OPINION OF ADVOCATE GENERAL

BOT

delivered on 11 April 2019 ( 1 )

Case C‑324/17

Criminal proceedings

against

Ivan Gavanozov

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2014/41/EU — European Investigation Order — Procedures and safeguards in the issuing Member State — Substantive reasons for issuing a European Investigation Order — Absence of legal remedies in the issuing Member State — Procedural autonomy — Principles of equivalence and effectiveness — Charter of Fundamental Rights of the European Union — Article 47 — Article 14 of Directive 2014/41 — Concept of ‘party concerned’ — Person against whom a criminal charge is brought and measures to collect evidence applied in respect of third persons)

I. Introduction

1. The opening of borders within the European Union has inevitably facilitated the cross-border aspect of crime, and indeed created new opportunities in that respect. Accordingly, the legal framework in which investigations are carried out, in particular the investigative powers of judicial authorities in the Member States, needs to be able to transcend national borders.

2. The Member States hence worked to establish judicial cooperation, in particular in respect of evidence. ( 2 )

3. Although the growing number of judicial procedures enabling cooperation between the authorities of the Member States increased the effectiveness of cooperation in respect of obtaining evidence, it nonetheless became clear, as the EU legislature emphasised, that the European judicial framework for gathering evidence had become both too fragmented and complicated due, in the main, to the cumulation of specific instruments. ( 3 ) Directive 2014/41 was designed to replace cooperation instruments in respect of evidence. It seeks to simplify the legal framework for obtaining evidence and improve the effectiveness of investigative procedures.

4. Directive 2014/41 has a general, particularly broad scope in comparison with the instruments that it replaces. Accordingly, the first subparagraph of Article 1(1) of that directive provides that a European investigation order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (‘the issuing State’) to have one or several specific investigative measure(s) carried out in another Member State (‘the executing State’) to obtain evidence in accordance with that directive.

5. In addition, authorities in the Member States are in principle required to execute EIOs on the basis of the principle of mutual recognition in accordance with the framework established by Directive 2014/41. ( 4 )

6. Since the investigative measures ordered by the competent authorities to obtain evidence in criminal matters may be particularly intrusive inasmuch as they are liable to affect the right to a private life of the persons concerned, EU legislation must find a balance between the effectiveness and speed of investigative procedures, on the one hand, and the protection of the rights of the persons subject to those investigative measures on the other.

7. This case invites the Court to interpret Directive 2014/41 for the first time, but above all it affords an opportunity to take a position on that important but delicate balance.

8. The questions referred essentially concern Article 14 of that directive and the legal remedies available against the substantive reasons for the investigative measures indicated in an EIO.

9. In this Opinion I shall explain the reasons why, first, I consider that Article 14 of Directive 2014/41 precludes legislation of a Member State which does not permit a witness concerned by investigative measures, such as a search, a seizure and a hearing, to bring an appeal challenging the substantive reasons for those investigative measures, or to receive compensation. Such being the case, I likewise consider that Article 14, read in the light of fundamental rights, precludes a national authority from issuing an EIO.

10. Second, it is my view that, where remedies are not provided for under national law in similar domestic cases, Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO.

11. Third, I consider that the concept of ‘party concerned’ within the meaning of Directive 2014/41 covers, in the first place, a witness subject to the investigative measures requested in an EIO where his home is subject to a search and a seizure and he is to be heard and, in the second place, the person against whom a criminal charge has been brought where a measure to collect evidence ordered during the proceedings against him is directed at a third party.

II. Legal framework

A. EU law

1. Charter of Fundamental Rights of the European Union

12. The first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union ( 5 ) reads as follows: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

13. Under Article 48(2) of the Charter, ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.

14. Article 52(3) of the Charter provides as follows: ‘In so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, [ ( 6 )] the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

2. Directive 2014/41

15. Recitals 2, 11, 12, 18, 19, 22 and 39 of Directive 2014/41 state: ‘(2) Pursuant to Article 82(1) [TFEU], judicial cooperation in criminal matters in the Union is to be based on the principle of mutual recognition of judgments and judicial decisions, which is, since the Tampere European Council of 15 and 16 October 1999, commonly referred to as a cornerstone of judicial cooperation in criminal matters within the Union. … (11) The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. … (12) When issuing an EIO the issuing authority should pay particular attention to ensuring full respect for the rights as enshrined in Article 48 of the [Charter]. 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. 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. … (18) As in other mutual recognition instruments, this Directive does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU] and the Charter. In order to make this clear, a specific provision is inserted in the text. (19) The creation of an area of freedom, security and justice within the Union is based on mutual trust and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused. … (22) Legal remedies available against an EIO should be at least equal to those available in a domestic case against the investigative measure concerned. In accordance with their national law Member States should ensure the applicability of such legal remedies, including by informing in due time any interested party about the possibilities and modalities for seeking those legal remedies. In cases where objections against the EIO are submitted by an interested party in the executing State in respect of the substantive reasons for issuing the EIO, it is advisable that information about such challenge be transmitted to the issuing authority and that the interested party be informed accordingly. … (39) This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application. ...’

