Opinion of the Advocate General — ECLI:EU:C:2021:346
Date: 2021-04-29
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

summary and the real issue 70. Viewed and understood in this context, there is nothing in the case-law of the ECtHR capable of frustrating the execution of the investigative measures under Directive 2014/41. Similarly, there is no issue with Article 47 of the Charter being potentially applicable, if appropriate, both to the manner in which an investigative measure was carried out in the executing Member State by the authorities of the executing Member State, as well as to the lawfulness of the order on the basis of which an EIO is issued by the authorities of the issuing Member State. Indeed, the jurisdictional split brought about in Article 14(1) and (2) of Directive 2014/41 seems to reflect precisely that approach. 71. All these clarifications concerning the proper scope of Directive 2014/41, as well as the case-law of the ECtHR and the minimum standards required, were necessary in order to be able to frame and eventually contend with the genuine problem of the present case. The issue is not necessarily the compatibility of the national legislation with any specific provision of Directive 2014/41. The real issue is one step ahead, metaphorically placed at the gates of the entire system: is a Member State able to issue EIOs even though it is aware that those acts breach the minimum standards of the ECHR and, therefore, the minimum level of protection required under EU law? C. A Member State in breach of the minimum standards of the ECHR cannot issue EIOs that are bound to suffer from the same type of infringement 72. By the second question raised in the present proceedings, the referring court asks whether it can issue an EIO for searches and seizures, both at the premises of a company and that of a private dwelling, as well as whether it can hear a witness in a situation in which there is no remedy available to the persons concerned by those measures under national law. 73. In my view, the answer is ‘no, it cannot’. As long as the issuing Member State has not ensured compliance with the minimum standards required by the ECHR and set out in the previous section of this Opinion, the authorities of that State are precluded from participating in the system established by Directive 2014/41. 74. As was rightly pointed out, in particular by the French and Austrian Governments, as well as the Commission, participation in the system of judicial assistance, and the mutual recognition established by Directive 2014/41, presupposes that all participants meet the minimum requirements of the protection of fundamental rights. 75. Admittedly, the peculiarity of the present case lies in the fact that the questions have been referred by a court in the issuing Member State while the procedure is still in a ‘pre-recognition’ phase. The referring court envisages the issuing of an EIO, but no act has yet crossed the borders. 76. The case-law of the Court dealing with the matter of mutual recognition in criminal matters has typically encountered questions from executing authorities concerning doubts as to whether EU law allows them to follow up on requests made by authorities of a different Member State. Indeed, the instruments that rely on mutual recognition have customarily placed the mechanisms which prevent a defective act from producing the desired legal effects on the side of the executing States. The present case is a rare example of an exercise in self-restraint by the issuing authority due to doubts as to whether it is even able to trigger a specific instrument of mutual recognition 77. However, it certainly cannot be inferred from the above that EU law is blind to the situation in the issuing Member State. 78. At the practical level, Directive 2014/41 regulates a number of issues and lays down a number of requirements on the issuing Member State. These requirements are further underlined by the general obligation on all relevant judicial authorities, set out in Article 1(4) of that directive, to respect fundamental rights. 79. It is, however, when viewed at the level of the principle that the issue becomes crystal clear. I fail to see how there could be any ‘mutual trust’ in a system where the issuing Member States are able to issue acts that, by default and as already previously established, are in breach of the minimum standards to which the entire system subscribes, and yet such acts are, irrespective of that fact, allowed knowingly to enter the system. 