Opinion of the Advocate General — ECLI:EU:C:2021:414
Date: 2021-05-20
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

summary, the Court does not regard a public prosecutor’s office as an impartial third party if it combines the functions of directing the pre-trial procedure, on the one hand, and bringing the public prosecution in subsequent proceedings, on the other. Therefore, it cannot be recognised as having competence to authorise access to traffic and location data held by suppliers of electronic communications services. 37. The interpretation of Directive 2014/41 cannot elude the influence of the judgment in Prokuratuur. 38. Recital 30 of Directive 2014/41 recognises that the interception of electronic communications is an invasion of privacy. That is precisely why a number of Member State make that investigative measure subject to the prior authorisation of a judge or a court, to the exclusion of other authorities including the public prosecutor’s office. 39. As I shall explain below in more detail, Article 6 of Directive 2014/41 provides that the issuing authority is authorised to issue an EIO only if the investigative measure requested in the EIO could have been ordered under the same conditions in respect of a similar domestic case. 40. It is now necessary to supplement that condition with the condition laid down in the judgment in Prokuratuur for situations in which, cumulatively: (a) the authority issuing an EIO forms part of a public prosecutor’s office which satisfies the twofold condition mentioned above (it directs the investigation and subsequently brings the prosecution); and (b) the EIO includes a measure for the interception of electronic communications with the force of the measure examined in that judgment. 41. In those circumstances, the EIO may not be issued by the public prosecutor’s office even if the law of its Member State permits it to adopt the measure for the interception of electronic communications itself, without a prior judicial review in the strict sense. B. Assessment 42. The referring court requests the interpretation of the term ‘competence’ (or ‘competent’), as used in each of the two points of Article 2(c) of Directive 2014/41. 43. Article 2(c) defines an EIO ‘issuing authority’ from a twofold perspective: – In point (i), the term refers to ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’. (14) – In point (ii), the definition is expanded to include ‘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’. (15) 44. In the referring court’s view: – If the term ‘competence’ (or ‘competent’) has the same meaning in both points, this means that Directive 2014/41 has fully assigned the determination of the authority competent to issue an EIO to national law. – As a result of that assignment to national law in Bulgaria, Article 5(1)(1) of the ZEZR granted the public prosecutor’s office general competence to issue EIOs, regardless of their subject matter. – Since, under Bulgarian law, only a judge is entitled to order the gathering of certain evidence in national criminal proceedings, the ZEZR may infringe the principles of equivalence and equal treatment: in certain purely domestic scenarios, citizens have the guarantee of judicial intervention, which is prohibited to them where the evidence is obtained by means of an EIO. 45. I can agree that, in principle, the word ‘competence’ (or ‘competent’) has the same scope in the two points of Article 2(c) of Directive 2014/41. Both concern the right granted to an authority to perform, in criminal proceedings, the powers conferred on it by law. 46. The distinction between points (i) and (ii) of Article 2(c) of Directive 2014/41 is not really (or is not directly) the competence for ‘the case concerned’ or ‘the specific case’ but rather the authority which exercises that competence in each case. 47. The real difference between those two points lies in the fact that each one covers categories of ‘issuing authority’ which are not identical: on the one hand, judicial authorities (point (i)), and, on the other hand, non-judicial authorities (point (ii)), (16) all of which are competent to exercise their respective areas of authority in criminal proceedings: – Point (i) designates as an ‘issuing authority’ for the purposes of an EIO ‘judicial authorities’ which, in the exercise of their powers, act in relation to a specific criminal case. – Point (ii) confers the status of EIO ‘issuing authority’ on ‘any other competent authority … in the specific case’. Clearly, that other authority, will not be ‘judicial’ and an EIO issued by it may be transmitted to the executing State only after it has been validated by a judge, a court or a public prosecutor. 48. The ‘other … authority’ referred to in point (ii) must be authorised under national law to act ‘in its capacity as an investigating authority in criminal proceedings’ and ‘to order the gathering of evidence’. In other words, it must be authorised to exercise in criminal proceedings areas of competence associated with certain administrative authorities (such as, for example, the police), where their respective legal rules so provide. 