REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation 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
Date: 2021-07-20
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, European judicial area, criminal procedure, criminal proceedings, judicial cooperation in criminal matters in the EU, mutual recognition principle, national implementing measure, proof, ruling

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 20.7.2021  COM(2021) 409 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation 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  
 
 
1.  INTRODUCTION 

Directive 2014/41/EU on the European Investigation Order in criminal matters1 (‘the Directive’) 
establishes a single comprehensive framework based on the principle of mutual recognition that 
allows authorities in 1 Member State to obtain evidence from another Member State. 

The Directive was proposed on the initiative of 7 Member States2. The Council and the European 
Parliament adopted it in accordance with Article 82(1)(a) of the Treaty of the Functioning of the 
European  Union  (TFEU)  on  3  April  2014  and  it  is  binding  on  all  Member  States  with  the 
exception of Ireland and Denmark. 

The Directive replaced existing frameworks for the gathering of evidence, namely the 2000 EU 
Mutual  Legal  Assistance  Convention3,  Framework  Decision  2008/978/JHA  on  the  European 
evidence warrant4 and Framework Decision 2003/577/JHA on the freezing of evidence5. 

The main elements of the Directive are listed below. 

  The European Investigation Order (‘EIO’) is a judicial decision issued or validated by a 
judicial  authority  of  a  Member  State  to  have  one  or  several  investigative  measures 
executed or recognised in another Member State in order to obtain evidence. 

 

It covers any investigative measure6, apart from setting up a joint investigative team, at 
all stages of criminal proceedings. 

  Member  States  are  obliged  to  swiftly  recognise  and  execute  an  EIO  without  any 
further formality, and it can only be refused under limited circumstances, e.g. essential 
national security interests and respect for fundamental rights. 

  The Directive sets strict deadlines for gathering the evidence requested. 

1  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 L 130, 1.5.2014, p. 1. 
2 Austria, Bulgaria, Belgium, Estonia, Slovenia, Spain and Sweden. 
3  Convention  of  29  May  2000  on  Mutual  Assistance  in  Criminal  Matters  between  the  Member  States  of  the 
European Union, OJ C 197, 12.7.2000, p. 1. 
4  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 L 350, 30.12.2008, 
p. 72. This Framework Decision was repealed by Regulation (EU) 2016/95 of the European Parliament and of the 
Council  of  20  January  2016  repealing  certain  acts  in  the  field  of  police  cooperation  and  judicial  cooperation  in 
criminal matters, OJ L 26, 2.2.2016, p. 9. 
5 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution  in the  European Union of orders 
freezing property or evidence, OJ L 196, 2.8.2003, p. 45. 
6  For  example,  the  EIO  allows  the  hearing  of  suspects  and  witnesses,  including  by  videoconference  and  the 
gathering of information on bank and other financial accounts, or measures to preserve evidence. 

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 

 

It provides standard forms for completing an EIO (Annex A), acknowledging its receipt 
(Annex B) and sending a notification about the interception of telecommunications on the 
territory of the notified Member State (Annex C)7. 

It contains several additional safeguards to protect the rights of the defence, notably in 
Articles 1(3), 6 and 14. 

In January 2021, the Commission proposed an amendment to Article 20 of the Directive to align 
it with EU rules on the protection of personal data8. 

Article  37  of  the  Directive  requires  the  Commission  to  submit  a  report  to  the  European 
Parliament  and  the  Council  on  the  application  of  the  Directive  on  the  basis  of  both  qualitative 
and quantitative information. The report includes, in  particular, the  evaluation of its impact  on 
cooperation in criminal matters and the protection of individuals, as well as the execution of its 
provisions on intercepting telecommunications in the light of technical developments. 

The  first  part  describes  the  state  of  play  of  the  Directive’s  implementation  by  Member  States, 
focusing on the main provisions, crucial for the smooth functioning of the EIO. The second part 
provides an overview of key elements relating to the Directive’s application by Member States.   

In drafting this report, the Commission used the information the Member States provided when 
notifying  national  measures  transposing  the  Directive  and  the  replies  to  the  questionnaire  of 
competent  authorities  and  lawyers  in  Member  States,  as  well  as  Eurojust  and  the  European 
Judicial Network in criminal matters (EJN). 

The report covers all Member States bound by the Directive. 

2.  GENERAL ASSESSMENT 

At the expiry of the transposition period on 22 May 2017 (Article 36(1)), only 2 Member States 
had  communicated  the  necessary  measures  to  the  Commission  and  another  other  8  Member 
States notified measures in the following days and weeks.   

In  July  2017,  the  Commission  launched  infringement  procedures  under  Article  258  TFEU 
against  13  Member  States  (Austria,  Bulgaria,  Cyprus,  Czechia,  Greece,  Spain,  Croatia, 
Luxembourg,  Malta,  Poland,  Portugal,  Sweden  and  Slovakia)  for  failing  to  notify  measures 
transposing the Directive.  In January 2018, the  Commission sent  reasoned opinions to Austria, 

7 The Council has published guidelines on how to fill in the forms: 
https://data.consilium.europa.eu/doc/document/ST-5291-2020-INIT/en/pdf 
8  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive  2014/41/EU,  as 
regards its alignment with EU rules on the protection of personal data (COM/2021/21 final). 

