JUDGMENT OF THE COURT (Fourth Chamber)
16 December 2021 (*)(i)
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European Investigation Order (EIO) – Directive 2014/41/EU – Article 2(c)(i) – Concept of ‘issuing authority’– Article 6 – Conditions for issuing an EIO – Article 9(1) and (3) – Recognition of an EIO – EIO seeking to obtain traffic and location data associated with telecommunications, issued by a public prosecutor designated as ‘issuing authority’ by the national measure transposing Directive 2014/41 – Exclusive competence of the judge, in a similar domestic case, to order the investigative measure indicated in that order)
In Case C‑724/19,
REQUEST for a preliminary ruling under Article 267 TFEU from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), made by decision of 24 September 2019, received at the Court on 1 October 2019, in the criminal proceedings against
HP
interested party:
Spetsializirana prokuratura,
THE COURT (Fourth Chamber),
composed of K. Jürimäe (Rapporteur), President of the Third Chamber, acting as President of the Fourth Chamber, S. Rodin and N. Piçarra, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– HP, by E. Yordanov, advokat,
– the German Government, by J. Möller and M. Hellmann, acting as Agents,
– the Hungarian Government, by M.Z. Fehér, R. Kissné Berta and M. Tátrai, acting as Agents,
– the European Commission, initially by Y. Marinova and R. Troosters, and subsequently by Y. Marinova and M. Wasmeier, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 20 May 2021,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 2(c)(i) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order (EIO) in criminal matters (OJ 2014 L 130, p. 1).
2 The request has been made in criminal proceedings brought against HP in the course of which four EIOs were issued by the Bulgarian public prosecutor’s office with a view to gathering evidence in Belgium, Germany, Austria and Sweden.
Legal context
EU law
Directive 2002/58/EC
3 Under Article 2(b) and (c) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37):
‘Save as otherwise provided, the definitions in Directive 95/46/EC [of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)] and in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [(OJ 2002 L 108, p. 33)] shall apply.
The following definitions shall also apply:
…
(b) “traffic data” means any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof;
(c) “location data” means any data processed in an electronic communications network, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service’.
4 Article 15(1) of Directive 2002/58 provides:
‘Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive [95/46]. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of [EU] law, including those referred to in Article 6(1) and (2) [TEU].’
Directive 2014/41
5 Recitals 5 to 8, 10, 11, 19, 30 and 32 of Directive 2014/41 are worded as follows:
‘(5) Since the adoption of [Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ 2003 L 196, p. 45)] and [Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ 2008 L 350, p. 72)], it has become clear that the existing framework for the gathering of evidence is too fragmented and complicated. A new approach is therefore necessary.
(6) In the Stockholm Programme adopted by the European Council of 10-11 December 2009, the European Council considered that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. The European Council indicated that the existing instruments in this area constituted a fragmentary regime and that a new approach was needed, based on the principle of mutual recognition, but also taking into account the flexibility of the traditional system of mutual legal assistance. The European Council therefore called for a comprehensive system to replace all the existing instruments in this area, including Framework Decision [2008/978], covering as far as possible all types of evidence, containing time limits for enforcement and limiting as far as possible the grounds for refusal.
(7) This new approach is based on a single instrument called the European Investigation Order (EIO). An EIO is to be issued for the purpose of having one or several specific investigative measure(s) carried out in the State executing the EIO (“the executing State”) with a view to gathering evidence. This includes the obtaining of evidence that is already in the possession of the executing authority.
(8) The EIO should have a horizontal scope and therefore should apply to all investigative measures aimed at gathering evidence. However, the setting up of a joint investigation team and the gathering of evidence within such a team require specific rules which are better dealt with separately. Without prejudice to the application of this Directive, existing instruments should therefore continue to apply to this type of investigative measure.
…
(10) The EIO should focus on the investigative measure to be carried out. The issuing authority is best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which investigative measure is to be used. …
(11) The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. The same assessment should be carried out in the validation procedure, where the validation of an EIO is required under this Directive. The execution of an EIO should not be refused on grounds other than those stated in this Directive. However the executing authority should be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it makes it possible to achieve similar results.
