M.N. (EncroChat) (Judicial cooperation in criminal matters - European Investigation Order - Transfer of evidence already in the possession of another Member State - Opinion)

(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)

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.

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 )

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.