Introduction

Like Eurojust, initially set up by the Council Decision of 28 February 2002[1], the framework decision on the European Arrest Warrant and surrender procedure[2] celebrates its 20th anniversary this year. The latter has been the subject of many judgments of the Court of Justice of the European Union (hereafter CJEU). Some of these are very striking ones, such as those relating to the extent of mutual trust and the control to be exercised by the executing authorities, to the possibility of refusing execution on the basis of the risks of infringement of fundamental rights[3], or to the notions of issuing and executing judicial authorities. Some of these judgments have had a significant impact on the functioning of judicial cooperation in criminal matters and on national laws. This is for instance the case of the CJEU judgment in the OG-PI case[4].

Although adopted later, Directive 2014/41/EU of 3 April 2014 on the European Investigation Order[5] is one of the main instruments of mutual recognition in criminal matters in the European Union. Despite its more recent entry into force, this directive has given rise to an increasing number of judgments by the CJEU. Some of them are striking as well. This is particularly the case for the two judgments which will be at the heart of this contribution in honour of the 20th anniversary of Eurojust. These are, on the one hand, the judgment of 11 November 2021, in case C-852/19, Gavanozov II[6] and, on the other hand, the judgment of 16 December 2021, in case C-724/19, HP[7].

The provisions of the Directive which these two judgments interpret are different. The first is essentially linked to Article 14 related to legal remedies, while the second mainly relates to its Article 2 c) i) concerning the designation of the issuing authority. However, both preliminary rulings present common features. Besides the fact that they have both been issued on a referral by the Specialised Criminal Court of Bulgaria (Spetsializiran nakazatelen sad), they have also in common the importance of their impact on the functioning of judicial cooperation and on the national laws of the Member States. Both should result in a strengthening of the judicial protection in the issuing state.

I will start with the Gavanozov II case (1) and continue with the HP one (2).

The Gavanozov II judgment or the consecration of the right to an effective remedy and of the principle of effective judicial protection

The Ivan Gavanazov case concerned criminal investigations into large-scale VAT fraud. The Bulgarian authorities wished to request searches and seizures and a witness hearing by videoconference in the Czech Republic on the basis of a European Investigation Order (EIO). However, under Bulgarian law, there is neither a legal remedy against the lawfulness of searches and seizures and witness hearings nor against the issuance of an EIO dealing with such investigative measures. In such context, the Specialised Criminal Court of Bulgaria referred preliminary questions to the CJEU, the main one seeking to find out whether the national laws of Member States must provide for the possibility of an appeal against the issuance of an EIO to carry out searches and seizures and to organise the hearing of a witness by videoconference. This gave the Court the opportunity to rule on the scope of Article 14 of the Directive on the EIO read in conjunction with the Charter of Fundamental Rights of the EU.

As a reminder, Article 14 § 1 of the Directive especially provides that Member States shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO.

In a first judgment dated 24 October 2019 (Gavanozov I)[8] – contrary to Advocate General Yves Bot, who answered all referred questions[9] – the Court reformulated these, considering that the Bulgarian referring Court was simply seeking to know how to complete section J of the form annexed to the Directive. It specified that Article 5, § 1 of the Directive, read in conjunction with the aforementioned section J, must be interpreted as meaning that the judicial authority issuing an EIO must not include in this section a description of the legal remedies available in its national law against the issuance of such an order. That authority needs only to indicate whether a legal remedy has been exercised against the EIO and provide the name and contact details of the competent authorities able to provide further information in this regard.

The ‘Guidelines on how to complete the forms’ were then amended accordingly[10].

