Case-law by the Court of Justice of the European Union on the European investigation order.
Date: 2025-08-27
Institutions: European Union Agency for Criminal Justice Cooperation
Subjects: African Court of Justice and Human Rights, EU Charter of Fundamental Rights, EU police cooperation, European Convention on Human Rights, European arrest warrant, Treaty on European Union, application of EU law, case-law, committee of inquiry, criminal law, cross-border cooperation, directive (EU), fight against crime, intergovernmental legal instrument, judicial cooperation, organised crime

European Union Agency for 
Criminal Justice Cooperation

Case-law by the Court of Justice 
of the European Union on the 
European Investigation Order

July 2025

Criminal justice across borders

 Case-law by the Court of Justice of the European Union on the European Investigation Order 

Contents 
Executive summary ....................................................................................................................... 2

Chronological list of judgments ....................................................................................................... 3

Pending cases ............................................................................................................................... 3

1.

2.

3.

4.

5.

6.

7.

Admissibility of a request for a preliminary ruling on an EIO .................................................... 4

Scope of the EIO ................................................................................................................. 6

Issuing authority, judicial authority ....................................................................................... 9

Conditions for issuing an EIO ...............................................................................................19

Admissibility of evidence ....................................................................................................21

Legal remedies ..................................................................................................................22

Interception of telecommunications.....................................................................................26

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Executive summary 

This document provides an overview of the case-law of the Court of Justice of the European Union 
(CJEU) concerning the application of Directive 2014/41/EU of 3 April 2014 regarding the European 
Investigation Order in criminal matters (EIO DIR). Where relevant, reference is also made to the 
Treaty on the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), 
the Charter of Fundamental Rights of the European Union (CFR) and the European Convention on 
Human Rights (ECHR).  

This case-law overview contains summaries of the CJEU’s judgments grouped per topic, reflecting 
the structure of the EIO DIR. A chronological list of judgments and of pending cases is also provided 
at the beginning of the document. 

The summaries of  judgments are  not  exhaustive and  are only  to  be  used  for  reference  and as 
a supplementary tool for  practitioners.  They have been prepared by Eurojust and do not bind 
the CJEU. The summaries contain links to the full texts of the judgments of the CJEU, which can be 
found, in all EU official languages, on the CJEU’s website. 

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Chronological list of judgments 

To date, the CJEU has delivered ten judgments on the EIO DIR, which are presented in this document in 
a thematic order: 

 Gavanozov

1.

2.

3.

4.

5.

6.

7.

8.

9.

Case C-324/17,

Staatsanwaltschaft Wien  (Falsified transfer  orders)
, judgment of 24 October 2019. 

Case C-584/19, 
2020. 

Finanzamt  für  Steuerstrafsachen  und  Steuerfahndung  Münster

, judgment of 8 December 

Case  C-66/20, 
2 September 2021. 

Gavanozov II

,  judgment of 

Case C-852/19, 

Spetsializirana  prokuratura  (Traffic  and  location  data)

, judgment of 11 November 2021. 

Case  C-724/19, 
16 December 2021. 

,  judgment  of 
Staatsanwaltschaft  Graz  (Düsseldorf  Tax  Office  for  Criminal  Tax  Matters)

Case  C-16/22, 
judgment of 2 March 2023. 

M.N. (EncroChat)

, 

, judgment of 30 April 2024. 

AVVA and Others (Trial by videoconference in the absence 

Case C-670/22, 
of a European Investigation Order)
Joined Cases C-255/23 and C-285/23, 
Delda

Case C-583/23, 

WBS GmbH

, judgment of 9 January 2025. 

, judgment of 6 June 2024. 

10.

Case C-635/23, 

, Judgment of 10 July 2025. 

Pending cases 

In addition, one case on the EIO DIR is currently pending before the CJEU: 

Bissilli

1.

Case C-325/24, 
. Request for a preliminary ruling by the Court of Florence (Italy), lodged on 
2 May  2024.  The  questions  concern  the  interpretation  of  Article 24  EIO  DIR  (hearing  via 
videoconference)
read in  conjunction with Article 3  EIO  DIR (scope  of  the EIO),  of  Articles 10, 
11(1)(f) and 24(2)(b) EIO DIR on the possibility to refuse the execution of an EIO for the hearing of 
the accused via videoconference if such an investigative measure is not available under the law of 
the executing State, and of Article 22(1) EIO DIR (temporary transfer to the issuing State of persons 
held in custody for the purpose of carrying out an investigative measure) read in conjunction with 
Article 3 EIO DIR. Opinion of Advocate General Rantos of 26 June 2025. 

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1.  Admissibility of a request for a preliminary ruling on an EIO 

The CJEU clarified how certain admissibility conditions of a request for a preliminary ruling apply in 
the context of an EIO procedure. Firstly, it found that the authority executing an EIO is not a ‘court or 
tribunal’ within the meaning of Article 267 TFEU and, consequently, is not entitled to refer a question 
for a preliminary ruling to the CJEU (
). 
Secondly, a request for a preliminary ruling is not admissible where national proceedings continue 
AVVA and Others (Trial by videoconference in the absence  of a European 
on the question referred, as the request must entail the suspension of the criminal proceedings in 
Investigation Order)
the referring Member State (

Finanzamt für Steuerstrafsachen  und Steuerfahndung  Münster

). 

