Opinion of the Advocate General — ECLI:EU:C:2021:200
Date: 2021-03-11
Language of the case: Italian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

summary, since the Public Prosecutor’s Office, Trento, is established as a ‘court or tribunal’ for the purpose of deciding, with no subsequent appeal, whether to refuse the EIO in the terms set out above, it has the capacity to refer the present question to the Court of Justice for a preliminary ruling. B. The substance 69. In accordance with Article 1(1) of Directive 2014/41, an EIO is a ‘judicial decision’. (39) According to Article 2(c) of that directive, such a decision may be adopted and issued by a judge or a public prosecutor (40) and, in addition, by a body ‘acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence’. (41) 70. In the latter situation, an EIO issued by such an ‘investigating authority’ must undergo a prior ‘examination … by a judge, court, investigating judge or a public prosecutor’, (42) in other words, by persons or bodies entitled to issue an EIO of their own motion. 71. The wording of Article 2(c)(ii) of Directive 2014/41 appears to me to be conclusive for the purpose of giving a negative reply to the question referred. Therefore, I agree with the position of the Italian and Portuguese Governments, and the Commission. 72. I consider the reasons put forward by the German Government to justify the conferral on the Finanzamt of the investigative powers it holds in the field of taxation, by virtue of national law, to be compatible with EU law. 73. In particular, that conferral of powers complies with Article 2(c)(ii) of Directive 2014/41, which refers to ‘any other competent authority as defined by the issuing State’ which ‘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’. (43) 74. However, that is not the issue. 75. The issue is that, while Member States are recognised as having the power to designate the authorities authorised to conduct investigations in criminal proceedings and to order the gathering of evidence, Article 2(c)(ii) of Directive 2014/41 does not assign to the authorities so designated any task other than that of adopting the decision to issue an EIO which, ‘before it is transmitted to the executing authority … shall be validated’. Furthermore, the EIO must be validated specifically by a court, a judge or a public prosecutor. 76. The Finanzamt, Münster, is unequivocally an administrative body, meaning that, under Directive 2014/41, it is not authorised to issue an EIO by itself. To be more precise, it is not authorised to ‘transmit’ an EIO to the executing authority without first having the EIO validated by a judicial authority, which, in accordance with Article 2(c)(ii) of Directive 2014/41, means a court, a judge or a public prosecutor. 77. The German Government maintains that, in the exercise of its procedural autonomy, it tasked the Finanzamt, in the area of taxation, with carrying out typical duties of a public prosecutor’s office, assigning to it the traditional rights and obligations of that office. This is an exception laid down by law, which derogates from the exclusive responsibility of the public prosecutor’s office for the conduct of criminal investigations. 78. Does that conferral of powers make the Finanzamt a ‘public prosecutor’ for the purposes of Directive 2014/41? In my view, it does not. 79. The fact that, in the area of the prosecution of tax offences, national law assigns to the Finanzamt investigative powers equivalent to those of a public prosecutor’s office is not sufficient for treating the two institutions in the same way within the scheme of Directive 2014/41. 80. As the Commission points out, the Finanzamt is an administrative authority responsible for dealing with tax matters and it is part of the executive. Although German legislation grants it limited powers to investigate certain offences, there is a clear distinction between the tax authorities and the public prosecutor’s office. The Finanzamt does not have all the powers of a public prosecutor’s office and therefore it cannot be equated with a public prosecutor’s office as an EIO-issuing authority. 81. The rationale behind Article 2 of Directive 2014/41 is that administrative authorities, whatever their spheres of competence under national law, have to require validation from judicial authorities (including public prosecutors) in order to issue an EIO. 82. That rationale would cease to exist if Member States could permit authorities forming part of the executive to transmit EIOs which had not been validated by judicial authorities (including public prosecutors) simply by placing the former on the same footing as the latter for those purposes. 83. In addition to that argument there is another which relates to the role performed by judicial authorities in the strict sense (including public prosecutors) with regard to EIOs. 84. According to recital 12 of Directive 2014/41, an issuing authority is required to pay particular attention to guaranteeing fundamental rights, since ‘the presumption of innocence and the rights of defence in criminal proceedings are a cornerstone of the fundamental rights recognised in the Charter within the area of criminal justice’. 