09/12/2020 - - Legislation
EIO - New CJEU judgment allows prosecutors to continue to issue an EIO

On 8 December 2020, the Court of Justice of the European Union (CJEU) rendered a judgment in the case C-584/19, ruling that a European investigation order may be adopted by the public prosecutor’s office of a Member State exposed to the risk of being subject to individual instructions from the executive.

After Case C-324/17 (Gavanozov), so far this is a second judgment of the CJEU that is related to the interpretation of the EIO Directive.

Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen Wien) requested the preliminary ruling in 2019, asking the CJEU to give the interpretation whether the public prosecutor’s office of a Member State may be regarded as a ‘judicial authority’ having competence to issue a European investigation order.

This question followed the execution of the European Investigation Order that had been issued by the Public Prosecutor’s Office in Hamburg in the fraud case and that had been addressed to Vienna Public Prosecutor’s Office with the purpose to obtain documents from Austrian bank. Since this measure requires prior authorisation by the court pursuant to Austrian law, Vienna Public Prosecutor’s Office requested Vienna Regional Court to authorise this investigative measure.

Considering that under German law the Hamburg Public Prosecutor’s Office may be a subject to instructions — including in individual cases — from the Senator of Justice in Hamburg, and recent case-law of the CJEU that stated the independence of the prosecution office as the crucial principle that would allow prosecutor to issue a European Arrest Warrant, Vienna Regional Court was uncertain whether the European Investigation Order should be executed.

However, this time CJEU took a different approach and ruled that the concepts of ‘judicial authority’ and ‘issuing authority’, within the meaning of the EIO Directive, include the public prosecutor of a Member State or, more generally, the public prosecutor’s office of a Member State, even though they are in a relationship of legal subordination to the executive of that Member State, which exposes them to the risk of being directly or indirectly subject to orders or individual instructions from the executive when adopting a European investigation order.

Please see the CJEU press release for the details. The judgment is available on the CJEU website and will be uploaded to the Judicial Library on the EJN website.

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