80. Indeed, I do not think that it is necessary to repeat the abundant case-law on the matter, stressing the importance of mutual trust for the mutual recognition and functioning of numerous mechanisms of judicial cooperation in criminal matters within the European Union. (29) Specifically, the requirement of mutual trust, or rather, realistically, the prohibition of distrust, means that the authorities of the executing Member State are to presume that the rules and fundamental rights in the issuing Member State have been observed, and are thus not to check, save in exceptional cases, the compliance of the act adopted in the issuing Member State with fundamental rights. (30) 81. The Court also stressed that ‘the Member States are obliged, by reason inter alia of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure in their respective territories the application of and respect for EU law, and to take for those purposes any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the [Union] ...’. (31) 82. Against this backdrop, a Member State availing itself of the system and aware that the acts it issues are in fact already incompatible with the requisite minimum guarantees in relation to fundamental rights is, in my view, not acting in the spirit of sincere cooperation. Such acts cannot generate any mutual trust. They are in fact the antithesis thereof, forcing any other actor, and in particular the executing Member State, to embrace mutual distrust as their default position. How could any mutual trust be generated in a system where some of its actors are knowingly allowed to disregard the rules? 83. Admittedly, Directive 2014/41 contains several safeguards ensuring the respect of fundamental rights with regard to recognition and execution of the given investigative measure in the executing Member State. (32) That list indeed includes the ground for refusal under Article 11(1)(f) of Directive 2014/41, possibly leading to a refusal on the basis of non-compliance with fundamental rights. 84. However, that certainly does not mean that all responsibility can be shifted towards the executing Member State. Again, sincere cooperation (and the mutual trust) are inter-relational. They include, by definition, all parties to the transaction. The Court has emphasised this idea by stating that compliance with fundamental rights is a shared obligation, falling on both the issuing and the executing Member States. The initial obligation to ensure compliance with fundamental rights is placed squarely on the shoulders of the issuing Member State. (33) Allowing the, at the outset, incompatible EIOs to enter the system would shift the entire responsibility for the protection of fundamental rights solely onto the executing authorities, (34) who may realise this in some cases, while being blissfully unaware in others. 85. In my view, playing such a game of ‘Russian roulette’ with individual rights would conceptually be wholly incompatible with the approach taken by the system of mutual recognition. The issuing authority would be aware of the fact that the issued EIO breaches fundamental rights, but would simply leave it to the vigilance of the executing authority to see whether the latter will realise, the consequence being a rather selective regard for the fundamental rights of the individuals involved in the process. (35) 86. Moreover, such Russian roulette not only passes the responsibility for detecting the breach onto the executing Member State, but it also makes the executing Member State potentially complicit in those infringements should it fail to detect and prevent them. In that way, the Member States involved would run the risk of failing to uphold the requirements laid down by the ECtHR in Avotiņš (36) and thus trigger their responsibility under international law.(37) 87. Indeed, Avotiņš, as well as the case-law of this Court relating to the potential non-recognition or non-execution of an act of an issuing Member State in the executing Member State, (38) are concerned with systemic failures or systemic deficiencies in the issuing Member State that may have certain consequences in the executing Member State. 88. However, or rather a fortiori, I fail to see why, if those consequences are foreseen for macro (systemic) failures, namely when the entire system becomes dysfunctional, (39) as well as for what one may label as sectoral failures, (40) the same should not be the case for what could be termed as mere micro failures, that is to say deficiencies identified solely with regard to specific procedural elements. 89. Moreover, if the approach is that, from a certain point onwards, the executing Member State is no longer obliged to recognise or to enforce acts coming from certain issuing Member States, (41) is it not also inherent in that statement that the issuing Member State, when it knows that it is in non-compliance, ought to be prevented from having recourse to a system of judicial cooperation, the entry requirements for which it no longer meets? 