HP

On 16 December 2021, the Fourth Chamber of the Court delivered a judgement concerning the interpretation of the conditions for issuing a European Investigation Order.

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. In order to collect HP traffic and location data, the Bulgarian public prosecutor issued four EIOs which were addressed to the Belgian, German, Austrian and Swedish authorities. The latters – except for the Belgian authorities – did not transmit a decision recognising the EIOs. However, the replies of these member states contained information on the telephone communications from HP’s phone which was of some importance in order to determine whether HP committed an offence. 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.

In order to determine whether that accusation is well founded, the referring court expressed doubts as to whether it is lawful to request the collection of traffic and location data associated with telecommunications by means of the four EIOs. Thus, the referring court referred two questions to the Court of justice, and namely first whether a national law providing that the authority competent to issue the EIO for the provision of traffic and location data related to telecommunications is a public prosecutor, is 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; and secondly, whether recognition of that EIO by the competent authority of the executing State may replace the court order required under the law of the issuing State.

In relation to the first question, it was essentially asked whether a prosecutor had the competence to issue an EIO during the pre-trial stage of criminal proceedings where, in a similar domestic case, the judge has exclusive competence to do so. In order to answer that question, the Court of Justice took into account the context and the objectives of Directive 2014/41 as its wording cannot lead to a clear conclusion.

The Court underpinning, in a first place, on Articles 6(1)(a) and (b) of the Directive – which provide that the issuing authority should assess the necessity and proportionality of the investigative measure requested by the EIO and that an EIO may be issued only where the measure referred to therein could have been ordered under the same conditions in a similar domestic case – held that only an authority competent to order such an investigative measure under the national law of the issuing State may be competent to issue an EIO. This interpretation is also born out by the fact that a potential distinction between the authority issuing an EIO and the one being competent to order investigative measures in domestic cases would risk complicating the system of cooperation and thus jeopardising the establishment of a simplified and effective system.

Concerning the second question, the Court started its assessment by recalling that where the executing authority believes that the conditions for issuing an EIO have not been met, it may decide to withdraw the EIO after consulting the issuing authority. In this regard, if the executing authority were able, by means of a recognition decision, to remedy non-compliance with the conditions for issuing an EIO the balance of the EIO system based on mutual trust – that implies the recognition of an EIO without any further formality being required – 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.

Therefore, the Court of Justice ruled 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 executive 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 measures seeking to obtain such data.