Opinion of the Advocate General — ECLI:EU:C:2023:817
Date: 2023-10-26
Language of the case: German
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-670/22 – 1 
Case C-670/22 
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: 
24 October 2022 
Referring court: 
Landgericht Berlin (Germany) 
Date of the decision to refer: 
19 October 2022 
Criminal prosecution authority: 
Staatsanwaltschaft Berlin 
Accused person: 
M.N. 
  
Subject matter of the main proceedings 
Judicial cooperation in criminal matters – Directive 2014/41/EU – European 
Investigation Order in criminal matters – Concept of ‘issuing authority’ – Spying 
on and transmitting traffic and location data of an internet-based communications 
service provider – Mobile phones equipped with encryption software – Illicit 
trafficking in substantial quantities of narcotic drugs – Use of evidence in criminal 
proceedings 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Interpretation of the concept of ‘issuing authority’ under Article 6(1) of 
Directive 2014/41, in conjunction with Article 2(c) thereof, 
EN 
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(a) Must a European Investigation Order (‘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 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 Directive 2014/41 
(a) Does Article 6(1)(a) of Directive 2014/41 preclude an EIO for the 
transmission of data already available in the executing State (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 Directive 2014/41 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 Directive 2014/41 
(a) Does Article 6(1)(b) of Directive 2014/41 preclude an EIO for the 
transmission of telecommunications data already available in the 
executing State (France) where the executing State’s interception 
measure underlying the gathering of data would have been 
impermissible under the law of the issuing State (Germany) in a 
similar domestic case? 
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(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 Directive 2014/41 
(a) Does a measure entailing the infiltration of terminal devices for the 
purpose of gathering traffic, location and communication data of an 
internet-based communication service constitute interception of 
telecommunications within the meaning of Article 31 of Directive 
2014/41? 
(b) Must the notification under Article 31(1) of Directive 2014/41 always 
be addressed to a judge, or is that the case at least where the measure 
planned by the intercepting State (France) could be ordered only by a 
judge under the law of the notified State (Germany) in a similar 
domestic case? 
(c) In so far as Article 31 of Directive 2014/41 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 (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 
was contrary to EU law precisely because there was no suspicion of an 
offence, is justified in a balancing of interests by the seriousness of the 
offences which first became known through the analysis of the 
evidence? 
(d) In the alternative: does it follow from EU law, in particular the 
principle of effectiveness, that infringements of EU law in the 
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obtaining of evidence in national criminal proceedings cannot remain 
completely without consequence, even in the case of serious criminal 
offences, and must therefore be taken into account in favour of the 
accused person at least when assessing evidence or determining the 
sentence? 
Provisions of European Union law relied on 
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 
2014 regarding the European Investigation Order in criminal matters (‘Directive 
2014/41’), in particular Article 6(1), in conjunction with Article 2(c), Article 31(1) 
and (3) 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 7, 
8 and 11 
Provisions of national law relied on 
Strafprozessordnung (Code of Criminal Procedure; ‘the StPO’), in particular 
Paragraphs 100a, 100b, 100e 
Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international 
mutual assistance in criminal matters; ‘the IRG’), Paragraph 91g 
Succinct presentation of the facts and procedure in the main proceedings 
1 From 2017 onwards, the French investigating authorities found that suspects were 
using ‘cryptophones’ from the provider ‘EncroChat’ in the commission of 
offences, primarily in crime involving narcotic drugs. Those mobile phones, 
equipped with special security components, enabled end-to-end encrypted 
communication via a server in Roubaix (France), which could not be intercepted 
by means of conventional investigative methods. 
2 With judicial authorisation, the French police managed to secure images of the 
server data in 2018 and 2019. On the basis of the knowledge gained from those 
images, a piece of Trojan software was developed within the framework of a 
transnational investigation group (Joint Investigation Team; ‘the JIT’), which, 
with the authorisation of the Criminal Court, Lille (France), was uploaded to the 
server in Roubaix in the spring of 2020 and, from there, was installed on the 
terminal devices via a simulated update. Users in a total of 122 countries were 
affected by the measure, including 380 users in France and approximately 4 600 
users in Germany. 
3 Between 1 April 2020 and 28 June 2020, the Trojan software enabled the French 
authorities to capture the device identifiers of the terminals detected in the 
respective countries, as well as location, traffic and communication data, 
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including texts and images transmitted in the ongoing chats. Furthermore, the 
authorities read the device memories, including the chats from the time before 
1 April 2020 that had not yet been deleted. Technical details about the function of 
the Trojan software and the storage, allocation and filtering of the data by the 
French authorities or Europol are not known. The functioning of the Trojan 
software is in principle subject to French military secrecy. 
4 In so far as the terminal devices were located abroad, the captured data were made 
available to a number of national investigative authorities, including the German 
Bundeskriminalamt (Federal Criminal Police Office; ‘the BKA’), via a Europol 
server from 3 April 2020. 