16. Under Article 1 of Directive 2014/41: ‘1. A European investigation order is a judicial decision which has been issued or validated by a judicial authority of a Member State … to have one or several specific investigative measure(s) carried out in another Member State … to obtain evidence in accordance with this Directive. The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State. … 4. This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected.’

17. Article 5(1) of that directive states that ‘the EIO in the form set out in Annex A shall be completed, signed, and its content certified as accurate and correct by the issuing authority’.

18. Article 6 of that directive provides: ‘1. The issuing authority may only issue an EIO where the following conditions have been met: (a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and … 2. The conditions referred to in paragraph 1 shall be assessed by the issuing authority in each case. 3. Where the executing authority has reason to believe that the conditions referred to in paragraph 1 have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO.’

19. Article 11 of Directive 2014/41, in Chapter III, entitled ‘Procedures and safeguards for the executing State’, provides: ‘1. Without prejudice to Article 1(4), recognition or execution of an EIO may be refused in the executing State where: … (f) there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter; … 4. In the cases referred to in points (a), (b), (d), (e) and (f) of paragraph 1 before deciding not to recognise or not to execute an EIO, either in whole or in part the executing authority shall consult the issuing authority, by any appropriate means, and shall, where appropriate, request the issuing authority to supply any necessary information without delay. …’

20. Under Article 14 of that directive: ‘1. Member States shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO. 2. The substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State, without prejudice to guarantees of fundamental rights in the executing State. 3. Where it would not undermine the need to ensure confidentiality of an investigation under Article 19(1), the issuing authority and the executing authority shall take the appropriate measures to ensure that information is provided about the possibilities under national law for seeking the legal remedies when these become applicable and in due time to ensure that they can be exercised effectively. 4. Member States shall ensure that the time limits for seeking a legal remedy shall be the same as those that are provided for in similar domestic cases and are applied in a way that guarantees the possibility of the effective exercise of these legal remedies for the parties concerned. 5. The issuing authority and the executing authority shall inform each other about the legal remedies sought against the issuing, the recognition or the execution of an EIO. 6. A legal challenge shall not suspend the execution of the investigative measure, unless it is provided in similar domestic cases. 7. The issuing State shall take into account a successful challenge against the recognition or execution of an EIO in accordance with its own national law. Without prejudice to national procedural rules Member States shall ensure that in criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO.’

21. Under Article 24 of that directive: ‘1. Where a person is in the territory of the executing State and has to be heard as a witness or expert by the competent authorities of the issuing State, the issuing authority may issue an EIO in order to hear the witness or expert by videoconference or other audiovisual transmission in accordance with paragraphs 5 to 7. … 2. In addition to the grounds for non-recognition or non-execution referred to in Article 11, execution of an EIO may be refused if either: (a) the suspected or accused person does not consent; or (b) the execution of such an investigative measure in a particular case would be contrary to the fundamental principles of the law of the executing State. …’

22. Under Article 34(1) to (3) of Directive 2014/41: ‘1. Without prejudice to their application between Member States and third States and their temporary application by virtue of Article 35, this Directive replaces, as from 22 May 2017, the corresponding provisions of the following conventions applicable between the Member States bound by this Directive: (a) 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; (b) Convention implementing the Schengen Agreement; [ ( 7 )] (c) Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and its protocol. [ ( 8 )] 2. Framework Decision [2008/978] is hereby replaced for the Member States bound by this Directive. Provisions of Framework Decision [2003/577] are replaced for Member States bound by this Directive as regards freezing of evidence. For the Member States bound by this Directive, references to Framework Decision [2008/978] and, as regards freezing of evidence, to Framework Decision [2003/577], shall be construed as references to this Directive. 3. In addition to this Directive, Member States may conclude or continue to apply bilateral or multilateral agreements or arrangements with other Member States after 22 May 2017 only in so far as these make it possible to further strengthen the aims of this Directive and contribute to simplifying or further facilitating the procedures for gathering evidence and provided that the level of safeguards set out in this Directive is respected.’

23. Article 36(1) of that directive states that ‘Member States shall take the measures necessary to comply with this Directive by 22 May 2017’.

B. Bulgarian law

24. Under Article 160(1) of the nakazatelno-protsesualen kodeks (Code of Criminal Procedure), a search and seizure may be carried out if there is sufficient reason to suppose that certain items are present in a particular place (documents, objects, computers and so forth) which contain information of significance to the case.

25. Under Article 107(2) of the Code of Criminal Procedure, read in conjunction with Article 13 thereof, the examination of a witness who was not previously examined in the pre-trial phase of the criminal proceedings takes place by decision of the court. Search and seizure take place in the trial phase of criminal proceedings by decision of the court.

26. Court decisions ordering the collection of evidence, such as a search, a seizure, or an examination of a person, cannot be challenged either by the parties to the proceedings or by the persons concerned by those measures; they are not subject to any review.

