Legal and Practical Challenges in the Application of the European Investigation Order
Summary of the Eurojust Meeting of 19–20 September 2018
After implementation of Directive 2014/41 by the EU Member States (bound by the Directive) in 2017 and the first half of 2018, the European Investigation Order (EIO) has become the core instrument for obtaining evidence located in another EU Member State. The EIO simplifies and accelerates cross-border investigations, but practical and legal challenges remain. Such challenges as well as first experiences and best practices in the application of the EIO were discussed among practitioners at a meeting organised by Eurojust in September 2018. This article summarises the main results of the meeting.
Participants acknowledged the need to interpret national law in light of EU law, in line with the principles of mutual recognition and mutual trust, but also underlined the challenge of constantly searching for legally sound and practically feasible solutions between different national legal systems. They agreed on the importance of an overall pragmatic and flexible approach. Views diverged on several topics (e.g. the speciality rule, costs in the context of the proportionality test), but coincided on many others. Recommendations relate inter alia to the scope of the EIO, the use of the forms, the language regime and time limits. Participants envisaged that the support of Eurojust in relation to EIOs will probably be higher, when compared to the MLA regime, as more consultations are foreseen in the EIO Directive. Whilst participants acknowledged that “direct contact” amongst judicial authorities is the core principle of the Directive, they strongly believed that, in bilateral cases, Eurojust’s bridge-making role can facilitate communication between the judicial authorities involved if one of the consultation procedures is triggered and that, moreover, in complex multilateral cases Eurojust has a unique and important coordinating role.
On 19–20 September 2018, Eurojust organised a meeting on the Directive regarding the European Investigation Order in criminal matters (hereinafter EIO DIR).1 Practitioners from the EU Member States as well as representatives from EU institutions and academia met at Eurojust in plenary sessions and workshops. The meeting provided a forum for practitioners to identify several practical and legal challenges in the application of the EIO, to exchange experience and best practice and to discuss how Eurojust and the European Judicial Network (EJN) can further support the national authorities. This article recapitulates the outcome report2 and addresses the following main issues that were brought forward during the meeting:
Scope of the EIO;
Content, form and language of the EIO;
Issuance and transmission of an EIO;
Recognition and execution of an EIO;
Specific investigative measures;
Possible support provided by EU actors.
II. Scope of the EIO Directive and its Relation to Other Legal Instruments
The fact of having one stand-alone legal instrument covering all types of investigative measures (with the exception of Joint Investigation Teams , or JITs) in the field of evidence-gathering within the EU was welcomed and considered as a major step forward. That being said, several questions were raised as to whether a specific measure falls within the scope of the EIO DIR or not and whether the use of another legal instrument should take precedence.
According to Art. 34(1) EIO DIR, the EIO replaces only the corresponding provisions of the conventional MLA instruments. The term “corresponding provisions” remains a point of concern. In the absence of a common EU list,3 it has become clear that in relation to some measures and provisions different interpretations exist in the Member States, which sometimes leads to frictions. Participants mentioned cases where judicial authorities were reluctant to execute a measure requested/ordered under the wrong legal instrument, but in general terms it can be said that judicial authorities have been pragmatic and have executed an EIO as if it were an MLA request or have executed an MLA request as if it were an EIO. Participants expressed the need for further guidance on the meaning of the term “corresponding provisions” and reflected together on which guiding criteria could be helpful in assessing whether an EIO needs to be issued (or not) in relation to an on-going investigation in the issuing Member State.4 Participants agreed that the following criteria could be helpful in assessing whether the EIO DIR should apply:
the order concerns an investigative measure aimed at gathering or using evidence,
the measure was issued or validated by a judicial authority, and
the measure relates to Member States bound by the EIO DIR.
If one of these requirements does not apply, the EIO DIR would not be the right instrument to use and another legal instrument would need to be applied. For instance, if a measure has no “evidence” related implications, but a mere procedural objective (e.g. service and sending of procedural documents), an MLA request, and not an EIO, should be sent.
In some cases, EIOs have been issued for several types of measures with different aims, for instance, an EIO for a house search and for the delivery of a document. Most participants agreed that, in cases where the delivery of a document is instrumental to the investigative measure that is the object of the EIO, its inclusion in the EIO would be in line with the EIO DIR. If, however, the delivery of the document is not instrumental, different views exist to the effect that in some Member States judicial authorities will execute the EIO while in other Member States judicial authorities will insist on receiving an additional MLA request.