…
(19) The creation of an area of freedom, security and justice within the [European] Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter [of Fundamental Rights of the European Union], the execution of the EIO should be refused.
…
(30) Possibilities to cooperate under this Directive on the interception of telecommunications should not be limited to the content of the telecommunications, but could also cover collection of traffic and location data associated with such telecommunications, allowing competent authorities to issue an EIO for the purpose of obtaining less intrusive data on telecommunications. An EIO issued to obtain historical traffic and location data related to telecommunications should be dealt with under the general regime related to the execution of the EIO and may be considered, depending on the national law of the executing State, as a coercive investigative measure.
…
(32) In an EIO containing the request for interception of telecommunications the issuing authority should provide the executing authority with sufficient information, such as details of the criminal conduct under investigation, in order to allow the executing authority to assess whether that investigative measure, would be authorised in a similar domestic case.’
6 Under the heading ‘The European Investigation Order and obligation to execute it’, Article 1 of that directive states:
‘1. A European Investigation Order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (“the issuing State”) to have one or several specific investigative measure(s) carried out in another Member State … to obtain evidence in accordance with this Directive.
The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.
2. Member States shall execute an EIO on the basis of the principle of mutual recognition and in accordance with this Directive.
3. The issuing of an EIO may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defence rights in conformity with national criminal procedure.
4. This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 [TEU], including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected.’
7 Under Article 2(c) of that directive:
‘For the purposes of this Directive the following definitions apply:
…
(c) “issuing authority” means:
(i) a judge, a court, an investigating judge or a public prosecutor competent in the case concerned; or
(ii) any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law. In addition, before it is transmitted to the executing authority the EIO shall be validated, after examination of its conformity with the conditions for issuing an EIO under this Directive, in particular the conditions set out in Article 6.1, by a judge, court, investigating judge or a public prosecutor in the issuing State. Where the EIO has been validated by a judicial authority, that authority may also be regarded as an issuing authority for the purposes of transmission of the EIO’.
8 Article 6 of that directive, concerning ‘conditions for issuing and transmitting an EIO’, provides:
‘1. The issuing authority may only issue an EIO where the following conditions have been met:
(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and
(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.
2. The conditions referred to in paragraph 1 shall be assessed by the issuing authority in each case.
3. Where the executing authority has reason to believe that the conditions referred to in paragraph 1 have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO.’
9 Article 9 of Directive 2014/41, entitled ‘Recognition and execution’, provides, in paragraphs 1 to 3 thereof:
‘1. The executing authority shall recognise an EIO, transmitted in accordance with this Directive, without any further formality being required, and ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in this Directive.
2. The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Directive and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.
3. Where an executing authority receives an EIO which has not been issued by an issuing authority as specified in Article 2(c), the executing authority shall return the EIO to the issuing State.’
10 Article 11 of that directive lists the grounds on which recognition or execution of an EIO may be refused in the executing State.
11 Chapter IV of that directive, entitled ‘Specific provisions for certain investigative measures’, comprises Articles 22 to 29.
12 Article 26 of that directive, entitled ‘Information on bank and other financial accounts’, states, in paragraph 5 thereof:
‘In the EIO the issuing authority shall indicate the reasons why it considers that the requested information is likely to be of substantial value for the purpose of the criminal proceedings concerned and on what grounds it presumes that banks in the executing State hold the account and, to the extent available, which banks may be involved. It shall also include in the EIO any information available which may facilitate its execution.’
13 Article 27 of Directive 2014/41, entitled ‘Information on banking and other financial operations’, provides, in paragraph 4 thereof:
‘In the EIO the issuing authority shall indicate the reasons why it considers the requested information relevant for the purpose of the criminal proceedings concerned.’
14 Article 28 of that directive, entitled ‘Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time’, provides, in paragraph 3 thereof:
‘The issuing authority shall indicate in the EIO why it considers the information requested relevant for the purpose of the criminal proceedings concerned.’