1.1.  Case C-66/20, Finanzamt für Steuerstrafsachen und Steuerfahndung Münster, 

judgment of 2 September 2021  

  Facts.

 In the course of an investigation for tax evasion against XK, a German tax office issued an EIO 
to Italy requesting a search of business premises. The EIO indicated that it was issued by a ‘judicial 
authority’. The  Italian executing authority, the public prosecutor, requested to  receive  an  EIO 
validated by a judicial authority, as a tax office would be an administrative authority. However, the 
German tax office replied that the EIO would not have to be validated by a judicial authority since, 
under German law, the  tax office  can  exercise the same rights and  responsibilities as  a  public 
prosecutor in  cases  involving tax offences.  As  such, it  would need to  be regarded as  a  judicial 
authority within the meaning of Article 2 EIO DIR. Therefore, the Italian public prosecutor referred 
the question to the CJEU as a body ruling ‘in complete independence’ in the context of the procedure 
for enforcement of the EIO. 

  Main  question.

  CJEU’s reply.

  Does  Article 2(1)(c)(ii)  EIO  DIR  on  the  definition of  ‘issuing authority’ allow  a 
Member State to exempt an administrative authority from the obligation to have the EIO validated 
The  request  for a preliminary  ruling  is  inadmissible  as the  public prosecutor, 
by defining it as a ‘judicial authority’ for the purposes of Article 2 EIO DIR? 
when acting as an executing authority of an EIO, is not a ‘court or tribunal’ within the meaning 
of Article 267 TFEU.
o 

 The CJEU’s main arguments follow.

o 

In order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes 
of Article 267 TFEU, it is necessary to examine, inter alia, whether that body, in the context of 
the procedure that led it to refer the matter to the Court, is acting in the exercise of a judicial 
function since, according to settled case-law, a national court may refer a question to the Court 
only if there is a case pending before it and if it is called upon to give judgment in proceedings 
intended to lead to a decision of a judicial nature (paras 34–37).
The executing authority of an EIO does not act in proceedings that are intended to result in a 
judicial decision, as it is not called to rule upon a dispute and it is not entrusted to ‘give judgment’ 
within  the  meaning  of  Article 267  TFEU  since  it  is  exclusively for  the  competent  judicial 
authorities of the issuing Member State to reach a final decision on that evidence in the context 
 
of their criminal proceedings (paras 38, 42–43):

the EIO is a judicial decision to have one or several specific investigative measures carried 
out in another Member State to obtain evidence and the executing authority is required to 

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 

 

ensure its execution based on the principle of mutual recognition, unless it decides not to 
execute an EIO in reliance on one of the grounds for non-recognition or for postponement 
(paras 39–40);
the investigative measures provided for  by  an EIO  are provisional in  nature, their sole 
purpose is to obtain evidence and to transmit it to the issuing authority (para 41); 
the fact that national law did not provide for any judicial review of the decision of the public 
prosecutor not to recognise an EIO is irrelevant for the purposes of determining whether 
the executing authority exercises a judicial function within the meaning of Article 267 TFEU 
since the investigative measures provided for by an EIO are provisional in nature and the 
decisions on the execution of an EIO are therefore not equivalent to judicial decisions (paras 
44–45). 

1.2.  Joined  Cases  C-255/23  and  C-285/23,  AVVA  and  Others  (Trial  by 
videoconference in the absence of a European Investigation Order), judgment 
of 6 June 2024 

  Facts. 

In criminal proceedings for  large-scale money laundering pending before a Latvian court 
against a Lithuanian national resident in Lithuania, the defendant requested to participate remotely 
in the trial hearings. According to Latvian law, the participation of the accused at trials for serious 
offences is mandatory but can also take place remotely via videoconference. However, if the accused 
is located outside the national territory, recourse to those technical means may only take place by 
issuing an EIO. However, considering the duration and cost of executing an EIO, the Latvian court 
took the view that issuing an EIO to ensure the prolonged participation of the accused person in the 
hearings is not proportionate within the meaning of Article 6 EIO DIR. Therefore, it referred the 
issue to the CJEU, without staying the proceedings.
Similarly, in criminal proceedings for large-scale money laundering and fraud as part of a criminal 
gang, the Latvian court, at the request of the accused, issued an EIO to Germany to ensure the remote 
participation of the accused, a German national resident in Germany, at trial. The German authorities 
refused to execute the EIO on the ground that it was not issued for the purpose of carrying out an 
investigative measure, but rather for  the  passive participation of  the  accused in  hearings via 
videoconference, which was in any  case contrary to  the fundamental principles of German law. 
Therefore, the Latvian court referred the issue to the CJEU, without staying the proceedings. 

  Main questions. 

  CJEU’s reply.

Can a court enter into contact directly with an accused person who is in a different 
Member State in order to allow the remote participation of an accused in criminal trial hearings via 
videoconference without issuing an EIO? Does Article 24(1) EIO DIR on the hearing of the accused 
via videoconference include also the hearing for the participation of the accused via videoconference 
Since both proceedings  at issue had not been stayed and the hearings  continued 
in a criminal trial in a different Member State from his or her Member State of residence? 
with the participation  of the accused, the CJEU held that the questions  raised  were devoid  of 
purpose  and of relevance  to the main proceedings  and therefore  affirmed that there was no 
need to answer  the questions  referred.

