CJEU Case C-324/17/ Opinion

Introduction

1. The opening of borders within the European Union has inevitably facilitated the cross-border aspect of crime, and indeed created new opportunities in that respect. Accordingly, the legal framework in which investigations are carried out, in particular the investigative powers of judicial authorities in the Member States, needs to be able to transcend national borders.
2. The Member States hence worked to establish judicial cooperation, in particular in respect of evidence.
3. Although the growing number of judicial procedures enabling cooperation between the authorities of the Member States increased the effectiveness of cooperation in respect of obtaining evidence, it nonetheless became clear, as the EU legislature emphasised, that the European judicial framework for gathering evidence had become both too fragmented and complicated due, in the main, to the cumulation of specific instruments. Directive 2014/41 was designed to replace cooperation instruments in respect of evidence. It seeks to simplify the legal framework for obtaining evidence and improve the effectiveness of investigative procedures.
4. Directive 2014/41 has a general, particularly broad scope in comparison with the instruments that it replaces. Accordingly, the first subparagraph of Article 1(1) of that directive provides that a European investigation order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (‘the issuing State’) to have one or several specific investigative measure(s) carried out in another Member State (‘the executing State’) to obtain evidence in accordance with that directive.
5. In addition, authorities in the Member States are in principle required to execute EIOs on the basis of the principle of mutual recognition in accordance with the framework established by Directive 2014/41.
6. Since the investigative measures ordered by the competent authorities to obtain evidence in criminal matters may be particularly intrusive inasmuch as they are liable to affect the right to a private life of the persons concerned, EU legislation must find a balance between the effectiveness and speed of investigative procedures, on the one hand, and the protection of the rights of the persons subject to those investigative measures on the other.
7. This case invites the Court to interpret Directive 2014/41 for the first time, but above all it affords an opportunity to take a position on that important but delicate balance.
8. The questions referred essentially concern Article 14 of that directive and the legal remedies available against the substantive reasons for the investigative measures indicated in an EIO.
9. In this Opinion I shall explain the reasons why, first, I consider that Article 14 of Directive 2014/41 precludes legislation of a Member State which does not permit a witness concerned by investigative measures, such as a search, a seizure and a hearing, to bring an appeal challenging the substantive reasons for those investigative measures, or to receive compensation. Such being the case, I likewise consider that Article 14, read in the light of fundamental rights, precludes a national authority from issuing an EIO.
10. Second, it is my view that, where remedies are not provided for under national law in similar domestic cases, Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO.
11. Third, I consider that the concept of ‘party concerned’ within the meaning of Directive 2014/41 covers, in the first place, a witness subject to the investigative measures requested in an EIO where his home is subject to a search and a seizure and he is to be heard and, in the second place, the person against whom a criminal charge has been brought where a measure to collect evidence ordered during the proceedings against him is directed at a third party.

Conclusion

In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria):

1. Article 14 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters must be interpreted as precluding the legislation of a Member State, such as the Bulgarian legislation, which does not provide for a legal remedy against the substantive reasons for an investigative measure indicated in an EIO, and the issuance of an EIO by the authorities of that Member State.
2. Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO if remedies are not available under national law in a similar domestic case.
3. The concept of ‘party concerned’ within the meaning of Directive 2014/41 includes a witness subject to the investigative measures requested in an EIO and the person against whom a criminal charge has been brought but who is not subject to the investigative measures indicated in an EIO.