Opinion of the Advocate General — ECLI:EU:C:2020:587
Date: 2020-07-16
Language of the case: German
Subject matter: Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 August 2019 
Referring court: 
Landesgericht für Strafsachen Wien (Regional Court for Criminal 
Matters, Vienna, Austria) 
Date of the decision to refer: 
1 August 2019 
Applicant: 
Staatsanwaltschaft Wien (Vienna Public Prosecutor’s Office) 
Accused: 
A***** and further unknown perpetrators 
  
Subject-matter of the main proceedings 
Execution of a European investigation order by way of legal assistance 
Subject-matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Question referred 
Are the terms ‘judicial authority’ within the meaning of Article 1(1) of Directive 
2014/41/EU of the European Parliament and of the Council of 3 April 2014 
regarding the European Investigation Order in criminal matters and ‘public 
prosecutor’ within the meaning of Article 2(c)(i) of the aforementioned Directive 
to be interpreted as also including the public prosecutor’s offices of a Member 
State which are exposed to the risk of being directly or indirectly subject to orders 
or individual instructions from the executive, such as the Senator of Justice in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-584/19 
 
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Hamburg, in the context of the adoption of a decision on the issuance of a 
European investigation order? 
Provisions of EU law cited 
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 
2014 regarding the European Investigation Order in criminal matters, in particular 
Articles 1 and 2 
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European 
arrest warrant and the surrender procedures between Member States 
Provisions of Austrian law cited 
Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den 
Mitgliedstaaten der Europäischen Union (Federal Law on judicial cooperation in 
criminal matters with the Member States of the European Union; EU-JZG), in 
particular Paragraphs 55 and 55a 
Strafprozessordnung (Code of Criminal Procedure; StPO), in particular 
Paragraphs 109 and 116 
Provisions of German law cited 
Gerichtsverfassungsgesetz (Court Constitution Law; GVG), in particular 
Paragraphs 146 and 147 
Brief summary of the facts and procedure 
1 The Hamburg Public Prosecutor’s Office is conducting investigation proceedings 
against A***** and further unknown perpetrators for fraud. The investigations are 
based on the suspicion that, in July 2018, the accused used unlawfully obtained 
data to falsify 13 transfer orders, on the basis of which a total of EUR 9 775.04 
was transferred into a certain bank account. That bank account is in the name of 
A***** and is held at an Austrian bank. 
2 In order to further clarify the facts of the matter, in particular to investigate the 
perpetrators, the Hamburg Public Prosecutor’s Office issued a European 
investigation order and sent this to the Vienna Public Prosecutor’s Office. In that 
order, the Vienna Public Prosecutor’s Office is asked to provide various account 
documents concerning the Austrian account in the form of copies for the period 
from 1 June 2018 to 30 September 2018. 
3 Pursuant to Paragraphs 109(4) and 116 StPO, the Vienna Public Prosecutor’s 
Office is asking the referring court to approve the provision of the information on 
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bank accounts and bank transactions with the aim of obliging the bank to 
surrender the account documents cited in the European investigation order for the 
period mentioned. 
4 Under the German GVG, the Hamburg Public Prosecutor’s Office may be subject 
to instructions — including in individual cases — from the Senator of Justice in 
Hamburg. The latter is in charge of that authority which constitutes the Hamburg 
state agency for the administration of justice and is part of the executive. For the 
referring court, the question therefore arises as to what extent the judgment given 
on Framework Decision 2002/584 on the European arrest warrant by the Court of 
Justice on 27 May 2019, OG and PI (Lübeck and Zwickau Public Prosecutor’s 
Offices) (C-508/18 and C-82/19 PPU, EU:C:2019:456) may be applied to 
Directive 2014/41 regarding the European Investigation Order in criminal matters. 
Principal arguments of the parties in the main proceedings 
5 The Vienna Public Prosecutor’s Office is of the opinion that the judgment in 
C-508/18 and C-82/19 PPU is not to be applied to Directive 2014/41, especially 
since the Directive — unlike the Framework Decision — expressly also provided 
for public prosecutor’s offices as possible issuing authorities. 
6 For the Hamburg Public Prosecutor’s Office, the judgment in C-508/18 and 
C-82/19 PPU likewise has no effect on the Directive, because the competences 
and issuing authorities were defined differently in the Directive to in the 
Framework Decision. By expressly also providing for a public prosecutor as 
issuing authority in the Directive, the European legislature had deliberately 
established a rule departing from other EU legal instruments in knowledge of the 
different legal systems of the Member States. 
7 The Directive, which was based on the principle of mutual recognition and serves 
to create an area of freedom, security and justice, should also not lead to a position 
that is worse than before it came into force. 
Brief summary of the basis for the reference 
8 Under Article 1(1) of the Directive, a European Investigation Order is a judicial 
decision which has been issued or validated by a judicial authority of a Member 
State. Under Article 2(c) of the Directive, an ‘issuing authority’ is either a court or 
a public prosecutor (point (i)) or any other authority with competence in criminal 
proceedings (point (ii)). If an ‘other authority’ within the meaning of point (ii) is 
involved, the European investigation order must be validated by a court or public 
prosecutor in the issuing State (see Article 2(c)(ii) of the Directive). 
9 However, according to the case-law of the Court of Justice, not all of the public 
prosecutor’s offices established in the Member States meet the requirements that 
are to be imposed on a court. In cases in which the public prosecutor’s office does 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-584/19 
 