Another problem is posed In relation to freezing measures, where the EIO DIR replaces Framework Decision 2003/577/JHA only as regards evidence-gathering, but not as regards subsequent confiscation (Art. 34(2) EIO DIR). While participants agreed that it is for the issuing authority to make this assessment and to clarify the purpose of the freezing measure, there have been cases where executing authorities questioned the assessment made by the issuing authority and refused to execute the measure under the EIO DIR and demanded a freezing certificate instead of the EIO.
On the subject of the gathering of evidence in real time (Art. 28 EIO DIR), most participants believed that the wording of this provision is sufficiently broad as to leave room for measures such as video/audio surveillance, tracking or tracing with the use of technical devices (GPS) and accessing a computer system. However, no consensus was reached regarding the possibility of applying Arts. 30 and 31 EIO DIR, i.e. the provisions on the interception of telecommunications, in cases of tracking devices (“bugging of a car”).
The wording of recital 25 of the EIO DIR which sets out that the EIO can be applied “at all stages of criminal proceedings” and which delineates the EIO from the European Arrest Warrant (EAW) in case of temporary transfer of persons, also triggered discussion. First, participants discussed whether an EIO can be used beyond the trial phase. In general, participants believed that such use would be limited to Member States where the notion of criminal proceedings includes the execution phase and provided that Framework Decision 2008/947/JHA5 would not apply in the concrete case. Secondly, participants discussed the possibility of using an EIO instead of an EAW for the transfer of persons in cases where the thresholds of Framework Decision 2002/584/JHA6 are not met. Their views on this matter were divided, but most participants considered that the EIO DIR offers the appropriate legal basis for the transfer of persons whenever the person concerned must give evidence during an investigation or before a court, irrespective of whether the thresholds of the Framework Decision on the EAW are met. If the EIO DIR is applied, some participants emphasised, however, that, since this measure concerns a deprivation of liberty, a judge in the issuing Member State should be involved, at least in the practical arrangements under Art. 22(5) EIO DIR.
III. Competent Authorities
The enhanced role for judicial authorities in the issuing phase of the EIO, and particularly the requirement that, when an EIO has not been issued by an (investigative) judge, a court or a public prosecutor, it needs to be validated by one of these authorities before its transmission (Art. 2(c)(ii) EIO DIR), was perceived to be a positive evolution of the system, serving to enhance mutual trust as the driving force of the principle of mutual recognition. Furthermore, participants from Member States where this need for a validation by a judicial authority has been introduced as a novelty in their national legal system explained that it has improved cooperation between law enforcement and judicial authorities and entailed the latter’s earlier involvement in the investigations.
The issue whether the executing authority can carry out preliminary checks on the judicial nature of the issuing/validating authority was considered, by most participants, to be in line with Art. 9(3) EIO DIR.
As regards competent authorities in the executing phase, participants also concluded that a specialised receiving authority that acts as a single point of contact can be beneficial for various reasons. First, it can internally improve efficiency by avoiding duplication or overlaps of incoming EIOs. Second, it can ensure a unified response vis-à-vis the issuing authority, particularly in cases where several local prosecutors or investigating courts are involved in the execution of the EIOs.
IV. Content, Form and Language of the EIO
A majority of participants welcomed the form to be used for EIOs (Annex A of the EIO DIR) and saw it as a step forward in terms of simplifying formalities, improving quality and reducing costs of translation. Some concrete suggestions for best practices for the filling in of the form were made, inter alia:
Including the name of the suspect(s) even though the measure does not apply to him/her to avoid potential ne bis in idem situations;
Highlighting the requested measures;
Listing the questions to be addressed to a witness/victim/suspect.
As to the use of section D of the form in Annex A of the EIO DIR, participants acknowledged the narrow wording of the segment “relation to an earlier EIO”, but favoured a broader interpretation whereby this box would also be used to provide relevant information on related past or future judicial cooperation requests such as upcoming EIOs or other mutual recognition orders, mutual legal assistance requests, or JITs, including existing JITs with other States in the framework of multilateral coordination settings.
