Opinion of the Advocate General — ECLI:EU:C:2025:95
Date: 2025-02-13
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-635/23 – 1 
Case C-635/23 
Request for a preliminary ruling 
Date lodged: 
23 October 2023 
Referring court: 
Kammergericht (Berlin, Germany) 
Date of the decision to refer: 
20 October 2023 
Applicant: 
WBS GmbH 
      
KAMMERGERICHT (HIGHER REGIONAL COURT, BERLIN) 
Order 
[…] 
In the mutual legal assistance matter concerning 
the European Investigation Order issued by the Office for the  
Eradication and Prevention of Corruption of the Republic of Latvia on 
25 April 2019, 
in the present case only as regards 
WBS GmbH, 
[…] 
the Fourth Criminal Chamber of the Kammergericht (Higher Regional Court), 
Berlin, made the following order on 20 October 2023: 
The following question is referred to the European Court of Justice for a 
preliminary ruling under Article 267 TFEU: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 10. 2023 – CASE C-635/23 
 
2  
Can a European Investigation Order concerning a measure reserved to the 
courts under the law of the issuing State be issued by another competent 
authority, within the meaning of Article 2(c)(ii) 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, in collaboration with a 
non-judicial validating authority, if a court of the issuing State has 
previously authorised the investigative measure in compliance with the 
obligations provided for in Directive 2014/41/EU to make assessments and 
state reasons? 
G r o u n d s: 
1 A: Facts of the case 
On 5 April 2019, the Latvian Office for the Eradication and Prevention of 
Corruption initiated criminal proceedings for suspected large-scale swindling, 
large-scale unlawful waste of another persons’ property and forgery of documents 
as well as use of forged documents against officials of a Riga foundation. In the 
course of its investigations, the Office considered it necessary to search the Berlin 
business premises of the companies FF GmbH and WBS GmbH and applied to the 
investigating judge of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City 
Court (Vidzeme District), Latvia) for authorisation of those investigative measures 
in accordance with Sections 179 and 180 of Latvia’s Kriminālprocesa likums 
(Code of criminal procedure). By her orders of 24 April 2019, the investigating 
judge approved the application, stating as grounds for her decision that the 
premises of the aforementioned companies could be expected to contain 
documents, data carriers and objects relevant to the proceedings; the purpose of 
the search was to find and seize them, and the search was necessary and 
proportionate. 
2 On 25 April 2019, the Latvian Office for the Eradication and Prevention of 
Corruption, as another competent authority within the meaning of Article 2(c)(ii) 
of Directive 2014/41/EU, issued a European Investigation Order (‘EIO’) by which 
it requested that the Federal Republic of Germany examine two witnesses and 
execute the investigating court’s search warrants of 24 April 2019, which were 
attached to the EIO. The Prosecutor General’s Office of the Republic of Latvia 
validated the EIO and sent it to the Berlin Public Prosecutor’s Office. 
3 Following a corresponding request from the Berlin Public Prosecutor’s Office, the 
Amtsgericht Tiergarten (Tiergarten Local Court) in Berlin also ordered the search 
of the business premises of FF GmbH and WBS GmbH. The searches 
subsequently conducted on 13 May 2019 led to the seizure of numerous items of 
evidence. 
4 The legal representatives of FF GmbH and WBS GmbH filed an appeal against 
the mutual legal assistance measure before the present Chamber, applying, inter 
alia, for the surrender of the seized evidence to the Republic of Latvia to be 
WBS GMBH 
 
