The European Public Prosecutor's Office is an organization with its own legal personality that extends its powers throughout the European Union to protect, in the criminal field, the financial interests of the Union, and which has been created by Regulation (EU) 2017/1939 of the Council, dated October 12, 2017.

The creation and implementation of the European Public Prosecutor's Office entails significant changes in the procedural rules applicable in the prosecution of crimes that affect the financial interests of the European Union, among which are those related to import duties and other concepts that make up customs debt.

Indeed, Organic Law 9/2021, of July 1, implementing Council Regulation (EU) 2017/1939, of October 12, 2017, establishing enhanced cooperation for the creation of the European Public Prosecutor's Office , has proceeded to articulate in Spain the provisions of the aforementioned Regulation (EU) 2017/1939.

This Organic Law 9/2021 contains the rules of application to the Spanish legal system of Regulation (EU) 2017/1939, completing its provisions and regulating a special procedure for the investigation by the delegated European Prosecutors of those crimes whose knowledge corresponds to them by virtue of the European standard. It is a law of a procedural nature whose essential objective is to regulate the different aspects of the procedure in cases in which the competence for the investigation and, where appropriate, for the exercise of criminal action, corresponds to the European Public Prosecutor's Office, in those issues in which there is no express regulation in Regulation (EU) 2017/1939 but always in a subordinate manner to the primacy of the latter. At the same time, in everything not expressly regulated, the Criminal Procedure Law will be applied additionally.

The competence of the European Public Prosecutor's Office includes, from an objective point of view, a series of criminal types determined in the regulations that create and regulate it. Among these types, those corresponding to crimes related to customs debt fraud stand out, including import duties, additional duties, antidumping or compensatory duties and, in general, any tax established by the EU framed in the common customs tariff.

As a general rule, in Spain these crimes fall within the type provided for in article 305.3 of the Penal Code, or, where appropriate, in 305.Bis of the same legal body.

Therefore, in cases where conduct is detected that could constitute said criminal offences, Regulation (EU) 2017/1939 (article 24) obliges any competent authority to report the same to the European Public Prosecutor's Office, including at least a description of the facts, the evaluation of possible damage, possible legal classification and other available information. Organic Law 9/2021 is pronounced in the same sense in its article 18.

In practice, this implies that the complaints, reports or statements that have been submitted to the Public Prosecutor's Office or, where appropriate, to the competent Court, must be submitted directly to the European Public Prosecutor's Office. Once the complaint, report or statement has been submitted, an evaluation phase is foreseen by the European Public Prosecutor's Office in order to decide whether to exercise its powers. If so, it will issue a decree initiating the investigation, of which it must inform the acting body. If not, you must also inform the acting body of your decision, although the file will be sent to the State Attorney General's Office.

As the Preamble of the aforementioned Organic Law points out, a new regulatory framework is necessary in the Spanish procedural field that provides for the figures included in Regulation (EU) 2017/1939, thus bridging the existing differences with the European legal acquis and providing to the Spanish legal system of the necessary coherence with it, as they are not contemplated in the current Criminal Procedure Law.

There is a move from an investigation model led by the judge to an investigation model led by the prosecutor, in the image and similarity of the existing model in a large part of the EU Member States. Judicial intervention is limited to those issues reserved for the judicial authority, defined in article 8 of the Organic Law, such as, among others, the authorization of investigative measures restrictive of fundamental rights (for example, an intervention in communications or a personal precautionary measure such as preventive detention). Judicial intervention is materialized through the figure of the Guarantee Judge, who in Spain is located in the National Court in general, or in the corresponding Supreme Court or Superior Court of Justice in case of capacity. This new regulation represents a radical change with respect to the traditional model of criminal investigation in Spain.