The advantages and/or disadvantages of sending one EIO or multiple EIOs were also addressed, particularly in complex cases where different measures are required concerning different natural and legal persons with a different procedural status. In such cases, the internal coherence and consistency between the different sections of the form in Annex A, in particular between sections C, D, E, G, H and I, is a shared concern. For this reason, some practitioners prefer to issue several EIOs instead of one stand-alone EIO. Participants also argued that, for reasons of confidentiality, it may also be advisable, in some cases, to issue separate EIOs rather than just one, depending on the legal regimes in the Member States concerned and/or the stage of proceedings in the Member States involved. It was suggested that Eurojust assistance may be useful to decide on the best approach in the case at hand and to ensure continuity in the executing phase.
When asked whether minor changes to the content of an EIO would require the issuing of a new EIO, different views were expressed. Some authorities require a new EIO while others take a more flexible approach. Participants believed that this would primarily depend on the type of correction needed. For instance, if the correction relates to a new address, this would probably require a new EIO. However, it was also noted by some participants that, in urgent cases, the formal part of issuing a new EIO could be done at a later stage, after the execution of the measure.
In some cases, either the issuing authority submits, or the executing authority requests, additional documents, e.g. the national judicial decision underlying the EIO. Some participants wondered whether any parallels could be drawn with the Bob Dogi judgment,7 particularly if coercive measures are at stake. Most participants considered that neither the EIO DIR nor their national legislation requests the domestic order to be attached to the EIO. Some emphasised that a reference to the domestic order in the EIO with full details of that order should be sufficient. Other participants added that, unlike Art. 8(1)(c) EAW FD, Art. 5(1) EIO DIR does not impose any legal requirement for the domestic judicial decision to be mentioned or attached to the EIO. A minority of participants noted that, under their national law, the attachment of a domestic order is required. In that case, pragmatic solutions are identified, e.g. the EIO is kept simple and the domestic order (more lengthy) is attached with or without translation. Participants from Member States where the attachment of the domestic order is not required also acknowledged that, depending on the case, the attachment of the national court order may be useful, for informative purposes, for instance in cases where a coercive measure is requested and the executing Member State is also required to issue a court order.
In relation to the language regime (Art. 5(2) EIO DIR), it was held that, in general, it does not create many problems. In case of urgent requests, the practice among Member States varies: some require a translation into their official language while others allow a second language to be used for the EIO. Participants also underlined the importance of accepting one common, widespread language.
V. Issuance and Transmission of an EIO
In relation to the issuing of an EIO, participants discussed the proportionality check by the issuing authority as foreseen in Art. 6(1) EIO DIR. Discussions also addressed the consultation mechanism that can be triggered by the executing authority when the latter has reasons to believe that the proportionality requirement has not been met (Art. 6(3) EIO DIR). Participants assessed this consultation mechanism positively and argued that it can be used to provide relevant information and to avoid the risk that the execution is refused. Participants also believed that Eurojust is in a privileged position to contribute by serving as a bridge-maker between both, the issuing and executing authorities.
The relevance of costs and whether cost-related issues should be taken into consideration for the proportionality check were matters of debate. Whilst there was a consensual approach that cases involving costs “deemed exceptionally high” can be resolved through the consultation mechanism included in Art. 21(2) EIO DIR, participants held different views in relation to cases involving costs that are in se not exceptionally high, but that relate to minor offences and, if repeated, could entail high costs. Some participants explained that, in their Member States, executing authorities are receiving a huge amount of EIOs related to small offences and are struggling to cope with all these requests. Some participants underlined that a de minimis criterion cannot be used as a de facto ground for non-recognition. The grounds for non-recognition are exhaustively mentioned in the EIO DIR and constitute exceptions to the principle of mutual recognition, which should be interpreted restrictively. Other participants added that Member States which apply the mandatory prosecution principle, as opposed to the discretionary prosecution principle, would not be entitled to take cost-related criteria into consideration.
In relation to the transmission of an EIO (Art. 7 EIO DIR), participants indicated that the sending of the EIO directly to the executing authority or to the dedicated, specialised receiving authority, is the rule, but they also added that, depending on the nature, complexity and urgency of the case, different channels are being used, including Eurojust, EJN Contact Points or Liaison Magistrates.