15 The form provided for the EIO is set out in Annex A to that directive. The text at the top of that form is as follows:
‘This EIO has been issued by a competent authority. The issuing authority certifies that the issuing of this EIO is necessary and proportionate for the purpose of the proceedings specified within it taking into account the rights of the suspected or accused person and that the investigative measures requested could have been ordered under the same conditions in a similar domestic case. I request that the investigative measure or measures specified below be carried out taking due account of the confidentiality of the investigation and that the evidence obtained as a result of the execution of the EIO be transferred.’
Bulgarian law
16 Directive 2014/41 was transposed into Bulgarian law by the Zakon za evropeyskata zapoved za razsledvane (Law on the European Investigation Order) (DV No 16 of 20 February 2018). In accordance with Article 5(1)(1) of that law (‘the ZEZR’), in Bulgaria the authority with competence to issue an EIO during the pre-trial stage of the criminal proceedings is the public prosecutor.
17 Article 159a of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure), in the version applicable to the main proceedings, entitled ‘Provision of data by companies providing public electronic communications networks and/or services’, provides:
‘(1) At the request of the court in the trial stage or on the basis of a reasoned order of a judge of the respective court of first instance, made in the pre-trial stage at the request of the supervising public prosecutor, companies providing publicly available electronic communication networks and/or services shall make available the data that are generated in the course of their activities and are required for the purposes of:
1. tracing and identifying the source of the connection;
2. identifying the direction of the connection;
3. identifying the date, time and duration of the connection;
4. identifying the type of connection;
5. identifying the user’s end electronic communication device or that acting as the user’s end device;
6. establishing the identifier of the cells used.
(2) The data under paragraph 1 shall be collected where required for the purposes of investigating violent intentional crimes.
(3) The request of the supervising public prosecutor referred to in paragraph 1 shall state its reasons and must contain:
1. information concerning the offence whose investigation requires the use of traffic data;
2. a description of the circumstances on which the request is based;
3. details of the persons in relation to whom traffic data are requested;
4. the period of time for which the information is to be collected;
5. the investigating authority to which the data are to be provided.
(4) In the order referred to in paragraph 1, the court shall indicate:
1. the data for which information is to be provided;
2. the period of time for which the information is to be collected;
3. the investigating authority to which the data are to be provided.
(5) The period of time for which the provision of data is requested and authorised in accordance with paragraph 1 shall not exceed 6 months.
(6) Where the information collected contains data which are not related to the circumstances of the case and which do not contribute to their clarification, the judge who issued the investigation order shall order its destruction on a reasoned written proposal from the supervising public prosecutor. Destruction shall be carried out in accordance with a procedure established by the Prosecutor General. Within seven days of receipt of the order, the companies referred to in paragraph 1 and the supervising public prosecutor shall submit the reports on the destruction of the data to the judge who made the order.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
18 On 23 February 2018, criminal proceedings were initiated on the ground that it was suspected that financial resources to be used to commit terrorist acts were collected and made available in Bulgaria and abroad. In the course of the investigation conducted in the context of those proceedings, evidence was gathered concerning HP’s activities.
19 On 15 August 2018, on the basis of Article 159a(1) of the Code of Criminal Procedure, the Bulgarian public prosecutor’s office issued four EIOs with a view to collecting traffic and location data associated with telecommunications (‘the four EIOs’). Those EIOs, which stated that that request was made by a public prosecutor of the specialised public prosecutor’s office, were addressed to the Belgian, German, Austrian and Swedish authorities. All stated that HP was suspected of financing terrorist activities and that, in the context of that activity, he had had phone conversations with persons residing in the territory of the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Austria and the Kingdom of Sweden.
20 It is apparent from the order for reference that the replies of the authorities of those Member States to the four EIOs contain information on the telephone communications from HP’s phone and that that information is of some importance in order to determine whether HP has committed an offence.
