Emilio De Capitani and Steve Peers

The enactment of Directive 2014/41/EU concerning the European Investigation Order (EIO) marks a significant development in criminal justice cooperation within the European Union, particularly after the Lisbon Treaty and the EU Charter of Fundamental Rights came into effect. This piece will delve into the broader legal framework surrounding this new directive, examining its territorial reach considering various opt-outs and its key provisions on the interplay between human rights and mutual recognition.

A single, comprehensive instrument

Effective May 22, 2017, this directive streamlines a crucial aspect of judicial cooperation—the exchange of evidence between Member States in criminal proceedings—by replacing the existing array of laws with a single, unified instrument. This streamlined approach aims to expedite and enhance the efficiency of cross-border investigations.

Previously, this area was governed by a patchwork of regulations:

- The Council of Europe Convention on Mutual Assistance in Criminal Matters, adopted on April 20, 1959, along with its two supplementary protocols.

- Relevant sections of the Schengen Convention.

- The 2000 EU Convention on Mutual Assistance in Criminal Matters and its associated protocol.

- The 2008 Framework Decision concerning the European Evidence Warrant.

- The 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (specifically regarding the freezing of evidence).

Unlike the European Evidence Warrant, which saw limited implementation due to its perceived impracticality by most Member States, the new directive encompasses nearly all investigative measures. This includes witness interviews, obtaining existing information or evidence held by the executing authority, and, subject to additional safeguards, intercepting telecommunications and accessing and monitoring bank account details. It’s important to note that the directive won’t apply to Schengen cross-border surveillance conducted by law enforcement under the Schengen Convention or to the formation and evidence gathering processes of joint investigation teams. The reasoning behind this, as per the legislator, is that these scenarios “necessitate specific regulations best addressed separately.”

Certain elements of the previous Conventions will remain effective as they address matters beyond the scope of investigations, such as compensation for wrongful convictions. A forthcoming handbook for practitioners will offer clarity on this distinction.

Territorial scope

The directive’s jurisdiction extends to all EU Member States with the exception of Denmark and Ireland. Denmark’s exclusion stems from its general exemption from Justice and Home Affairs measures as outlined in Protocol 22 of the Treaties. Ireland, on the other hand, has yet to exercise its right to “opt in” as per Protocol 21 of the Treaties. Interestingly, the UK, despite ultimately abstaining, did “opt in” and participated in the voting process (and, in doing so, bypassed national parliamentary scrutiny).

Given the stances of Ireland and Denmark, the previous Framework Decision on the European Evidence Warrant will persist but only in the context of relations between these two nations and the remaining EU Member States. It’s plausible that the legislator sought to keep the door ajar for Ireland to potentially “opt in” at a later stage, a possibility that remains open after the adoption of an EU Justice and Home Affairs act, according to Article 4 of Protocol 21.

This complex (and potentially temporary) legal situation has compelled the legislator to incorporate a broad and adaptable reference in Article 34 of the directive: “_…_the Member States bound by this Directive"—a formulation previously employed in the “Human Trafficking” Directive, as well as in other measures such as EU asylum legislation.

Such legal maneuvering can create ambiguity and has sparked public statements from several Member States. These statements, while courteous, press the Commission and the Presidency to explore ways to ensure legal clarity regarding the annulment of the Framework Decision (on the European Evidence Warrant) for all Member States.

From legal assistance to mutual recognition

This new text marks a significant shift from mutual legal assistance mechanisms, where the requested State held considerable discretion in fulfilling another State’s request, to a mutual recognition system. In this new framework, each State is generally obligated to acknowledge and execute requests from other Member States. This change is evident in the terminology used—“order,” “issuing State,” and “executing State” replace “requesting State” and “requested State”—underscoring the systemic shift.

Furthermore, an EIO can only be rejected on specific grounds outlined in Article 11 of the directive. These grounds include concerns related to human rights, territoriality, national security, and double jeopardy. While the executing authority retains the right to opt for a less intrusive investigative measure than that stipulated in an EIO if it yields comparable outcomes, Article 12 mandates deadlines for implementing investigative actions. Additionally, it dictates that recognition or execution should be carried out with the same urgency and precedence as similar domestic cases.