3 
declared not permissible. In respect of FF GmbH, the present Chamber referred 
the proceedings to the Bundesgerichtshof (Federal Court of Justice, Germany) for 
clarification of a legal question concerning the admissibility of the judicial 
remedy; in respect of WBS GmbH, it decided, inter alia, that the surrender of the 
evidence was permissible with the proviso that certified copies of the documents 
were to be surrendered instead of the original documents seized. However, the 
evidence seized from WBS GmbH was not subsequently surrendered, since it was 
the view of the Berlin Public Prosecutor’s Office that the outcome of the review 
procedure before the Bundesgerichtshof (Federal Court of Justice) should be 
awaited. 
5 Following the decision of the Bundesgerichtshof (Federal Court of Justice), the 
legal representative of WBS GmbH again applied, inter alia, for the surrender of 
the seized evidence to the Republic of Latvia to be declared not permissible. He is 
of the opinion that the present Chamber – in accordance with the provisions of 
national law providing for such a possibility – has to decide again on the 
permissibility of the surrender, since there has been a change in the legal situation. 
He submits that, by virtue of the decision of the European Court of Justice of 
16 December 2021 in Case C-724/19, an EIO concerning a measure reserved to 
the courts under the law of the issuing State can only be issued by a court. In his 
view, the surrender of the evidence seized is therefore now not permissible in any 
event, since the search measure which preceded the seizure is reserved to the 
courts in the Republic of Latvia but the EIO was not issued by a court. 
6 The Berlin Public Prosecutor’s Office asked the Prosecutor General’s Office of 
the Republic of Latvia whether the EIO could be re-issued by a court. The 
Prosecutor General’s Office of the Republic of Latvia replied that this was not 
possible, as there was no legal basis for it in the law of the Republic of Latvia. 
7 The present Chamber deferred the decision on the request for a fresh ruling on the 
permissibility of the mutual legal assistance in order to clarify the question raised 
by the present order and ordered that the surrender of the seized evidence be 
postponed. 
8 B. Grounds for the question referred for a preliminary ruling 
I. The Fourth Chamber of the Court of Justice of the European Union ruled by 
its judgment of 16 December 2021 in Case C-724/19 that Article 2(c)(i) 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 must be 
interpreted as precluding a public prosecutor from having competence to issue, 
during the pre-trial stage of criminal proceedings, an EIO, within the meaning of 
that directive, seeking to obtain traffic and location data associated with 
telecommunications, where, in a similar domestic case, the judge has exclusive 
competence to adopt an investigative measure seeking access to such data. In the 
instant case, the Bulgarian Public Prosecutor’s Office, as an authority within the 
meaning of Article 2(c)(i) of Directive 2014/41/EU, had issued, without the prior 
REQUEST FOR A PRELIMINARY RULING OF 20. 10. 2023 – CASE C-635/23 
 
4  
involvement of a Bulgarian court, four EIOs concerning the collection of traffic 
and location data associated with telecommunications. These were measures 
which, in a similar domestic case, the Bulgarian Public Prosecutor’s Office could 
have ordered only following judicial authorisation. 
9 II. Applying to the present case the principles set out in the Court’s decision, 
the present Chamber would have to find that the surrender of the seized evidence 
to the Republic of Latvia was not permissible. 
The German legislature has set out the provisions of Directive 2014/41/EU on the 
requirements regarding the competence of the issuing authority as conditions for 
the permissibility of mutual legal assistance in Paragraph 91d(1) of the Gesetz 
über die internationale Rechtshilfe in Strafsachen (Law on international mutual 
assistance in criminal matters, ‘the IRG’). Paragraph 91d(1) of the IRG reads as 
follows: 
(1) The rendering of mutual assistance is only permissible if the 
requesting Member State uses the form in Annex A or Annex C of the 
European Investigation Order Directive, as amended, to make its request 
and the request 
1. has been issued by a judicial authority within the meaning of 
Article 2(c)(i) of the European Investigation Order Directive or 
2. has been issued by an authority other than that referred to in no. 1 
which the requesting Member State has designated as competent therefor 
and it has been confirmed by an authority pursuant to Section L no. 1 of the 
form in Annex A of the European Investigation Order Directive. 
10 Under Paragraph 91d(1) of the IRG, it would not be permissible to surrender the 
seized evidence to the Republic of Latvia, as the EIO, in so far as it concerned the 
search measure inseparably connected with the surrender, would have been issued 
by an issuing authority lacking the competence to do so. In that respect, the Office 
for the Eradication and Prevention of Corruption would not be an other authority 
within the meaning of Article 2(c)(ii) of the Directive, as it would not have had 
the power to order a search in a similar domestic case. Under Sections 179 and 
180 of the Latvian Code of criminal procedure, searches may, in principle, be 
ordered only by a court. The provisions as they relate to the present proceedings 
have been translated into English as follows (source: https://wipolex-
res.wipo.int/edocs/lexdocs/laws/en/lv/lv043en.pdf): 
Section 179. Searches 
(1) A search is an investigative action whose content is the search by force 
of premises, terrain, vehicles, and individual persons for the purpose of 
finding and removing the object being sought, if there are reasonable 
grounds for believing that the object being sought is located in the site of the 
search. 
WBS GMBH 
 