21 The competent German, Austrian and Swedish authorities did not transmit a decision recognising the EIOs. By contrast, a Belgian investigating judge transmitted a decision recognising the EIO addressed to the Belgian authorities.
22 On 18 January 2019, on the basis of the evidence gathered, including evidence from the replies of the authorities of the Member States concerned to the four EIOs, HP was charged, together with five other persons, with illegally financing terrorist activities and participating in a criminal organisation seeking to finance those activities. HP’s indictment was brought before the referring court on 12 September 2019.
23 In order to determine whether that accusation is well founded, the referring court asks whether it is lawful to request the collection of traffic and location data associated with telecommunications by means of the four EIOs, and whether, therefore, it may, in order to establish the offence of which HP is accused, use the evidence gathered by means of those orders.
24 In the first place, the referring court states that Article 2(c) of Directive 2014/41 refers to national law to designate the competent issuing authority. Under Bulgarian law, pursuant to Article 5(1)(1) of the ZEZR, that is the public prosecutor. However, that court notes that, in a similar domestic case, the authority with competence to order that traffic and location data associated with telecommunications be obtained is a judge of the first instance court having jurisdiction in the case concerned and that the public prosecutor has, in such a situation, only the power to make a reasoned request to that judge. Thus, the referring court asks whether, having regard in particular to the principle of equivalence, competence to issue an EIO may be governed by the national measure transposing Directive 2014/41, or whether Article 2(c) of that directive confers competence on the authority which is competent to order that such data be obtained in a similar domestic case.
25 In the second place, the referring court asks whether the recognition decision, taken by the competent authority of the executing State on the basis of Directive 2014/41 and necessary in order to require a telecommunications operator of that Member State to disclose traffic and location data associated with telecommunications, may validly replace the decision which should have been taken by the judge of the issuing State in order to safeguard the principles of legality and inviolability of private life. It asks, more specifically, whether such a solution would be compatible with, in particular, Article 6 and Article 9(1) and (3) of that directive.
26 In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is a national law (Article 5(1)(1) of the ZEZR), according to which, during the pre-trial stage of the criminal proceedings, the authority competent to issue [an EIO] for the provision of traffic and location data related to telecommunications is a public prosecutor, consistent with Article 2(c)(i) of Directive 2014/41 and the principle of equivalence, provided that in an identical domestic case the competent authority is a judge?
(2) Does recognition of that [EIO] by the competent authority of the executing State (public prosecutor or an investigating judge) replace the court order required under the law of the issuing State?’
Consideration of the questions referred
The first question
27 By its first question, the referring court asks, in essence, whether Article 2(c)(i) of Directive 2014/41 must be interpreted as precluding a public prosecutor from having competence to issue, during the pre-trial stage of criminal proceedings, an EIO, within the meaning of that directive, seeking to obtain traffic and location data associated with telecommunications, where, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking access to such data.
28 Article 2(c) of Directive 2014/41 defines, for the purposes of that directive, the concept of ‘issuing authority’. Thus, that article states that such an authority may be either, under point (i) thereof, ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’ or, under point (ii) thereof, ‘any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law’.
29 It is thus apparent from the wording of that provision that the issuing authority must, in all situations covered by that provision, be competent in the case concerned, either as a judge, court, investigating judge or public prosecutor, or, where it is not a judicial authority, as an investigating authority.
30 By contrast, an analysis of the wording of that provision does not, in itself, make it possible to determine whether the words ‘competent in the case concerned’ have the same meaning as the words ‘with competence to order the gathering of evidence in accordance with national law’ and, therefore, whether a public prosecutor may be competent to issue an EIO seeking to obtain traffic and location data associated with telecommunications, where, in a similar domestic case, the judge has exclusive competence in respect of an investigative measure seeking access to such data.
31 Article 2(c)(i) of Directive 2014/41 must therefore be interpreted by taking into account its context and the objectives of that directive.