49. Points (i) and (ii) of Article 2(c) of Directive 2014/41 therefore use the concept of competence in a unitary sense (as a range of powers granted to a public institution) before proceeding immediately to draw a line between the particular areas of competence of the different authorities referred to in each point. On the basis of what these areas of competence are, the issuing of an EIO is subject to different conditions. 50. There is no doubt that a public prosecutor competent in a particular criminal case can be an ‘issuing authority’ for the purposes of any EIO under Article 2(c)(i) of Directive 2014/41. 51. Similarly, and in accordance with Article 2(c)(ii), a non-judicial authority to which, as I have already observed, national law assigns investigative tasks in criminal proceedings or grants the power to order the gathering of evidence, may also be an ‘issuing authority’. 52. The status of ‘issuing authority’ alone is not sufficient for bodies treated as such to be entitled to issue an individual EIO and to transmit it to the executing State. Again, it is necessary to distinguish between judicial and non-judicial authorities, as referred to in Article 2(c) of Directive 2014/41. 53. As I explained on another occasion, (17) ‘while Member States are recognised as having the power to designate the [non-judicial] 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’. (18) 54. In other words, national law may confer on a non-judicial authority which is authorised to order the collection of evidence the general status of EIO ‘issuing authority’. However, any EIO issued by such an authority may be transmitted to the executing Member State only after it has been validated by a judicial authority. 55. In the case of a judicial authority – whether a judge or a public prosecutor – Directive 2014/41 does not require validation by a third party of the decision to issue each specific EIO; instead, it makes the EIO subject to two conditions and it is for the judge or public prosecutor intending to issue that EIO to verify compliance with those conditions. 56. Under the heading ‘Conditions for issuing and transmitting an EIO’, Article 6(1) of Directive 2014/41 provides that the issuing authority may decide to issue an EIO only if the following two conditions are satisfied: – First, the issuing of the EIO must be ‘necessary and proportionate’, (19) and in addition account must be taken of the rights of the suspected or accused person (Article 6(1)(a)). – Second, the EIO must concern a measure which ‘could have been ordered under the same conditions in a similar domestic case’ (Article 6(1)(b)). 57. The second condition is of particular relevance here. Directive 2014/41 creates an element of parallelism by making the issuing of an EIO subject to the conditions laid down by national law for the adoption of an equivalent measure. 58. To my mind, those conditions concern the rules for assessing appropriateness and the rules on procedure, as laid down in national law, but also, and in particular, the competence conferred by national law to adopt, at domestic level, a measure equivalent to that which the EIO requests be carried out. 59. If, among the conditions laid down in respect of a similar domestic case, the law of the issuing State provides that only a judge or a court are competent to adopt a particular investigative measure, that measure may be the subject of an EIO only if that EIO is issued by a court. (20) 60. In that connection, Article 6(1)(b) of Directive 2014/41 defines the scope of ‘competence’ as referred to in Article 2(c)(i) of the directive. 61. It follows from those two provisions taken together that the judicial authority (judge or public prosecutor) ‘competent in the case concerned’, to which Article 2(c)(i) of Directive 2014/41 refers, is that authorised under national law to order, in a purely domestic case, the same measure as that referred to in the EIO the issue of which is concerned. 62. In other words, the competence to issue an EIO is exactly the same as the competence required to adopt, under national law, an order with similar content and scope in strictly domestic proceedings. 63. The ‘competence’ referred to in Article 2(c)(i) of Directive 2014/41 can therefore be broken down into: (a) competence to act in criminal proceedings, on the one hand, and (b) competence to adopt a particular measure in those proceedings, on the other. 64. Even though the rules governing the European arrest warrant (‘EAW’) (21) and those governing the EIO are different, the latter instrument does not enable a public prosecutor’s office to carry out at cross-border level something that it is prohibited from doing at national level. (22) 65. In this case, the EIOs issued by the Bulgarian public prosecutor’s office concerned the adoption of measures which, in a purely domestic case, national law provides may only be adopted by a judge or a court. In particular, as pointed out above, there were four EIOs relating to the transmission of traffic and location data relating to certain electronic communications. 