Being unsatisfied with that first decision by the Court of Justice, the Bulgarian referring court came back with two preliminary questions: a first one intended to know whether national legislation, which does not provide for any legal remedy against the issuing of an EIO for the search of residential and business premises, the seizure of certain items and the hearing of a witness, is compatible with Article 14 of the Directive read in conjunction with Article 47 of the EU Charter of Human Rights, and a second question seeking to discover whether an EIO can be issued under such circumstances. This time, by a judgment of 11 November 2021, the CJEU responded to both questions, generally speaking along similar lines as the former conclusions of Advocate General Yves Bot in Gavanazov I and of Advocate General Michal Bobek in Gavanozov II[11].

In its response to the first question, the Court considered that Article 14 of Directive 2014/41, read in conjunction with its Article 24 (7) and with Article 47 of the Charter, must be interpreted as meaning that it opposes the rules of a Member State issuing an EIO which does not provide for any remedy against the issuance of an EIO having as its object the carrying out of searches and seizures as well as the organisation of a witness hearing by videoconference. In this respect, the judgment highlights the divergences that exist in terms of the level of judicial protection in the various Member States and the lack of harmonisation at the investigative stage. Article 14 of the EIO Directive does not approximate national laws in the field since it limits itself to imposing ‘equivalence’ between legal remedies in domestic cases and investigative measures indicated in EIOs. As the Court stresses: Article 14 ‘does not require Member States to provide additional legal remedies to those that exist in a similar domestic case’ (see point 26). In other words, Bulgarian legislation does not infringe Article 14 of the Directive as such as it does not allow for any remedies against the national investigative measures either. That said, as the Court underlines it, ‘it should be borne in mind that when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection’ (see point 28). Thus, in a way, such a transposition gives the opportunity to the CJEU to transplant by analogy in the context of an EIO the reasoning of the European Court of Human Rights which found repeatedly the absence in Bulgarian law of a legal remedy to domestic investigative measures in breach of the minimum standards under Article 13 of the European Convention on Human Rights[12]. The CJEU refers to these decisions of the Court of Human Rights explicitly (see point 34).

In its answer to the second question, the Court considered that Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter and Article 4, § 3 TEU, must be interpreted in the sense that it opposes the issuance, by the competent authority of a Member State, of an EIO having as its object the carrying out of searches and seizures as well as the organisation of a witness hearing by videoconference, where the regulations of that Member State do not provide for any remedy against the issuance of such EIO. The Court bases its reasoning on the concept of mutual recognition and mutual trust. As a rule, the executing authority is required to recognise an EIO transmitted in accordance with Directive 2014/41, 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 Member State (see points 38 and 39). The mechanism is based on mutual trust and on the rebuttable presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. Observance of those rights falls, primarily, within the responsibility of the issuing Member State, which must be presumed to be complying with Union law and, in particular, with the fundamental rights conferred by that law (see points 54 and 55). Since the absence of legal remedies in the issuing State against the issuance of an EIO infringes Article 47(1) of the Charter, it rules out the possibility of mutual recognition being implemented and benefiting that Member State (see point 56). If an EIO is issued, it would result in the automatic application of Article 11(1)(f) of the Directive which provides for a ground for refusal when there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State's obligations in accordance with Article 6 TEU and the Charter (see point 59).

In this judgment, the Court thus pays particular attention to the right to an effective remedy and to the principle of effective judicial protection in the issuing state. It strengthens the position of individual rights, which is to be welcomed. The limited control by the executing authorities that results from the mutual recognition principle is to be legitimised by the extent of judicial control on the issuance of the order in the issuing state. As with its case-law on the EAW, faced with sensitive questions[13], the Court paused by initially reformulating the questions put to it but then embarked on a more daring, impacting case-law in terms of the protection of fundamental rights. Among the other important lessons to be learned from this decision is the complementarity between mutual recognition and trust, on the one hand, and the respect for minimum standards and approximation, on the other. This has been underlined by many in the case of the EAW, but it is true also in the field of cooperation at the investigation level, where approximation has remained much neglected by the EU legislator so far. Nothing comparable to the provisions related to the EAW in the Directives on procedural guarantees for suspects and accused persons[14] exists for the moment in the field. Indeed to overcome the divergent approaches of the Member States in the field, the latter has attempted to circumvent differences by leaving a wide margin of discretion to the Member States and extensively referring to national law, including in a number of (nevertheless crucial) aspects of defence rights in transnational investigations such as legal remedies[15].

