Problems of the current situation
It has been, however, found that the implementation of the Directive was, until recently, lacking in many MS – despite its importance regarding the fight on terrorism and for a smooth functioning of the European area of freedom, security and justice in general. Even though all MS were obliged to transpose the Directive by 22nd of May 2017, according to the European Judicial Network (EJN), many MS have complied with their duty just recently. Slovenia, for example, on the 5th of May 2018. It can be argued that the EIO is seen as a novel instrument and is therefore still unknown to legal practitioners in many MS.
Issuing and executing authorities in many MS are now trying to cope with the problem of insufficient knowledge and lacking practical experience in using the EIO. Even though the EIO is an instrument replacing the European Evidence Warrant (EEW) of 2008, it has been widely pointed out that this preceding instrument was poorly implemented and actually ineffective. This is an additional reason why ensuring the practical implementation of Directive 2014/41/EU could be a challenging but extremely promising task.
Furthermore, quite a few shortcomings which affect the practical use of the Directive have been brought to light at the 49th Plenary meeting of EJN on Practical implementation of the European Investigation Order in criminal matters in Tallinn in November 2018 and previous international conferences. They range from issues like (a) the need of the executing authority to investigate minor offences on behalf of MS which apply the principle of legality in a very strict way and (b) the scope of the principle ne bis in idem as a ground for refusal to (c) the lack of regulation regarding the defence rights.
Needs which the project aims to address
It is therefore not surprising that at the 48th Plenary meeting of EJN on Practical application of the Directive 2014/41/EU regarding the European Investigation Order in criminal matters, which took place on Malta in June 2017, an “urgent need for guidelines, both at EU level and at National level”, was stressed by the participants. Experts underlined a need for training opportunities for legal practitioners, including practical sessions (workshops), was furthermore found essential to allow them to fulfil their function efficiently.
The EU Justice Agenda for 2020 furthermore explicitly states that “instruments agreed at EU level must be transposed by Member States, effectively implemented and used” and that “every national legal practitioner – from lawyers […] to judges and prosecutors […] – should also be knowledgeable in EU law and capable of interpreting and effectively enforcing EU law.” Both documents therefore imply that a much needed facilitation of practical application of the EIO is of crucial importance.
Objectives of the project
The first objective is the accumulation of knowledge regarding the practical application of the EIO and its relation to other relevant instruments of mutual legal assistance (MLA), such as the European Union Convention on Mutual Assistance in Criminal Matters of 2000 as well as the European Convention on Mutual Assistance in Criminal Matters of 1959 and its 1978 Protocol. As the EIO is not being implemented in a no man’s land of cooperation, the existing MLA framework and the already known practices and problems will be respected and reflected upon.
The second objective is equipping target groups with specialised knowledge about the cross-border evidence gathering procedure described in the Directive 2014/41/EU and can be achieved after sufficient knowledge has been gathered by project partners.
By equipping target groups with specialised knowledge, third, fourth and fifth objective will be tackled. Project partners aim at facilitating the practical application of the Directive by providing target groups with the much needed knowledge and application guidelines in national languages. Project partners simultaneously aim at an improved practical coordination between Directive 2014/41/EU and pre-existing instruments of MLA, as well an increased capacity in lawyers to address issues related to the Directive.