VI. Recognition and Execution of an EIO
1. Grounds for non-recognition
Since the EIO is a relatively new instrument, experience in the application of the grounds for non-recognition (Art. 11 and Chapters IV and V of the EIO DIR) is still somehow limited. Participants mentioned other issues that can also complicate the execution of EIOs, even if they are not grounds for refusal, in particular: (i) lack of information; (ii) bad translations and (iii) different status of a person to be heard (witness in the issuing Member State and suspect in the executing Member State). It was underlined that in none of these cases a refusal is acceptable, but communication between the involved authorities should be established as soon as possible to find the appropriate solution. In relation to the three aforementioned scenarios, it was argued that Eurojust could provide useful support when direct contact between judicial authorities is hampered.
2. Recourse to another investigative measure
Participants mentioned several cases where the executing authorities had recourse to a different type of investigative measure (Art. 10 (1) EIO DIR). For instance, in some cases, executing authorities had recourse to production orders instead of house searches. In another case where the issuing authority had ordered a witness hearing with a view to obtaining banking information in the EIO, the executing authority had recourse to a house search instead of a witness hearing because house searches were the standard procedure in the executing Member State for these types of cases. When discussing these cases, participants concluded that the frequent use of Art. 10 (1) EIO DIR highlights the challenges created by the different legal systems in the Member States, particularly the different legal prerequisites for investigative measures. Whilst in many cases the differences are relatively easily overcome and solutions are found as a result of the consultation procedure and the direct contact between the competent authorities involved, there have also been other cases where the consultation procedure and the direct contact threatened to come to a standstill. Participants suggested that in particularly complex, sensitive and/or urgent cases, Eurojust can play a vital role.
3. Time limits
Participants welcomed that the EIO DIR provides for a form that acknowledges the receipt of an EIO (Annex B of the EIO DIR), but deplored that in practice the form is often not used. They underlined the importance of using this form and held that, if the time limits of Art. 12 EIO DIR cannot be met, the executing authority should explain the reasons for the delay to the issuing authority and the latter should be immediately informed of a feasible time frame. Participants agreed that, under no circumstances should the delay be a cause or reason for non-execution.
4. Urgent requests
Participants noted that most Member States tend to adopt a pragmatic and flexible approach in relation to urgent cases. From their experience, the execution of urgent EIOs can start on the basis of mutual trust and formal requirements are fulfilled later on. For instance, practitioners mentioned cases where the execution of EIOs started even though the translation was not yet available at the time of the execution, but was provided later on. Participants underlined, in this regard, the importance of accepting the use of one common/widespread language in order to facilitate the execution of urgent requests. In relation to urgent cases, participants also agreed that a timely involvement and intervention of Eurojust can be crucial.
5. Speciality rule
Participants were divided in relation to the application of the speciality rule in the context of the EIO DIR, i.e. to what extent evidence gathered by means of this instrument can be used by the issuing State in other investigations or shared with other Member States or third countries. Some participants affirmed the application by relying on Art. 19(3) EIO DIR (on confidentiality), but a large majority of participants believed that this provision is not at all related to the speciality rule and underlined that there is no explicit provision in the EIO DIR which addresses this issue. Some participants held that the EIO DIR has not changed anything in relation to the speciality rule and argued that this rule still applies under the new regime. Others believed that, under the EIO regime, the issuing authority becomes the owner of the evidence and is entitled, subject to national and EU data protection rules, to transfer it further, unless the executing authority has prohibited such transfer explicitly. As a result of these different views, participants follow different approaches when issuing or executing EIOs. From the executing Member State’s perspective, some participants indicated that they explicitly mention, when executing an EIO, that the evidence can only be used for the purpose of that specific investigation, often fearing that it might be used in another case without this explicit wording. Others stated that they would not specify anything, but would assume that the evidence will not be used for another purpose. From the issuing Member State’s perspective, some participants indicated that, before using the evidence in a different case, they would always ask permission from the executing Member State. Others considered that a request for permission to use the evidence for another purpose is not required since it is a matter for the issuing authority to decide upon, subject to the applicable legal framework on data protection.
