Judgment;Summary — ECLI:EU:C:2023:148
Date: 2023-03-02
Language of the case: German
Court formation: Third Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-16/22 – 1 
Case C-16/22 
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: 
6 January 2022 
Referring court: 
Oberlandesgericht Graz (Austria) 
Date of the decision to refer: 
21 December 2021 
Appellant: 
MS 
Other party: 
Staatsanwaltschaft Graz 
  
Subject matter of the main proceedings 
European Investigation Order (EIO), issuing authorities and judicial authorities 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-16/22 
 
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Question referred for a preliminary ruling 
Must the first sentence of Article 1(1) and 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 be interpreted as meaning that a 
German tax office for criminal tax matters and tax investigation which is 
empowered under national rules to exercise the rights and fulfil the obligations of 
the public prosecutor’s office in relation to certain offences is to be regarded as a 
‘judicial authority’ and an ‘issuing authority’ within the meaning of those 
provisions of EU law? 
Provisions of EU 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 the first sentence of Article 1(1) and Article 2(c)(i) and (ii) 
Provisions of national law relied on 
Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den 
Mitgliedstaaten der Europäischen Union (Austria, Federal Law on judicial 
cooperation in criminal matters with the Member States of the European Union; 
‘the EU-JZG’) 
Abgabenordnung (Germany, General Tax Code; ‘the AO’)  
Gesetz über die internationale Rechtshilfe in Strafsachen (Germany, Law on 
international mutual assistance in criminal matters, ‘the IRG’)  
Succinct presentation of the facts and procedure in the main proceedings 
1 The Finanzamt für Steuerstrafsachen und Steuerfahndung Düsseldorf (Tax Office 
for Criminal Tax Matters and Tax Investigation, Düsseldorf, Germany; ‘the Tax 
Office’) is investigating the defendant, MS, on suspicion of tax evasion. The 
accused person, as managing director of a limited liability company, is alleged to 
have failed to declare turnover from a brothel business in the period from 2015 to 
February 2020, with an estimated tax impact of EUR 1.6 million. 
2 In order to clarify the facts of the case, the Tax Office issued a European 
Investigation Order (‘EIO’), which it transmitted to the Staatsanwaltschaft Graz 
(Public Prosecutor’s Office, Graz, Austria) on 23 July 2020. The Tax Office asked 
the Public Prosecutor’s Office to request from an Austrian bank documents 
relating to two accounts held in the name of the accused person. 
STAATSANWALTSCHAFT GRAZ 
 
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3 The EIO was signed by the Leitender Regierungsdirektor (Senior Government 
Director) of the Tax Office. In Section K of the EIO (‘Details of the authority 
which issued the EIO’), the ‘judicial authority’ box was ticked. 
4 In accordance with the Austrian Strafprozessordnung (Code of Criminal 
Procedure), a bank may be required to provide information on back accounts and 
to forward bank account statements only pursuant to an investigative measure, 
which must be ordered by the public prosecutor’s office on the basis of a court 
authorisation. Without court authorisation, the Austrian public prosecutor’s office 
may not order such an investigative measure. 
5 On 3 August 2020, the public prosecutor’s office, Graz issued an order for the 
execution of the EIO. The execution was authorised by the Landesgericht Graz 
(Regional Court, Graz, Austria) on 5 August 2020 and the Public Prosecutor’s 
Office, Graz ordered the execution of the measure on 7 August 2020. 
6 The accused person appealed against the order of the Regional Court, Graz of 
5 August, by which execution was authorised. An appeal brought by the accused 
person in Germany had been unsuccessful. 
The essential arguments of the parties in the main proceedings 
7 The accused person takes the view that the Tax Office is not an issuing authority 
and judicial authority within the meaning of Article 1(1) and Article 2(c) of 
Directive 2014/41 and is therefore not authorised to issue an EIO. He submits that 
the Tax Office lacks the autonomy, independence and freedom from instruction 
that are required of a judicial authority. The Tax Office is not comparable to a 
public prosecutor’s office, but, rather, the officials of the tax investigation office 
are to be regarded merely as auxiliary officials of the public prosecutor’s office. 
Nor can the Tax Office be regarded as an issuing authority, since the EIO was not 
validated by a judicial authority within the meaning of Article 2(c) of Directive 
2014/41. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The referring court refers to a decision of the Oberlandesgericht Wien (Higher 
Regional Court, Vienna, Austria) of 2 June 2020, in which the latter held that, in 
proceedings under the German AO, German tax offices exercise rights and fulfil 
obligations of public prosecutors’ offices and thus act as judicial authorities within 
the meaning of Article 2(c) of Directive 2014/41. Consequently, they must be 
regarded as ‘issuing authorities’ within the meaning of Directive 2014/41. 
9 The relevant German legislation states the following in that regard: 
Paragraph 386(2) of the AO: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-16/22 
 