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2.  Scope of the EIO 

The  purpose of  the EIO  is  to  have  one  or  several investigative measures carried out in  the 
executing Member State to  obtain evidence. The  CJEU  clarified the  scope  of  the  EIO  DIR by 
providing a definition of the EU autonomous notion of ‘investigative measure’, which refers to any 
investigative act intended to establish a criminal offence,  the  circumstances in which it  was 
committed and  the identity of  the perpetrator, thus aimed at  obtaining evidence. Therefore, 
measures pertaining to the serving of indictments, the remand in custody and the hearing of a 
Delda
person for purposes other than the gathering of evidence are not considered investigative as such 
(

). 

2.1.  Case C-583/23, Delda, judgment of 9 January 2024 
  Facts. 

In the Spanish criminal proceedings against AK, who was serving a custodial sentence in 
France, the  Spanish judicial authorities issued an EIO  to  France, requesting to  serve on  AK  an 
indictment issued by the Spanish investigative judge, which included an order of custody pending 
trial and a bail payment of EUR 30 000, and for that person to make any observation on the matters 
set out in that indictment in the presence of her lawyer. The French judicial authorities executed the 
requested measures in an officially recorded hearing. Subsequently, AK lodged an appeal before the 
French courts for the hearing to be declared invalid, on the ground that an EIO cannot be issued for 
the purpose of announcing that criminal charges are being brought against a person. The Court of 
Appeal of  Paris  rejected that application, holding that the EIO  was  issued  for  carrying out  an 
investigative measure because it requested statements to be taken from the accused person. The 
French Court of Cassation, called to rule upon an appeal against that decision, noted that the CJEU 
had not yet ruled on the scope of the EIO and referred the following questions to the CJEU. 

  Main question.

 Does the request to serve an indictment on an accused person, accompanied by an 
order for that person to be remanded in custody and make a bail payment, and to allow that person 
to make observations on the matters set out in that indictment, constitute an investigative measure 
  CJEU’s  reply.  Articles 1  and  3  EIO  DIR  mean  that:  1)  a  request  to  serve  on  a  person  the 
capable of being the object of an EIO within the meaning of Articles 1 and 3 EIO DIR? 
indictment relating  to him or her does not, as such, constitute an EIO; 2) a request to remand 
a person in custody pending trial for purposes other than those referred to in Articles 22 and 
23 EIO DIR, or to require  him or her to make a bail  payment, does not constitute an EIO; 3) a 
request  to  allow  a  person  to make  observations  on  the  matters  set  out  in  the  indictment 
relating  to him or her constitutes an EIO, insofar as that request  for a hearing  is intended  to 
gather evidence. 
o 

The CJEU’s main arguments follow. 

Article 1 EIO  DIR provides that an  EIO  is a  judicial decision to  have one  or  several specific 
investigative measure(s) carried out in  the executing Member State to  obtain evidence, and 
Article 3 EIO DIR states that an EIO covers  any investigative measure with the exception, in 
principle, of the setting up of a joint investigation team (JIT) and the gathering of evidence within 
such a team (para 26). 
The concept of ‘investigative measure’ must be given an autonomous interpretation in EU law, 
which refers to any investigative act intended to establish a criminal offence, the circumstances 

o 

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in which it was committed and the identity of the perpetrator, thus aimed at obtaining evidence 
 
(paras 27–28). This interpretation is supported by: 
 

the wording of Articles 1 and 3 EIO DIR (para 28); 
• 
the context of Articles 1 and 3: 

• 

• 

 

Article 10(2) EIO DIR, like Articles 24 to 31 EIO DIR, sets out a series of investigative 
measures that are all aimed at obtaining evidence to establish the facts or the identity 
of the perpetrator (para 30); 
under Articles 22 and 23 EIO DIR, an EIO can also have the object of the transfer of a 
person in custody, but only with a view to gathering evidence, while it is apparent from 
recital 25 that, where the person concerned is to be transferred to another Member 
State for the purposes of prosecution, a European arrest warrant (EAW) is necessary 
(para 31); 
under Articles 13 and 15 EIO DIR, the purpose of  an EIO consists in the sending of 
evidence by the executing Member State to the issuing Member State, that evidence 
being identified in Article 13(4) and Article 15(1)(b) as  objects, documents or  data 
(para 32, with reference to 

M.N. (EncroChat)

); 

the objective of the EIO DIR, which is to improve judicial cooperation in the gathering of 
evidence in  cross-border criminal cases and which requires a simple and unequivocal 
identification of the key elements of the EIO such as the concept of ‘investigative measures’ 
(paras 33–35, with reference to 

M.N. (EncroChat)

). 