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Bulgaria,  Spain  and  Luxembourg  as  they  had  still  not  notified  the  transposition  measures.  By 
September  2018,  all  Member  States  bound  by  the  Directive  had  notified  their  national 
transposing measures to the Commission. The analysis of the notified measures has not identified 
any  significant  stand-alone  missing  elements.  The  infringement  proceedings  failure  to 
communicate transposition measures have therefore been closed9.  

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.   Competent authorities and central authorities 

Article 33(1) requires Member States to inform the Commission of the authorities competent to 
issue and execute EIOs,  and of the  central  authority(ies),  where designated in  accordance with 
Article 7(3). All Member States have sent their notifications to the Commission.  

3.1.1.  Issuing authorities (Article 2(c)) 

Article  2(c)  states  that  the  term  ‘issuing  authority’  includes  a  judge,  a  court,  an  investigating 
judge or a public prosecutor10. It also includes any other competent authority as defined by the 
issuing State, which, in the case in question, 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, provided such an EIO is validated by a judge, court, investigating judge or public 
prosecutor.  

The Court of Justice has ruled11 that the concepts of ‘judicial authority’ and ‘issuing authority’ in 
Articles 1(1) and 2(c) include the public prosecutor’s office of a Member State, regardless of any 
relationship of legal subordination between that office and the executive of that Member State or 
of the exposure of that public prosecutor’s office to the risk of being directly or indirectly subject 
to orders or individual instructions from the executive when adopting an EIO.  

In a majority of Member States, the authorities competent to issue EIOs are public prosecutor’s 
offices,  investigating  judges  or  courts.  In  1  Member  State,  only  courts  are  competent  to  issue 
EIOs,  while  another  Member  State  designated  its  fiscal  authority,  which  has  the  rights  and 
discharges the responsibilities of a public prosecutor’s office, as an issuing judicial authority in 
accordance with  Article  2(c)(i)12.  Less  than half of Member States availed  of the possibility to 

9  This  is  without  prejudice  to  infringement  proceedings  that  may  be  launched  by  the  Commission  against  certain 
Member  States  when  it  finds  that  the  notified  national  measures  incorrectly  transpose  the  Directive  or  systemic 
weaknesses are observed in its application in practice. 
10 Article 1(1) specifies that EIOs are judicial decisions issued or validated by judicial authorities.  
11    See  judgment  of  the  Court  of  Justice  of  8  December  2020,  Staatsanwaltschaft  Wien/A.  and  Others,  C-584/19 
PPU, ECLI:EU:C:2020:1002. 
12 See case C-66/20 pending before the Court of Justice of the European Union. 

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appoint competent investigating authorities, such as police services, as their issuing authorities in 
accordance  with  Article  2(c)(ii).  In  some  cases,  administrative  authorities  were  appointed  as 
issuing  authorities  in  administrative  offence  proceedings.  Prosecutors,  investigating  judges  or 
courts were appointed as validating authorities for such EIOs. In 1 Member State, no validating 
authority was appointed for EIOs issued by an administrative authority in administrative offence 
proceedings. Almost all Member States correctly implemented this provision. 

3.1.2.  Executing authorities (Article 2(d)) 

A  large  majority  of  Member  States  designated  the  authorities  competent  to  issue  EIOs  as 
executing authorities also. In some Member States, the authorities competent to recognise EIOs 
and ensure their execution are also law enforcement or administrative authorities.  

3.1.3.  Central authorities (Article 7(3)) 

Article  7(3)  provides  for  a  possibility  for  Member  States  to  designate  1  or  more  central 
authorities  to  assist  the  competent  authorities.  They  may  make  such  central  authorities 
responsible  for  the  administrative  transmission  and  receipt  of  EIOs  and  other  related  official 
correspondence. 

A significant number of Member States notified at least 1 central authority to the Commission. In 
most cases, the Ministries of Justice were appointed as central authorities, while different tasks 
were assigned to them. A few of those central authorities can also assist with the administrative 
transmission and receipt of EIOs, and only a small number of those Member States request that 
all  incoming  EIOs  be  sent  through  their  central  authorities.  In  a  few  cases,  multiple  central 
authorities  were  notified.  In  some  Member  States,  authorities  can  provide  assistance,  although 
not formally notified as central authorities.  

A couple of Member States granted their designated central authorities additional powers (e.g. by 
giving them the responsibility for a preliminary check whether all necessary documents had been 
received, or for refusing to execute an EIO under certain conditions). Almost all Member States 
correctly implemented this provision. 