90. In a way, such a conclusion is not only inherent in the approach taken by the system, but also much more proportionate. Instead of burdening the entire system of judicial cooperation (and all the individual actors in the Member State) with the task of examining, in each individual case, again and again, whether or not grounds for refusal to recognise and execute an EIO have been given, is it not more reasonable temporarily to suspend the recognised and acknowledged problematic source so that it may first secure compliance with the minimum standards before being re-admitted? Such a solution appears all the more warranted as, in contrast to a situation where the potential systemic failure must be shown to result in a threat to the individual situation of the person concerned, (42) in the case of deficient sectoral regulation relating to one issue alone, it is clear that the issuing of any act that would be compliant is not possible. All of the acts issued will, by default, be tainted because the legislation under which they are issued was itself incompatible. 91. In short, whoever wishes to use the system of judicial assistance and mutual recognition under Directive 2014/41, or under any other instrument of judicial cooperation and mutual recognition for that matter, must come, metaphorically speaking, with clean hands, or rather, cannot come with hands that are knowingly dirty. The failure to observe that rule of basic hygiene, which has been repeatedly recognised and systematically emphasised, may indeed lead to that person being asked to leave the room and to come back only after having found some soap and carried out the necessary procedures. 92. In the specific context of the present case, as described above, in Posevini (43) and in previous judgments, the ECtHR has found Bulgaria to be in breach of the obligation to provide an effective remedy within the meaning of Article 13 ECHR due to the absence of any procedure allowing for the lawfulness of a search and seizure order to be challenged or for appropriate redress to be obtained. (44) As stated in those decisions, the Bulgarian Government in fact acknowledged that failure and has made its commitments to the Committee of Ministers to remedy the situation, (45) but so far to no avail, as also pointed out in the order for reference in the present case. 93. In summary, as long as that national legislative failure is not remedied, the authorities of the given Member State are indeed precluded from issuing an EIO that automatically and unavoidably brings about the same breach of fundamental rights as (the one) already observed by the ECtHR. 94. I note that no similar issue has been identified as regards a decision ordering a hearing of a witness. In this respect, I agree with the French and Austrian Governments that, in essence, a hearing of a witness is unlikely per se to result in as serious an intrusion on an individual’s fundamental freedoms as that of a search and seizure order. 95. Moreover, Article 24 of Directive 2014/41 contains a rather detailed arrangement for the hearing of a witness by videoconference or other audiovisual transmission. Alternatively, Article 25 thereof concerns the hearing of a witness by telephone conference. Those provisions contain specific guarantees, including a ground for non-recognition or non-execution under Article 24(2) of that directive, the requirement for the executing authority to apply the ‘fundamental principles of the law of the executing State’ under Article 24(5)(a) of that directive and the obligation to provide information about procedural rights that include the right not to testify, as laid down in Article 24(5)(e) thereof. 96. That being said, I do not consider that limiting the solution in the present case to the search and seizure orders is likely to bring about a systemic solution to a potentially open list of possible infringements of fundamental rights. Different investigative measures may present, as has already been noted, different degrees and intensities of intrusions. From this perspective, it appears difficult to draw a line in the abstract in order to claim that a given investigative measure can never be problematic. 97. As regards the specific hearing of a witness, although it may be characterised as a rather ‘mild’ intrusion into one’s personal sphere, it cannot be excluded that a hearing of a specific witness in a specific situation may nonetheless lead to a breach of protected individual rights, such as the rights of vulnerable persons whose specific situation would not have been duly taken into account during the adoption of an EIO ordering such a hearing. Should such a situation occur, the person affected must also have access to remedies that would make it possible to review the lawfulness of such a measure and obtain the appropriate redress. 