A request to serve on the person in question the indictment relating to him or her does not, as 
such, constitute an  investigative measure, as its  purpose is  not  to  obtain evidence but is  a 
procedural obligation intended to advance the prosecution and is, in principle, governed by 
Article 5 of the Convention of 29 May 2000 (para 37). 
An order that the person make a bail payment does not constitute an investigative measure 
either (para 38). 
An EIO may not contain a request that the person be remanded in custody, except in the cases 
of a temporary transfer for carrying out an investigative measure under Articles 22 and 23 EIO 
Staatsanwaltschaft  Wien  (Falsified  transfer 
DIR, as  the EIO  cannot –  outside such exceptions – interfere with the right to  liberty under 
orders)
Article 6  CFR  (paras  39–40,  with  reference  to 

). 

A request that the indicted person be heard, which is expressly included in Article 10(2)(c) and 
the second subparagraph of Article 24(1) EIO DIR, falls within the scope of the EIO DIR only if 
the purpose of that request for a hearing is to gather evidence, and not if it is intended solely to 
enable the accused person to make observations on the indictment (paras 41–43). 
In the present case, it is for the referring court to determine the purpose of the request made by 
 
the issuing authorities for the accused to be heard: 

 

if the purpose of the hearing was not to gather evidence, the executing authorities could not 
have acted lawfully on the EIO (para 43); 
if the purpose of the hearing was to gather evidence, and the issuing authorities stated that, 
under their national law, the hearing could take place only after the indictment was served, 
such service could be requested by means of an EIO since under Article 9(2) the executing 
authority is, in principle, required to comply with the formalities and procedures expressly 
indicated by the issuing authority; thus, the French authorities would have been required 
in principle to execute the EIO both for the service of the indictment and for the hearing, 

o 

o 

o 

o 

o 

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 

with the exception of the order that the person be remanded in custody pending trial and 
make a bail payment, provided that the issuing authorities did not object to  said partial 
execution (paras 44–47); 
if the purpose of the hearing was to gather evidence, and there was no mention that a prior 
service of the indictment was necessary, the executing authorities would, in principle, have 
been required to grant solely the request for a hearing, provided that the issuing authorities 
did not object to said partial execution (para 48). 

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3.  Issuing authority, judicial authority 

The CJEU clarified the concept of an ‘issuing authority’, distinguishing between the two categories 
of authorities provided in Article 2(c) EIO DIR.  

In  relation to  the first category  of  issuing authorities under Article 2(c)(i)  EIO  DIR  (‘judicial 
authorities’), the CJEU  held that unlike for  the EAW,  this notion  includes public prosecutors 
Staatsanwaltschaft  Wien  (Falsified  transfer  orders)
regardless of  any  relationship of  legal  subordination to  the executive of  their Member State 
(
).  However, the EIO  DIR  precludes public 
prosecutors from  issuing an  EIO  where, in  a  similar domestic  case,  the  judge has  exclusive 
competence to adopt such a measure, and in such case the recognition of that EIO on the part of 
Spetsializirana prokuratura (Traffic and location data)
the  executing authority  does  not  replace  the  requirements applicable  in  the  issuing  State 
(

). 

Next, the CJEU clarified that the concept of a ‘judicial authority’ competent to issue and validate 
an  EIO  refers  only  to  public  prosecutors,  investigative judges  and  courts,  and  it  excludes 
administrative authorities, such as  tax  offices,  regardless of  whether they  conduct  criminal 
investigations independently with the same powers of a public prosecutor. Accordingly, an EIO 
issued by an administrative authority must be validated by a judicial authority in compliance with 
). 
Article 2(c)(ii) EIO DIR (

Staatsanwaltschaft Graz (Düsseldorf Tax Office for Criminal Tax Matters)

In relation to the second category of  issuing authorities under Article 2(c)(ii) EIO DIR (‘other 
authorities’), the CJEU clarified that an administrative authority, which is acting in its capacity as 
an investigating authority in criminal proceedings and whose investigative measures involving 
an interference with the fundamental rights of the person concerned must, in accordance with 
national law, first be authorised by a judicial authority, can be treated as ‘issuing authority’ within 
the meaning of Article 2(c)(ii) EIO DIR (

WBS GmbH

). 

Finally,  in  terms  of  issuing  authorities,  a  distinction  should  also  be  made  between  the 
transmission of evidence already in the possession of the executing State and the carrying out of 
investigative measures for gathering evidence. In this regard, the CJEU  clarified that a public 
prosecutor may be competent to issue an  EIO for the transmission of evidence already in the 
possession  of  the executing State even where, under the law  of  the issuing State, the  initial 
gathering of that evidence would have had to be ordered by a judge (

M.N. (EncroChat)

). 

3.1.  Case C-584/19, Staatsanwaltschaft Wien (Falsified transfer orders), judgment 

of 8 December 2020 

  Facts.

 In the course of criminal investigations for fraud against A. and other unidentified persons, 
the  public  prosecutor  of  Hamburg issued  an  EIO  to  Austria, requesting banking information. 
Pursuant to Austrian law, before executing the order, the public prosecutor of Vienna requested that 
OG  and  PI  (Public 
the competent court of Vienna authorise the investigative measure. On the basis of the case-law of 
Prosecutor’s  Office  in  Lübeck  and  in  Zwickau)
the CJEU  concerning the ‘issuing judicial authority’ for  EAWs  (see, inter alia, 

1
),  that  court  had  doubts  about  the  necessary 

) (

1
) 
(

CJEU,  Joined  Cases  C-508/18  and C-82/19  PPU, 

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OG and PI (Public Prosecutor’s  Office in Lübeck and in Zwickau)

 
 
                                                             
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  Main  question. 

requirements for complying with the concepts of ‘judicial authority’ and ‘issuing authority’ within 
the meaning of the EIO DIR. The court therefore referred the case to the CJEU. 