27. No indirect review — that is, a review carried out in conjunction with that of the criminal judgment — is possible.

28. First, under Article 318 of the Code of Criminal Procedure, a criminal judgment is to be reviewed only pursuant to an appeal by the public prosecutor or the accused. Persons whose premises are searched or goods are seized and persons examined as witnesses are not entitled to apply for a review of the lawfulness of the decision to, respectively, carry out a search or seizure or to authorise their examination, to be conducted at the same time as a review of the judgment.

29. Second, under Article 305 of the Code of Criminal Procedure, read in conjunction with Article 301 thereof, the decision of a court of first instance solely determines whether an accused person is guilty and not whether there were grounds to order a search, a seizure, or an examination of a witness. The judgment at second instance deals only with issues considered at first instance. In particular, the court of second instance reviews the manner in which investigative measures were carried out, especially their compliance with procedure, but not the adequacy of the grounds on which they were ordered.

30. Article 2 of the zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on State and municipal liability for damage) ( 9 ) provides for the payment of compensation for damage in the event of damage caused by specific judicial decisions against the accused which are found to be unlawful.

31. Decisions ordering a search, a seizure, or a witness examination are not directed against the defendant and there are no legal means of establishing their unlawfulness. Those situations are therefore not included among those for which compensation is payable.

32. The zakon za evropeyskata zapoved za razsledvane (Law on the European investigation order) ( 10 ) transposes Directive 2014/41 into Bulgarian law.

33. The referring court explains that although Article 18 of the Law on the European investigation order provides for remedies against the execution by the Bulgarian authorities of an EIO issued by the judicial authorities of another Member State, that law does not provide for remedies in the procedure for issuing such a decision.

III. Facts of the dispute in the main proceedings and questions referred for a preliminary ruling

34. The Bulgarian judicial authorities accuse Mr Ivan Dimov Gavanozov of having led a criminal organisation, which also involved three other people, with the aim of avoiding the assessment and payment of value added tax (VAT) by drawing up and using incorrect documents and by illegally deducting input tax. In particular, Mr Gavanozov is accused of having used shell companies to import sugar into Bulgaria (through an intra-Community acquisition) from other Member States, including from supplier X in the Czech Republic, represented by witness Y; he subsequently sold the sugar without documents on the internal market, without assessing or paying tax. According to documents in the possession of the judicial authorities, Mr Gavanozov exported sugar into Romania through an intra-Community supply. A total of 1128 664.49 Bulgarian leva (BGN) (EUR 577 085.85) in VAT was unassessed and unpaid.

35. In the pre-trial phase of the proceedings, no investigative measures to gather evidence relating to company X or witness Y were carried out.

36. It was established, however, that Mr Gavanozov and Y had entered into personal and professional contact, either through an interpreter or using English, since neither knew the other’s native language. However, it also transpired that Mr Gavanozov had signed a contract — drawn up only in Bulgarian — for exclusive representation of company X, which witness Y represented.

37. The Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) decided to gather fresh evidence with a view to establishing the nature of the relationship between Mr Gavanozov and witness Y.

38. The referring court therefore decided to order a search and seizure at the office of company X in order to ascertain whether the contract submitted by witness Y could be found among the documents in the possession of company X and whether documents had been drawn up in connection with its implementation. It likewise decided to conduct a search and seizure at the home of witness Y in order to establish whether he kept documents there in respect of the offence charged and to examine him through videoconferencing since he refused to appear for an examination in Bulgaria.

39. Since the office of company X and the home of witness Y are located in the Czech Republic, the referring court decided to issue an EIO requesting the Czech judicial authorities to carry out those investigative measures.

40. The referring court states that, when the order was to be adopted, it encountered difficulties in completing Section J of the EIO in the form set out in Annex A to Directive 2014/41, ( 11 ) which deals with legal remedies.

41. In that respect, the referring court explains in the order for reference that Bulgarian law does not make any legal remedy available against those investigative measures.

42. It also states the view that the Bulgarian legislation does not comply with Article 14 of Directive 2014/41 and does not satisfy the principle of effectiveness in so far as persons concerned by measures to collect evidence have no recourse against decisions ordering such measures.

43. In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are national legislation and case-law consistent with Article 14 of Directive [2014/41] regarding the European Investigation Order in criminal matters, in so far as they preclude a challenge, either directly as an appeal against a court decision or indirectly by means of a separate claim for damages, to the substantive grounds of a court decision issuing a European investigation order for a search on residential and business premises and the seizure of specific items, and allowing examination of a witness? (2) Does Article 14(2) of the directive grant, in an immediate and direct manner, to a concerned party the right to challenge a court decision issuing a European investigation order, even where such a procedural step is not provided for by national law? (3) Is the person against whom a criminal charge was brought, in the light of Article 14(2) in connection with Article 6(1)(a) and Article 1(4) of the directive, a concerned party, within the meaning of Article 14(4), if the measures for collection of evidence are directed at a third party? (4) Is the person who occupies the property in which the search and seizure was carried out or the person who is to be examined as a witness a concerned party within the meaning of Article 14(4) in connection with Article 14(2) of the directive?’