5 
(2) A search shall be conducted for the purpose of finding objects, 
documents, corpses, or persons being sought that are significant in criminal 
proceedings. 
Section 180. Decision regarding a Search 
(1) A search shall be conducted with a decision of an investigating judge 
or a court decision. An investigating judge shall take a decision based on a 
proposal of a person directing the proceedings and materials attached 
thereto. 
(2) […] 
(3) In emergency cases where, due to a delay, sought objects or 
documents may be destroyed, hidden, or damaged, or a person being sought 
may escape, a person directing the proceedings may conduct a search with 
the consent of a public prosecutor. […] 
11 The finding that the mutual legal assistance was not permissible which would 
consequently follow from application of the legal principles arising from the 
decision of the Court in Case C-724/19 would mean that the Berlin Public 
Prosecutor’s Office would have to return the EIO to the Republic of Latvia in 
accordance with Article 9(3) of Directive 2014/41/EU. 
12 III. However, the present Chamber has doubts as to whether the principles arising 
from the decision of the Court in Case C-724/19 are to be applied unchanged in 
the present case or whether, on the contrary, it is sufficient that a court of the 
issuing State authorised the investigative measure in question before the EIO was 
issued and did so in compliance with the obligations to make assessments and 
state reasons laid down in Directive 2014/41/EU. 
13 1. Those doubts arise, first, from the fact that the decision of the Court 
concerned an authority within the meaning of Article 2(c)(i) whereas, in the 
present case, an ‘other competent authority as defined by the issuing State’ within 
the meaning of Article 2(c)(ii) acted as the issuing authority. The present Chamber 
cannot clearly infer from the Court’s decision whether the principles it sets out 
apply equally to EIOs issued under Article 2(c)(ii). In paragraphs 29 and 30 of its 
decision, the Court held as follows: 
‘29 It is thus apparent from the wording of that provision that the issuing 
authority must, in all situations covered by that provision, be competent in 
the case concerned, either as a judge, court, investigating judge or public 
prosecutor, or, where it is not a judicial authority, as an investigating 
authority. 
30 By contrast, an analysis of the wording of that provision does not, in 
itself, make it possible to determine whether the words “competent in the 
case concerned” have the same meaning as the words “with competence to 
REQUEST FOR A PRELIMINARY RULING OF 20. 10. 2023 – CASE C-635/23 
 