As was expected by several actors in the field, this judgment is likely to have important consequences. For Bulgaria, of course, it means that as long as Bulgarian law is not made compatible with the Charter and the European Convention of human rights, it will no longer be able to issue EIOs anymore. If Bulgarian EIOs are issued in the same legal context, the executing authorities should apply Article 11(1)(f) of the Directive which provides for an optional ground for refusal based on fundamental rights. The other Member States which do not have such legal remedies in their national law should be impacted as well. It should lead them to revise and correct their national laws accordingly. Logically, the impact should not only concern the legal remedies against the issuance of EIOs but the investigative measures in domestic cases as well. Hence this case-law could have, progressively and indirectly, a positive approximating impact on the level of judicial protection at the investigative stage in the Member States.

The decision by the Court leaves many questions unanswered. I will tentatively and without claiming to be exhaustive mention four of them. A first question is to know when the legal remedy should be available, namely before or after the execution of the requested acts and measures (ex ante or ex post). If it is before, the surprise effect will obviously be lost[16]. In other words, if a legal remedy should be available ex ante this would most probably render the issuing of an EIO useless, since the person against whom the investigative measure will be applied will be able to anticipate it. A second question is to know for which other investigative measures such a legal remedy is required. The main criterion for the Court seems to be ‘when a person can be adversely affected’ (see point 47). Of course, this could be interpreted more or less extensively. The Court seems to interpret it rather broadly as it considers that a request to hear a witness by videoconference is also covered by these terms. A third question relates to the precise outlines of the requested reaction and degree of control by the executing authority. It would be particularly detrimental to mutual trust if the executing authority were expected to raise the issue of legal remedy systematically and ex officio and arguably slow down the cooperation in the process, thus making it less effective. The circumstances in which the executing authority should check whether there is any effective remedy available in the issuing State against an EIO should therefore be clarified. A fourth question concerns the exact meaning of the aforementioned statement by the Court according to which the issuance of an EIO in the absence of a legal remedy being available would result in the automatic application of Article 11(1)(f) of the Directive (see supra point 59). The latter only provides for an optional ground for refusal. Does ‘automaticity’, in the view of the Court, imply an obligation to refuse the recognition and execution? At first glance, these two notions (automaticity and optional ground for refusal) would seem to be incompatible.

The HP Judgment or the importance of the equivalence principle, the simplification

In the case at hand, the Bulgarian public prosecutor’s office had issued four EIOs with a view to collecting traffic and location data associated with telecommunications. Those EIOs were addressed to the Belgian, German, Austrian and Swedish authorities. All orders 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 these four Member States. The competent German, Austrian and Swedish authorities did not transmit a decision recognising the EIOs, but the Belgian investigating judge did. On the basis of the evidence gathered, HP was charged, together with other persons, with illegally financing terrorist activities and participating in a criminal organisation seeking to finance those activities. The referring court, once again the Specialised Criminal Court of Bulgaria, before which HP’s indictment was brought, wanted to determine whether that accusation was well founded. Indeed, according to Bulgarian law, these EIOs had been issued by the Public Prosecutor’s Office whereas, in a similar domestic case, the authority with competence to order that traffic and location data associated with telecommunications is a judge of the Court of First Instance, having jurisdiction in the case concerned, whereas the public prosecutor only has the power to make a reasoned request to that judge in such a situation. Hence, it referred two questions to the CJEU.