3.2. Definition and scope of the EIO and types of proceedings for which it can be issued 

3.2.1.  EIO definition (Article 1) 

All Member States transposed Article 1(1) defining the EIO as a judicial decision issued to have 
1  or  several  specific  investigative  measure(s)  carried  out  in  another  Member  State  to  obtain 
evidence.  Recital  25  specifies  that  the  Directive  sets  out  rules  on  carrying  out  an  investigative 
measure  at  all  stages  of  criminal  proceedings,  including  the  trial  stage.  In  a  small  number  of 
Member States an EIO can also be issued during the execution of a judgment or sentence. One 
Member State specified that an EIO may also be issued for additional procedural measures.  

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Some  Member  States  did  not  explicitly  refer  in  their  transposing  provisions  to  the  rights  of 
suspects  or  the  accused,  or  a  lawyer  on  their  behalf,  to  request  the  issuing  of  an  EIO  (Article 
1(3)), but this may be because national criminal procedures already grant this. 

The  vast  majority  of  Member  States  did  not  explicitly  refer  to  fundamental  rights  and  legal 
principles  (Article  1(4))  in  their  transposing  provisions.  However,  a  small  number  of  Member 
States  referred  to  the  Charter  of  Fundamental  Rights  of  the  European  Union,  to  national 
constitutions, or the European Convention on Human Rights. Nevertheless, most Member States 
explicitly  make  the  general  condition of respect for  fundamental  rights a ground  for  refusal 
pursuant to Article 11 (1)(f) in the event of infringement   

3.2.2.  Scope (Article 3) 

Article 3 of the Directive states that the scope of the EIO covers any investigative measure with 
the exception of the setting up of a joint investigation team and the gathering of evidence within 
such  a  team.  Recitals  9  and  34  clarify  that  the  Directive  should  not  apply  to  cross-border 
surveillance  as  referred  to  in  the  Convention  implementing  the  Schengen  Agreement13,  and  to 
provisional measures with a view to confiscation.  

Most  Member  States  transposed  Article  3  explicitly.  A  few  Member  States  added  additional 
exceptions, namely, the collection of criminal records data, legal assistance in serving procedural 
documents, the hearing of the accused by telephone conference, and the seizure of items subject 
to  confiscation.  Cross-border  surveillance  as  referred  to  in  the  Convention  implementing  the 
Schengen Agreement was explicitly excluded from the scope of application of the EIO in a small 
number of Member States. Almost all of them correctly implemented this provision. 

3.2.3.  Types of proceedings (Article 4) 

Article 4 of the Directive states that an EIO can be issued in criminal proceedings in all Member 
States (Article 4(a)). One Member State, however, requires criminal proceedings for a criminal 
offence  committed  in  the  issuing  State,  instead  of  referring  to  ‘a  criminal  offence  under  the 
national law of the issuing State’. A few Member States, in their position as issuing States, stated 
that it was possible to issue an EIO in proceedings for acts punishable under the national law of 
the issuing State by virtue of being infringements of the rules of law under Article 4(b) and 4(c) 
of  the  Directive.  In  a  large  number  of  Member  States,  the  transposing  legislation  does  not 
include  an  explicit  reference  to  proceedings  for  offences  or  infringements  for  which  a  legal 
person  may  be  held  liable  or  punished  in  the  issuing  State  (Article  4(d)).  Almost  all  Member 
States correctly implemented this provision. 

13 Convention implementing the Schengen Agreement 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 their common borders (OJ L 239, 22.9.2000, p. 19). 

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3.3. Issuing an EIO 

3.3.1.  Content and form of an EIO (Article 5(1)) 

Article 5(1)  of  the  Directive  lays  down  the  requirements  for  the  content  of  an  EIO  and 
establishes an obligation to issue EIOs in the form set out in the Annex to the Directive.  

Most  Member  States  transposed  the  form  established  under  the  Directive  in  a  complete  and 
conform manner.  

3.3.2.  Conditions for issuing an EIO (Article 6) 

According  to  Article  6(1),  an  EIO  may  be  issued  where  (a)  the  issuing  is  necessary  and 
proportionate  for  the  proceedings  referred  to  in  Article  4,  taking  into  account  the  rights  of  the 
suspect or the accused, and (b) the investigative measure(s) indicated in the EIO could have been 
ordered under the same conditions in a similar domestic case.  

No  specific  explicit  transposition  of  Article  6(1)  could  be  identified  in  some  Member  States, 
while some instances of incorrect transposition were identified in a few other Member States.  

A significant number of Member States did not explicitly mention the possibility of consulting 
the  issuing  authority  on  the  importance  of  issuing  an  EIO  (Article  6(3)),  but  some  of  those 
Member  States  adopted  horizontal  provisions  on  consulting  the  issuing  authority  about  the 
recognition and execution of EIOs. A small number of Member States transposed Article 6(3) by 
referring to consulting the issuing authority only under the conditions set out in accordance with 
Article 6(1)(a). A small number of Member States made it mandatory, rather than discretional, to 
consult the issuing authority.  

Most  Member  States  correctly  transposed  Article  6.  However,  in  the  case  of  a  few  Member 
States transposition does not conform to the Directive. 