IV. Analysis

A. Admissibility

44. The Czech and Austrian Governments have, explicitly and implicitly, submitted that the questions are inadmissible on the grounds that since the order for reference was issued when the time limit for implementing Directive 2014/41 had expired, that directive had not been implemented in the Czech Republic or the Republic of Bulgaria and it cannot apply directly.

45. First, I observe that the order for reference is dated 23 May 2017 and so postdates the expiry of the time limit for implementing Directive 2014/41 established in Article 36(1) thereof as 22 May 2017.

46. Second, Directive 2014/41 has been implemented in both the Republic of Bulgaria and the Czech Republic in the course of proceedings before the Court. The referring court sent a copy of the transposing legislation with an accompanying letter to the Court during the proceedings before it. The Czech Republic communicated the measures transposing Directive 2014/41 to the European Commission after the time limit for implementation had expired. ( 12 )

47. Lastly, the interpretation requested is not only relevant but also necessary to the referring court.

48. The search, the seizure, and the examination of witness Y considered by the referring court relate to ongoing proceedings in Bulgaria and seek to ascertain whether Mr Gavanozov has committed VAT fraud.

49. In addition, the questions referred to the Court concern a provision of EU law and, inasmuch as they enable the referring court to determine how to complete Section J, they meet that court’s objective need.

50. It follows that the questions referred for a preliminary ruling are, in my view, admissible.

B. Substance

1. The first question referred

51. By its first question, the referring court asks, in essence, whether Article 14 of Directive 2014/41 must be interpreted as precluding national legislation which does not provide for any legal remedy against the substantive reasons for issuing an EIO requesting a search, the seizure of specific items and the hearing of a witness.

52. That directive’s requirements in terms of legal remedies show that the EU legislature clearly considered it necessary for Member States to make such provision.

53. Accordingly, it follows from Article 13(2) of that directive, under which ‘the transfer of the evidence may be suspended, pending a decision regarding a legal remedy ...’, that the EU legislature fully envisaged that remedies would be available.

54. Moreover, by requiring in Article 14(1) of Directive 2014/41 that ‘legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO’, it is in my view obvious, contrary to what the Czech Government claims, that the EU legislature assumed that remedies against investigative measures were available in domestic cases ( 13 ) and required the Member States to provide for equivalent remedies in respect of an EIO.

55. Therefore, although Article 14(1) of that directive does not oblige the Member States to provide for legal remedies in addition to those available in a similar domestic case, ( 14 ) it does oblige them, at the very least and through a ‘mirror effect’, to introduce remedies against the investigative measures indicated in an EIO which are equivalent to those available in a similar domestic case. ( 15 )

56. That interpretation of Directive 2014/41 is, in my view, all the more warranted in the light of the fact that the investigative measures ordered by the competent authorities in criminal investigations with the legitimate aim of gathering evidence may be intrusive and undermine the fundamental rights — recognised inter alia by the Charter — of the persons concerned. Furthermore, given the particular characteristics of criminal penalties, every aspect of procedures giving rise to such penalties must be accompanied by specific safeguards to ensure respect for the fundamental rights of the persons involved. ( 16 )

57. The need for effective judicial review to ensure respect for fundamental rights by national courts, ( 17 ) which has been repeatedly underlined, ( 18 ) is especially acute in the context of judicial cooperation in criminal matters, and the ability to challenge the substantive reasons for an EIO is therefore particularly important.

58. Lastly, that interpretation still stands where the measures to gather evidence concern a third person with the status of witness.

59. It must be borne in mind that in Article 1(4) of Directive 2014/41 the EU legislature did not confine the obligation to respect fundamental rights to the rights of the defence of persons subject to criminal proceedings.

60. Moreover, although certain provisions of that directive, such as Article 6(1)(a), place the emphasis on the rights of the ‘suspected or accused person’, other provisions of the directive, including inter alia Article 5(1)(c), Article 13(2), and Articles 14 and 22, refer to the concept of ‘party concerned’ or ‘person concerned’.

61. Furthermore, Article 11(1)(f) of Directive 2014/41, read in the light of recital 19 thereof, and Article 14 of the directive provide that the safeguards laid down by the EU legislature in terms of legal remedies and grounds for non-execution or non-recognition, exist for the benefit of the ‘party concerned’ and not the ‘suspected or accused person’.

62. The use of different terms is, in my view, highly significant, especially since, in the context of Directive 2014/41, the investigative measures specified in an EIO may be directed both at the ‘suspected or accused person’ and third parties and may therefore undermine their rights.

63. In the investigation in the main proceedings against Mr Gavanozov, Y is a witness, but he is subject to the proposed investigative measures to gather evidence against Mr Gavanozov. The search and seizure would hence take place at his home, and he would be heard.

64. It follows that the concept of ‘party concerned’, within the meaning of Directive 2014/41, likewise refers to a witness, such as Y, who is subject to the investigative measures requested in an EIO.