VII. Specific Investigative Measures
1. Hearing by videoconference
The EIO DIR sets out rules on specific investigative measures. Art. 24 EIO DIR provides for the possibility to hear witnesses or experts or even suspects/accused persons by videoconference or other audio-visual transmission. Art. 24(2) EIO DIR sets out additional grounds for non-recognition beyond those of Art. 11 EIO DIR. Participants first discussed to what extent the absence of the suspected or accused person’s consent constitutes a mandatory or optional ground for non-recognition. The implementation in the national laws of the EU Member States is diverse. Some only allow the hearing of a suspected or accused person by videoconference if the person consents (“shall” refuse, mandatory ground for non-recognition) whilst others are less rigid (“may” refuse, optional ground for non-recognition). Some participants suggested that in cases where grounds for non-recognition are being raised, the legal systems of both the issuing and executing Member States should be given close consideration and the assistance of Eurojust could be helpful.
Participants also discussed whether a hearing by videoconference could be allowed to guarantee the participation of a defendant in his criminal trial. It is not common practice and in most Member States’ national legislation on such hearing by videoconference is not foreseen. Some participants firmly stated that the execution of an EIO directed to a videoconference replacing the defendant’s presence at trial would therefore not be allowed under their national law. Other participants stated that their national law does not regulate it, but noted that – since it is not explicitly prohibited and it is considered not contrary to the fundamental principles of the executing Member State’s law – EIOs have been executed, provided that the defendant’s rights were guaranteed.
2. Interception of telecommunications without technical assistance
Regarding the specific provisions of the Directive on the interception of telecommunications, a point of discussion was particularly the interception of telecommunications with no technical assistance needed from the Member State where the subject of the interception is located (Art. 31 EIO DIR), which obliges the intercepting Member State to notify the Member State on whose territory the subject of the interception is or will be (“the notified Member State”). Participants heavily debated to what extent a notified authority can check whether “the interception would not be authorised in a similar domestic case” (Art. 31(3) EIO DIR). While most participants agreed that this should be a merely formal, procedural check, several participants indicated that in some Member States it is a substantive examination whereby additional information is requested to make the assessment. This often leads to decisions imposing a termination of the interception (if it is still ongoing) and/or a prohibition to use the intercepted material. Most participants rejected a detailed, substantive approach and argued that it is not in line with the ratio legis of Art. 31 EIO DIR. The purpose of the notification is not an order for recognizing an investigative measure (Annex A), but a mere reflection of respect for the sovereignty of the other country. It would be a paradox if in the context of the relevant Annex C form the same or more information would be requested than in the frame of an Annex A form. Participants believed that the provision should be interpreted in the light of the values of the area of freedom, security and justice, based on mutual trust and respect for different legal systems. Against this background, most participants believed that Article 31(3) EIO DIR should not be interpreted in an extensive way. Participants also discussed the consequences of a lack of notification and/or a lack of approval. They expressed concerns with regard to the admissibility of the evidence. Some participants stated that the evidence obtained would not be considered admissible. Other participants noted that in cases where the lack of notification was due to the authorities not knowing where the person was, it had not led to the inadmissibility of the evidence.
VIII. Support Provided by EU Actors
Eurojust explained how it can support practitioners in the four crucial phases of the life cycle of an EIO: the (pre)issuing phase, the transmission phase, the recognition phase and the execution phase, both in bilateral and multilateral cases. In bilateral cases, Eurojust can provide support, for instance, in:
Identifying the competent authority;
Completing (draft) EIOs;
Clarifying legal and practical issues in relation to other legal instruments;
Obtaining/providing necessary additional information in the context of one of the consultation procedures that the EIO DIR foresees (e.g. in relation to the proportionality check, the recourse to a different type of investigative measure or the application of a ground for non-recognition);
Finding balanced solutions where different national systems clash.
In multilateral cases, Eurojust has a unique coordinating role, particularly in complex cases where action days are planned simultaneously in different Member States and where Eurojust can provide support in the context of a coordination meeting and/or a coordination centre.
The Secretary to the EJN informed the practitioners about the assistance the EJN Contact Points can provide in EIO cases and on the useful tools and information for the practical application of the EIO DIR available on the EJN website.8 The website provides direct access to the Compendium, a tool that enables an EIO to be drafted online and saved as a work file at any time. Other relevant tools are the Judicial Atlas (which can be used to identify the locally competent authority that can receive the EIO), the fiches belges (which contain concise and practical legal information on what is possible in the respective Member States) and the Judicial Library (which includes, inter alia, the full text of the EIO DIR and the word forms of the three Annexes).