3.3.3.  Language regime (Article 5(2)-(3) and 33(1)(b)) 

Pursuant to Article 5(3), an EIO must be translated by the competent  authorities of the issuing 
State into the official language(s) of the executing State or into any other language that State has 
notified as acceptable.  

Most  Member  States  transposed  Article  5(3)  in  a  complete  and  conform  manner.  Very  few 
Member States did not explicitly transpose it. 

More  than  half  of  the  Member  States  notified  in  accordance  with  Article  33(1)(b)  that  they 
accept EIOs in language(s) other than their own (typically English). A few Member States made 
the acceptance of such other language(s) conditional on the urgency of the request or a reciprocal 
commitment from the other Member State in question. A small number of Member States also 
established preferential language regimes for certain neighbouring Member States. While a vast 

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majority of Member States indicate in their transposing legislation the language that may be used 
for completing or translating an EIO when the Member State concerned is the executing State, a 
very  small  number  of  Member  States  do  not  specify  the  language  regime  in  their  transposing 
legislation.  

3.4. Recognising and executing an EIO 

3.4.1.  Recognition and execution of an EIO (Article 9) 

Pursuant to Article 9, the executing authority has a general duty to recognise an EIO and ensure 
its  execution  in  the  same  way  and  under  the  same  conditions  as  if  the  investigative  measure 
concerned had been ordered by an authority of the executing State.  

A very small number of Member States did not explicitly refer to the obligation to recognise an 
EIO  in  their  transposing  legislation.  One  Member  State  referred  to  discretion  instead  of  an 
obligation to execute an EIO.  

The  majority  of  Member  States  correctly  transposed  Article  9(2).  This  Article  requires 
compliance  with  formalities  and  procedures  expressly  indicated  by  the  issuing  authority, 
provided that such formalities and procedures are not contrary to the fundamental principles of 
law of the executing State. One Member State provided for a discretionary provision instead of 
an  obligatory  one.  In  a  couple  of  Member  States,  relevant  provisions  covering  administrative 
criminal  law  proceedings  could  not  be  identified.  Several  Member  States  transposed  the 
reference to ‘fundamental principles of law’ as a general reference to ‘national law’ or its ‘basic 
principles’. 

Article 9(3) requires the executing authority to return an EIO not issued by an issuing authority 
to the issuing State. A large majority of Member States transposed this provision in a conform 
manner.  However,  a  few  Member  States  did  not  explicitly  transpose  it,  and  1  Member  State 
transposed it as a ground for non-execution or non-recognition.  

No explicit transposition of Articles 9(4) and 9(5), specifying how the authorities of the issuing 
State can assist in the execution of the EIO in the executing State, could be identified in a small 
number of Member States, while compliance issues were identified in a few others.  

3.4.2.  Recourse to a different type of investigative measure (Article 10) 

Under  Article  10(1),  the  executing  authority  is  obliged  to  have  recourse  to  an  investigative 
measure other than that provided in the EIO where the measure requested does not exist under 
national law, or would not be available in a similar domestic case.  

Most Member States transposed Article 10 in a conform manner, while in a few Member States 
compliance issues were identified. These relate, for example, to its being discretionary instead of 
obligatory  to  have  recourse  to  another  investigative  measure  (paragraph  1),  or  to  its  being 

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obligatory  instead  of  discretionary  to  have  recourse  to  a  less  intrusive  investigative  measure 
(paragraph  3),  while  a  few  Member  States  transposed  paragraph  5  as  a  ground  for  non-
recognition or non-execution.  

3.4.3.  Grounds for non-recognition or non-execution (Articles 11(1), 22(2), 23(2), 24(2), 26(6), 

27(5), 28(1), 29(3), 30(5)) 

The general  duty to execute an EIO in Article 9(1) is limited by the optional  grounds for non-
recognition or non-execution listed in Article 11(1), as well as by additional grounds for certain 
investigative measures in Articles 22(2), 23(2), 24(2), 26(6), 27(5), 28(1), 29(3), and 30(5).  

More  than  half  of  Member  States  transposed  all  or  some  grounds  for  non-recognition  or  non-
execution  in  accordance  with  Article  11(1)  as  mandatory,  whereas  the  other  Member  States 
transposed them as optional. Some Member States did not explicitly transpose some grounds for 
refusal  in  accordance  with  Article  11(1).  A  few  Member  States  either  did  not  transpose,  or 
transposed additional, grounds under Articles 22(2), 24(2), 26(6), 27(5), 28(1), 29(3), and 30(5) 
as mandatory grounds. 

Significant differences in the transposition approaches have been observed in the case of Article 
11(1)(d), setting out an optional ground for refusal if the execution of the EIO would be contrary 
to the principle of ne bis in idem. While some Member States only refer to the principle itself, 
others specify it, and some of those add an enforcement condition14. 