65. It is clear from the explanation of domestic law and the repeated judgments against the Republic of Bulgaria by the European Court of Human Rights mentioned in the order for reference ( 19 ) that Bulgarian law does not provide for any legal remedy allowing a witness to challenge the substantive reasons for investigative measures, such as a search and a seizure, in national cases, or effectively to obtain compensation through an action for damages. ( 20 )

66. Furthermore, the transposition into Bulgarian law of Directive 2014/41 did not, according to the referring court, ( 21 ) make it possible for a witness, such as Y, who is subject to a search, a seizure and a hearing, to challenge the substantive reasons underlying those investigative measures.

67. In my opinion, two conclusions must be drawn from the foregoing.

68. First, I consider that the Bulgarian legislation does not comply with Article 14 of Directive 2014/41.

69. Second, Article 14, read in the light of fundamental rights, precludes an authority, in this case Bulgarian, from issuing an EIO.

70. Since Directive 2014/41 provides for safeguards, ( 22 ) such as legal remedies against the substantive reasons for the investigative measures specified in an EIO, in the absence of such safeguards, the EIO mechanism cannot be triggered.

71. This position is based, first, on an interpretation of Section J.

72. Despite the discrepancies between the different language versions of Section J, ( 23 ) I consider that, construed in the light of the general scheme and purpose of Directive 2014/41, ( 24 ) point 1 of Section J requires the issuing authority to inform its counterpart in the executing State if a legal remedy has been sought against the issuance of the EIO in the form set out in Annex A to that directive, and point 2 requires the issuing authority to provide information on remedies and assistance available in the issuing State.

73. I would point out here that it is far from obvious to me what use the executing State could make of the information that a legal remedy against an EIO, meaning any EIO whatsoever, has been sought in the issuing State.

74. By contrast, in the case of an investigative measure that does not require confidentiality, ( 25 ) it is important for the executing State to know about a challenge to the EIO since its success could undermine the basis for the investigative measure.

75. On the other hand, point 2 of Section J read in conjunction with Article 14(2) of Directive 2014/41 implies that the authorities of the executing State may inform the person subject to the investigative measures of the procedures for challenging the substantive reasons for the issuance of the EIO by the issuing State and, if appropriate, provide him with details of the legal and linguistic assistance available in that State. ( 26 )

76. Furthermore, the requirement in point 2 of Section J to provide information on legal remedies available in the issuing State also ensures that the grounds for non-recognition or non-execution of EIOs, and especially the ground set out in Article 11(1)(f) of that directive, are effective.

77. However, if no remedies exist in the issuing State, the form in Annex A of that directive cannot be completed, the full context for an EIO cannot be provided ( 27 ) and the EIO may not be issued, still less executed.

78. Second, the Bulgarian legislation and the resulting lack of protection of fundamental rights prevent the mutual recognition mechanism, central to the EIO, from operating.

79. Mutual recognition is based on the premiss that mutual trust exists between Member States, understood as ‘the certainty that all European citizens have access to a judicial system meeting high standards of quality’. ( 28 ) It therefore requires Member States, save in exceptional circumstances, to consider all the other Member States to be complying with the fundamental rights recognised by EU law, ( 29 ) and it implies that ‘the Member States may … be required to presume that fundamental rights have been observed by the other Member States’. ( 30 )

80. I note, however, that the use of the verb ‘may’ by the Court does not impose an obligation and that recital 19 of Directive 2014/41 refers to the rebuttable nature of that presumption. ( 31 )

81. In the present case, given the repeated findings of breach of Articles 3, 8 and 13 ECHR by the Republic of Bulgaria, the failure to amend the Code of Criminal Procedure, the doubt of the referring court as to whether Bulgarian legislation complies with fundamental rights, and the failure to provide for a legal remedy during the transposition of Directive 2014/41, it is evident to me that respect for fundamental rights by that Member State cannot be presumed.

82. Indeed, the inability in Bulgaria of a third party subject to investigative measures such as searches or seizures, which inherently affect the right to a private life, to challenge the substantive reasons behind those measures is, as repeatedly held by the European Court of Human Rights, a blatant lack of effective protection of that right. ( 32 )

83. If it cannot be presumed that a Member State respects fundamental rights, mutual trust cannot be required from other Member States, with the result that mutual recognition cannot be implemented or taken advantage of by that Member State.

84. I would add that in such a situation, the possibility, put forward by the Hungarian Government, for the executing State to apply Article 11 of Directive 2014/41 is not sufficient.

85. Not only must the grounds for non-execution and non-recognition be narrowly construed and relied on solely as an exception to the principle of the execution of EIOs laid down in Article 1(2) of Directive 2014/41, ( 33 ) recital 19 of that directive requires a case-by-case assessment of whether the presumption of respect for fundamental rights should be rebutted in order for Article 11(1)(f) thereof to apply.