5 Since 2018, the BKA had knowledge that EncroChat telephones were being used 
in the commission of serious crimes in Germany, in particular those involving 
narcotic drugs. From the beginning of 2020, the BKA and the 
Generalstaatsanwaltschaft Frankfurt am Main (General Prosecutor’s Office, 
Frankfurt am Main (‘the Frankfurt GStA’) held discussions about the possibility 
of investigative measures in respect of the German EncroChat users. 
6 In a Eurojust video conference held on 9 March 2020, at which information was 
provided in relation to the surveillance measure planned by the French police and 
the intended transfer of data to the other countries, representatives of the BKA and 
the Frankfurt GStA signalled their interest in the data of the German users. 
7 At the suggestion of the BKA in a letter of 13 March 2020, proposing that a 
preliminary investigation be opened in respect of all unknown users of the 
EncroChat service, on suspicion of engaging in illicit trafficking in substantial 
quantities of narcotic drugs as part of an organised group and of forming a 
criminal organisation, the Frankfurt GStA opened such a preliminary investigation 
in respect of unknown persons (‘UJs investigation’) on 20 March 2020. Initially, 
investigative measures were neither taken nor sought by application to the 
investigating judge. 
8 On 27 March 2020, the BKA received, via the European SIENA messaging 
system, a communication from the JIT addressed to the police authorities of the 
countries interested in the EncroChat data, requesting that they confirm in writing 
that they had been informed of the methods used to obtain data from devices on 
their territory. At the same time, they were to ensure that the data initially 
transmitted only for analysis purposes would be used for ongoing preliminary 
investigations only after approval by the JIT countries. The German authorities 
granted the consents and confirmations requested in the communication. The 
French authorities did not make a notification in accordance with Article 31(1) of 
Directive 2014/41, or Paragraph 91g of the Gesetz über die Internationale 
Rechtshilfe in Strafsachen (Law on international mutual legal assistance in 
criminal matters; ‘the IRG’); nor was any objection raised on the German side in 
that regard. 
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9 In the period from 3 April 2020 to 28 June 2020, the BKA retrieved the data of the 
terminal devices used in Germany which were made available on the Europol 
server on a daily basis. After the data analysis had revealed a concrete suspicion 
of the commission of an offence in respect of a number of users, the BKA sought 
from the French Public Prosecutor’s Office, by letter of 13 May 2020, 
authorisation to apply to the investigating judge – while the measure was still in 
progress, and if possible without reference being made to the subject matter of the 
French investigation and the nature of the measure – for individual orders for 
establishing the identification of those users. After the authorisation was granted, 
the Frankfurt GStA then obtained individual judicial orders for the collection of 
location data and for other investigative measures. 
10 On 2 June 2020, within the framework of the UJs investigation, the Frankfurt 
GStA requested authorisation from the French authorities, by way of an EIO, to 
use the EncroChat data without restriction in criminal proceedings. The request 
was based on the ground that there was a suspicion that a large number of very 
serious criminal offences (in particular the import and trafficking of substantial 
quantities of narcotic drugs) were being committed in Germany by persons who 
had not yet been identified, using EncroChat phones. In response to that request, 
the Criminal Court, Lille authorised the transmission and judicial use of the 
EncroChat data of the German users. Additional data was subsequently 
transmitted on the basis of two supplementary EIOs of 9 September 2020 and 
2 July 2021. 
11 In the period that followed, the Frankfurt GStA separated from the UJs procedure 
the investigations being conducted in respect of individual users, including the 
accused person in the present case, and assigned them to local public prosecutors’ 
offices. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin) charged the 
accused person with several counts of illicit trafficking in substantial quantities of 
narcotic drugs and illegal possession of substantial quantities of narcotic drugs in 
Germany. He allegedly used the ‘EncroChat’ communication service to conduct 
his distribution activities and communicated via it by text and image messages. 
The text and image messages allegedly created by or sent to the accused person 
were obtained by way of the telecommunications interception operation carried 
out by the French authorities within the framework of the investigations 
conducted there. The charges are based substantially on those messages. 
13 By means of the request for a preliminary ruling, the referring court seeks to 
clarify whether the German investigating authorities infringed rules of Directive 
2014/41 when obtaining the data and whether, if so, the infringements must 
prevent the data from being used in the criminal proceedings – with the 
consequence of an acquittal – or otherwise affect the verdict. 
