European Investigation Order

Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters (“EIO Directive”) entered into force in May 2014 and must now be implemented by the Member States. It is designed to simplify and accelerate cross-border prosecution in the territory of the EU. Die RL EEA provides for the possibility of issuing a European Investigation Order (“EIO”), which allows a Member State (the “Issuing State”) to have investigative measures carried out in another Member State (the “Executing State”) in order to gather and obtain evidence.

The EIO, however, is limited by the guarantees afforded under the rule of law. On the part of the Issuing State, a confirmation of the EIO by a judicial authority is required in additional to an assessment of proportionality. On the part of the Executing State, the EIO Directive provides for the possibility to refuse to issue an EIO in the event of considerable conflicts with the Charter of Fundamental Rights of the European Union or domestic criminal procedure law. This applies, for example, if the inviolable core area of private life is violated (cf. Sec 100c (4), (5) of the German Criminal Procedure Code). The issuing of the EIO in accordance with the law of the issuing State is nevertheless provided for and must – if the relevant procedural law provides for this – only be confirmed by a public prosecutor. This means the potential undermining of the preventative legal relief afforded in Germany by the fact that investigative measures can normally only be ordered by a judge. Even if the Executing State refuses to recognize or execute the EIO, however, minimum investigative measures are provided for which always have to be carried out, for example, the surrender of evidence or information which already exists, provided this could have been obtained for domestic criminal proceedings, the retrieval of information from the databases of the police and judicial authorities or the identification of an IP address.

In accordance with the “principle of separation”, legal relief against the issuing of the EIO can be obtained in the issuing State against its enforcement in the Executing State.