86. However, I consider that, although an assessment of the effectiveness of remedies can warrant application of Article 11(1)(f) of Directive 2014/41 on a case-by-case basis, the lack of any remedy could, as rightly pointed out by the Austrian Government, lead to blanket use of this provision, jeopardising the practical relevance of EIOs.

87. Moreover, in circumstances such as those prevailing in the Republic of Bulgaria, the application of Article 11(1)(f) of Directive 2014/41 would create a significant risk that Member States would variously refuse to recognise or execute EIOs. Ultimately, it would impose a heavy responsibility on the executing authorities, which could lay themselves open to a breach of the ECHR. ( 34 )

88. Lastly, the interpretation of Directive 2014/41 that I propose is consistent with the effectiveness required of the EIO mechanism.

89. The EU legislature accompanied the implementation of the EIO with safeguards intended to protect the rights of persons subject to the investigative measures. Therefore, if a Member State chooses not to transpose Directive 2014/41 in that respect, not to introduce those safeguards and therefore not to respect the balance created by that directive between the intrusiveness of investigative measures and the right to challenge them, it cannot take advantage of the EIO mechanism.

90. In the light of all the foregoing considerations, I consider that, first, Article 14 of Directive 2014/41 precludes the Bulgarian legislation and, second, that Article 14, read in the light of fundamental rights, precludes a Bulgarian authority from issuing an EIO.

2. The second question referred

91. By its second question, the referring court asks, in essence, whether Article 14(2) of Directive 2014/41 may be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO where national law does not provide any remedies to that effect.

92. It would seem to me that the EU legislature proceeded from the assumption that legal remedies would be available in the Member States to challenge the substantive reasons for issuing an EIO and through Article 14(2) of that directive sought to prevent those reasons from being challenged and judicially reviewed in the executing State. ( 35 )

93. That being so, Article 14(2) of that directive does not create an action challenging the substantive reasons for issuing an EIO in either the issuing State or, indeed, the executing State.

94. The fact remains that the combined provisions of Article 14(1) and (2) of Directive 2014/41 place Member States under an obligation to make such a remedy available in the EIO system.

95. Such an obligation cannot remain a dead letter because that directive has not been correctly transposed.

96. It should be recalled that, according to the Court’s settled case-law, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the State has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. ( 36 )

97. It is therefore possible that if the issuing State has not provided for any legal remedy against the substantive reasons for issuing an EIO but has established remedies for challenging the substantive reasons in similar domestic cases, the party subject to the investigative measures could rely on the equivalence assumed in Article 14(1) of Directive 2014/41.

98. However, if national law does not provide for any legal remedies in similar national investigative procedures, a remedy against a European investigative measure cannot be created ex nihilo by the direct effect of that provision.

99. While that situation provides further reason to find that a Bulgarian authority cannot issue an EIO if no legal remedies are available, the Commission should bring infringement proceedings for failure to transpose the directive correctly.

100. Consequently, I consider that Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court in order to challenge the substantive reasons for issuing an EIO where remedies are not available under national law in similar domestic cases.

3. The third and fourth questions referred

101. By its third and fourth questions, the referring court essentially seeks to ascertain whether the person against whom a criminal charge is brought is a ‘party concerned’ within the meaning of Directive 2014/41 where measures to collect evidence are directed at a third party, and whether that third party, in the present case the person who occupies or uses the property in which the search and seizure is carried out or the person who is to be heard as a witness, is also a ‘party concerned’ within the meaning of that directive.

102. Since the referring court has also stated that, should an affirmative answer be given to the second question, Article 14(2) of Directive 2014/41 would form the basis making a legal remedy available to the parties concerned, my proposed reply to the second question arguably renders an answer to those questions superfluous.

103. However, an interpretation of the concept of ‘party concerned’ in the context of Directive 2014/41 is, in my view, useful in enabling the national court to determine its scope.

104. As the Commission has rightly stated, that directive has neither the object nor the effect of harmonising the legal framework for investigative measures and the related remedies in the Member States. Consequently, it is for each Member State to develop such remedies as a matter of procedural autonomy.

105. It is nonetheless clear that since that directive affords safeguards to the parties concerned by the investigative measures, the concept of ‘party concerned’ must be independently construed within the context of Directive 2014/41.

106. As regards a person at whom investigative measures are directed but who has the status of a third party in the criminal proceedings, it suffices to note that it follows from points 58 to 64 above that such a person is covered by the concept of ‘party concerned’ under Article 14 of Directive 2014/41.

107. The person against whom criminal charges have been brought but who is not subject to the measures to collect evidence indicated in the EIO is likewise a ‘party concerned’ under that directive since those measures may affect his interests in the case at issue in so far as, for example, the evidence collected may be used against him.

V. Conclusion

108. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria): (1) Article 14 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 precluding the legislation of a Member State, such as the Bulgarian legislation, which does not provide for a legal remedy against the substantive reasons for an investigative measure indicated in an EIO, and the issuance of an EIO by the authorities of that Member State. (2) Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO if remedies are not available under national law in a similar domestic case. (3) The concept of ‘party concerned’ within the meaning of Directive 2014/41 includes a witness subject to the investigative measures requested in an EIO and the person against whom a criminal charge has been brought but who is not subject to the investigative measures indicated in an EIO.