  CJEU’s reply.

May  the public prosecutor’s office  of  a  Member State be  regarded as a ‘judicial 
authority’ having competence to issue an EIO within the meaning of Articles 1(1) and 2(c) EIO DIR, 
in spite of the fact that it is exposed to a risk of being subject to individual instructions or orders 
The concepts of ‘judicial  authority’ and ‘issuing  authority’ within the meaning  of 
from the executive when adopting such an order? 
Articles 1(1) and 2(c) EIO DIR include the public prosecutor of a Member State, regardless  of 
any relationship  of legal subordination  that might exist between  that public prosecutor and 
the  executive  of  that  Member  State  that  exposes  them  to  the  risk  of  being  directly  or 
indirectly  subject to orders or individual  instructions  from the executive  when adopting  an 
EIO.
o 

 The CJEU’s main arguments follow. 
OG and PI (Public Prosecutor’s 
In the light of the differences between the European Arrest Warrant Framework Decision (EAW 
Office in Lübeck  and  in Zwickau) 
FD) and the EIO DIR, the Court’s interpretation in the judgments 
(

3
), according to 
which the  concept of  ‘issuing judicial authority’ under the EAW FD  does  not  cover  public 
prosecutor’s offices that are exposed to the risk of being subject to individual instructions from 
  Wording.
the executive, is not applicable in the context of EIO DIR (para 74). 

PF (Prosecutor General of Lithuania) 

2
) and 

(

  In  the  EIO  DIR,  the classification of  prosecutors as  an  ‘issuing authority’ or 
‘judicial authority’ is not subject to there being no relationship of legal subordination to the 
executive, and the issuing or validation of an EIO by a public prosecutor confers on  that 
• 
order the status of a judicial decision (paras 54–55): 

• 

unlike  Article 6(1)  EAW  FD,  Article 2(c)(i)  EIO  DIR  expressly  includes  public 
prosecutors  among  the  authorities that  are  understood  as  an  ‘issuing  authority’, 
subject to the sole condition that they have competence in the case concerned (paras 
50–52); 
public prosecutors  are  also  among  the  ‘judicial authorities’ that are,  according  to 
Article 2(c)(ii)  EIO DIR, entrusted with the validation of  an EIO, whenever such an 
order has been issued by an authority other than a judge, court, investigating judge or 
public prosecutor (para 53). 

  Context.

  The issuance and execution of an EIO are subject to procedures and guarantees 
distinct from those of an EAW, which are specific to the adoption of judicial decisions and 
ensure  compliance  with  the  principle of  proportionality and  fundamental rights  and 
• 
effective judicial protection (para 56, 63 and 69): 

o 
as regards the issuing of an EIO: 

under Article 6(1) EIO DIR, the issuing is subject to the twofold condition, first, that 
it  must  be  necessary  and  proportionate  for  the  purpose  of  the  criminal 
proceedings, taking into account the rights of the accused, and, secondly, that the 
investigative measure could have been ordered under the same conditions in a 
similar  domestic  case;  thus,  a  public  prosecutor  must  comply  with  national 
procedural guarantees, which must  comply  with  the  directives on  procedural 
rights in criminal proceedings (paras 57–58); 

supra

2
) 
(
3
) 
(

PF (Prosecutor General of Lithuania)

of 27 May 2019, on the interpretation  of Article 6(1)  of Framework Decision  2002/584/JHA. 
See 
CJEU,  Case C-509/18, 
of Framework Decision 2002/584/JHA. 

 note 1. 

, judgment  of 27 May 2019, on the interpretation of Article 6(1) 

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o 

o 

the  public  prosecutor  must  ensure  respect  for  the  CFR,  in  particular  the 
presumption of innocence and the rights of the defence under Article 48 CFR, and 
any limitation that an investigative measure places on those rights must comply 
with Article 52(1) CFR (para 59); 
under Article 14 EIO DIR, the EIO must be capable of being subject to effective legal 
remedies, at least equivalent to those available in similar domestic cases, and the 
issuing  State must  take  into  account  a  successful  challenge against an  EIO  in 
accordance  with  its  own  national  law;  thus,  without  prejudice  to  national 
procedural rules, Member States must 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 an EIO (paras 60–62); 
as regards execution, even though it is an instrument of mutual recognition, the EIO 
DIR allows the executing State to ensure respect of the principle of proportionality and 
o 
the fundamental rights of the person concerned (para 64): 

• 

o 

o 

o 

under  Article 2(d)  EIO  DIR,  the  execution  of  an  EIO  may  require  a  court 
authorisation in the executing State where that is provided for by its national law 
(para 65); 
under Article 6(3) EIO DIR, where the executing authority has reason to believe 
that the condition that the investigative measure be necessary and proportionate 
is not met, it may consult the issuing authority on the importance of executing the 
EIO, which may lead to the withdrawal of that order (para 63); 
under Article 10 EIO DIR, the executing authority may also have recourse to  an 
investigative measure other than that indicated in the EIO where it considers that 
such a measure would achieve the same result by means involving less interference 
with the fundamental rights of the person concerned (para 67); 
under Article 11(1)(f) EIO DIR, execution of an EIO may be refused where there are 
substantial grounds to  believe that the  execution of  the investigative measure 
would be incompatible with the executing State’s obligations under Article 6 TEU 
and the CFR (para 68). 