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14 The referring court states the following with regard to the questions referred: 
15 Questions 1(a) to (c): Under national law, Paragraph 100a et seq. of the 
Strafprozessordnung (Code of Criminal Procedure; ‘the StPO’), govern the 
interception of telecommunications for the purposes of criminal prosecution. The 
first sentence of Paragraph 100a(1) of the StPO permits the interception of 
ongoing communications. Furthermore, it is permissible to intercept ongoing 
communications by installing spyware on the terminal devices (second sentence of 
Paragraph 100a(1) of the StPO), to capture communications already transmitted 
and stored on the device at the time of the order (third sentence of 
Paragraph 100a(1) of the StPO) and to read all the data stored on the terminal 
device (Paragraph 100b of the StPO). All of those measures require a concrete 
suspicion of a criminal offence, whereby the group of triggering offences is 
restricted to certain ‘catalogue’ offences in Paragraphs 100a(2) and 100b(2) of the 
StPO. Under Paragraph 100e(1) and (2) of the StPO, the measures may be ordered 
by the court only at the request of the public prosecutor’s office; in that respect, in 
accordance with Paragraph 100e(2) of the StPO, in conjunction with 
Paragraph 74a(4) of the Gerichtsverfassungsgesetz (Law on the constitution of the 
courts; ‘the GVG), the online surveillance (‘Online-Durchsuchung’) under 
Paragraph 100b of the StPO comes within the exclusive competence of a special 
chamber of the regional court not ruling in main proceedings in criminal cases. 
16 The French measure appears to resemble a combination of online surveillance 
within the meaning of Paragraph 100b of the StPO and one or more of the 
measures regulated in Paragraph 100a(1) of the StPO. Accordingly, under 
Paragraph 100e(2) of the StPO, the regional court would have been competent to 
order it. Since, in accordance with the general German rules, an EIO by which the 
interception of telecommunications abroad is sought can be issued by the 
investigating public prosecutor’s office in the preliminary investigation prior to 
indictment, the Bundesgerichtshof (Federal Court of Justice, Germany), in its 
fundamental decision of 2 March 2022 (5 StR 457/21, paragraph 47), proceeds on 
the assumption, by contrast, that the Frankfurt GStA, which is investigating in the 
UJs procedure, is competent to issue the EIO for the transfer of evidence. 
17 In particular in light of the judgment of the Court of Justice of 16 December 2021, 
Spetsializirana prokuratura (Traffic and location data) (C-724/19, 
EU:C:2021:1020, paragraph 32 et seq.), the referring court has concerns as to 
whether the issuance of the EIOs of 2 June 2020, 9 September 2020 and 2 July 
2021 by the Frankfurt GStA is compatible with Directive 2014/41. There are 
grounds for taking the view that, in accordance with Article 6(1) of Directive 
2014/41, in conjunction with Article 2(c) thereof, a court (territorially and 
substantively: the Regional Court, Frankfurt am Main) would have been 
competent if the above case-law is applied to the case where the executing State 
has already carried out the investigative measure and the issuing State requests, by 
way of the EIO, the transfer of the data thus obtained or permission to use them in 
a judicial capacity. The wording of Article 2(c)(i) and (ii) of Directive 2014/41 
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and the assessment steps provided for in Article 6(1)(a) and (b) thereof militate in 
particular in favour of a court having competence. 
18 Furthermore, the data subsequently requested by way of the EIOs originate 
exclusively from users in the territory of the issuing State (Germany). From the 
outset, the executing State (France) had collected and stored those data only with 
the aim of subsequently transmitting them to the issuing State for the purposes of 
criminal prosecution there. The German criminal prosecution authorities were 
informed of the surveillance measure before it began. They endorsed the measure 
by means of the consent declared in the reply to the SIENA message of 27 March 
2020 and the undertakings given therein, without which the data would not have 
been made available on the Europol server. In view of this, the natural course of 
action for the German authorities would have been to instruct the French 
authorities to carry out the measure against the German users by way of an EIO 
before the measure began. Alternatively, the French authorities would have been 
under an obligation to notify in accordance with Article 31 of Directive 2014/41, 
whereby such notification would also have led to a prior judicial review of the 
measure in Germany in accordance with Article 31(3) of Directive 2014/41, and 
Paragraph 91g(6) of the IRG. 
19 Since Directive 2014/41 is also aimed at ensuring national minimum standards, it 
seems appropriate for an EIO to be issued with a view to data transfer to be 
subject to the same jurisdictional rules that would have applied to an EIO to be 
issued with a view to interception. This applies in particular to the EIO of 2 June 
2020, when the interception measure was still ongoing. The fact that the measure 
had been ordered by a judge in France did not render the decision of the German 
court unnecessary (see, regarding the judicial recognition of an EIO in the 
executing State, judgment of the Court of Justice of 2 March 2021, Prokuratuur 
(Conditions of access to data relating to electronic communications), C-746/18, 
EU:C:2021:152, paragraph 53). 