( 1 ) Original language: French.

( 2 ) At first through the Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ 2000 C 197, p. 1) and the Protocol established by the Council in accordance with Article 34 of the Treaty on European Union to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ 2001 C 326, p. 2) and subsequently through 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) and 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).

( 3 ) See recital 5 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 (OJ 2014 L 130, p. 1).

( 4 ) In line with the conclusions of the Tampere European Council of 15 and 16 October 1999 and the adoption by the European Council of ‘The Stockholm Programme — An open and secure Europe serving and protecting citizens’ (OJ 2010 C 115, p. 1) and pursuant to Article 82(1) TFEU, Directive 2014/41 is based on the principle of mutual recognition. According to recital 38, that directive’s objective is mutual recognition of decisions taken to obtain evidence, and, under Article 1(2) thereof, Member States are to execute an EIO on the basis of the principle of mutual recognition.

( 5 )

( 6 ) Signed in Rome on 4 November 1950; ‘the ECHR’.

( 7 ) Convention of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at common borders, signed at Schengen (Luxembourg) on 19 June 1990 (OJ 2000 L 239, p. 19).

( 8 ) See footnote 2 of this Opinion.

( 9 ) DV No 60 of 5 August 1988.

( 10 ) DV No 16 of 20 February 2018.

( 11 )

( 12 ) Details of these measures can be found at the following web address: https://eur-lex.europa.eu/legal-content/EN/NIM/?uri=celex:32014L0041.

( 13 ) The Austrian Government and the Commission would seem to concur with that view.

( 14 ) All the same, I note that, in accordance with recital 22 of that directive, Member States may adopt additional remedies against an EIO.

( 15 ) That interpretation is borne out by recital 22 of Directive 2014/41 which, according to the Court’s case-law, may explain that directive’s content (see judgment of 11 June 2015, Zh. and O. (C‑554/13, EU:C:2015:377, paragraph 42)). In my view, it follows that, although that directive obliges Member States to provide for legal remedies equivalent to those laid down for similar domestic cases, it does not, in principle and subject to compliance with the principle of effectiveness, encroach on the competence of Member States to institute such remedies against investigative measures that interfere with a fundamental right.

( 16 ) See Hagueneau-Moizard, C., Gazin, F., and Leblois-Happe, J., Les fondements du droit pénal européen, Larcier, Brussels, 2015, p. 55.

( 17 ) I would point out here that the Court takes the view that it is for the national courts to ensure the full application of EU law in all Member States and to ensure judicial protection of the rights of individuals under that law (see judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 50 and the case-law cited)).

( 18 ) I refer in that regard to recital 12 and Article 1(4) of Directive 2014/41. This requirement should be distinguished from the EU’s obligation to respect fundamental rights when exercising the criminal jurisdiction conferred by the Treaty.

( 19 ) After the explanation of national law, the order for reference notes that, following the judgments of the ECtHR of 26 July 2007, Peev v. Bulgaria (CE:ECHR:2007:0726JUD006420901), and of 22 May 2008, Iliya Stefanov v. Bulgaria (CE:ECHR:2008:0522JUD006575501), the Republic of Bulgaria undertook to amend national law to allow ex post facto judicial review of a judicial search and seizure order, to be initiated by the persons subject to the search and seizure. It is also apparent from the order for reference that those amendments to Bulgarian law have not yet been adopted.

( 20 ) It is true that the possibility of challenging the substantive reasons for criminal investigative measures is distinct from the possibility of seeking compensation for damage caused by such measures. Nevertheless, ECtHR case-law makes plain that the possibility of obtaining compensation in the event that a search or seizure is unlawfully ordered or executed is an integral part of the right to an effective remedy within the meaning of Article 13 ECHR. As regards the analysis of Bulgarian law, the role and importance of an action for damages should not be underestimated, since, as underlined by the European Court of Human Rights, the possibility of bringing an action for damages is of cardinal importance where no appeal can be brought against the lawfulness of searches and seizures (ECtHR, 22 May 2008, Iliya Stefanov v. Bulgaria (CE:ECHR:2008:0522JUD006575501, § 59), and 19 January 2017, Posevini v. Bulgaria (CE:ECHR:2017:0119JUD006363814, § 84)).

( 21 ) The referring court sent a letter to the Court informing it of that directive’s transposition and expressly stating that while Article 18 of the Law on the European Investigation Order provides a remedy against the execution by the Bulgarian authorities of an EIO adopted by the judicial authorities of another Member State, that law does not provide for remedies in the procedure for issuing such an order.