  Objective.

 The EIO DIR pursues a different objective than the EAW FD. While the EAW seeks 
the arrest and surrender of individuals, the aim of the EIO is to have specific investigative 
measures carried out  to  obtain evidence that, although they might be  intrusive, do  not 
interfere with the right to  liberty under Article 6 CFR, with an exception made for  the 
temporary transfer of persons already in custody (paras 70–73). 

3.2.  Case  C-724/19,  Spetsializirana  prokuratura  (Traffic  and  location  data), 

judgment of 16 December 2021 

  Facts.

 In the Bulgarian criminal proceedings against H.P. for the financing of terrorist activities, the 
public prosecutor issued four EIOs to Belgium, Germany, Austria and Sweden, without validation by 
a  judge  or  a  court,  requesting  the  collection  of  traffic  and  location  data  relating  to 
telecommunications. The EIOs were executed by public prosecutors in the addressed Member States 
without authorisation or  validation by  a  judge or  a  court,  except in  the  case  of  Belgium. The 
Bulgarian court competent in the case had doubts about the lawfulness of the evidence gathered 

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  Main questions

since,  under  national  law,  that  evidence  could  only  have  been  obtained  following  judicial 
authorisation. Therefore, it referred the following questions to the CJEU.

. Does Article 2(c)(i) EIO DIR preclude a public prosecutor from having competence 
to  issue, during the pre-trial stage of  criminal proceedings, an EIO seeking to  obtain traffic and 
location data associated with telecommunications where, in a similar domestic case, the judge has 
exclusive  competence  to  adopt  an  investigative measure  seeking  access  to  such  data?  Does 
recognition of that EIO by the executing State replace the court order required under the law of the 
issuing State, where that EIO was improperly issued by a public prosecutor?

  CJEU’s replies.
  Article 2(c)(i) EIO  DIR  precludes  a  public  prosecutor  from  having  competence  to  issue, 
during  the  pre-trial  stage  of  criminal  proceedings,  an  EIO  seeking  to  obtain  traffic  and 
location  data  associated  with  telecommunications  where,  in  a  similar  domestic  case,  the 
judge  has  exclusive  competence  to  adopt  such  an  investigative  measure. 

o 
arguments follow. 

The  CJEU’s  main 

Where, under national law, the public prosecutor is not  competent to order an investigative 
measure to obtain traffic data and location data associated with telecommunications, he or she 
 
cannot be regarded as an issuing authority competent to issue an EIO for that purpose (para 39): 
the wording of  Article 2(c) EIO DIR that defines the concept of  ‘issuing authorities’ and 
requires that they must be ‘competent in the case concerned’ does not, in itself, make it 
possible to determine whether those words have the same meaning as ‘with competence to 
order the gathering of evidence in accordance with national law’ (para 30); 
the context of  the EIO DIR confirms that the issuing authority must be the investigating 
authority in  the criminal proceedings concerned, which is  thus competent to  order the 
• 
gathering of evidence in accordance with national law (paras 31–35): 

 

only  such  an  authority  is  able  to  assess  the  necessity  and  proportionality  of  an 
investigative measure as required under Article 6(1)(a) EIO  DIR and to  provide the 
additional explanations required under Articles 27(4) and 28(3) EIO DIR on the reasons 
why it considers the requested information relevant for the purpose of  the criminal 
proceedings concerned (paras 32–34); 
under Article 6(1)(b) EIO DIR the issuing authority may only issue an EIO where the 
investigative measure(s) referred to therein could have been ordered under the same 
conditions in a similar domestic case (para 35); 

• 

 

making a potential distinction between the authority that issues the EIO and the authority 
that is competent to order investigative measures in those criminal proceedings would risk 
complicating the system of cooperation, thereby jeopardising the objective of the EIO DIR 
to establish a simplified and effective system for the gathering of evidence in criminal cases 
with a cross-border dimension (paras 36–38). 