20 The referring court takes the view that it can be concluded from that judgment of 
the Court of Justice that the EIOs in the present case should also have been issued 
by a judge irrespective of the national rules of jurisdiction. The statements of the 
Court of Justice regarding the interpretation of Article 15(1) of Directive 2002/58 
in the light of the fundamental rights under Articles 7, 8 and 11 of the Charter can 
be applied to the interpretation of Article 6(1)(a) of Directive 2014/41. For the 
purpose of interpreting Article 2(c) of Directive 2014/41, it can be concluded from 
that case-law that, irrespective of the national rules of jurisdiction in a similar 
domestic case, an EIO for the purpose of criminal prosecution must be issued by a 
judge not ruling on the specific investigative measures where – as in the present 
case – the assessment of proportionality under Article 6(1)(a) of Directive 
2014/41 involves a complex balancing exercise and concerns serious interferences 
with high-ranking fundamental rights. 
21 In accordance with the case-law of the Court of Justice, the transmission of traffic 
or location data to a public authority already constitutes a serious interference with 
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the fundamental rights under Articles 7 and 8 of the Charter (see judgments of 
2 March 2021, Prokuratuur (Conditions of access to data relating to electronic 
communications), C-746/18, EU:C:2021:152, paragraph 39, and of 6 October 
2020, La Quadrature du Net and Others, C-511/18, C-512/18 and C-520/18, 
EU:C:2020:929, paragraph 116). The interference was further intensified by the 
fact that the entire content of the communications, spanning a period of several 
months, was transmitted. In so far as the EncroChat service does not constitute 
‘conventional’ telecommunications within the meaning of the first sentence of 
Article 2 of Directive 2002/58, in conjunction with Article 2(c) of the Framework 
Directive 2002/21, but rather an internet-based ‘over-the-top’ service, this does 
not justify a different assessment. 
22 Questions 2(a) and (b) and 3(a) and (b): National law does not contain any rules 
governing the substantive requirements for an outgoing EIO. Recourse must 
therefore be had, on a supplementary basis, to Article 6 of Directive 2014/41. 
23 Under Paragraphs 100a and 100b of the StPO, the secret interception of 
telecommunications for the purposes of criminal prosecution requires a suspicion 
that a criminal offence has been committed. Paragraphs 100a and 100b of the 
StPO restrict the group of triggering offences – graded according to the severity of 
their interference with fundamental rights – to certain catalogue offences, whereby 
the suspicion must be based on ‘certain facts’. Since the non-specific grounds for 
suspicion given prior to the commencement of the measure in the present case and 
the list of various criminal offences that may enter into consideration in the 
alternative do not meet the constitutional requirements that are applicable in that 
regard, surveillance of all EncroChat users would not have been permissible under 
Paragraph 100a et seq. and Paragraph 100e(3), points 2 and 4, of the StPO. 
24 Under Article 6(1)(a) of Directive 2014/41, the issuing of the EIO must be 
necessary and proportionate for the purpose of the proceedings. The referring 
court takes the view that an EIO seeking access to data from the interception of 
telecommunications for the purposes of criminal prosecution fulfils that 
requirement only where there is a suspicion, based on concrete facts, of 
involvement in a serious criminal offence, in respect of each person concerned. 
25 In its decision of 2 March 2022 (5 StR 457/21, paragraph 55), the Federal Court of 
Justice took the view that the ‘unspecified situation of suspicion’ with regard to 
the ‘multiple criminal offences in question’ was sufficient to issue the EIO in 
accordance with Article 6(1)(a) of Directive 2014/41. The referring court does not 
wish to follow that view. 
26 The grounds for suspicion described by the Federal Court of Justice were criminal 
findings from – in relation to the total number of users – a very small number of 
earlier criminal proceedings, without any reference being made to the individual 
users concerned by the EIO. In addition, it was apparent from particular features 
of the functions of the EncroChat telephones and the methods by which they were 
distributed that they were particularly attractive to criminal users. However, 
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investigations into lawful possibilities of use for persons with an above-average 
need for secure communications were not carried out at any time. Concrete facts 
that could have given rise to criminal prosecution were not known, even in broad 
terms. In so far as there was evidence that the EncroChat operators targeted their 
system to meet the needs of criminals, this only allowed the conclusion that some, 
but by no means (almost) all, users were engaged in criminal activities. There was 
nothing to indicate that all EncroChat users were part of an interconnected 
criminal group. 
27 The referring court takes the view that those grounds for suspicion are not 
sufficient to justify the issuance of an EIO. Since the structure and interpretation 
of Paragraph 100a et seq. of the StPO is decisively shaped by the requirements of 
the German constitution, and since the protection of fundamental rights under EU 
law against the secret interception of communications is comparably strong, it is 
evident that comparably strong and specific grounds for suspicion are also 
required under Article 6(1)(a) of Directive 2014/41. 