32 In that regard, as regards the context of that provision, it must be noted, first, that Article 6(1)(a) of that directive, read in conjunction with recital 11 of and Annex A to the directive, imposes on the issuing authority an obligation to assess the necessity and proportionality of the investigative measure which is the subject of the EIO, having regard to the purpose of the proceedings in which that EIO was issued and taking into account the rights of the suspected or accused person.
33 Similarly, it must be observed that, in the context of certain specific investigative measures, the issuing authority must provide some additional explanations. Thus, Article 26(5) of that directive requires, with regard to information on bank and other financial accounts, that the issuing authority indicate the reasons why it considers that the requested information is likely to be of substantial value for the purpose of the criminal proceedings concerned. Article 27(4) and Article 28(3) of that directive also provide, as regards, respectively, information on banking and other financial operations and investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time, that that authority must indicate the reasons why it considers the requested information relevant for the purpose of the criminal proceedings concerned.
34 It appears that, both in order to assess the necessity and proportionality of an investigative measure and to provide the additional explanations referred to in the preceding paragraph, the issuing authority must be the investigating authority in the criminal proceedings concerned, which is thus competent to order the gathering of evidence in accordance with national law.
35 Second, it is apparent from Article 6(1)(b) of Directive 2014/41 that the issuing authority may only issue an EIO where the investigative measure(s) referred to therein could have been ordered under the same conditions in a similar domestic case. Consequently, only an authority which is competent to order such an investigative measure under the national law of the issuing State may be competent to issue an EIO.
36 As regards the objectives of Directive 2014/41, it is intended, as is apparent from recitals 5 to 8 thereof, to replace the fragmented and complicated existing framework for the gathering of evidence in criminal cases with a cross-border dimension and seeks, by the establishment of a simplified and more effective system based on a single instrument called the EIO, to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union to become an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States (see, to that effect, judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders), C‑584/19, EU:C:2020:1002, paragraph 39).
37 In that context, recital 10 of that directive identifies the issuing authority as being best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which investigative measure is to be used.
38 Accordingly, the analysis of Article 2(c)(i) of Directive 2014/41, read in the light of recitals 5 to 8 and 10 of that directive, also leads to the issuing authority being identified as the investigating authority in the criminal proceedings concerned, which is thus competent to order the gathering of evidence in accordance with national law. In the context of a criminal investigation, a potential distinction between the authority which issues the EIO and the authority which is competent to order investigative measures in the context of those criminal proceedings would risk complicating the system of cooperation, thereby jeopardising the establishment of a simplified and effective system.
39 It follows that, where, under national law, the public prosecutor is not competent to order an investigative measure for the purpose of obtaining traffic data and location data associated with telecommunications, he or she cannot be regarded as an issuing authority, within the meaning of Article 2(c)(i) of Directive 2014/41, that is competent to issue an EIO with a view to obtaining those data.
40 In the present case, it is apparent from the request for a preliminary ruling that, although Bulgarian law designates the public prosecutor as the authority competent to issue an EIO in criminal proceedings, the public prosecutor is not competent to order the gathering of traffic and location data associated with telecommunications in a similar domestic case. The referring court states that, in accordance with Bulgarian law, the authority with competence to order that such data be obtained is a judge of the first instance court having jurisdiction for the case concerned and the public prosecutor has only the power to make a reasoned request to that judge.
41 Therefore, in such a situation, the public prosecutor cannot be competent to issue an EIO with a view to obtaining such data.
42 In addition, in order to provide the referring court with a full answer, it must be added that, in the judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications) (C‑746/18, EU:C:2021:152, paragraph 59), the Court held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre-trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation.
43 As the Advocate General noted in point 40 of his Opinion, it follows that an EIO seeking to obtain traffic and location data associated with telecommunications cannot be issued by a public prosecutor where that public prosecutor not only directs the criminal pre-trial procedure, but also brings the public prosecution in subsequent criminal proceedings.
44 If that were the case, the condition laid down in Article 6(1)(b) of Directive 2014/41, according to which the issuing authority may only issue an EIO where the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case, would not be met.