85. Therefore, the EU legislature stressed that ‘any limitation of such rights by an investigative measure ordered in accordance with this Directive should fully conform to the requirements established in Article 52 of the Charter with regard to the necessity, proportionality and objectives that it should pursue, in particular the protection of the rights and freedoms of others’. (44) 86. In that connection, Article 6(1) of Directive 2014/41 provides that an EIO may be issued only if it is ‘necessary and proportionate … taking into account the rights of the suspected or accused person’. Further, in accordance with Article 6(2), the issuing authority must take account of a number of directives concerning procedural rights in criminal proceedings. (45) 87. Therefore, to enable a proper balancing of the general interest and any fundamental rights which may be affected, an authority issuing an EIO is required to carry out an assessment of necessity and proportionality which requires a different institutional position from that of an administrative body. 88. Even though an administrative body like the Finanzamt may have been allocated powers typical of a public prosecutor’s office, that allocation of powers does not transform it into a ‘judicial authority’, within the meaning of Directive 2014/41, which is entitled to conduct that assessment of necessity and proportionality. 89. The qualified material competence which led the German legislature to confer powers relating to the investigation of tax offences on Finanzamts shows that these bodies are highly specialised in that specific field. However, that specialisation is not sufficient, in the scheme of Directive 2014/41, to recognise Finanzamts as having either the perspective or the more general competence which is required to balance rights and interests before deciding to issue an EIO. 90. The Court has held that the term ‘judicial authority’ is not limited ‘to designating only the judges or courts of a Member State, but must be construed as designating, more broadly, the authorities participating in the administration of criminal justice in that Member State’, (46) while excluding in all cases administrative authorities, which are part of the executive. (47) 91. While it does not necessarily have the independence which characterises a court, a public prosecutor’s office is not an institution under the control of the executive branch in the way that administrative authorities are under the control of and subordinate to the executive. It is true that, in some legal systems, public prosecutors may receive individual instructions from the executive, but, even so, they have an autonomous status which distinguishes them from bodies of the executive branch. (48) 92. The institutional position of the public prosecutor’s office as guarantor of legality before the courts makes it a real participant in the administration of justice, in that the public prosecutor’s office is not exclusively or primarily concerned with the public authorities’ interest but rather with the general interest in compliance with the law. That is why Article 2 of Directive 2014/41 places the public prosecutor on an equal footing with judges. (49) 93. The performance, on a case-by-case basis, of investigative functions similar to those of the public prosecutor’s office does not mean that the Finanzamt ceases to be an administrative body and, as such, subject structurally and functionally to the hierarchy of the administration and, in particular, lacking the competence necessary to conduct the assessment of necessity and the balancing exercise required by Directive 2014/41. That assessment and that balancing exercise go beyond concern with the specific interest of the tax authority and encompass the general interest of the entire State and the guarantee of citizens’ fundamental rights. V. Conclusion 94. In the light of the foregoing considerations, I propose that the Court reply as follows to the Procura Distrettuale della Repubblica presso il Tribunale Ordinario di Trento (District Public Prosecutor’s Office attached to the District Court, Trento, Italy): 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 must be interpreted as meaning that it does not allow a Member State to exempt national administrative authorities with competence in matters of taxation, including where those authorities are authorised to conduct investigations in certain criminal proceedings, from the obligation to require, before transmission of a European Investigation Order to the executing authority, validation of that order by a judge, a court, a public prosecutor or an investigating judge of the issuing State. 1 Original language: Spanish. 2 In this case, the Finanzamt für Steuerstrafsachen und Steuerfahndung Münster (Tax Office for Criminal Tax Matters and Tax Investigation, Münster, Germany; ‘the Finanzamt, Münster’). 3 Directive of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1; corrigendum OJ 2015 L 143, p. 16). 4 The Procura Distrettuale della Repubblica presso il Tribunale Ordinario di Trento (District Public Prosecutor’s Office attached to the District Court, Trento, Italy; ‘Public Prosecutor’s Office, Trento’). 