For the fundamental rights ground for refusal under Article 11(1)(f), a conform transposition was 
observed in a significant number of Member States. A couple of Member States, however, did 
not  refer  to  such  explicit  ground  for  non-recognition  and  non-execution.  Moreover,  a  few 
Member States omitted references to Article 6 TFEU and the Charter, a couple of Member States 
referred to the European Convention on Human Rights, and 1 Member State to the judgments of 
the European Court of Human Rights.  

All  Member  States  transposed  the  double  criminality  ground  for  refusal  in  accordance  with 
Article  11(1)(g),  while  some  Member  States  included  exceptions  or  conditions  that  raise 
conformity  issues.  As  regards  the  categories  of  offences  for  which  verification  of  double 
criminality was abolished, 1 Member State does not exclude such verification in the case of its 
nationals,  while  another  does,  for  coercive  measures,  unless  such  measures  are  restricted  to 
certain offences or there is a certain threshold. One Member State has an option to make the non-
application  of  this  ground  for  non-recognition  or  non-execution  conditional  on  reciprocity. 
Reference to a detention order is missing in a very small number of Member States.  

14  This  stems  from  Article  54  of  the  Convention  implementing  the  Schengen  Agreement  ‘if  a  penalty  has  been 
imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the 
laws of the sentencing Contracting Party’). 

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Two Member States did not transpose Article 11(2) specifying that the double criminality ground 
for refusal, as well as the ground for non-recognition or non-execution under Article 11(1)(h), do 
not apply to investigative measures referred to in Article 10(2). 

Most Member States transposed the exception for fiscal offences related to taxes, duties, customs 
and  exchange  in  accordance  with  Article  11(3)  correctly,  while  in  a  small  number  of  Member 
States implementation measures are lacking. 

Article 11(4) requires the executing authority to consult the issuing authority before deciding not 
to  recognise  or  execute  an  EIO  on  some  of  the  grounds  for  non-recognition  or  non-execution. 
Most  Member  States  implemented  this  provision  correctly,  but  some  only  did  so  partially,  for 
example,  by  omitting  the  words  ‘in  whole  or  in  part’  and  ‘without  delay’,  or  omitting  the 
requirement  to  consult  the  issuing  authority  about  certain  grounds  for  non-recognition  or  non-
execution. 

In accordance with Article 11(5), the executing authority is obliged to request an authority in its 
Member State to waive privilege or immunity, where such an authority has the power to do so. A 
small number of Member States did not transpose this provision or transposed it only partially. 

Apart from the grounds  for the non-recognition  or non-execution of an EIO in the Directive, a 
few Member States set out additional ones in their national legislation. For example, if an EIO 
form  or  its  translation  is  incomplete,  incorrect  or  missing,  if  a  successful  legal  challenge  is 
mounted  against  an  EIO,  if  an  EIO  is  withdrawn,  or  if  there  are  other  reasons  that  make  it 
impossible to perform procedural actions.  

Such  different  approaches  to  implementation  can  lead  to  discrepancies  between  the  different 
legal systems. These could in turn make it more difficult to apply the Directive in practice. As 
confirmed by the Court of Justice15, the EIO ‘is indeed an instrument based on the principles of 
mutual  trust  and  mutual  recognition,  the  execution  of  which  constitutes  the  rule  and  refusal  to 
execute is intended to be an exception which must be interpreted strictly’. 

3.5. Time limits for recognition or execution and grounds for postponement of recognition 

or execution (Articles 12 and 15) 

The time limits and principles set out in Article 12 are important for the efficiency of the EIO.  

A number of Member States did not transpose the wording of paragraph 1 on taking the decision 
on  recognition  or  execution  and  carrying  out  the  investigative  measure  ‘with  the  same  celerity 
and priority as for a similar domestic case’. 

15   See  Judgment  of  the  Court  of  Justice  of  8  December  2020,  A  and  Others,  C-584/19,  ECLI:EU:C:2020:1002, 
paragraph 64.  

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A  small  number  of  Member  States  did  not  transpose  paragraph  2,  requiring  the  executing 
authority to take into account the issuing authority’s request to execute an EIO within a shorter 
deadline or on a specific date. 

Paragraph 3 specifies that a decision on the recognition or execution of an EIO must be taken as 
soon  as  possible  and  no  later  than  30  days  after  the  receipt  of  an  EIO.  A  large  majority  of 
Member  States  correctly  transposed  the  deadline  in  a  conform  manner,  but  a  few  present 
conformity issues, for example, by making exceptions.  

Paragraph 4 states that the executing authority must carry out the investigative measure without 
delay and no later than 90 days following the decision on the recognition or execution of an EIO. 
All Member States set this time limit in their national legislation. 

Paragraphs 5 and 6 permit the extension of the time limits. However, a few Member States seem 
not to have implemented these provisions correctly. 

The recognition and execution of an EIO can be postponed on two grounds indicated in Article 
15(1).  As  soon  as  such grounds  cease  to  exist,  the  executing  authority  must  forthwith  take  the 
necessary measures for the execution of the EIO and inform the issuing authority (Article 15(2)). 
Most Member States correctly transposed these provisions. Very few Member States introduced 
an obligation to postpone recognition or execution instead of giving discretion. A small number 
of Member States only partially transposed Article 15(2).  