28 That interpretation of Article 6(1)(a) of Directive 2014/41 is supported by the 
case-law of the Court of Justice on the permissibility of data retention, in 
accordance with which the retention of traffic or location data and access to such 
data by the authorities seriously interferes with the fundamental rights under 
Articles 7 and 8 of the Charter (judgments of 2 March 2021, Prokuratuur 
(Conditions of access to data relating to electronic communications), C-746/18, 
EU:C:2021:152, paragraph 39, and of 5 April 2022, Commissioner of An Garda 
Síochána, C-140/20, paragraph 44). The principles regarding proportionality 
within the meaning of Article 15(1) of Directive 2002/58 which are developed in 
that case-law can be applied to proportionality within the meaning of 
Article 6(1)(a) of Directive 2014/41. 
29 Further concerns regarding the proportionality of the EIO arise with regard to the 
right to a fair trial (second paragraph of Article 47 of the Charter, Article 6(1) of 
the European Convention on Human Rights; ‘the ECHR’), in accordance with 
which a party to court proceedings must have a real opportunity to comment on a 
piece of evidence. This is particularly true where the evidence pertains to a field 
of which the judges and the party have no knowledge (judgments of 2 March 
2021, Prokuratuur (Conditions of access to data relating to electronic 
communications), C-746/18, EU:C:2021:152, paragraph 44 and the case-law cited, 
and of 10 April 2003, Steffensen, C-276/01, EU:C:2003:228, paragraph 77 and the 
case-law cited). 
30 The present case also involves evidence that raises various complex issues, in 
particular in relation to the integrity of the data (that is to say its correctness, 
completeness and consistency). Moreover, the EncroChat data constitute the only 
evidence. Since the criteria for the alleged offence of trafficking in narcotic drugs 
are already fulfilled by the genuine negotiation of a sale of narcotic drugs, the 
defence depends not only on the analysis of individual messages, but also on the 
temporal and contextual connection between sent and received messages. 
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Technical errors and incompleteness therefore entail a risk of chat histories being 
unintentionally distorted. There are grounds for taking the view that that 
restriction of the possibilities of defence in the subsequent criminal proceedings 
must have an advance effect on the assessment of proportionality under 
Article 6(1)(a) of Directive 2014/41. Thus, it is conceivable that evidence of the 
type described above, against which the accused person will not be able to defend 
himself or herself effectively in subsequent criminal proceedings, may not be 
requested by way of an EIO intended to make criminal prosecution possible. 
31 In accordance with Article 6(1)(b) of Directive 2014/41, the issuing authority 
must review the measure specified in the EIO on the basis of national law. The 
referring court takes the view that, in the case of an EIO seeking a transfer of 
evidence, that review must extend to the investigative measure underlying the 
collection of evidence in the executing State: if the interception measure should 
not have been ordered in a similar domestic case, the data obtained from such a 
measure may also not be requested by way of an EIO. Since the requirements of 
Paragraph 100a et seq. of the StPO were not met in the present case due to the 
lack of a concrete suspicion of an offence having been committed, the EIOs 
should not have been issued. 
32 However, in its decision of 2 March 2022 (5 StR 457/21, paragraph 47 et seq.), 
the Federal Court of Justice took the view that Article 6(1)(b) of Directive 
2014/41 was not applicable to an EIO that was directed only at the transfer of 
evidence which already existed and that a review of the measure on the basis of 
national law was therefore unnecessary. At the level of the issuing State, 
protection of the individual was to be guaranteed solely by the examination under 
Article 6(1)(a) of Directive 2014/41 and by the subsequent assessment in the 
national criminal proceedings of the evidence obtained, in accordance with the 
second sentence of Article 14(7) of Directive 2014/41. 
33 There are reservations about the view taken by the Federal Court of Justice. It is 
true that the transfer of evidence as such is not an appropriate criterion for 
examining whether such a measure could be ordered in a domestic case, since it 
concerns an originally international factual situation without a purely domestic 
equivalent. Unlike the Federal Court of Justice, however, the referring court does 
not wish to conclude from this that Article 6(1)(b) of Directive 2014/41 is 
inapplicable to an EIO seeking a transfer of evidence. Rather, in this case, the 
issuing authority must apply the assessment, against the standards of national law, 
to the investigative measure underlying the collection of the data: it may request 
evidence already available in the executing State by way of an EIO only if the 
investigative measure by which the evidence was obtained in the executing State 
would have been admissible in the issuing State in a similar domestic case. 
34 Although the restriction of the scope of application made by the Federal Court of 
Justice is consistent with the wording of the provision, the assessment against the 
standards of national law must be applied to the ‘investigative measure specified 
in the EIO’, which does not necessarily have to be the measure ‘ordered’ by that 
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EIO; in order to describe the data to be transmitted, it is generally also necessary 
to refer to the original measure and thus to ‘specify’ it. The scheme of the 
provision also militates against Article 6(1)(a) and (b) of Directive 2014/41 
having different scopes of application. According to the introductory wording in 
paragraph 1, both rules concern ‘an EIO’ without differentiation. Article 6(2) and 
(3) of Directive 2014/41 also refers, without restriction, to both assessment steps 
under paragraph 1. Paragraph 2 expressly states that the conditions referred to in 
paragraph 1 – that is to say, the conditions under points (a) and (b) – are to be 
assessed ‘in each case’. The distinction advocated by the Federal Court of Justice 
is also at odds with the conception of the EIO as a single instrument. Furthermore, 
not carrying out the assessment under Article 6(1)(b) of Directive 2014/41 would 
result in a failure to fulfil the objective pursued by the provision, of ensuring 
compliance with minimum national standards protecting the individual and 
preventing ‘forum shopping’. 
