On 30 April 2024, the CJEU delivered a new judgement in a case C-670/2022, where the accused M.N., charged with drug trafficking before the Berlin Court, argued that the German authorities unlawfully received evidence from France and that this evidence cannot be used in the criminal proceedings against him. In a reference from the Landgericht Berlin (Regional Court, Berlin, Germany) for a preliminary ruling, the Grand Chamber of the Court of Justice rules on the conditions under which a public prosecutor may issue a European Investigation Order (EIO) in criminal matters where the issuing authority of a Member State wishes to secure the transmission of intercepted telecommunications data already in the possession of another Member State. It also clarifies the consequences, as far as the use of the data is concerned, of a breach of the relevant EU legislation.
The Regional Court of Berlin raised several questions regarding the interpretation and application of the EIO Directive on this case:
- The referring court asks whether a public prosecutor can issue an EIO requesting the transfer of existing intercepted communication data, even if under national law (Germany) such an investigative measure would require a judicial order. The court questions if Art. 6(1) (b) EIO Directive, which requires the EIO to be issued "under the same conditions" as in a similar domestic case, precludes this.
- The court seeks clarification on whether the assessment of necessity and proportionality of an EIO under Art. 6(1) (a) EIO Directive is solely for the issuing authority, and if so, what factors should be considered given the serious interference with privacy.
- The referring court asks whether France should have notified German authorities under Art. 31 EIO Directive upon realizing the intercepted data originated from German mobile phones. Moreover, if so, whether such notification should have been sent to a judicial authority since interception would require judicial authorization under German law.
- Crucially, the referring court questions whether issuing an EIO contrary to the Directive's requirements results in the inadmissibility of that evidence in the issuing state's criminal proceedings, in order to protect the rights of the defence and ensure a fair trial under Art. 47-48 of the Charter.
The CJEU concludes that a public prosecutor might issue, under certain circumstances, an EIO for the transmission of evidence already gathered by another Member State. The conditions applicable to the gathering of evidence in the issuing State do not need to have been satisfied in order for the EIO to be issued. However, it must be possible for compliance with the fundamental rights of the persons concerned to be judicially reviewed. Moreover, an interception measure carried out by one Member State on the territory of another Member State must be notified in good time to that other Member State. Information and evidence obtained in breach of the Directive must be disregarded, under certain conditions, by the criminal courts. Finally, the Court points out that it is, in principle, for national law alone to determine the rules relating to the admissibility and assessment in criminal proceedings of information and evidence obtained in a manner contrary to EU law. However, Article 14(7) of Directive 2014/41 requires Member States to ensure, without prejudice to the application of national procedural rules, that in criminal proceedings in the issuing State, the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO.
Please consult the Judgement from the CJEU.
Read the official press release of the CJEU.