3.6. Transfer of evidence (Article 13) 

Under  Article  13(1),  the  executing  authority  must  transfer  evidence  to  the  executing  State 
without undue delay. Evidence can also be transferred directly to the competent authorities of the 
issuing  State  assisting  with  the  execution  of  an  EIO  in  accordance  with  Article  9(4).  Not  all 
Member States correctly transposed this provision. 

The transfer of evidence may be suspended pending a decision on a legal remedy in accordance 
with Article 13(2). A small number of Member States did not transpose this provision, or only 
partially  did  so.  A  few  Member  States  provided  for  an  obligation  to  suspend  the  transfer  of 
evidence, with 1 Member State stating that the transfer of evidence must not be suspended due to 
a legal remedy. 

In accordance with Article 13(4), the executing authority may temporarily transfer the evidence 
to the issuing State where it is already relevant for other proceedings. A few Member States did 
not transpose this provision. 

10 

 
 
 
 
 
3.7. Legal remedies (Article 14) 

Article  14(1),  read  with  recital  22,  obliges  Member  States  to  ensure  that  legal  remedies, 
equivalent  to  those  available  in  a  similar  domestic  case,  are  applicable  to  the  investigative 
measures indicated in the EIO. 

Several Member States did not specify that the legal remedies equivalent to those available in a 
similar domestic case are applicable to the investigative measures indicated in an EIO, if an EIO 
is issued in the Member State in question. A couple of Member States made no explicit provision 
for  their  actions  as  executing  States.  However,  a  number  of  Member  States  indicated  that  the 
national  laws  regulating  criminal  procedures  apply.  In  a  small  number  of  Member  States, 
transposing laws lay down remedies specific to EIOs.  

Some Member States did not  explicitly transpose paragraph 2, specifying that only the issuing 
State could challenge the substantive reasons for issuing an EIO. 

A significant number of Member States did not explicitly transpose paragraphs 3, 4, 6 and 7, on 
the provision of information about seeking legal remedies, the time limits applicable for seeking 
legal remedies, or the consequences of a legal challenge.  

Under  paragraph  5,  the  issuing  and  executing  authorities  must  inform  each  other  of  the  legal 
remedies  sought  against  the  issuing,  recognition  or  execution  of  an  EIO.    While  a  very  small 
number  of  Member  States  did  not  transpose  this  provision  at  all,  others  failed  to  implement  it 
correctly. 

3.8. Obligation to inform (Article 16) 

A  majority  of  Member  States  correctly  transposed  the  obligations  in  Article  16  to  confirm  the 
receipt of an EIO and provide other information to the issuing State in the course of recognising 
or  executing  an  EIO.  A  small  number  of  Member  States,  however,  transposed  Article  16  only 
partially  (e.g.  ‘without  delay’  and  ‘immediately’  are  omitted;  the  obligation  to  confirm  the 
receipt  of  an  EIO  is  not  imposed  on  the  executing  authorities,  where  a  central  authority  is 
involved; Article 16(2)(b) is not transposed).  

4.  DATA COLLECTION 

In September 2020, the Commission sent questionnaires to competent authorities and lawyers in 
Member  States,  to  Eurojust  and  to  the  EJN,  requesting  both  qualitative  and  quantitative 
information  pursuant  to  Article  37  of  the  Directive.  It  received  replies  from  19  Member  State 
competent authorities, Eurojust and the EJN, and 9 from lawyers. 

11 

 
 
From the competent authorities’ replies, it appears that the EIO is frequently used: the number of 
EIOs  issued  and  executed  since  the  start  of  application  of  the  Directive  varies  between  a  low 
three-digit  number  (for  example,  1  Member  State  issued  364  EIOs  and  received  180  for 
execution) and a low five-digit number (for example, 1 Member State issued around 15 900 EIOs 
and  received  around  10  500  for  execution).  Moreover,  the  number  of  EIOs  for  which  the  EJN 
was asked to provide assistance significantly increased from 255 in 2017 to 1762 in 2019. Such 
assistance  involved,  for  example,  direct  contacts  between  authorities,  speeding  up  cooperation, 
as well as providing information on points of law or the status of a criminal case. Since the entry 
into  application  of  the  Directive,  in  3348  cases  involving  EIOs,  Eurojust’s  assistance  has  been 
sought.  The type of assistance has varied from case to  case  and covered  different stages,  from 
issuing an EIO to recognising or executing it and following it up. 

Hearing of a person and obtaining information on bank and other financial accounts are among 
the investigative measures most often requested in most Member States. However, it appears that 
most types of investigative measures are regularly requested.  