( 22 ) The ability to challenge the substantive reasons for issuing an EIO recognised in Article 14 of Directive 2014/41 and, more broadly, the safeguards envisaged in that provision are not the only safeguards put in place by the EU legislature. Accordingly, the fact that, by definition, an EIO is a judicial decision which has been issued or validated by a judicial authority of a Member State is in itself a safeguard. In addition, Article 1(3) of that directive provides that a suspected or accused person can request that an EIO be issued as part of the rights of the defence. Moreover, although Article 1(4) of that directive states that the latter does not have the effect of modifying the obligation to respect fundamental rights, various obligations incumbent on both the issuing State and the executing State seek to safeguard fundamental rights. In particular, Article 6(1)(a) of Directive 2014/41 provides that an EIO may only be issued if this is necessary and proportionate for the purpose of the case in hand, taking into account the rights of the suspected or accused person. Under Article 6(3) of that directive, where the executing authority has reason to believe that this condition has not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation, the issuing authority may decide to withdraw the EIO. Finally, under Article 11 of that directive, the executing State may refuse to recognise or enforce an EIO on various grounds, including that its execution would be incompatible with the principle ne bis in idem and respect for that State’s obligations with regard to fundamental rights.

( 23 ) The French version of Section J states: ‘Veuillez indiquer si un recours a déjà été formé contre l’émission d’une décision d’enquête européenne ...’. Similarly, the English version states: ‘Please indicate if a legal remedy has already been sought against the issuing of an EIO ...’. By contrast, the Spanish version of Section J reads: ‘Sírvase indicar si ya se ha interpuesto algún recurso contra la emisión de la OEI ...’. Emphasis added.

( 24 ) See judgment of 29 April 2015, Léger (C‑528/13, EU:C:2015:288, paragraph 35).

( 25 ) Unlike, for example, the measures of seizure or search, which require an element of surprise to be effective and must remain confidential before they are executed.

( 26 ) This obligation of Member States to provide information is also set out in recital 22 of Directive 2014/41.

( 27 ) I would stress here that, under Article 5(1) of Directive 2014/41, the EIO set out in the form provided for in Annex A is to be completed, signed, and its content certified as accurate and correct by the issuing authority. Furthermore, under Article 16(2)(a) of that directive, the executing authority is to inform the issuing authority immediately by any means of the fact that it is not possible to take a decision on the recognition or execution due to the fact that the form provided for in Annex A is incomplete or manifestly incorrect. It follows that the form in Annex A to that directive formalises the EIO and that the details required therein seek to inform the executing State about the investigative measures requested, the investigation of which they form part and their legal context.

( 28 ) See The Hague Programme: strengthening freedom, security and justice in the European Union (OJ 2005 C 53, p. 1) (Part III, point 3.2). See also judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 35 and the case-law cited).

( 29 ) See judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 36 and the case-law cited).

( 30 ) Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 37 and the case-law cited).

( 31 ) Other instruments adopted recently in the framework of the area of freedom, security and justice refer to a presumption of compliance by Member States with fundamental rights, such as, in particular, recital 34 of Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing and confiscation orders (OJ 2018 L 303, p. 1).

( 32 ) See ECtHR, 15 October 2013, Gutsanovi v. Bulgaria (CE:ECHR:2013:1015JUD003452910, § 67 and §§ 208 to 212); 16 February 2016, Govedarski v. Bulgaria (CE:ECHR:2016:0216JUD003495712), §§ 38 to 40 and §§ 72 to 75; 31 March 2016, Stoyanov and Others v. Bulgaria (CE:ECHR:2016:0331JUD005538810, §§ 114 to 116); and 9 June 2016, Popovi v. Bulgaria (CE:ECHR:2016:0609JUD003965111, §§ 49, 89 and 93). In that regard, I would point out for information that, as is apparent from the explanations relating to the Charter (OJ 2007 C 303, p. 17), the right to an effective remedy guaranteed by the first paragraph of Article 47 of the Charter is based on Article 13 ECHR. However, according to Article 52(3) of the Charter, the meaning and scope of the rights recognised therein are the same as those laid down by the ECHR and the fact, mentioned in the explanations relating to the Charter, that protection in EU law is more extensive since it guarantees the right to an effective remedy before a court, is irrelevant in the present case.

( 33 ) See, by analogy, the case-law on the European arrest warrant and, in particular, judgments of 25 July 2018, AY(Arrest warrant — Witness) (C‑268/17, EU:C:2018:602, paragraph 52), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice) (C‑216/18 PPU, EU:C:2018:586, paragraph 41).

( 34 ) I recall in this regard that, in view of the judgment of the ECtHR of 21 January 2011, M.S.S. v. Belgium and Greece (CE:ECHR:2011:0121JUD003069609, §§ 358, 360 and 367), there is a distinct risk of adverse judgments by the European Court of Human Rights, which was envisaged and taken seriously by the EU legislature in Article 11(1)(f) of Directive 2014/41.

( 35 ) See the explanatory memorandum to the 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 (document 9288/10 Add 1, of 3 June 2010, available at the following web address: https://data.consilium.europa.eu/doc/document/ST-9288-2010-ADD-1/en/pdf) (p. 14).

( 36 ) See in particular judgment of 21 November 2018, Ayubi (C-713/17, EU:C:2018:929, paragraph 37 and the case-law cited).