investigate the possible embezzlement and damage to the European budget, given that the operation was paid from Community funds.

The European Prosecutor's Office reacted with an angry statement to that decision, accusing the State Attorney General of not being impartial because she is the hierarchical superior of Anticorruption and of not having listened to both parties to the conflict.

The European body also regretted that Delgado's decision is unappealable and that Spanish regulations do not provide for the possibility of resolving the conflict before the European court through a preliminary ruling.

Kövesi has transferred his complaints in writing to the European Commissioner for Justice, Didier Reynders, who, without ruling on the merits of the case, is also inclined not to consider Delgado's decision final.

"In case of doubt, it should finally be the European Court of Justice that is in charge of deciding," said the spokesman for the Department of Justice of the European Commission.

The same source added that "there must be a mechanism that allows preliminary questions [to resolve the conflict] to reach the European Court."

Fiscal and legal sources consulted admit that the regulations are ambiguous on this point.

Article 25 of the EU Regulation on the European Public Prosecutor's Office leaves in the hands of “the national authorities” the decision of who will be competent for the investigation “in case of discrepancy between the European Public Prosecutor's Office and the national authorities exercising the criminal action [. ..]”.

Dolores Delgado relies on this precept to defend that she is the one who decides who investigates the contract linked to Ayuso's brother.

But that same European regulation establishes (article 42) that the CJEU is competent to "provide a preliminary ruling" on how to interpret the articles that regulate the competence of the European Public Prosecutor's Office, including article 25. That is,

The question is who should be the one to take the case to the CJEU.

The European prosecutors have sued Delgado, but in his department they argue that the attorney general has already decided in accordance with the authority granted to him by article 25 of the regulation and that he has done so after consulting the court prosecutors, who endorsed his unanimous thesis.

Sources from the Public Ministry add that in the Spanish legal system, preliminary rulings are only provided for within judicial procedures, but not in the preliminary investigation proceedings such as those opened by the Prosecutor's Office on the masks purchased by the Community of Madrid.

Ruled out, for now, the query to the European court by the attorney general, the case could, however, end up in the CJEU by another means: through the judge of the National High Court Alejandro Abascal appointed to act as judge of guarantees of the case linked to the brother of the Madrid president.

The European Prosecutor's Office, unlike the Spanish one, directs the investigation of the cases it investigates, but acts under the supervision of a judge who must control the actions that may affect fundamental rights and the appeals against the decisions of the Public Ministry that promotes the other parts of the procedure.

According to detailed legal sources, the European Prosecutor's Office has not requested Abascal, for the moment, to take the case to the European justice system and the judge does not plan to do so ex officio either because he considers that the body that had to resolve the competition is the State Attorney General's Office and it has already done so, reports

.

In the event of receiving the request from the EU prosecutors, Abascal will study whether to accept the request.

Until now, the judge has limited himself to issuing the decree to open the case after receiving the communication from the European Public Prosecutor's Office that he had initiated the procedure.

According to article 8 of the 2021 Law that contemplates the creation of the European Public Prosecutor's Office, the judge of guarantees is not in charge of promoting the investigation, but of supervising it and, for example, authorizing the investigations that are proposed when they may affect fundamental rights. .

Community sources acknowledge that the struggle that is being experienced as a result of the investigation into Ayuso's brother is unprecedented because the European Prosecutor's Office has only been operational for nine months and there had been no clash of powers of this type until now.

Article 27 of the European regulation that governs the activity of the European Public Prosecutor obliges the national authorities not to take any decision on a case in which the community public prosecutor has shown interest.

Brussels recognizes that jurisdictional frictions are inevitable, especially in these early stages of the European Public Prosecutor's Office, in which there is no previous jurisprudence.

For this reason, sources from the commission consider that it would be very convenient for the community judges to resolve this first conflict of jurisdiction.

From the Department of Justice of the Commission it is also pointed out that "the situation in all the Member States is being monitored to verify that the regulation of the European Public Prosecutor's Office is applied correctly and that all the States comply with the obligations set forth in that norm".

The same sources consider that "it is too early to know if in the case of Spain it is being fulfilled correctly or if a file should be initiated" and they assure that this phase has not yet been reached.

But the belligerence of Kövesi, who came to office despite resistance from several capitals thanks to her credentials as a prosecutor of fraud and corruption in Romania, seems destined to give the mask case a supranational scope in which, probably, The PP leaders who uncovered the case had not thought.

More Madrid expands its complaint in the European Public Prosecutor's Office

More Madrid has directly addressed the European Public Prosecutor's Office to present an extension of the complaint about the mask contract linked to the brother of President Isabel Díaz Ayuso.

The parliamentary group headed by Mónica García had already denounced the case in Anticorruption and her complaint (along with that of the PSOE and United We Can) gave rise to the investigation opened by the team led by Alejandro Luzón. 

The extension of the complaint focuses on the alleged extra cost of the masks sold to the Community of Madrid by Priviet Sportive, the company with which Ayuso's brother collaborated for this operation, as the president has admitted.

Mas Madrid's letter includes several examples of masks purchased by the Community on the same dates (March 2020) and whose price is much lower (up to 45.86% lower) than the 5 euros per unit that were paid to Priviet Sportive . 

More Madrid has now chosen to go to the European prosecutors, as stated in the complaint, after learning that they have exercised their right of revocation on the proceedings opened in Anticorruption.

However, it is not clear whether the EU body will exclusively investigate the case because the State Attorney General has decreed that the proceedings be divided into two so that the European investigators can focus on the alleged crimes linked to the misuse of European funds. (the masks were paid for with Feder funds) and Luzón in the alleged irregularities in the award of the contract.