The European Investigation Order (EIO), established under Directive 2014/41/EU, is a crucial mechanism for combating cross-border crime in the EU. It allows authorities in one member state to request evidence or investigative assistance from another, such as accessing bank records or taking witness statements.
Recently, concerns over its application and potential impact on fundamental rights prompted the Regional Court of Berlin to seek clarification from the Court of Justice of the European Union (CJEU). This ruling highlighted the need to balance effective investigations with safeguards for privacy and fair trial rights.
The EIO streamlines evidence-gathering across borders, replacing fragmented systems with a standardised process. Despite its utility, questions persist about who can issue an EIO, the conditions for its issuance, and the handling of sensitive data, such as intercepted communications. The CJEU’s interpretation emphasises the importance of ensuring these operations respect individual rights while maintaining trust among member states.
Key Clarifications from the CJEU
The CJEU addressed several important issues regarding the EIO:
Who can issue an EIO?
One issue raised was over who has the authority to issue an EIO. According to Articles 1(1) and 2(c) of Directive 2014/41, an EIO can be issued by a judicial authority, such as a judge, court, or investigating judge. A public prosecutor may also issue an EIO if their national law permits them to gather evidence in domestic cases without requiring validation by a judge. The CJEU confirmed that prosecutors are valid issuing authorities in such cases, provided they meet independence criteria to ensure decisions are free from external influence.
When can an EIO be issued?
The court examined the conditions for issuing an EIO, as outlined in Article 6 of Directive 2014/41.
First, the CJEU addressed the requirement that an EIO must be both necessary and proportionate to the investigation’s objectives. Authorities must ensure that the request is genuinely needed and take into account the rights of the suspect or accused. The court clarified that it is not always necessary to have evidence of a specific serious crime at the time an EIO is issued unless the issuing country’s laws mandate it.
Second, the CJEU considered what happens when the evidence sought is already in the possession of authorities in the country receiving the request. In such cases, the evidence can only be shared if the receiving country’s laws would allow similar access in a domestic case. This ensures that the EIO respects the legal safeguards of the receiving country.
Intercepting telecommunications and data
The CJEU also examined the rules for intercepting telecommunications and gathering sensitive data, such as internet activity or phone records.
It ruled that such actions fall under the directive’s provisions concerning “interception of telecommunications,” which require specific safeguards.
For example, the authorities in the member state where the person under investigation is located must be notified of the interception. If it is unclear which authority to notify, the issuing state must still inform an appropriate body within the receiving country. These measures aim to ensure transparency and protect individuals’ privacy rights.
Excluding evidence obtained unlawfully
Finally, the CJEU clarified what happens if an EIO is improperly issued. According to Article 14(7) of the directive, evidence obtained through an unlawful EIO must be excluded from court proceedings, particularly if it could unfairly affect the trial’s outcome. This safeguard reinforces the right to a fair trial and ensures that evidence collected improperly cannot be used against a defendant.
Balancing justice and rights
The CJEU’s decision strikes a balance between the need for effective cross-border crime-fighting tools and the protection of fundamental rights. By clarifying the rules governing the European Investigation Order, the court has provided crucial guidance for ensuring that this instrument is used fairly and lawfully. As cross-border crime continues to pose challenges for the EU, the EIO remains a cornerstone of judicial cooperation — but one that must be applied with vigilance to uphold the principles of justice and fairness.
Dr Arthur Azzopardi is managing partner of ABA Advocates and Michaela Sciberras is a paralegal at the same law firm.