Most  of  the  EIOs  issued  were  successfully  executed  (between  76.65%  of  EIOs  executed  in  1 
Member State, and 96.93% executed in another) and only a very few were refused (between 0% 
of all EIOs issued in 1 Member State, and 17% of EIOs issued in another). However, there were 
a few issues with refusals to execute EIOs in individual cases, for instance, on  grounds of dual 
criminality, or because a requested measure could not be authorised in accordance with domestic 
law,  as  well  as  for  factual  reasons,  or  due  to  translation  issues,  including  grounds  such  as 
proportionality,  de  minimis  policies  and  the  COVID-19  pandemic,  as  well  as  refusals  without 
reasons.  Only  a  couple  of  Member  States  invoked  Article  11(1)(f)  (fundamental  rights)  as 
grounds for non-recognition or non-execution.  

Most  Member  States  reported  executing  an  EIO  and  transferring  evidence  to  the  issuing  State 
within 31 to 60 days. A large number of Member States, however, reported receiving evidence 
from the executing State only within 91 to 120 days. Many Member States consider the EIO time 
limits  as  appropriate.  A  group  of  Member  States,  however,  reports  (serious)  individual  delays, 
even in urgent cases, while some replies indicate that compliance with time limits varies among 
Member  States.  Internal  procedures,  workload  and  the  COVID-19  pandemic,  as  well  as  other 
reasons, such as the impossibility of serving a summons, were cited as some of the reasons for 
delays. Some Member States report that they resolved such issues through direct contacts, or by 
getting support from Eurojust, the EJN or Europol for urgent requests. 

Most  Member  States  consider  the  present  framework  for  the  mutual  recognition  of  EIOs 
satisfactory  in  general  for  obtaining  evidence.  However,  this  is  not  the  case  for  electronic 
evidence16, where Member States  continue to  see  a strong need for specific rules,  all the more 

16  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/criminal-justice/e-evidence-cross-border-access-
electronic-evidence_en  

12 

 
 
                                                           
pressing  with  increased  digitalisation  and  the  COVID-19  pandemic.  Most  Member  States  also 
believe that the Directive has simplified and sped up the gathering of evidence and had a positive 
impact on judicial cooperation in criminal matters. To a large extent, Eurojust and the EJN share 
these views.  

Difficulties  hindering the smooth  functioning of  the EIO have been identified, most frequently 
the  length  and  complexity  of  the  form.  Differences  arising  from  national  legal  regimes  for 
obtaining evidence were also identified, as well as other practical application issues in individual 
cases. For instance, the executing State requesting to send the national decision (court order) in 
addition  to  the  EIO  form,  incomplete  forms,  poor  quality  translations,  and  cases  where  the 
executing State did  not  follow specific procedural  requirements requested by the issuing State. 
With  respect  to  the  latter  issue,  a  couple  of  Member  States  highlighted  it  in  the  context  of  the 
admissibility  of  evidence  obtained  through  an  EIO  in  courts.  Other  Member  States,  however, 
reported  no  difficulties  with  the  admissibility  of  evidence,  or  that  they  did  not  have  such 
information. Most Member States preferred non-legislative action to improve the functioning of 
the EIO, but also provided suggestions for simplifying the form. 

On  the  interception  of  telecommunications,  the  majority  of  Member  States  either  could  not 
provide  exact  figures  on  how  often  this  measure  has  been  used  so  far,  or  reported  quite  low 
numbers.  In the case of  Article 30, the number of EIOs issued varied between 0 in  1 Member 
State to 25 in another; the number of EIOs received varied between 0 in 1 Member State and 90 
in  another.  In  the  case  of  Article  31,  the  number  of  notifications  sent  varied  between  0  in  1 
Member State and at least 40 in another; and the number of notifications received varied between 
0  in  1  Member  State  and  35  in  another).  The  majority  of  Member  States  could  not  indicate  in 
how  many  cases  the  interception  of  telecommunications  (pursuant  to  Article  30  or  31)  was 
refused, or reported very low figures.  

On  whether  the  Directive’s  provisions  on  the  interception  of  telecommunications,  taking  into 
account technical developments, are satisfactory, a majority of Member States indicated that they 
found the Directive satisfactory in this respect, and considered that the challenges could not be 
surmounted through legislation. A few Member States suggested that the Directive’s scope could 
be further clarified, or that specific regulation of the providers of so-called over-the-top (OTT) 
services was needed. Some Member States did not take a view on this at all.  

In autumn 2018, in the context of the discussions on the newly proposed rules for cross-border 
access  to  stored  electronic  evidence,  the  Commission  consulted  Member  States  on  the  current 
problems and possible ways to improve cross-border real-time interception. These consultations 
demonstrated that the conditions for issuing interception orders (such as restricting the use of the 
measure to certain offences, or to specific penalty thresholds) set out in Member States’ national 
laws vary greatly, and showed that there were mainly technical challenges concerning the cross-
border  transmission  of  data.  Nevertheless,  the  existing  EIO  system  was  considered  an 
appropriate  and  useful  tool  to  handle  cross-border  requests  between  Member  States.  The 

13 

 
 
consultations also showed that legislative measures, including addressing real-time interception 
as  part  of  the  proposed  e-evidence  package  and  the  harmonisation  of  differing  national 
conditions to tackle current difficulties, were not considered appropriate. Finally, the compliance 
assessment showed that  while most of the Member States correctly transposed Articles 30  and 
31, a few did not transpose parts of those provisions or were otherwise not in conformity with the 
Directive  because,  for  example,  they  provided  for  mandatory  instead  of  optional  grounds  for 
non-recognition or non-execution. 