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not satisfy those requirements, the rule adopted therefore contains a contradiction 
which needs to be resolved. 
10 By judgment C-508/18 and C-82/19 PPU, the Court of Justice recognised that the 
public prosecutor’s offices in Germany do not fall under the term ‘issuing judicial 
authority’ within the meaning of Article 6(1) of Framework Decision 
2002/584/JHA, because they are exposed to the risk of being directly or indirectly 
subject to orders or individual instructions from the executive, such as a justice 
minister, in the context of the adoption of a decision on the issuance of a European 
arrest warrant and therefore lack the independence required. 
11 In the opinion of the Court of Justice, the fundamental principles of mutual trust 
and mutual recognition require each Member State to consider all the other 
Member States to be complying with EU law and particularly with the 
fundamental rights recognised by EU law (paragraph 43 of the judgment). In the 
context of Framework Decision 2002/584, in order to protect the procedural and 
fundamental rights of the requested person, the judicial authority competent to 
issue a European arrest warrant by virtue of domestic law has to review, in 
particular, observance of the conditions necessary for the issuing of the European 
arrest warrant and examine whether, in the light of the particular circumstances of 
each case, it is proportionate to issue that warrant (see paragraphs 67 et seq., in 
particular paragraph 71 of the judgment). In order to guarantee that legal 
protection, the issuing judicial authority has to be sufficiently independent, which 
is not the case with the German public prosecutor’s offices due to their obligation 
to follow instructions. 
12 From the point of view of the referring court, the considerations put forward by 
the Court of Justice in that judgment also apply to the European investigation 
order for the following reasons: 
13 The Directive is also based on the principles of mutual recognition (see recitals 2 
and 18 and Article 1(2) of the Directive) and mutual confidence (see recital 19). 
The Directive also uses the terms ‘judicial authority’ (Article 1(1)) and ‘issuing 
authority’ (Article 2(c)). The grounds on which the executing State can refuse the 
execution are also exhaustively listed in the case of the European investigation 
order (see recital 11, according to which the execution of a European investigation 
order should not be refused on grounds other than those stated in the Directive, 
and Article 11 of the Directive, which conclusively regulates the grounds for non-
recognition or non-execution). According to the case-law of the Higher Regional 
Court of Vienna, the principle of mutual recognition also means that the 
examination of the proportionality and necessity of a measure in the executing 
State is fundamentally to be dispensed with. 
14 It is true that, in contrast to the Framework Decision, the Directive expressly 
provides that, in addition to courts and judges, public prosecutors may also issue 
(and validate) European investigation orders, which means that it could be 
concluded that it is irrelevant whether or not the respective public prosecutor is 
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exposed to the risk of being subject to individual instructions from the executive. 
It is also to be considered that the detention and transfer of the person concerned 
to another Member State, which usually accompany the execution of a European 
arrest warrant, constitute very serious interference with fundamental rights. This 
particularly justifies a sufficiently independent body making the decision as to 
whether or not a European arrest warrant is issued. 
15 On the other hand, the European investigation order covers virtually all 
investigative measures (Article 3 of the Directive), which means that such an 
order may for instance also be issued for executing a search warrant, optical and 
acoustic surveillance or surveillance of telecommunications. Such measures also 
interfere enormously with the fundamental rights of the respective persons 
concerned. It is also to be considered that Article 1(1) of the Directive explicitly 
provides that the European investigation order is a judicial decision, which 
strongly suggests that only those public prosecutor’s offices that meet the 
requirements imposed on a court in the law of the European Union are to be 
regarded as ‘judicial authorities’ or ‘public prosecutors’ within the meaning of the 
provisions mentioned in the question referred. Those requirements in any case 
include independence, which, externally, presupposes that the court concerned 
exercises its functions wholly autonomously, without being subject to any 
hierarchical constraint or subordinated to any other body and without taking 
orders or instructions from any source whatsoever, thus being protected against 
external interventions or pressure liable to impair the independent judgment of its 
members and to influence their decisions (see Article 47(2) of the Charter of 
Fundamental Rights of the European Union and the case-law delivered thereon, 
such as the judgment of 25 July 2018 in Minister for Justice and Equality, 
C-216/18 PPU, EU:C:2018:586, paragraph 63, and the case-law cited). 
16 The argument according to which the Directive should not lead to a position that 
is worse than before it came into force is to be countered by the fact that, even 
with a narrower interpretation of the terms ‘judicial authority’ and ‘public 
prosecutor’s office’ within the meaning of the provisions mentioned in the 
question referred, the instrument of the European investigation order would still 
bring about considerable acceleration and simplification of cross-border 
investigation proceedings within the European Union, especially since it may be 
assumed that, in some Member States of the European Union, the public 
prosecutor’s offices have sufficient independence. In addition, even with a narrow 
interpretation of the terms mentioned, the Directive delivers manifold 
simplifications compared to the previous legal assistance, such as insofar as the 
grounds for non-recognition or non-execution of a European investigation order 
are very narrow, the examination of dual criminality by the executing State only 
has to take place with restrictions (see Article 11(1)(g) of the Directive) and the 
examination of the proportionality of the measure in the executing State (at least 
according to the case-law of the Higher Regional Court of Vienna) is 
fundamentally unnecessary. 
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17 On the basis of these considerations, the referring court is of the opinion that the 
question referred should be answered in the negative. 
Request for an expedited procedure 
18 In consideration of the high practical relevance of the European investigation 
order, rapid clarification would be of considerable significance for numerous 
investigation proceedings, especially since the question referred is probably also 
of significance for further Member States in which, as in the case of Germany, the 
public prosecutor’s offices are exposed to the risk of individual instructions from 
the executive. On account of the interferences with the fundamental rights of the 
persons concerned, which always accompany the execution of those orders, there 
is — as explained — the risk that all of those interferences with fundamental 
rights could be contrary to EU law.