In the present case, the public prosecutor cannot be competent to issue an EIO with a view to 
obtaining  traffic  and  location  data  associated  with  telecommunications because, although 
Bulgarian law designates the public prosecutor as the authority competent to issue an EIO, the 
competent authority to order the gathering of such data in a similar domestic case is the judge 
Prokuratuur
of the first instance court having jurisdiction for the case concerned (paras 40–41). 
4
) and the conditions laid down in 
Furthermore, in light of the CJEU’s 
Article 6(1)(b)  EIO  DIR,  an  EIO  seeking  to  obtain  traffic  and  location  data associated with 

Prokuratuur  (Conditions  of  access  to  data  relating  to  electronic  communications)

 judgment (

o 

o 

4
) 
(

CJEU,  Case  C-746/18, 

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,  judgment  of 

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telecommunications cannot be issued by a public prosecutor where that public prosecutor not 
only  directs  the  criminal  pre-trial  procedure,  but  also  brings  the  public  prosecution  in 
  The recognition  by the  executing  authority  of an EIO for obtaining  traffic and location  data 
subsequent criminal proceedings (paras 42–44). 
associated  with  telecommunications  may  not  replace  the  requirements  applicable  in  the 
issuing  State  where  that  EIO was  improperly  issued  by  a  public  prosecutor,  whereas,  in  a 
similar  domestic case, the judge has exclusive  competence to adopt an investigative  measure 
seeking  to obtain such data.
o 

 The CJEU’s main arguments follow. 

The executing authority cannot remedy non-compliance with the conditions for issuing an EIO 
 
under Article 6(1) EIO DIR (para 50): 

 

under  Article 6(3),  where  the  executing  authority  has  reason  to  believe  that  such 
conditions are not met, it may consult the issuing authority on the importance of executing 
the EIO, who may decide to withdraw it (para 47); 
under Article 9(1) EIO DIR, the executing authority is to  recognise an EIO, without any 
further formality being required, and to ensure its execution in the same way and under 
the same modalities as if the investigative measure concerned had been ordered by an 
authority of the executing State, unless that authority decides to invoke one of the grounds 
for non-recognition or non-execution or one of the grounds for postponement exhaustively 
listed in that directive (paras 48–49). 

If the executing authority were able to remedy non-compliance with the conditions for issuing 
an EIO, laid down in Article 6(1) EIO DIR, the balance of the EIO system based on mutual trust 
would be called into question since that would amount to giving the executing authority the 
power to review the substantive conditions for issuing such an EIO (paras 51–53). 
By contrast, in accordance with Article 9(3) EIO DIR, where the executing authority receives an 
EIO that has not been issued by an issuing authority under Article 2(c) EIO DIR, it is to return 
the EIO to the issuing State (para 54). 

o 

o 

 3.3.  Case C-16/22, Staatsanwaltschaft Graz (Düsseldorf Tax Office for Criminal Tax 

Matters), judgment of 2 March 2023 

  Facts. 

In the course of an investigation for tax fraud against M.S., a German tax office issued an EIO 
to  Austria requesting banking information. The EIO  indicated that it  was  issued  by  a  ‘judicial 
authority’. Under German law, the tax authority is empowered, as regards certain specified criminal 
offences, to assume the rights and the obligations of the public prosecutor’s office, while being part 
of  the  executive as  an  administrative body.  The  Austrian judicial  authorities authorised and 
executed the EIO. Subsequently, M.S. appealed before an Austrian court, pleading that the German 
tax office lacks competence to issue an EIO, as it is neither a ‘judicial authority’, within the meaning 
of Article 1(1) EIO DIR, nor an ‘issuing authority’, within the meaning of Article 2(c) EIO DIR. The 
referring court, called to rule whether execution of the EIO issued by the German tax office was 
lawful, noted that it is necessary to determine whether such a tax authority may be equated to a 
‘judicial authority’ and to a ‘prosecutor’. 

2 March 2021,  on the  interpretation  of Article 15(1)  of  Directive  2002/58,  read  in the  light  of  Articles 7,  8 and  11 and 
Article 52(1) CFR. 

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  Main  questions. 

Can a tax authority that conducts, in accordance with national law, criminal tax 
investigations autonomously, instead of the public prosecutor’s office, and assumes the rights and 
the obligations vested in the latter, be classified as a ‘judicial authority’ and an ‘issuing authority’ 
  CJEU’s reply. A tax authority of a Member State that, in accordance with national  law, conducts 
within the meaning of Articles 1(1) and 2(c)(i) EIO DIR?
criminal  tax  investigations  autonomously,  assuming  the  rights  and  the  obligations  of the 
public prosecutor’s  office, while being  part of the executive of that Member State, cannot be 
classified  as a  ‘judicial  authority’  and an ‘issuing  authority’  under  the first subparagraph  of 
Article 1(1) and  Article  2(c)(i) EIO DIR.  Such  an  authority  may  fall  within  the  concept  of 
‘issuing  authority’  under  Article 2(c)(ii) EIO DIR, provided  that the conditions set out in that 
provision  are met. 
o 

The CJEU’s main arguments follow.

o 

o 

o 

The concept of ‘judicial authority’ under the first subparagraph of Article 1(1) EIO DIR must be 
read in conjunction with Article 2(c) EIO DIR, which defines the notion of  ‘issuing authority’ 
(paras 26–27). 
Article 2(c)  EIO  DIR  distinguishes  between  two  mutually  exclusive  categories  of  issuing 
authorities, which reflect the distinction between the judiciary and the executive, inherent in the 
Poltorak
principle of  the separation of  powers  under the rule of  law (para 35–36, with reference to 
 

5
): 

) (

Article 2(c)(i) EIO DIR designates judges, courts, investigating judges or public prosecutors 
as ‘issuing authorities’, subject to the sole condition that they have competence in the case 
concerned; those four authorities, listed in an exhaustive manner, share the characteristic 
Staatsanwaltschaft  Wien  (Falsified  transfer 
that they may all participate in the administration of justice and are classified as judicial 
orders)
authorities (paras  30-31, with  reference to 

); 

 

Article 2(c)(ii) EIO DIR establishes a second category of ‘issuing authority’, covering any 
authority ‘other’  than  those  referred to  in  Article 2(c)(i)  EIO  DIR,  provided that  it  is 
competent to act as an investigating authority in criminal proceedings; an EIO issued by 
such an authority must, before being transmitted to the executing authority, be validated 
by a ‘judicial authority’ falling within Article 2(c)(i) EIO DIR (paras 33–34, with reference 
to 

Spetsializirana prokuratura (Traffic and location data)

). 

