A. and Others

On 8 December 2020, the Grand Chamber of the EU Court of Justice delivered its judgment in case C-584/19, concerning the interpretation of Article 1(1) and Article 2(c) of Directive 2014/41 on the European Investigation Order (EIO Directive). In particular, the judgment interprets the concepts of “judicial authority” and “issuing authority” within the meaning of the EIO Directive and clarifies whether they include public prosecutors of a Member State even when they may be directly or indirectly subject to orders or individual instructions from the executive when adopting an EIO.

The case concerned criminal investigations initiated by the Hamburg Public Prosecutor’s Office against A and other unidentified persons for an alleged fraudulent scheme involving an Austrian bank. In May 2019, the Hamburg prosecutors forwarded an EIO to the Vienna Public Prosecutor’s Office, requesting to send copies of the relevant bank statements. According to Austrian law, before executing the order the Vienna prosecutors requested the Regional Court in Criminal Matters of Vienna to authorize the investigative measure. On the basis of the recent case law of the CJEU concerning the “issuing judicial authority” for EAW (see, inter alia, joined cases C‑508/18 and C‑82/19 PPU), the Austrian Court had doubts on the necessary requirements to comply with the concepts of “judicial authority” and “issuing authority” within the meaning of the EIO Directive. Therefore, it sent a preliminary ruling request asking whether the public prosecutor’s office of a Member State may be regarded as a “judicial authority” having competence to issue a European investigation order, according to the EIO Directive, although it is exposed to a risk of being subject to individual instructions or orders from the executive when adopting such an order.

As a first point, the Court notes that, whereas the Framework Decision regulating the European Arrest Warrant does not specify the authorities covered by the concept of “issuing judicial authority”, Article 2(c)(i) of the EIO Directive expressly includes public prosecutors among the authorities that are understood as an “issuing authority”. Moreover, prosecutors are also among the “judicial authorities” that, according to Article 2(c)(ii) of the EIO Directive, entrusted with the validation of a EIO before its issue, whenever such an order has been issued by an authority other than a judge, court, investigating judge or public prosecutor. In the EIO Directive, therefore, the classification of prosecutors as an “issuing authority” or “judicial authority” is not affected by their possible legal subordination to the executive.

Then, the Court stresses that the procedure and the guarantees required for issuing or validating an EIO are different from those governing EAWs. In particular, according to the EIO Directive, prosecutors issuing or validating an EIO must take into account proportionality and the concerned person’s fundamental rights. Further, the order must be capable of being subject to effective legal remedies, at least equivalent to those available in similar domestic cases. This leads the Court to conclude that at the stage of the issue or validation of an EIO, as well as in the phase of its execution, the EIO Directive contains a set of safeguards that ensure both proportionality and the protection of fundamental rights.

As a last point, the Court highlights that the aim of the European Arrest Warrant and that of the European Investigation Order differ. While the former seeks the arrest and surrender of individuals, the latter is a request for specific investigative measures that, although they might be intrusive, do not interfere with the primary right to liberty.

Based on the above, the Court determines that concepts of “judicial authority” and “issuing authority”, referred to in Article 1(1) and Article 2(c) of the EIO Directive, differ from those mentioned in the EAW Framework Decision. Therefore, they must be interpreted as including the public prosecutor or, in general, the public prosecutor’s office of a Member State, in spite of the fact that they might be subject to the risk of receiving direct or indirect orders or individual instructions from the executive when issuing a European Investigation Order.