Building on mutual (but not blind) trust

The mutual recognition system represents a substantial change for national criminal law frameworks. Unsurprisingly, its introduction has been met with reservations from various stakeholders, including civil society groups, academics, and even Eurojust, who have expressed concerns about the EIO’s scope.

The overarching concern centers around the need for a more nuanced consideration of the specificities of national systems, the imperative to safeguard fundamental rights, and adherence to the proportionality principle. These concerns echo those raised during the implementation of the European Arrest Warrant (EAW), an instrument deemed both highly successful and controversial among EU mutual recognition measures.

It’s worth noting that the European Parliament played a significant role in addressing these issues. Following the proposal’s introduction in April 2010, the Parliament engaged in extensive four-year negotiations with representatives from member states. This culminated in a “first reading agreement” on the text after twelve trialogues and numerous technical meetings.

Fundamental rights and mutual recognition: resolving the conflict?

The impact of the European Parliament’s involvement is evident in recital 19 of the directive’s preamble, which states:

“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is echoed in Article 11(1)(f) of the Directive, permitting the refusal of an EIO execution based on human rights concerns. Designating the presumption of another Member State’s compliance with EU law and fundamental rights as “rebuttable” within a legislative text is a significant step for the European Union. The EU has, since the Tampere program, upheld mutual recognition as a cornerstone of criminal justice cooperation, typically making only general references to fundamental rights protection within mutual recognition instruments (with the Framework Decision on the mutual recognition of financial penalties being a notable exception).

However, by proposing this language, the European Parliament extended a principle articulated by the Court of Justice of the European Union (CJEU) in EU asylum policy—specifically in the N.S. ruling—to encompass criminal matters. The N.S. ruling posits: “

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union_. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”       _

Drawing a parallel to the NS case, refusing to execute an EIO based on human rights grounds should logically be mandatory, even though the legislation suggests it’s optional. However, it’s crucial to recognize that the directive’s wording implies that a deficiency in another Member State should be evaluated on a case-by-case basis, whereas the NS ruling leans towards “systemic deficiencies.”

Primacy of EU law and protection of national constitution’s principles

In addition to human rights concerns, the European Parliament advocated for the protection of fundamental principles within national criminal law systems. These principles are safeguarded during the negotiation of EU measures through the so-called “emergency brake” mechanism outlined in Articles 82 and 83 of the Treaty on the Functioning of the European Union (TFEU). However, the question remains: how can these fundamental aspects be upheld even after an EU measure’s enactment? The European Parliament argued that the CJEU’s jurisprudence in the Radu and Melloni cases—both concerning the implementation of the EAW—which prioritized EU law even over constitutional principles in Member States, was excessive. Consequently, they pushed for explicit acknowledgment of Member States’ constitutions.

This advocacy is reflected in the initial part of recital 39 in the preamble, which states:

“This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application..”.

The closing words of this recital mirror Article 53 of the Charter of Fundamental Rights, which addresses the relationship between the Charter and national constitutions. While the CJEU in the Melloni case determined that Article 53 justified setting limits on national constitutional protection in that specific instance, it’s important to note that Melloni dealt with a matter—in absentia trials as grounds for refusal—extensively regulated by EU law. Conversely, the EIO Directive lacks equivalent provisions.

Whether this text is sufficiently clear to sway the CJEU to embrace a more expansive “margin of appreciation” interpretation for national authorities regarding Justice and Home Affairs matters, as previously suggested by former Advocate General Francis Jacobs, remains to be seen. A definitive answer might be years away. However, it’s arguable that in the interim, the CJEU should consider the rules within this directive concerning the interplay between human rights and mutual recognition when interpreting other EU mutual recognition instruments, including the EAW.

Conclusion

These are preliminary observations on a directive that warrants a more in-depth analysis. It’s noteworthy that the directive explicitly references the first three post-Lisbon measures addressing procedural safeguards for criminal suspects:

- Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings.

- Directive 2012/13/EU on the right to information in criminal proceedings.

- Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty.

Though these represent just the initial wave of EU criminal law texts adopted since the Lisbon Treaty came into force, they signify the gradual assembly of a comprehensive framework.