Ivan Gavanozov

On 24 October 2019, the First Chamber of the Court of Justice delivered its judgment in Case C-324/17, Gavanozov, which represents the first decision in which the Directive on the European Investigation Order (EIO) is examined. The request for a preliminary ruling was lodged by the Specialised Criminal Court, Bulgaria and concerns the compatibility between Bulgarian law and the EIO Directive, notably Article 14 on legal remedies.

In the Bulgarian criminal proceedings against Mr Gavanozov, national authorities had to search the residential and business premises of Y, who represented a company that might have been involved in the illegal activities of Mr Gavanozov, with a view to seizing some specific documents that might have been kept in those premises. Likewise, Y had to be heard as a witness. As Y was based in the Czech Republic, Bulgarian authorities issued an EIO requesting Czech authorities to carry out those measures. The problems arose with regard to the legal remedies available against these measures.

Article 14(1) of the EIO Directive requires Member States to ensure that legal remedies equivalent to those available in a similar domestic case are applicable to the investigative measures indicated in the EIO. Article 14(2) then specifies that the substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State (Bulgaria, in this case). According to Bulgarian legislation, however, persons whose premises are searched or goods are seized cannot apply for a review of the lawfulness of the decision to carry out searches and seizures. Likewise, witnesses cannot challenge the judicial decision that authorises their examination. Those situations are not even covered by the provisions allowing for compensation for damage in the event of unlawful judicial decisions. The Bulgarian court thus wonders about the compatibility between Bulgarian law and the EIO Directive.

While in his Opinion AG Bot had argued that Bulgarian legislation was incompatible with EU law as it fails to protect the right to an effective remedy, the Court of Justice takes a completely different stance and deals rather quickly with the questions referred. The Court focuses its judgment on the form that the issuing authorities – the Bulgarian court in this case – are required to complete and that is annexed to the EIO Directive. In particular, section J of the EIO form requires the issuing authorities to ‘indicate if a legal remedy has already been sought against the issuing of an EIO, and if so [to] please provide further details (description of the legal remedy, including necessary steps to take and deadlines)’ (section J, point 1, Annex A to the EIO Directive). As the text of the form suggests, therefore, the description of the legal remedy available in the issuing Member State ‘must be included only if a legal remedy has been sought against an EIO’ (para. 28, emphasis added).

According to the Court, the same conclusion holds true when looking at section J, point 2 of the form, which requires the issuing authority to specify the name and contact details of the competent authority of the issuing Member State that is able to give additional information about the legal remedies, legal assistance, and interpretation and translation service in that Member State. After all, the reason for including information on remedies section J of the EIO is ‘provide the executing authority with the minimum official information required to enable it to adopt the decision on the recognition or execution of the EIO in question and, as appropriate, to carry out the measure requested within the time limits laid down in […] that directive’ (para. 36). Therefore, the Court concludes that Article 5(1) of the EIO Directive (‘The EIO in the form set out in Annex A shall be completed, signed, and its content certified as accurate and correct by the issuing authority’) must be interpreted as meaning that the issuing judicial authority, when issuing an EIO, does not have to include in section J of the form a description of the legal remedies, if any, which are provided for in its Member State against the issuing of such an order.