35 Even if, by contrast, Article 6(1)(b) of Directive 2014/41 were not to be applied to 
an EIO seeking a transfer of evidence as a matter of principle, the referring court 
considers that something different should apply in the situation in the present case. 
The surveillance of the German users, which was advocated by the German 
authorities in advance, in their own interests in conducting a criminal prosecution, 
and which was carried out by the French authorities in the interest of the German 
authorities, comes close to an investigative measure of the German authorities 
themselves, the ordering of which by means of an EIO would have been the 
natural course of action. In accordance with Article 6(1)(b) of Directive 2014/41, 
the lawfulness of that EIO would have had to have been assessed on the basis of 
German law of criminal procedure. The fact that informal forms of cooperation 
were initially used does not remove the need for protection addressed in 
Article 6(1)(b) of Directive 2014/41. This is all the more true given that there was 
no notification pursuant to Article 31(1) of Directive 2014/41, which would have 
likewise led to an examination under German law that would have been 
independent of exploitation interests and would have therefore guaranteed similar 
protection. The foregoing suggests that the assessment under Article 6(1)(b) of 
Directive 2014/41 should be extended to the subsequent EIO for obtaining 
evidence. 
36 Questions 4(a) to (c): Paragraph 91g(6) of the IRG, which was created to 
implement Article 31(1) of Directive 2014/41, provides that the German authority 
must prohibit the implementation of the measure or the use of the data within 
96 hours at the latest or must make the use subject to conditions if the measure 
would not be authorised in a similar domestic case. The IRG does not expressly 
state whether the notification of the planned interception measure is to be 
addressed to the public prosecutor’s office or to the court. For the most part, it is 
assumed that the courts have competence. 
37 In its decision of 2 March 2022 (5 StR 457/21, paragraph 41), the Federal Court of 
Justice doubted whether the French data gathering measure constituted 
interception of telecommunications within the meaning of Article 31(1) of 
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Directive 2014/41. By contrast, the referring court proceeds on the assumption 
that Article 31(1) of Directive 2014/41 is applicable in the present case and that 
the French authorities would have been obliged to notify the competent German 
authority (that is to say the competent court) of the planned infiltration of the 
German EncroChat terminal devices prior to the commencement of the measure. 
The concept of ‘telecommunications’ should be understood in a broad sense – in 
view also of the objective of Directive 2018/1979 of uniform treatment of all 
forms of electronic communication involving intensive interference (see recital 7). 
The concept of ‘interception’ within the meaning of Article 31(1) of Directive 
2014/41 should also be interpreted broadly and cover any gathering of data from 
ongoing communications, in particular traffic data, location data or content, 
including through the use of malware on terminal devices. 
38 Article 31(1) of Directive 2014/41 leaves, in principle, the determination of the 
‘competent authority’ for the purpose of receiving the notification to the law of 
the Member State concerned by the interception. In the light of the fundamental 
rights under Articles 7, 8 and 11 of the Charter, however, the referring court is 
inclined towards the interpretation that ‘competent authority’ within the meaning 
of Article 31(1) of Directive 2014/41 can only be a body which acts independently 
of any instructions and is not interested in the data for investigative purposes – 
namely a court. 
39 Article 31(1) and Article 6 of Directive 2014/41 have the same premiss of 
protection and aim to ensure compliance with national minimum standards of 
protection and respect for fundamental rights in the cross-border interception of 
telecommunications. Under both Article 6(1)(b) and Article 31(3) of Directive 
2014/41, the measure must be reviewed on the basis of national law. The 
consideration of the Court of Justice in its judgment of 16 December 2021, 
Spetsializirana prokuratura (Traffic and location data) (C-724/19, 
EU:C:2021:1020, paragraph 34), that such an assessment can be carried out only 
by a court, is therefore also applicable to Article 31 of Directive 2014/41. The 
same applies to the judgment of the Court of Justice of 2 March 2021, 
Prokuratuur (Conditions of access to data relating to electronic communications), 
(C-746/18, EU:C:2021:152, paragraph 51 et seq.), in accordance with which the 
balancing of the State’s interest in pursuing criminal prosecution and the 
protection of fundamental rights may not be left to the investigating authorities 
which are interested in the data, but must be entrusted to a court which acts 
independently of any instructions. 
