Second reference for preliminary ruling in the context of the EncroChat law enforcement operation - Compliance with Directive 2014/41 relating to the European Investigation Order in criminal matters - Similar question as in Case C-670/22 but under different factual circumstances - legitimacy of the EncroChat infiltration - consequences for the use of evidence in case of breach of EU law. Questions referred in detail:

1.   On Art. 6(1)(b) of Directive 2014/41

Does Article 6(1)(b) of Directive 2014/41 preclude a European Investigation Order (‘EIO’) for the transfer of telecommunications data already available in the executing State (France) if, under the law of the issuing State (Germany), a comparable domestic surveillance measure would be inadmissible and the data obtained from it may not, for that reason, be used for criminal prosecution in other proceedings?

2.   On Art. 6(1)(a) of Directive 2014/41

a) Does Article 6(1)(a) of Directive 2014/41 preclude an EIO from transferring data already available in the executing State (France) from a telecommunications interception – in particular traffic and location data and recordings of communications content – if

1. the surveillance carried out by the executing State covered all connection users of a communications service,
2. the EIO requests the transmission of data from all connections used on the territory of the issuing State,
3. neither when the surveillance measure was ordered and carried out nor when the EIO was issued were there concrete indications that those individual users had committed serious criminal offences which could be determined by their nature, and
4. there are therefore no circumstances relating to the individual case which can only be assessed by the national issuing authority or the competent national court?

b) Does Article 6(1)(a) of Directive 2014/41 preclude such an EIO where the integrity of the data gathered by means of the surveillance measure cannot be verified by the authorities in the executing State because of comprehensive secrecy?

3.   Legal consequences of obtaining evidence in breach of EU law

Does it follow from EU law, in particular the principle of effectiveness, that breaches of EU law in the obtaining of evidence in national criminal proceedings, must not be completely without consequence, even in the case of serious criminal offences, and must therefore be taken into account in favour of the accused either as an impediment to the use of evidence or in the assessment of evidence or in sentencing?

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Related links

• Case C-670/22 (first reference in EncroChat case) ^{Procedure page}
• Summary of the ECJ Case: ECJ Ruled in EncroChat Case ^News
• Case summary : EncroChat (C-288/24) ^News