6  
order the gathering of evidence in accordance with national law” and, 
therefore, whether a public prosecutor may be competent to issue an EIO 
seeking to obtain traffic and location data associated with 
telecommunications, where, in a similar domestic case, the judge has 
exclusive competence in respect of an investigative measure seeking access 
to such data.’ 
14 In the view of the present Chamber, that could be understood as meaning that an 
other authority within the meaning of Article 2(c)(ii) can also be the competent 
issuing authority where ordering such measures is reserved to the courts under 
national law and that the involvement of a court – clearly still required in that 
situation – can occur at a different point. 
15 2. Second, the present situation differs from that which gave rise to the 
Court’s decision in that, before the EIO was issued, the investigative measure 
reserved to the courts under the law of the issuing State had been authorised by a 
court of the issuing State which deemed it necessary and proportionate. In the 
view of the present Chamber, this means that the considerations underlying the 
Court’s decision largely do not apply in the present case. 
16 It is the present Chamber’s understanding that the Court essentially bases its 
decision on the following three arguments: 
(1) Only the authority competent under national law to order the measure 
in question can usefully fulfil the obligations laid down in the directive to 
make assessments (Article 6(1)(a)) and state reasons (cf. paragraphs 32 to 
34). 
(2) By virtue of Article 6(1)(b) of Directive 2014/41, the issuing authority 
may only issue an EIO where the investigative measure referred to in the 
EIO could have been ordered under the same conditions in a similar 
domestic case (paragraph 35). 
(3) A distinction between the authority which issues the EIO and the 
authority which is competent to order investigative measures in the context 
of domestic investigative procedure would complicate the system of 
cooperation, thereby jeopardising the establishment of a simplified and 
effective system (paragraph 36 to 38). 
17 (a) In the view of the present Chamber, considerations (1) and (2) are irrelevant to 
the present case. The assessment obligations under Article 6(1)(a) of the directive 
were fulfilled by the authority with competence under national law in respect of 
the investigative measure before the EIO was issued; the competent investigating 
judge stated in her order that the searches to be carried out in Berlin were 
necessary and proportionate. Unlike in the situation which gave rise to the Court’s 
decision in Case C-724/19, there were no special requirements in the present case 
in respect of the statement of reasons. The issuing authority also issued the EIO 
under the conditions under which the investigative measure could have been 
WBS GMBH 
 
7 
ordered in a similar domestic case; it requested the search from a court 
beforehand, and the court authorised the search before the EIO was issued. 
18 (b) It is the present Chamber’s understanding that, consequently, only 
consideration (3) remains. 
(aa) In that regard, first, the present Chamber believes that the consideration must 
be analysed in a nuanced manner. In its view, having the authority issuing the EIO 
necessarily coincide with the authority competent under national law to order the 
measure may result in complications as well as simplifications. That applies, in 
particular, to Member States – such as in the German legal system – in which the 
investigating court does not play a central role in the investigative procedure but 
comes into contact with the investigation only sporadically, such as for the 
execution of certain investigative measures requested by the Public Prosecutor’s 
Office or the ordering and confirmation of enforcement measures which are 
reserved to the court under national criminal procedural law. In the German legal 
system, in any event, the fact that the investigating court has competence only for 
certain points means that it only has the case file at the time of its decision and, 
moreover, is familiar neither with areas of investigation that do not concern its 
decision nor with developments that occur after its decision. Consequently, in the 
event that it is classified as an issuing authority and the executing authority raises 
follow-up questions, as it might, for example, under the first sentence of 
Article 6(3) of the Directive, the investigating court must first request the case file 
and (re)familiarise itself with the investigations and their current status. This leads 
to delays in the flow of mutual legal assistance. 
19 It must also be considered that situations are conceivable in which the EIO – as in 
the present case – concerns not only investigative measures the ordering of which 
is reserved to the court but also measures for which that is not the case. In such a 
situation, it seems feasible that there would be an option for each authority to 
issue a separate EIO for the area within its competence. The executing State 
would then be in contact with different issuing authorities in respect of two EIOs 
relating to a single set of facts. This may also, in the view of the present Chamber, 
complicate the system of cooperation. 
20 (bb) Second, the present Chamber wonders whether consideration (3) may justify 
the restriction of Member States’ discretion in the implementation of Directive 
2014/41 which attaches to the principles arising from Case C-724/19. The present 
Chamber’s doubts in this regard are rooted in part in comparison with the legal 
situation relating to the European arrest warrant, under which it is considered 
permissible for the issuing authority to be different from the authority having the 
equivalent competence under national law (cf. judgment of the Grand Chamber of 
the Court of 27 May 2019, C-509/18), irrespective of the objective, likewise 
important in that context, of simplifying a previously complicated system of 
cooperation among the Member States (cf. recital 5 of Council Framework 
Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the 
surrender procedures between Member States). 
REQUEST FOR A PRELIMINARY RULING OF 20. 10. 2023 – CASE C-635/23 
 
8  
21 The present Chamber therefore asks as follows: 
[…][repetition of the question referred for a preliminary ruling] 
[…]