In Case C‑584/19, the Advocate General delivered his opinion (Opinion of Advocate General Campos Sánchez-Bordona, 16 July 2020, C-584/19, Celex-No. 62019CC0584). At the heart of the case lies an EIO issued by the Public Prosecutor’s Office in Hamburg, which requested the transfer of certain data from an account held in Austria. As the obtaining of such information under Austrian law requires a court authorization, the Vienna Public Prosecutor’s Office filed an application with the Landesgericht für Strafsachen Vienna (Austria).

In view of the ECJ decision on the status of the German Public Prosecutor’s Offices in the context of the European Arrest Warrant, the Landesgericht had reservations as to whether the Hamburg public prosecutor’s office issuing the warrant was at all eligible as an ‘issuing authority‘ within the meaning of Article 2(c)(i) of the Directive on the European Investigation Order. Famously, the ECJ has decided that Public Prosecutor’s Offices, being subject to an external (ministerial) right of instruction, must cease to be issuing judicial authorities within the meaning of Article 6 of the Council Framework Decision on the European Arrest Warrant. For under these circumstances there is no guarantee of sufficient independence (ECJ Judgement of 27 May 2019, OG (C‑508/18) and PI (C‑82/19 PPU), paras. 73 ff.). The Federation of German Judges had prognosticated already (with understandably worried undertone) that the ECJ will not decide differently regarding the European Investigation Order –https://www.drb.de/fileadmin/DRB/pdf/Stellungnahmen/2020/DRB_200504_Stn_Nr_5_Unabhaengigkeit_StA.pdf

However, the opinion of Advocate General Campos Sánchez-Bordona of 16 July 2020 now clearly opposes a parallelisation of the European Arrest Warrant and the European Investigation Order: Both in national proceedings and in the context of the European Investigation Order, it is not so much ‘the origin of the request‘ that is decisive as the fact that it is reviewed independently by the Landesgericht (paras. 21 ff., 26). Yet, this could also be explained with regard to the procedure for European Arrest Warrants issued by public prosecutors. Be that as it may, the further considerations of the Advocate General, which can be summarized to the effect that the Directive on the European Investigation Order and the Framework Decision on the European Arrest Warrant are sufficiently different in terms of content, subject matter and structure for a uniform understanding of the term ‘issuing (judicial) authority’ to be hermeneutically enticing, but ultimately inappropriate (para. 36-7), carry a lot of weight:

First of all, the European Arrest Warrant compared with the European Investigation Warrant provides for much more serious infringements of subjective rights (para. 42). In addition, the law of evidence of the member states is particularly heterogeneous, which is clearly reflected in the directive (para. 47 ff.). Thus the formula ’”in accordance with national law”, or similar’ is repeatedly found (para. 52). Furthermore the EU legislation had been aware ‘of the great diversity of public prosecutor’s offices in existence in the different Member States‘ (para. 55) ‘and there is nothing to suggest – on the contrary – that the EU legislature would opt to lay down that (new) requirement‘ of a prosecutor’s office independence from the executive (para. 57). It should also be borne in mind that, compared with the European Arrest Warrant, the executing authorities have greater leeway, for example they can use measures other than those requested (para. 59). And where the executing State considers it appropriate, the requested measures must be subject to judicial review in the executing State (63). Finally, the obligation of the issuing authorities to guarantee the protection of the rights of the person concerned must also be taken into account (para. 73).

After all this, concluded the Advocate General, the fact that a public prosecutor’s office can be subject to individual instructions from the executive is not sufficient to exclude it from the group of authorities issuing European Investigation Orders (para. 91).

Whatever the decision of the ECJ will be. In any case, the Advocate General has provided important impulses for a decidedly differentiated understanding of the different legal instruments based on the principle of mutual recognition. The deeper reason why it seems indeed to be inappropriate to assume a uniform concept of judicial authority appears to be that there is likewise no uniform principle of mutual recognition.

 

Author: Apl. Professor Dr. Peter Rackow