On 8th December 2020, the European Court of Justice ruled that public prosecutors’ offices can still be judicial or issuing authorities within the meaning of Articles 1(1) and 2(c) of the Directive regarding the European Investigation Order in criminal matters (EIO), ‘regardless of any relationship of legal subordination that might exist between the public prosecutor or public prosecutor’s office and the executive of that Member State and of the exposure of that public prosecutor or public prosecutor’s office to the risk of being directly or indirectly subject to orders or individual instructions from the executive when adopting a European investigation order’

(Grand Chamber Judgment, C-584/19: http://curia.europa.eu/juris/document/document.jsf;jsessionid=E7D84EB4E4FC618157E426DBDDDBE671?text=&docid=235181&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=17500153, para. 76).

As is well known, the ECJ ruled to the contrary in the context of the European Arrest Warrant last year (ECJ, Judgment of 27th May 2019 – C-508/19 and C-82/19). Yet, the EIO of course does not concern measures involving deprivation of liberty. In this respect, it was obvious to focus on the circumstance that the infringement associated with EIO-based investigative measures is characteristically less far-reaching than deprivations of liberty in the context of the European Arrest Warrant. This point of view is indeed addressed by the ECJ, although it remarkably appears to be of only secondary importance. (para. 73). Instead, the ECJ first argues with the wording of the Directive (paras. 50-55). Indeed, especially Article 2(c)(i) EIO-Directive explicitly speaks of the possibility for public prosecutors to be issuing authorities, without it being made clear from the wording that only those public prosecutors’ offices are meant which are not subject to any external right of instruction (para. 54). The focus of the ECJ’s argumentation then lies on the issuing state’s obligations to examine (paras. 56-63) and on the powers of the executing state (paras. 64-68).

It is noteworthy that the ECJ, in the context of its main considerations, only deals with the underlying principles of the EIO in a rather parenthetical manner (para. 64): ‘although the EIO is indeed an instrument based on the principles of mutual trust and mutual recognition’, the Directive nevertheless ‘allow the executing authority and, more broadly, the executing State to ensure that the principle of proportionality and the procedural and fundamental rights of the person concerned are respected’. There is nothing to suggest that this merely refers to the proportionality and procedural or constitutional legality of the execution of the requested measure. On the contrary, the idea that the public prosecutor’s office in the issuing state may be bound by instructions is ultimately harmless precisely because there are extensive possibilities for scrutiny in the executing state only makes sense if these include the decision on the issuing of the EIO. In the end, in the passage in question, the ECJ is bowing to an insight that had previously been expressed quite clearly in the explanatory memorandum of the German transposition law: The EIO-Directive ultimately is not a legal instrument based in any substantial way on the principle of recognition or mutual trust. In the words of the German explanatory memorandum ‘the actual details of the EIO Directive mean that the cross-border collection of evidence between the Member States of the European Union will continue to follow the rules of classical mutual assistance to a large extent’

(BT-Drs. 18/9757, p. 17: http://dip21.bundestag.de/dip21/btd/18/097/1809757.pdf, original: ‘führt allerdings die tatsächliche Ausgestaltung der EIO-Directive dazu, dass die grenzüberschreitende Beweiserhebung zwischen den Mitgliedstaaten der Europäischen Union auch künftig in weiten Teilen den bisherigen Regeln der klassischen Rechtshilfe folgt’).

If this was not true and the EIO-Directive was in fact substantially based on the principle of mutual recognition and on that of mutual trust instead, what would then justify the surprisingly far-reaching possibilities of examination (or refusal) by the executing state? Why are these possibilities suddenly important if mutual trust can be assumed?

In any case, an answer to these questions is quite a difficult one if one hopes for an answer that is free of the typical dose of European-Criminal-Law-verbiage. In the real world, however, this side of ‘phantasmagoria’ (see Ambos, European Criminal Law, 2018, p. 436), the principle of mutual recognition with its business basis of mutual trust appears to have disintegrated at the proving ground of the law of evidence.

Of course, all this does not mean the end of the – absolutely imperative – (special-)cooperation of the EU states in the field of mutual legal assistance in criminal matters. However, in view of the experience that has been gained in the meantime, it should be kept in mind that the problem-solving or legitimising potential of the principle of mutual recognition is quite limited: The fact that, from the ECJ’s point of view, public prosecution offices subject to instructions can be judicial authorities within the framework of the EIO has little to do with the fact that the EIO is based on the principle of mutual recognition, but rather with the concrete design of the legal instrument, has now made this abundantly clear. All this should not be lost sight of, especially in connection with legal assistance with regard to e-evidence.

Author: Apl. Professor Dr. Peter Rackow