The first question was to find out whether Article 2 (c) (i), of the Directive precludes a public prosecutor from being competent to issue, during the preliminary phase of criminal proceedings, an EIO aimed at obtaining traffic data and location data relating to telecommunications, where, in the context of a similar national procedure, the adoption of an investigative measure aimed at accessing such data falls within the exclusive competence of the judge. The Court answered in the affirmative. It started by analysing the letter of that provision but concluded that it does not allow the Court to respond to the question. The Court thus examined the context and objectives of the said provision (see points 30 and 31). In terms of context, it considers that, in order to assess the necessity and proportionality of an investigative measure – which is a requirement according to Article 6(1) a) of the Directive – and to provide the additional explanations referred to in Articles 26(5), 27(4) and 28(3) of the Directive, 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 (see points 32 to 34). Article 6(1)(b) of the Directive which provides 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, leads the Court to consider that 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 (see point 35). Turning to the objectives of the Directive, the Court of Justice particularly insisted on its simplification purpose and concluded that a 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 (see points 36 to 38).

The Court then replied negatively to the second question, which was to discover whether the recognition of such an EIO by the competent authority of the executing state (public prosecutor or an investigating judge) replaces the court order required under the law of the issuing state. In other words, it considers that the executing authority cannot, by its decision of recognition, remedy the non-compliance with the conditions for issuing an EIO (see point 50). The opposite solution would indeed affect the distribution of competences between the issuing authority and the executing authority, and thereby the balance of the EIO mechanism based on mutual trust, since this would amount to recognising the executing authority with the power to control the substantive conditions for issuing such a decision (see points 51 to 53).

In this decision, besides putting the emphasis on the equivalence principle requiring the application of the same rules as in a similar domestic case, the Court insisted on the simplification purpose that lies at the heart of the EIO directive as well as on the balance of roles between issuing and executing authorities and the restricted control only that can be performed by the latter. In this case, the result is in a way favourable to judicial protection since it indeed results in a judge issuing EIOs. As highlighted by the Court itself, it is also in line with another judgment by the Court dated 2 March 2021, in case Prokuratuur C‑746/18, related to Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector. In this decision, the Court considered indeed that Article 15(1) of that Directive 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 pretrial 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. In its HP judgment, the CJEU repeats the part of Advocate General’s conclusions where he noted 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 pretrial procedure but also is in charge of the public prosecution in subsequent criminal proceedings (see points 42 and 43).

Conclusion

These two cases show the major added value that CJEU case-law can bring in interpreting aspects of EU legislation in this field and especially in terms of the need to find a balance between security and efficacy, on the one hand, and protection of human rights and judicial protection, on the other. The added value of the functioning of the EAW was already clear. This is now true of the EIO Directive as well. These two judgments show replies to some important questions, but they are far from exhaustive. Others will surely follow, which will allow the Court to bring further necessary clarifications.

In a way, this case-law is also representative of Eurojust’s added value. Its impact on operational cooperation is of course well known. As stated in Eurojust’s 2021 Annual Report, the Agency dealt with 4 262 cases involving an EIO in 2021, and helped to resolve issues concerning challenges with the execution of EIOs for the hearing of suspects or accused persons via videoconference, or the interception of telecommunication[17]. Its role in terms of informing and disseminating important decisions of the CJEU and analysing them, and the impact these decisions have on the functioning of judicial cooperation and on national legislations, is perhaps less known. Yet the same Annual Report mentions that ‘Eurojust also monitors relevant CJEU case-law developments in the field of the EIO directive and their possible impact on judicial cooperation’. This is crucial in the EIO context but also with respect to the other mechanisms of judicial cooperation in criminal matters[18]. Together with the European Judicial Network, Eurojust has indeed a key function to fulfil. Not only do they facilitate the implementation of EU legislation in the field of judicial cooperation in criminal matters as such, but equally they assist national authorities by monitoring CJEU judgments, drawing attention to them, helping authorities to understand these judgments and adjust their practice to the implications of these judgments, and identifying best solutions and practices. This is essential for practitioners – including defence lawyers – and academics involved and interested in the implementation of EU legislation in this field.