66. The Bulgarian legislation which, in those circumstances, reserves to a court (and not to the public prosecutor’s office) responsibility for the decision to require access from a telephony operator to traffic and location data relating to electronic communications is perfectly compatible with EU law. 67. As regards the tasks of the public prosecutor’s office in relation to that specific investigative measure, the judgment in Prokuratuur confirms, where necessary, the appropriateness of that legislation. 68. In summary, the Bulgarian public prosecutor’s office may not issue and transmit an EIO to another Member State for the purpose of gathering evidence when, if that evidence were gathered in Bulgaria, the power to make such an order would be reserved to a court. That public prosecutor’s office lacks the ‘competence’ which, in accordance with Article 2(c)(i) of Directive 2014/41, in conjunction with Article 6(1)(b) thereof, is the condition for its recognition as an ‘issuing authority’ within the meaning of that provision. VI. Conclusion 69. In the light of the foregoing considerations, I propose that the first question referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) should be answered as follows: Article 2(c)(i) in conjunction with Article 6(1)(b) 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 is to be interpreted as meaning that a public prosecutor’s office of a Member State may not issue a European investigation order for the purposes of collecting traffic and location data relating to electronic communications where, under the national law of that Member State, in a similar domestic case, exclusive competence to order the gathering of that evidence is reserved to a judge or a court. 1 Original language: Spanish. 2 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). 3 The referring court specifies that the data concerned was traffic and location data requested in accordance with ‘recital 30 of Directive 2014/41 … [and] Article 159a(1) of the NPK’. 4 Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002). 5 Prokuratuur (Conditions of access to data relating to electronic communications) (C‑746/18, EU:C:2021:152; ‘judgment in Prokuratuur’). 6 Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002). 7 Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002, paragraph 75 and operative part): ‘Article 1(1) and Article 2(c) of Directive 2014/41 must be interpreted as meaning that the concepts of “judicial authority” and “issuing authority”, within the meaning of those provisions, 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 a European investigation order.’ 8 Directive 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). 9 Judgment in Prokuratuur, paragraph 51. 10 Ibid., paragraph 52. 11 Ibid., paragraph 54. 12 Ibid., paragraph 55. 13 Ibid., paragraph 56. 14 Italics added. 15 Italics added. 16 As in the Opinion in Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:587; ‘Opinion in Staatsanwaltschaft’; point 32 (footnote 16)), I am using the adjectives ‘judicial’ and ‘non-judicial’ for reasons of simplicity because they reflect the nature of the institutions covered by both categories. 17 Opinion delivered in Finanzamt für Steuerstrafsachen und Steuerfahndung (C‑66/20, EU:C:2021:200). 18 Loc. cit., point 75. Italics added. 19 ‘Necessity’ and ‘proportionality’ must be examined in relation to the aims of the proceedings referred to in Article 4 of Directive 2014/41. These include ‘criminal proceedings that are brought by, or that may be brought before, a judicial authority in respect of a criminal offence under the national law of the issuing State’ (Article 4(a)). 20 Furthermore, recital 30 of Directive 2014/41 accepts that, from the executing State’s point of view, the interception of electronic communications ‘may be considered, depending on the national law of the executing State, as a coercive investigative measure’. 21 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). 22 I dealt with the differences between the legal rules governing EAWs and those governing EIOs in the Opinion in Staatsanwaltschaft, points 46 to 65. I have maintained that a public prosecutor’s office may not ‘ratify [as a necessary condition for the adoption of an EAW] a police arrest warrant whose conditions and effects go beyond those of the arrests which it may itself order’ (Opinion delivered in OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau) (C‑508/18 and C‑82/19 PPU, EU:C:2019:337, point 54)). It would, in effect be paradoxical ‘if it were not able to do the lesser act (issuing an NAW [national arrest warrant] for a short period of time) but able to do the greater act (issuing an EAW which could lead to a much longer period of detention)’ (loc. cit., point 76). In my view, it would be just as paradoxical if a public prosecutor’s office were able to request per se in another Member State the gathering of evidence for which, in its own Member State, it would require the authorisation of a court.