5 The Court ruled on the capacity of a public prosecutor’s office, acting as a ‘judicial authority’, to issue a European arrest warrant (‘EAW’) in the judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:456; ‘judgment in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau)’), and of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457). The Court also ruled on the competence of a public prosecutor’s office to issue an EIO in the judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002; ‘judgment in Staatsanwaltschaft Wien (Falsified transfer orders)’). 6 A matter on which the Court ruled unfavourably in the judgment of 12 December 1996, X (C‑74/95 and C‑129/95, EU:C:1996:491; ‘judgment in X’). 7 Directive of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1). 8 Directive of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1). 9 Directive of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1). 10 Decreto legislativo n. 108/17. Norme di attuazione della direttiva 2014/41/UE del Parlamento europeo e del Consiglio, del 3 aprile 2014, relativa all’ordine europeo di indagine penale (Legislative Decree No 108/17. Rules implementing Directive 2014/41/EU …) of 21 June 2017 (GURI No 162 of 13 July 2017; ‘Legislative Decree No 108/17’). 11 Governed by Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24). 12 C‑453/16 PPU, EU:C:2016:860. 13 The parties were asked whether, under EU law, if a decision not to recognise an EIO is adopted by an ‘executing authority’ within the meaning of Article 2(d) of Directive 2014/41, which is not a judge or a court, that decision must be subject to judicial review. 14 The Italian Government was asked to explain the procedure for recognition and execution of an EIO by a public prosecutor’s office, indicating when a judge or a court may be called on to intervene in that procedure and when the public prosecutor’s office alone is involved in it. The Italian Government was also asked to explain the remedies laid down by national law in the event of non-recognition and non-execution of an EIO. 15 Judgment of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17; ‘judgment in Banco de Santander’). 16 Judgment of 30 June 1966 (C‑61/65, EU:C:1966:39; ‘judgment in Vaassen-Göbbels’). 17 Judgment in Banco de Santander (paragraph 51 and the case-law cited). 18 Judgment of 6 October 1981, Broekmeulen (246/80, EU:C:1981:218; ‘judgment in Broekmeulen’). 19 Judgment of 29 November 2001, De Coster (C‑17/00, EU:C:2001:651). 20 That was the complaint made by Advocate General Ruiz-Jarabo Colomer in the Opinion in Umweltanwalt von Kärnten (C‑205/08, EU:C:2009:397; ‘Opinion in Umweltanwalt von Kärnten’; point 25). He took the view that the development of case-law meant that those criteria ‘encompass a diverse amalgam of institutions which is not always in keeping with the judicial spirit underlying Article [267 TFEU]’. In so doing, he took the same line as he did in his Opinion in De Coster (C‑17/00, EU:C:2001:366; ‘Opinion in De Coster’; point 14). 21 Judgment in Banco de Santander (paragraph 55). 22 Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454; ‘Opinion 2/13’; paragraph 174). 23 Opinion 2/13 (paragraph 176). Italics added. 24 It is, in short, judges who, by definitively stating the law (ius dicere) in a particular case, ensure that the regulatory and decision-making procedure leading to the ultimate application of the general and abstract provisions of the legal system has been carried out in the manner laid down by the latter. In that connection, I refer to my Opinion in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:337, point 66). In the same vein, in the Opinion in PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:338, point 27), I stated that a judge’s task ‘is to deliver the final decision representing the application of the legal system, in such a way that the decision, which has the status of res judicata, is in accordance with the law and, to that extent, valid’. A judge’s role is determined to such an extent by the competence to guarantee the validity of that final decision on the legal system that ‘it could … be said that the [latter] is not a means for the judge, but rather an end in itself. More precisely, it is the sole end’ (ibid., point 28). 25 Opinion 2/13 (paragraph 176). 26 The principles of the rule of law include the requirement that courts must give the final decision, since it is the enabling of the judicial scrutiny of all acts of the public authorities, without reservation, which ensures that those authorities are subject to the rule of law. In addition to that guarantee is the guarantee afforded to individuals as holders of the right to an effective remedy, enshrined in Article 47 of the Charter. A recent provision of EU law defines ‘the rule of law’ as ‘the Union value enshrined in Article 2 TEU’, which includes, among other principles, the principle of ‘effective judicial protection … by … courts, also as regards fundamental rights’ (Article 2(a) of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget (OJ 2020 L 433I, p. 1)). 