Opinion of Advocate General Ćapeta delivered on 26 October 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:817
• Date: 26 October 2023
• Celex Number: 62022CC0670
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 26 October 2023(1)

Case C‑670/22

Staatsanwaltschaft Berlin

v

M.N.

(Request for a preliminary ruling from the Landgericht Berlin (Regional Court, Berlin, Germany))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/41/EU – European Investigation Order – Article 6(1) – Conditions for issuing a European Investigation Order – Transfer of evidence already in the possession of another Member State – Concept of issuing authority – Article 2(c)(i) – Admissibility of evidence)

I. Introduction

1. A European Investigation Order (EIO) is an EU instrument that enables cross-border cooperation in criminal investigations. It is regulated by the EIO Directive. (2) The present reference invites the Court, 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.

2. For the purposes of a criminal investigation in Germany, the Generalstaatsanwaltschaft Frankfurt am Main (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. (3)

3. The present reference results from one of the criminal proceedings initiated before the Landgericht Berlin (Regional Court, Berlin, Germany) against M.N. 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.

II. Facts, the questions referred and the procedure before the Court

4. At the origin of the criminal procedure in the main proceedings is a criminal investigation initiated in France and that continued as a joint operation between France and the Netherlands in which the location, traffic and communication data, including texts and images transmitted in ongoing chats of the EncroChat network users, were intercepted.

5. That joint operation developed a piece of Trojan software which was uploaded to the server in Roubaix (France) in the spring of 2020 and, from there, was installed on the terminal devices via a simulated update. The tribunal correctionnel de Lille (Criminal Court, Lille, France) authorised the operation for the gathering of communication data. EncroChat users in 122 countries were affected by that interception, including approximately 4 600 users in Germany.

6. During a video conference held on 9 March 2020, the European Union Agency for Criminal Justice Cooperation (Eurojust) provided information to countries concerning the surveillance measures planned by the French police and the intended transfer of data. The representatives of the Bundeskriminalamt (Federal Criminal Police Office, Germany) and the Frankfurt Public Prosecutor’s Office signalled their interest in the data collection of the German users.

7. The Frankfurt Public Prosecutor’s Office opened a preliminary investigation against unknown persons on 20 March 2020. The data collected by the French-Dutch investigation team were made available to, among others, German authorities via a European Union Agency for Law Enforcement Cooperation (Europol) server from 3 April 2020.

8. On 2 June 2020, within the framework of a German preliminary investigation against unknown persons, the Frankfurt Public Prosecutor’s Office requested, by way of an EIO, authorisation from the French authorities to use the EncroChat data for criminal proceedings. That request was based on the suspicion of illicit trafficking in substantial quantities of narcotic drugs by persons who had not yet been identified. However, they were suspected of being part of an organised crime group in Germany which used EncroChat phones. The Criminal Court, Lille authorised the EIO for the transmission and judicial use of the EncroChat data of the German users. Additional data were subsequently transmitted based on two supplementary EIOs of 9 September 2020 and 2 July 2021 respectively.

9. Based on the evidence received, the Frankfurt Public Prosecutor’s Office separated the investigations to be conducted in respect of individualised EncroChat users and assigned them to local public prosecutor’s offices. The Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin, Germany) then charged the accused in the present case with several counts of illicit trafficking of substantial quantities of narcotic drugs and illegal possession of substantial quantities of narcotic drugs in Germany.

10. That criminal procedure is currently pending before the referring court. Even if that is not clearly explained in the order for reference, it seems that in those proceedings the question arose whether the EIOs issued by the Frankfurt Public Prosecutor’s Office were issued in breach of the EIO Directive and, if so, whether they should be excluded as evidence in the criminal procedure against the accused.

11. In light of those facts, the referring court submitted the following questions to the Court of Justice for a preliminary ruling:

‘(1) Interpretation of the concept of “issuing authority” under Article 6(1) of [the EIO Directive], in conjunction with Article 2(c) thereof …

(a) Must an [EIO] for obtaining evidence already located in the executing State (in casu: France) be issued by a judge where, under the law of the issuing State (in casu: Germany), the underlying gathering of evidence would have had to be ordered by a judge in a similar domestic case?

(b) In the alternative, is that the case at least where the executing State carried out the underlying measure on the territory of the issuing State with the aim of subsequently making the data gathered available to the investigating authorities in the issuing State, which are interested in the data for the purposes of [a] criminal prosecution?

(c) Does an EIO for obtaining evidence always have to be issued by a judge (or an independent authority not involved in criminal investigations), irrespective of the national rules of jurisdiction of the issuing State, where the measure entails serious interference with high-ranking fundamental rights?

(2) Interpretation of Article 6(1)(a) of [the EIO Directive]

(a) Does Article 6(1)(a) of [the EIO Directive] preclude an EIO for the transmission of data already available in the executing State ([in casu:] France), obtained from the interception of telecommunications, in particular traffic and location data and recordings of the content of communications, where the interception carried out by the executing State covered all the users subscribed to a communications service, the EIO seeks the transmission of the data of all terminal devices used on the territory of the issuing State and there was no concrete evidence of the commission of serious criminal offences by those individual users either when the interception measure was ordered and carried out or when the EIO was issued?

(b) Does Article 6(1)(a) of [the EIO Directive] preclude such an EIO where the integrity of the data gathered by the interception measure cannot be verified by the authorities in the executing State by reason of blanket secrecy?

(3) Interpretation of Article 6(1)(b) of [the EIO Directive]

(a) Does Article 6(1)(b) of [the EIO Directive] preclude an EIO for the transmission of telecommunications data already available in the executing State ([in casu:] France) where the executing State’s interception measure underlying the gathering of data would have been impermissible under the law of the issuing State ([in casu:] Germany) in a similar domestic case?

(b) In the alternative: does this apply in any event where the executing State carried out the interception on the territory of the issuing State and in its interest?

(4) Interpretation of Article 31(1) and (3) of [the EIO Directive]

(a) Does a measure entailing the infiltration of terminal devices for the purpose of gathering traffic, location and communication data of an internet-based [communications] service constitute interception of telecommunications within the meaning of Article 31 of [the EIO Directive]?

(b) Must the notification under Article 31(1) of [the EIO Directive] always be addressed to a judge, or is that the case at least where the measure planned by the intercepting State ([in casu:] France) could be ordered only by a judge under the law of the notified State ([in casu:] Germany) in a similar domestic case?

(c) In so far as Article 31 of [the EIO Directive] also serves to protect the individual telecommunications users concerned, does that protection also extend to the use of the data for criminal prosecution in the notified State ([in casu:] Germany) and, if so, is that purpose of equal value to the further purpose of protecting the sovereignty of the notified Member State?

(5) Legal consequences of obtaining evidence in a manner contrary to EU law

(a) In the case where evidence is obtained by means of an EIO which is contrary to EU law, can a prohibition on the use of evidence arise directly from the principle of effectiveness under EU law?

(b) In the case where evidence is obtained by means of an EIO which is contrary to EU law, does the principle of equivalence under EU law lead to a prohibition on the use of evidence where the measure underlying the gathering of evidence in the executing State should not have been ordered in a similar domestic case in the issuing State and the evidence obtained by means of such an unlawful domestic measure could not be used under the law of the issuing State?

(c) Is it contrary to EU law, in particular the principle of effectiveness, if the use in criminal proceedings of evidence, the obtaining of which...