European Investigation Order: Opinion of the EU Advocate General in Case C-670/22 Staatsanwaltschaft Berlin

Thursday 26th October 2023

Opinion in Case C-670/22 Staatsanwaltschaft Berlin (EncroChat)

(Area of Freedom, Security and Justice)

A European Investigation Order (EIO) is an EU instrument that enables cross-border cooperation in criminal investigations. It is regulated by the EIO Directive. In this reference, the Court is invited for the first time to interpret that directive in a situation where an EIO was issued for the transfer of evidence already in the possession of another State.

For the purposes of a criminal investigation in Germany, the Public Prosecutor’s Office, Frankfurt, Germany issued several EIOs requesting the transfer of evidence gathered during a joint French-Dutch criminal investigation of EncroChat users. EncroChat was an encrypted telecommunications network offering its users near-perfect anonymity.

The present reference results from one of the criminal proceedings initiated before the Landgericht Berlin (Regional Court, Berlin, Germany) against a person based on intercepted telecommunications data, transferred based on the abovementioned EIOs. The question that arose before the referring court is whether the EIOs were issued in breach of the EIO Directive, and if so, what consequences that may have for the use of such evidence in the criminal procedure.

Background Documents C-670/22