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‘The tax authority shall carry out an independent investigation … where the facts 
exclusively constitute a tax offence …’ 
Paragraph 399(1) of the AO: 
‘Where the tax authority acts independently under Paragraph 386(2), it shall 
exercise the rights and fulfil the obligations corresponding to the public 
prosecutor’s office at the investigation stage.’ 
10 The referring court is required to assess the permissibility of the execution of the 
Tax Office’s EIO under the EU-JZG, specifically under Paragraphs 55 to 55m of 
the EU-JZG, which transposed Directive 2014/41 into national law. 
Paragraph 55(3) of the EU-JZG provides as follows: ‘Where, in the issuing State, 
the proceedings are not conducted by a judicial authority, a European 
investigation order may be executed only if it is possible to bring an action before 
a court against the order of the issuing authority and the investigation order has 
been authorised by a judicial authority of the issuing State.’ If those requirements 
are not met, the execution of an EIO is impermissible under point 9 of 
Paragraph 55a(1). 
11 According to a statement issued by the Permanent Representation of the Federal 
Republic of Germany to the EU, it is provided that, in accordance with 
Article 2(c) of Directive 2014/41, EIOs issued by the German administrative 
authorities to other Member States of the European Union are, in principle, 
validated by the public prosecutor attached to the regional court in whose district 
the administrative authority is located. However, the Länder are free to assign 
competence for validation to a court or otherwise determine local jurisdiction for 
validation by a public prosecutor. Requests from German tax authorities which are 
entitled to conduct criminal investigations independently under Paragraph 386(2) 
of the AO do not require validation by a judicial authority or a court. In such 
cases, the tax authorities exercise the rights and fulfil the obligations of a public 
prosecutor’s office under Paragraph 399(1) of the AO, in conjunction with 
Paragraph 77(1) of the IRG, and they themselves act as a judicial authority for the 
purposes of Article 2(c) of Directive 2014/41. 
12 Since the EIO was not validated by a judicial authority in accordance with the 
second sentence of Article 2(c)(ii) of Directive 2014/41, the question arises as to 
whether, with regard to the issuance of an EIO, the Tax Office can be equated 
with a judicial authority within the meaning of Article 1(1) of Directive 2014/41 
and with a public prosecutor within the meaning of Article 2(c)(i) thereof. If that 
question is answered in the negative, the execution of that EIO in Austria is 
impermissible. 
13 In particular, the following arguments militate against regarding a German tax 
office, which, under national law, exercises the rights and fulfils the obligations of 
public prosecutors in respect of certain offences, as an issuing authority and 
judicial authority within the meaning of Directive 2014/41: 
STAATSANWALTSCHAFT GRAZ 
 
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According to the first sentence of Article 1(1) of that directive, a European 
Investigation Order is a judicial decision which has been issued or validated 
by a judicial authority. In accordance with Article 2(c)(ii), an EIO may be 
issued not only by a judge or a public prosecutor, but also by any other 
competent authority as defined by the issuing State which, in the specific 
case, is acting in its capacity as an investigating authority in criminal 
proceedings with competence to order the gathering of evidence in 
accordance with national law. In such cases, however, the EIO is to be 
validated by a judge or a public prosecutor in the issuing State before it is 
transmitted to the executing authority. 
Accordingly, in Case C-584/19 (Staatsanwaltschaft Wien, EU:C:2020:1002), the 
Court stated, in paragraph 46, that an EIO may be executed only if the 
authority which issued it is an issuing authority within the meaning of 
Article 2(c)(i) or if such an order is validated by a judicial authority before 
being transmitted. 
Consequently, the EU legislature has conferred on the issuing authorities referred 
to in Article 2(c)(i) of Directive 2014/41 (judges and prosecutors) a special 
status which the authorities referred to in point (ii) of that provision do not 
have. Therefore, before they are transmitted, EIOs issued by investigating 
authorities must be validated, that is to say, their content must be examined, 
in the light of the principles set out in recitals 11, 12 and 15 and Article 6(1) 
of Directive 2014/41. 
In Case C-584/19, the Court held that Article 1(1) and Article 2(c) of Directive 
2014/41 must be interpreted as meaning that the concepts of issuing 
authority and judicial authority include the public prosecutor of a Member 
State or, more generally, the public prosecutor’s office of a Member State, 
regardless of any relationship of legal subordination that might exist 
between that public prosecutor or public prosecutor’s office and the 
executive of that Member State and of the exposure of that public prosecutor 
or public prosecutor’s office to the risk of being directly or indirectly subject 
to orders or individual instructions from the executive when adopting an 
EIO. 
Financial crime authorities, on the other hand, are not referred to in Article 2(c)(i) 
of Directive 2014/41 and differ significantly from a public prosecutor’s 
office, since a financial crime authority is an administrative authority which 
forms part of the executive branch and lacks autonomy, independence and 
freedom from instruction. A German tax office is empowered to conduct 
criminal investigations independently only in the case of certain offences, 
and the proceedings can be taken over by the public prosecutor’s office at 
any time and without justification. 
In his Opinion of 11 March 2021 in Case C-66/20, Advocate General Campos 
Sánchez-Bordona stated that a public prosecutor’s office acts as a guarantor 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-16/22 
 
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of legality before the courts, is a real participant in the administration of 
justice, and is not exclusively or primarily concerned with the public 
authorities’ interest but rather with the general interest in compliance with 
the law. The rationale behind Article 2 of Directive 2014/41 is that 
administrative authorities have to require validation from judicial authorities 
in order to issue an EIO, and that rationale would cease to exist if authorities 
forming part of the executive were placed on the same footing as judicial 
authorities.  
14 However, arguments militating in favour of regarding a tax office as an issuing 
authority and judicial authority within the meaning of the first sentence of 
Article 1(1) and Article 2(c)(i) of Directive 2014/41 can also be found in the 
judgment of the Court in Case C-584/19: 
Article 2(c) of Directive 2014/41 makes classification as an issuing authority 
subject to the sole condition that the court and the persons acting as judge, 
investigating judge or public prosecutor have competence in the case 
concerned. 
Directive 2014/41 lays down specific provisions intended to ensure that the 
issuing of an EIO is accompanied by guarantees specific to the adoption of 
judicial decisions (for example, respect for fundamental rights and effective 
judicial protection). 
The sole aim of the issuing of an EIO is to have one or several specific 
investigative measures for obtaining evidence carried out in an expedited 
manner, which are not such as to interfere with the right to liberty of the 
person concerned.