40 Article 31(1) of Directive 2014/41 and Paragraph 91g of the IRG, which serves to 
implement that provision, protect the sovereignty of the State to be notified and 
take into account the particular sensitivity of fundamental rights towards secret 
access to the spoken word. The Federal Court of Justice (decision of 2 March 
2022, 5 StR 457/21, paragraph 41) takes the view that the protection of 
individuals’ fundamental rights concerned only the use of evidence abroad (in 
casu: France), but not, however, in the State to be notified (in casu: Germany). In 
addition, that regulatory objective was subordinate to the protection of national 
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sovereignty. By contrast, the referring court considers that, according to the 
conception of Article 31(1) and (3) of Directive 2014/41, the protection of the 
individuals concerned extends to any use of evidence for the purposes of criminal 
prosecution, whether domestically or abroad, and is at least equivalent to the 
protection of sovereignty. 
41 Article 31 of Directive 2014/41 supplements the rules on EIOs to be executed and 
is intended to comprehensively prevent national levels of protection from being 
undermined by the transnational interception of telecommunications. The 
comparison with an EIO to be executed militates in favour of an extension of the 
protection of individuals to the use of evidence in the notified State. If the German 
authorities interested in the data of German users had issued an EIO extending the 
planned measure to German territory prior to the commencement of the measure, 
the protection of the fundamental rights of the German users would have been 
guaranteed via Article 6(1) of Directive 2014/41; that protection would also apply 
to the use of data by German criminal prosecution authorities. 
42 In the case of cross-border measures in the common interest of several States, an 
EIO to be executed and the notification under Article 31 of Directive 2014/41 
cannot be demarcated in a clear-cut manner; rather, they can be taken into account 
as alternatives. Moreover, with respect to the fundamental rights concerned and 
the severity of the interference, it makes no fundamental difference in which 
country or countries the data are collected, stored and used. Accordingly, it is the 
referring court’s understanding that Article 31 of Directive 2014/41 must at least 
protect the persons concerned from the use of evidence in the country in whose 
interest the data are collected (in casu: Germany). 
43 Questions 5(a) to (d): The German Code of Criminal Procedure does not contain 
an express provision on the use of illegally obtained evidence. According to 
settled case-law of the Federal Court of Justice, an (unwritten) prohibition of use 
requires that the infringed provision serves to protect the individual. Even then, 
however, it enters into consideration only in exceptional cases and on the basis of 
a comprehensive balancing exercise. In particular, the importance of the legal 
interests concerned and the severity of the infringement must be taken into 
account in that balancing exercise. Particular weight is always attached to 
procedural violations in the context of interception measures under 
Paragraph 100a et seq. of the StPO. A prohibition of the use of evidence is always 
a natural course of action in the case of a measure carried out without a court 
order (see BGH NJW 1999, 959, 961 with further references). Having regard to 
the principles of due process of law, a prohibition of use is always to be assumed 
if essential substantive requirements for ordering the interception measure were 
not met, and in particular if the suspicion that a catalogue offence under 
Paragraph 100a of the StPO had been committed did not exist from the outset. 
Only in special exceptional cases is a prohibition of use derived directly from the 
constitution possible without a finding of an infringement under ordinary law (see 
BGH, decision of 2 March 2022, 5 StR 457/21, paragraph 65 et seq.). 
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44 The decisions delivered so far by the higher and supreme courts all assume that 
EncroChat data can be used. In so far as infringements of EU law are assumed or 
at least considered, the interests of criminal prosecution are given priority in the 
balancing exercise, by reference to the seriousness of the criminal offences 
identified on the basis of the EncroChat data. As far as can be seen, the courts 
ruling on the substance are also not required to take account of this elsewhere – in 
particular in the assessment of evidence or the sentencing; the Federal Court of 
Justice has even expressly criticised the mitigating consideration of the 
infringement of Article 31 of Directive 2014/41 as erroneous (Federal Court of 
Justice, judgment of 3 August 2022, 5 StR 203/22, paragraph 19). 
45 According to settled case-law of the Court of Justice, it is in principle for national 
law to regulate the legal consequences of infringements of EU law. However, the 
procedural autonomy of the Member States is limited by the principle of 
effectiveness (judgment of the Court of Justice of 2 March 2021, Prokuratuur 
(Conditions of access to data relating to electronic communications), C-746/18, 
EU:C:2021:152, paragraph 42 et seq. and the case-law cited): According to that 
judgment, national law must ensure that the accused person does not suffer any 
unreasonable disadvantages in criminal proceedings as a result of information and 
evidence unlawfully obtained, which can be achieved not only by prohibiting the 
use of evidence, but also by taking the infringements of the law into account when 
assessing evidence or determining the sentence. Nevertheless, according to the 
case-law of the Court of Justice, the principle of effectiveness may, in individual 
cases, oblige the national court to exclude unlawfully obtained evidence from the 
proceedings (judgment of 20 September 2022, VD and SR, C-339/20 and 
C-397/20, EU:C:2022:703, paragraph 106 and the case-law cited; fundamental 
judgment of 10 April 2003, Steffensen, C-276/01, EU:C:2003:228, paragraph 77 et 
seq.). In the view of the referring court, this means that the infringement in such a 
case must always result in the exclusion of the evidence under EU law, without 
any balancing against national interests in pursuing criminal prosecution. 