98. In summary, it is the duty of the issuing authorities to make sure that their own acts are not tainted by unlawfulness due to non-compliance with the minimum standards laid down in the ECHR when these acts enter the system of Directive 2014/41. V. Conclusion 99. I propose that the Court answer the questions referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) as follows: Article 14(1) and Article 1(4) 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, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, and Article 4(3) TEU, preclude the situation in which national legislation does not provide for any legal remedy against the issuing of a European Investigation Order, if the issuance of such an order will automatically and unavoidably bring about the same breach of the minimum standards guaranteed by the European Convention on Human Rights as the one already observed by the European Court of Human Rights. Those provisions also oppose the issuance of a European Investigation Order in such circumstances. 1 Original language: English. 2 Directive of the European Parliament and of the Council of 3 April 2014 (OJ 2014 L 130, p. 1). 3 Judgment of 24 October 2019 (C‑324/17, EU:C:2019:892). 4 Opinion of Advocate General Bot in Gavanozov (C‑324/17, EU:C:2019:312). 5 Article 11, entitled ‘Legal remedies’, of Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ 2003 L 196, p. 45). 6 Article 18, entitled ‘Legal remedies’, of Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ 2008 L 350, p. 72). 7 Regulation of the European Parliament and of the Council of 14 November 2018 (OJ 2018 L 303, p. 1). 8 My emphasis. 9 Article 9 of Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ 2006 L 328, p. 59). 10 It might be added that it in fact reads ‘Procedures and Safeguards for the Executing State’, and not ‘Procedures and Safeguards in the Executing Member State’. It is certainly true that a base line of legal protection in the issuing Member State is a form of guarantee for the executing Member State. My emphasis. 11 Judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002, paragraph 39). 12 Ibid., paragraph 40. 13 Similar to the Framework Decision on the European evidence warrant which expressly imposed the obligation of equivalence on the issuing State in its Article 18(2) concerning legal remedies. See footnote 6 above. 14 See also judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002, paragraph 60). 15 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters – Explanatory Memorandum (OJ 2010 C 165, p. 22) (Council Document 9288/10 ADD 1 of 3 June 2010). 16 See Article 34 of Directive 2014/41, which states that Directive 2014/41 replaces: the corresponding provisions of the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of 20 April 1959, as well as its two additional protocols, and the bilateral agreements concluded pursuant to Article 26 thereof; the Convention implementing the Schengen Agreement; the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and its protocol; Framework Decision 2003/577 and Framework Decision 2008/978s. See footnotes 5 and 6 above. 17 With the exception of joint investigation teams that continue to be regulated by Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams (OJ 2002 L 162, p. 1). 18 See Chapter IV of Directive 2014/41 on ‘Specific provisions for certain investigative measures’, concerning, for example, the temporary transfer of persons held in custody, hearing by videoconference or telephone conference, obtaining information on bank and other financial accounts or on banking and other financial operation, or covert investigation. Chapter V deals with interception of telecommunications. 19 See above, footnotes 5 and 6. 20 Judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002, paragraph 69). 21 For example, under Article 10(3) of Directive 2014/41‚ ‘the executing authority may also have recourse to an investigative measure other than that indicated in the EIO where the investigative measure selected by the executing authority would achieve the same result by less intrusive means than the investigative measure indicated in the EIO’. Furthermore, respective provisions of Chapter IV detailing several types of investigative measures lay down specific grounds of non-recognition and non-execution, in addition to the general list provided in Article 11 of Directive 2014/41. 22 Judgment of 24 October 2019, Gavanozov (C‑324/17, EU:C:2019:892, paragraphs 25, 29, 30, 32, 33, 37, 38 and the operative part of the judgment). 23 ECtHR, judgment of 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, §§ 83 to 87. See also ECtHR, judgments of 26 July 2007, Peev v. Bulgaria, CE:ECHR:2007:0726JUD006420901, § 70; of 22 May 2008, Ilya Stefanov v. Bulgaria, CE:ECHR:2008:0522JUD006575501, § 59; of 15 October 2013, Gutsanovi v. Bulgaria, CE:ECHR:2013:1015JUD003452910, §§ 234 and 235; of 30 September 2014, Prezhdarovi v. Bulgaria, CE:ECHR:2014:0930JUD000842905, §§ 26 to 28, 30 and 31 and 49 to 52; of 16 February 2016, Govedarski v. Bulgaria, CE:ECHR:2016:0216JUD003495712, §§ 38 to 40, and 72 to 75; of 31 March 2016, Stoyanov and Others v. Bulgaria, CE:ECHR:2016:0331JUD005538810, § 152; and of 9 June 2016, Popovi v. Bulgaria, CE:ECHR:2016:0609JUD003965111, § 122. 