The European Commission underlined that smooth cross-border gathering of evidence requires that Member States have the EIO DIR properly implemented in their national laws and correctly applied in practice. There are special tools in place for assessing national laws/practice and for, where necessary, improving knowledge among practitioners (e.g. expert meetings, awareness building projects, training). In relation to the secure transmission of EIOs and MLA requests, the Commission underlined that the work on the e-evidence platform is currently ongoing and is expected to be finalized by the end of 2019. The Commission also confirmed its commitment to drafting a Handbook on the EIO, but noted that it may take several years to finalize it since it is important that the Handbook integrate practical information from the Member States and relevant case law.
From a general perspective, a vast majority of the participants at the 2018 Eurojust meeting on the European Investigation Order very much welcomed the new regime and see the instrument, with its characteristic mutual recognition features – e.g. standard form, judicial authorities in charge, limited grounds for refusal and time limits – as a step forward in the area of cross-border evidence-gathering. Only a small number of participants perceived the new instrument, and particularly its template, as more complicated and more cumbersome than before.
During the meeting, participants discussed a number of suggestions and/or best practices in relation to a variety of topics, including the scope of the EIO DIR (e.g. cumulative criteria to assess whether an EIO should be issued), the competent authorities (e.g. the EJN Judicial Atlas for the identification of the competent authorities), the EIO forms in Annexes A, B, C of the EIO DIR (e.g. how to fill in certain sections), the language regime (e.g. the acceptance of one common, widespread language) and time limits (e.g. duly informing the issuing authority of the reasons for a delay and suggesting an alternative feasible time frame). In relation to some other topics, participants held different or even opposing views (e.g. the proportionality test, particularly in relation to the issue of costs and the applicability of the speciality rule).
A majority of participants agreed that the differences that exist within the area of freedom, security and justice in the EU are challenging and require an overall pragmatic and flexible approach towards the legal systems of other Member States. “Direct contact” amongst judicial authorities is the guiding principle of the EIO DIR, yet in complex, sensitive or urgent cases Eurojust’s unique coordinating and bridge-making role can be crucial. It can facilitate communication between the judicial authorities involved and Eurojust’s expertise, professional distance from the cases concerned and mediating role can bring added value for finding a balanced and legally sound solution.
Directive (EU) 2014/41 regarding the European Investigation Order in criminal matters, O.J. L 130, 1.5.2014, 1.↩
Eurojust, “Eurojust meeting on the European investigation order, The Hague, 19–20 September 2018, Outcome Report”, Council document 15735/18. The report is also available at: http://www.eurojust.europa.eu/doclibrary/Eurojust-framework/ejstrategicmeetings/Outcome%20report%20of%20the%20Eurojust%20meeting%20on%20the%20European%20investigation%20order%20(19-20%20September%202018)/2018-12_Outcome-Report_Eurojust-meeting-on-EIO-Sept2018_EN.pdf. See also eucrim. See also Riehle, https://eucrim.eu/news/eurojust-meeting-report-european-investigation-order/.↩
Apart from Council doc. 14445, there is not (yet) a detailed list available indicating exactly which provisions will be replaced. In 2017, Eurojust and EJN issued a Joint Note, Council doc. 9936/17, which gathers inter alia the views of the EJN contact points on the question of which measures they consider would be excluded from the scope of the EIO DIR.↩
See also the article of Jorge A. Espina Ramos, “The European Investigation Order and Its Relationship with Other Judicial Cooperation Instruments”, in this issue.↩
Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, O.J. L 337, 16.12.2008, 102.↩
Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, O.J. L 190, 18.7.2002, 1.↩
ECJ, 1 June 2016, Case C-241/15, Bob Dogi. In this judgment, the CJEU decided that, in light of Art. 8(1)(c) Framework Decision 2002/584/JHA, a EAW cannot be issued directly, but requires a prior national arrest warrant. For the purpose of Art. 8(1)(c) FD EAW, the expression “arrest warrant” means a national warrant that is distinct from the EAW and on which the latter is based.↩