Both the EJN and Eurojust also reported17 certain difficulties in the practical application of the 
Directive, for example the handling of urgent cases, poor quality translations, weaknesses in the 
EIO  form,  the  lack  of  explicit  regulation  of  the  ‘rule  of  speciality’,  and  differently  interpreted 
provisions. They suggested taking both legislative and non-legislative action to address this. 

Lawyers’  replies  indicated  they  had  limited  practical  experience  of  EIOs.  For  instance,  very 
limited to no experience was noted on challenging the issuing of an EIO or its recognition and 
execution. A small number of replies showed that requests from the defence to gather evidence 
from another Member State (Article 1(3)) were rarely granted. Some of the replies underlined the 
importance  of  an  EIO  in  complementing  the  European  arrest  warrant18.  While  a  number  of 
replies suggested that the present framework for the mutual recognition of EIOs is satisfactory in 
its protection of fundamental rights, a few suggestions were made to improve the functioning of 
EIOs through legislative or non-legislative action.  

Many  Member  State  competent  authorities,  lawyers  and  especially  the  EJN  and  Eurojust 
provided  examples  of  good  practice.  These  include,  for  instance,  direct  consultations  between 
authorities,  training  for  practitioners,  coordination  meetings,  or  publications  on  the  use  of  the 
EIO. 

5.  CONCLUSION 

The Directive is the core instrument for gathering evidence in the EU. It adopted a new approach 
based  on  the  principle  of  mutual  recognition  in  order  to  obtain  evidence  in  criminal  matters. 
Overall,  the  Directive  provided  EU  added  value  compared  to  previous  instruments  by 
streamlining the process of gathering evidence and imposing concrete time limits for doing so.  

While recognising the efforts  made by Member  States to  date, this  assessment  also  shows that 
there are still difficulties regarding certain key provisions of the Directive, such as grounds for 

17  A  number of practical application issues  were also publicly reported by Eurojust and EJN, such as in the  Joint 
Note of Eurojust and EJN from June 2019 and in a Report on Eurojust’s casework from November 2020. 
18 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest  warrant and the surrender 
procedures between Member States, OJ L 190, 18.7.2002, p. 1. 

14 

 
 
                                                           
non-recognition  or  non-execution.  The  Commission  will  continue  to  assess  Member  States’ 
compliance  with  the  Directive  and  take  appropriate  measures  to  ensure  conformity  with  its 
provisions throughout the EU.19 

At  the  same  time,  the  Commission  is  working  closely  with  Member  States  to  overcome  the 
difficulties  in  implementing the  Directive. Since  its adoption, the Commission has  organised  3 
experts’ meetings with the Member States to support them in the application of the Directive in 
practice20.  Moreover,  the  Commission  is  promoting,  notably  through  financial  support,  the 
effective application of the EIO by raising awareness of its availability and stressing the need to 
train  practitioners  in  how  to  use  it21.  It  has  also  developed  the  e-Evidence  Digital  Exchange 
System (eEDES), an IT tool Member States may use to swiftly and securely exchange EIOs in 
digital format in compliance with requirements set out in the Directive. The system may also be 
used  to  transmit  electronic  evidence  and  the  associated  evidence  from  the  executing  to  the 
issuing  Member  State.  In  its  Communication  on  the  digitalisation  of  justice  adopted  on  2 
December 202022, the Commission encouraged all Member States to connect to eEDES, since it 
is expected to further increase the efficiency of the Directive.  

Finally, future rules on electronic evidence23 should complement the Directive, introducing swift 
procedures  that  reflect  the  specificities  of  electronic  evidence  and  address  the  urgent  and 
increasing needs of practitioners. 

19 In line  with its enforcement strategy set out in Communication from the Commission  — EU law: Better results 
through  better  application  (C/2016/8600),  the  Commission  investigates  with  priority  cases  where  Member  States 
have incorrectly transposed directives.   
20 On 25 January 2016, 18 May 2016 and 22 June 2017. 
21 Future Regulation of the European Parliament and of the Council establishing the Justice Programme. 
22  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and 
Social Committee and the Committee of the Regions  Digitalisation of justice in the European Union A toolbox of 
opportunities (COM/2020/710 final). 
23  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  European  Production  and 
Preservation Orders for electronic evidence in criminal matters (COM/2018/225 final), and Proposal for a Directive 
of  the  European  Parliament  and  of  the  Council  laying  down  harmonised  rules  on  the  appointment  of  legal 
representatives for the purpose of gathering evidence in criminal proceedings (COM/2018/226 final). 

15