27 Opinion in Umweltanwalt von Kärnten (point 35). The Court has thus made ‘an effort to involve the common constitutional traditions in the creation of a European judicial dialogue’ (ibid., point 36). 28 Including, curiously, the criterion of judicial independence. Advocate General Ruiz-Jarabo Colomer pointed out in the Opinion in De Coster (point 17) that the requirement of independence first appeared in the judgment of 11 June 1987, X (14/86, EU:C:1987:275), and was not adopted unconditionally until the judgment of 30 March 1993, Corbiau (C‑24/92, EU:C:1993:118). 29 This is despite the fact that national law explicitly categorised them as administrative bodies. That occurred, for example, in relation to the Tribunal Català de Contractes del Sector Públic (Catalan Public Sector Contracts Board), an administrative institution under Spanish law, which the judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664), deemed to be a ‘court or tribunal’ for the purposes of Article 267 TFEU. 30 Judgment in Broekmeulen (paragraph 17): ‘in the absence, in practice, of any right of appeal to the ordinary courts, the appeals committee’, whose decisions ‘are in fact recognised as final, must, in a matter involving the application of [EU] law, be considered as a court or tribunal of a Member State within the meaning of Article [267 TFEU]’ (italics added). 31 Judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162; ‘judgment in Gradbeništvo Korana’; paragraph 35) (italics added). 32 Opinion in Umweltanwalt von Kärnten (points 40 to 49). 33 Judgment of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 31). 34 That is the explicit sense of the Italian Government’s written reply (paragraph 8) to the question addressed to it by the Court, transcribed in footnote 14 of this Opinion. 35 The Court accepted that a court of the State of origin could rely on Article 267 TFEU in relation to the interpretation of EU law adopted by the authorities of the executing Member State in the judgment of 25 July 2018, AY (Arrest warrant – Witness) (C‑268/17, EU:C:2018:602). At that time, the fact that the interpretation of EU law in one Member State could result in the withdrawal by a court of another Member State of an EAW addressed to the former Member State led the Court of Justice to find that ‘the claim cannot be made that the questions submitted are unrelated to the actual facts or the object of the proceedings pending before the referring court, or that the problem is hypothetical’ (loc. cit., paragraph 27). 36 The German Government asserts in its written observations (paragraph 54) that the EIO issued by the Finanzamt, Münster, was preceded by a search order signed by the Amtsgericht Münster (Local Court, Münster, Germany). However, no details are provided as to whether the EIO merely transcribes the wording of that court order – in which case, the EIO could be attributed to the Amtsgericht Münster (Local Court, Münster) – or whether the EIO served as a general basis for the adoption of a decision the wording of which is the Finanzamt’s own. In any event, EIOs issued by administrative bodies before court proceedings are formally commenced cannot be ruled out. 37 On that matter, see point 41 above. 38 The Commission expressed that view in its written reply to the question of the Court transcribed in footnote 13 of this Opinion. That is also the position of the Italian Government (paragraphs 22 to 30 of its reply). 39 The German Government has observed (paragraphs 38 to 43 of its written observations) that, unlike the other language versions, the German version of the provision does not use the adjective ‘judicial’ (‘justizielle’) and instead uses the term ‘court’ (‘gerichtliche’). I do not believe the difference to be relevant, since the explicit reference to public prosecutors in Article 2(c) of Directive 2014/41 makes clear that the EIO is not conceived as a decision given in all cases by a body exercising jurisdiction in the strict sense. 40 To be specific, according to point (i), by ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’. 41 Article 2(c)(ii) of Directive 2014/41. 42 Loc. ult. cit. 43 Italics added. 44 Italics added. 45 Directives 2010/64, 2012/13 and 2013/48. See point 4 and footnotes 7, 8 and 9 of this Opinion. 46 Judgment in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (paragraph 50). 47 Judgment of 10 November 2016, Poltorak (C‑452/16 PPU, EU:C:2016:858, paragraph 35). 48 The fact that a public prosecutor’s office is subject to individual instructions from the executive branch means that it cannot issue an EAW (judgment in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau)), but does not preclude it from issuing an EIO (judgment in Staatsanwaltschaft Wien (Falsified transfer orders)). 49 In the judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications) (C‑746/18, EU:C:2021:152), specifically in the case of access to traffic and location data for the purposes of a criminal investigation, the Court interpreted Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11), as meaning that it precludes national legislation that confers power on the public prosecutor’s office to authorise such access, in so far as that office directs the criminal investigation procedure and brings the public prosecution.