24 Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). 25 ECtHR, judgment of 22 May 2008, Ilya Stefanov v. Bulgaria, CE:ECHR:2008:0522JUD006575501, § 59. 26 See, ECtHR, judgment of 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 84. See also ECtHR judgment of 16 February 2016, Govedarski v. Bulgaria, CE:ECHR:2016:0216JUD003495712, § 94 in which the ECtHR noted that ‘aucune disposition du droit interne ne permettait [aux demandeurs] de contester la régularité et la nécessité d’une perquisition du domicile …’. In its judgment of 30 September 2014, Prezhdarovi v. Bulgaria, CE:ECHR:2014:0930JUD000842905, § 50, the ECtHR noted that the lack of clear rules regarding the scope of judicial review is a problem, as well as the lack of any meaningful review of the lawfulness of and justification for the search and seizure. 27 See, ECtHR, judgment of 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 85. 28 See my Opinion in El Hassani (C‑403/16, EU:C:2017:659, points 116 and 117 and the case-law cited). By implication, see also judgments of 13 December 2017, El Hassani (C‑403/16, EU:C:2017:960, paragraphs 39 to 41), and of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N. (C‑949/19, EU:C:2021:186, paragraphs 45 and 46). 29 See, for example and recently, judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders) (C‑584/19, EU:C:2020:1002, paragraph 40), or of 10 March 2021, PI (C‑648/20 PPU, EU:C:2021:187, paragraph 35 and the case-law cited). 30 See, for example, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454, paragraph 192). See also judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph 34 and the case-law cited). 31 Judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph 34 and the case-law cited). 32 Outlined above in points 53 and 54 of this Opinion. 33 See, for example, judgment of 23 January 2018, Piotrowski (C‑367/16, EU:C:2018:27, paragraph 50 and the case-law cited) confirming in the context of the European arrest warrant the primary responsibility of the issuing Member State to ensure compliance with fundamental rights. 34 I agree in this respect with the Opinion of Advocate General Bot in Gavanozov that such a solution defies not only the general design of Directive 2014/41, but also the concept of mutual trust (C‑324/17, EU:C:2019:312, points 84 to 87). 35 All this makes one think of a hypothetical motor vehicles manufacturer that releases vehicles into circulation although aware of the fact that all of them have a technical fault, but nevertheless relies on the belief that police checks are not that frequent and, fingers crossed, that hopefully there will not be that many traffic accidents resulting in injury or harm to passengers or members of the public due to that technical fault. 36 ECtHR, judgment of 23 May 2016, Avotiņš v. Latvia, CE:ECHR:2016:0523JUD001750207, § 116. 37 See recently, ECtHR, judgment of 25 March 2021, Bivolaru and Moldovan v. France, CE:ECHR:2021:0325JUD004032416. 38 Judgments of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865); of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198); and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586). 39 Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 58 to 62). 40 Within which what is stated is a failure in relation to certain areas at issue, such as conditions for the seekers of international protection – judgment of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 89 and 90, 94, 106), or prison conditions – judgment of 5 April 2016, Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 89 to 94), without in either scenario suggesting that the entire judicial system of given Member State would have been affected by those shortcomings. 41 Most recently restated by the Court in the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033), and subsequently applied by the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) in the judgment of 10 February 2021, Case No RK 20/771 13/751021-20, NL:RBAMS:2021:420. 42 Necessary in the ‘two-step test’ which requires both structural (systemic and generalised) as well as individual consideration relating to the individual case – judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraphs 61 and 68) as confirmed in the judgment of 17 December 2020, Openbaar Ministerie (Independence of the issuing judicial authority) (C‑354/20 PPU and C‑412/20 PPU, EU:C:2020:1033, paragraphs 54 and 55). 43 ECtHR, judgments of 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814. 44 See above, footnote 23. 45 See, ECtHR, judgment of 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 47.