46 There are grounds to take the view that a prohibition of use derived directly from 
the principle of effectiveness under EU law is to be assumed in the present case 
also, since the principle of a right to a fair trial has been undermined in several 
respects: the very fact that the data requested by way of the EIO cannot be 
examined by a technical expert because of French secrecy is likely to fulfil the 
conditions developed by the Court of Justice in the judgment of 10 April 2003, 
Steffensen, C-276/01, EU:C:2003:228, under which the court must exclude 
evidence. In addition, there are the multiple breaches of formal and substantive 
safeguards under Article 31 and Article 6 of Directive 2014/41, for which the 
German law criminal prosecution authorities are directly responsible or to which 
they have at least turned a blind eye. Furthermore, the European agencies and the 
German criminal prosecution authorities have further impeded the investigation of 
the facts and the defence by refusing to hand over parts of the case file that are of 
importance for the defence and to include documents relevant to the proceedings 
in the case file in the first place. The refusal to file the messages exchanged via 
the SIENA system has a particularly serious effect in that respect. The 
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withholding of essential information from the investigating judge, as announced in 
the BKA’s letter of 13 May 2020, also fits into that context, since the task of the 
investigating judge, which follows from the rule of law, to examine the 
investigations under its own responsibility was undermined. Overall, an 
independent external review of the gathering and further use of the data was 
prevented at all stages of the procedure. 
47 The autonomy of the Member States in regulating the legal consequences of 
infringements of EU law is further limited by the principle of equivalence. 
According to that principle, infringements of EU law may not be sanctioned to a 
lesser extent than similar infringements of domestic law (Court of Justice, 
judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to 
electronic communications), C-746/18, EU:C:2021:152, paragraph 42). A 
mandatory prohibition of use enters into consideration from that point of view 
also. This is because, under German law of criminal procedure, in the case of a 
interception measure, both the breach of the requirement for judicial authorisation 
and the lack of a concrete suspicion that a catalogue offence had been committed 
would result in the data being unusable. In so far as, by contrast, EU law does not 
provide for a mandatory prohibition of use, German law of criminal procedure 
requires a comprehensive weighing of interests. 
48 The Federal Court of Justice attaches decisive importance to the weight of the 
criminal offences to be investigated and concludes from this that the State’s 
interest in pursuing criminal prosecution enjoys priority over the protection of the 
individual EncroChat users concerned (see Federal Court of Justice, decision of 
2 March 2022, 5 StR 457/21, paragraphs 36, 44, 57). The referring court has 
doubts as to whether that line of argument is compatible with EU law. The Court 
of Justice has held on several occasions that the objective of combating serious 
crime cannot justify general and indiscriminate retention of data (judgments of 
2 March 2021, Prokuratuur (Conditions of access to data relating to electronic 
communications), C-746/18, EU:C:2021:152, paragraph 50, and 5 April 2022, 
Commissioner of An Garda Síochána, C-140/20, EU:C:2022:258, paragraph 65 
and the case-law cited). This applies all the more so if, as in the present case, there 
is a certain probability that persons subject to professional secrecy – such as 
lawyers and journalists – are also affected by the data gathering (see Court of 
Justice, judgment of 20 September 2022, SpaceNet, C-793/19 and C-794/19, 
EU:C:2022:702, paragraph 82) and communication content is covered. 
49 It could be contrary to that evaluation and the principle of effectiveness if a breach 
of the law stemming directly from the lack of a suspicion of an offence remains 
unpunished, by reference to subsequent findings from the data unlawfully 
obtained. Accordingly, the referring court is inclined to the view that, in weighing 
up whether data obtained without sufficient suspicion of an offence can be used 
despite the infringement of Article 6(1)(a) and (b) of Directive 2014/41, the 
weight of the specific offences in question may be taken into account only with 
reduced weight, with the consequence that, in the case of an interference with 
high-ranking fundamental rights, that aspect alone cannot outweigh the 
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17 
infringement of the law and therefore cannot justify the use. A comparable 
argument can be made with regard to Article 31(1) of Directive 2014/41: the 
seriousness of the infringement results from the fact that the competent German 
court would have prohibited the measure due to the lack of suspicion of an 
offence. 
50 Need for expedition: The Court of Justice is requested to deal with the case under 
the expedited procedure pursuant to Article 105(1) of the Rules of Procedure or, in 
the alternative, on a priority basis, as it is a case involving detention, even if the 
arrest warrant is not currently being executed. The decision of the Court of Justice 
is also of importance to a large number of similar proceedings.