45 In the light of all the foregoing considerations, the answer to the first question is that Article 2(c)(i) of Directive 2014/41 must be interpreted as precluding a public prosecutor from having competence to issue, during the pre-trial stage of criminal proceedings, an EIO, within the meaning of that directive, seeking to obtain traffic and location data associated with telecommunications, where, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking access to such data.
The second question
46 By its second question, the referring court asks, in essence, whether Article 6 and Article 9(1) and (3) of Directive 2014/41 must be interpreted as meaning that recognition, on the part of the executing authority, of an EIO issued with a view to obtaining traffic and location data associated with telecommunications may replace the requirements applicable in the issuing State, where that EIO was improperly issued by a public prosecutor, whereas, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking to obtain such data.
47 In that regard, it should be noted, first, that Article 6(1) of that directive lays down the conditions for issuing and transmitting an EIO. Article 6(3) states that, where the executing authority has reason to believe that the conditions referred to in Article 6(1) have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation, the issuing authority may decide to withdraw the EIO.
48 Second, Article 9(1) of Directive 2014/41 provides that the executing authority is to recognise an EIO, transmitted in accordance with that directive, without any further formality being required, and to ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in that directive.
49 The grounds for non-recognition or non-execution are exhaustively listed in Article 11 of that directive.
50 It thus follows from a combined reading of those provisions that the executing authority cannot remedy non-compliance with the conditions laid down in Article 6(1) of Directive 2014/41.
51 That interpretation is borne out by the objectives pursued by Directive 2014/41. It follows in particular from recitals 2, 6 and 19 of that directive that the EIO is an instrument falling within the scope of judicial cooperation in criminal matters referred to in Article 82(1) TFEU, which is based on the principle of mutual recognition of judgments and judicial decisions. That principle, which constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is itself based on mutual trust and on the rebuttable presumption that other Member States comply with EU law and, in particular, fundamental rights (judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders), C‑584/19, EU:C:2020:1002, paragraph 40).
52 In that context, recital 11 of that directive states that the execution of an EIO should not be refused on grounds other than those stated in that directive and that the executing authority should merely be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it makes it possible to achieve similar results.
53 Thus, that division of competences between the issuing authority and the executing authority is an essential element of the mutual trust which must govern the exchanges between the Member States participating in a European investigation procedure as provided for by Directive 2014/41. If the executing authority were able, by means of a recognition decision, to remedy non-compliance with the conditions for issuing an EIO, laid down in Article 6(1) of that directive, the balance of the EIO system based on mutual trust would be called into question, since that would amount to giving the executing authority the power to review the substantive conditions for issuing such an EIO.
54 By contrast, in accordance with Article 9(3) of that directive, the executing authority is to return the EIO to the issuing State where it receives an EIO which has not been issued by an issuing authority as specified in Article 2(c) of that directive.
55 In the light of all the foregoing considerations, the answer to the second question is that Article 6 and Article 9(1) and (3) of Directive 2014/41 must be interpreted as meaning that recognition, on the part of the executing authority, of an EIO issued with a view to obtaining traffic and location data associated with telecommunications may not replace the requirements applicable in the issuing State, where that EIO was improperly issued by a public prosecutor, whereas, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking to obtain such data.
Costs
56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1. Article 2(c)(i) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters must be interpreted as precluding a public prosecutor from having competence to issue, during the pre-trial stage of criminal proceedings, an European Investigation Order, within the meaning of that directive, seeking to obtain traffic and location data associated with telecommunications, where, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking access to such data.
2. Article 6 and Article 9(1) and (3) of Directive 2014/41 must be interpreted as meaning that recognition, on the part of the executing authority, of an European Investigation Order issued with a view to obtaining traffic and location data associated with telecommunications may not replace the requirements applicable in the issuing State, where that European Investigation Order was improperly issued by a public prosecutor, whereas, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking to obtain such data.
[Signatures]
i The wording of both points of the operative part of this judgment has been amended since it was first put online.