Gavanozov II

On 11 November 2021, the First Chamber of the Court rendered a decision in the context of Directive 2014/41, regarding the European Investigation Order.

In the present case, Mr Gavanozov was under investigation in Bulgaria for participation in a criminal organisation for committing tax offences. More specifically, he was suspected of importing sugar from other Member States, obtaining supplies from a company established in the Czech Republic, and selling that sugar on the Bulgarian market without paying any taxes, by submitting incorrect documents according to which that sugar had been exported to Romania. The special criminal tribunal of Bulgaria decided to issue a European investigation order requesting the Czech authorities to conduct searches and seizures at premises of the company established in the Czech Republic and its representative, as well as to hear a witness by videoconference. However, in the light of the former case of Gavanozov C-324/17 where the Court of Justice assessed that the judicial authority of a Member State must not, when issuing a EIO, describe in section J the available remedies in its State against the issuance of such a decision, the referring court was concerned about the compatibility of national law with the Directive at issue considering that no remedies are available in national law against decisions ordering the execution of searches and seizures or the hearing of witnesses nor against the issuing of an EIO. Therefore, the referring court referred two preliminary questions to the Court of Justice as to whether Bulgarian law is contrary to EU Law given the absence of such safeguards and subsequently whether it is possible to issue a EIO in this context.

Regarding the first question, the Court of Justice pointed out that both search and seizure, and the hearing of witnesses by videoconference, may adversely affect the person concerned; hence that person should be accorded the right to an effective legal remedy guaranteed by Article 47 of the Charter, inter alia against a decision ordering such measures in order to contest the need for, and lawfulness of, those measures. The Court calling upon the provision of Article 14(2) of the Directive as well as the principle of mutual recognition – which governs the mechanism of the EIO and requires the executing authority to recognise, in principle, an EIO – ruled that the issuing Member State is the one that should ensure that the persons concerned by the EIO have such a remedy available before a court of the same Member State. Therefore, Article 14 of the Directive 2014/41 must be interpreted as opposing any laws of a Member State having issued an EIO, that would not include remedies against the issuing of an EIO whose purpose is to conduct searches, seizures and the hearing of witnesses by videoconference.

Moreover, the Court held that Article 6 of the Directive 2014/41 read together with Article 47 of the Charter of fundamental Rights and Article 4 of the TEU, must be interpreted as forbidding the issuance of an EIO from a competent authority of a Member State, whose purpose is to carry out the aforementioned investigative acts if no remedies against such an order are available to the person concerned. Otherwise - the Court notices - this would infringe Article 47 of the Charter, and thus the execution of such an EIO would be refused authomatically by the executing Member State pursuant to Article 11(1)(f) of this Directive. However, such a consequence would be contrary to the principles of mutual trust and mutual recognition, and sincere cooperation.