Therefore, any authority that is not explicitly referred to in the list set out in Article 2(c)(i) EIO 
DIR, such as the tax authorities of a Member State, must be regarded as an ‘issuing authority’ 
under Article 2(c)(ii) EIO DIR, provided that the conditions of that provision are met (paras 36, 
37). 
This interpretation is also supported by the context of  Article 2(c) EIO DIR, which results in 
 
judicial authorities being clearly distinguished from other authorities (para 41): 

 

Article 4  EIO  DIR  on  the  types  of  procedures  for  which  an  EIO  can  be  issued  also 
distinguishes between proceedings brought by a ‘judicial authority’ and those brought by 
‘administrative authorities’ (para 39); 
under Article 1(1) and Article 2(c) EIO DIR, the issuing of an EIO, which is a judicial decision, 
requires the action of a judicial authority in any event, being either issued or validated by a 
judicial authority (para 40); 

5
) 
(

CJEU,  Case C-452/16  PPU, 
Decision  2002/584/JHA. 

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Poltorak

, judgment  of 10 November  2016,  on the interpretation  of Article 6(1)  of Framework 

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o 

This interpretation also allows a simple and unequivocal identification of the issuing authority 
ensuring legal certainty in order to achieve the objective of the EIO DIR, relating to simplified 
and effective cooperation between the Member States (paras 42–45). 
3.4.  Case C-670/22, M.N. (EncroChat), judgment of 30 April 2024 

 

infra

  Facts. 

See  also 
7.1 (Interception of telecommunications). 

,  4.1  (Conditions  for  issuing  an  EIO),  5.1  (Admissibility  of  evidence)  and 

In  the  context  of  a  French investigation, it  appeared that  accused  persons  were  using 
encrypted mobile phones operating under an ‘EncroChat’ licence in order to commit primarily drug 
trafficking offences. This service enabled end-to end encrypted communication via a server located 
in  France and could not  be intercepted by conventional means. With judicial authorisation, the 
French police, with the assistance of Dutch experts in the framework of a JIT, were able to develop 
Trojan  horse  software  that  could  be  used  to  infiltrate  the  servers  of  the  encrypted 
telecommunications service. With the authorisation of a French judge, the software was uploaded 
to a server in the spring of 2020 and, from there, installed, via a simulated update, on the mobile 
phones of users located worldwide. In March 2020, in a coordination meeting organised by Eurojust, 
the French authorities informed, inter alia, the German authorities of their planned interception of 
data, including from mobile phones located outside of  France. The German authorities signalled 
their interest in the data of German users. In March 2020, the public prosecutor of Frankfurt opened 
an  investigation  against  all  unknown  users  of  the  EncroChat  service,  on  the  suspicion  of 
participating in organised drug trafficking. Subsequently, via the  Secure Information Exchange 
Network Application (SIENA), a message was sent from the members of the JIT to the competent 
authorities of the Member States interested in the EncroChat data. After receipt, the German police 
provided the requested confirmation that they had been informed of the methods used to gather 
data from mobile phones in their territory, in agreement with the public prosecutor of Frankfurt. 
Between April and June 2020, the German police retrieved the data related to mobile phones used 
in Germany, which were made available via the Europol server. On June 2020, the public prosecutor 
of Frankfurt issued an initial EIO to France, requesting authorisation to use the EncroChat data from 
German users without restrictions in criminal proceedings. Following that request, the French 
executing authorities authorised the  transmission and use  of  said data in  judicial proceedings. 
Further data were transmitted subsequently, based on two supplementary EIOs of September 2020 
and July 2021. The public prosecutor of Frankfurt subsequently divided the criminal proceedings 
against all unknown users and reassigned the investigations against certain users, including M.N., 
to local public prosecutors. The Regional Court of Berlin, before which criminal proceedings against 
M.N. were brought, queried the lawfulness of the EIOs in light of the EIO DIR and submitted to the 
CJEU a series of questions for a preliminary ruling. 

  Main question. 

  CJEU’s  reply.

Do Article 2(c) and Article 6(1) EIO DIR require that an EIO for the transmission of 
evidence already in the possession of the competent authorities of the executing State be necessarily 
issued by a judge where, under the law of the issuing State, in a purely domestic case, the initial 
An  EIO  for  the  transmission  of  evidence  already  in  the  possession  of  the 
gathering of that evidence would have had to be ordered by a judge? 
competent authorities  of the executing State does not necessarily  need to be issued by a judge 
where,  under  the law  of the issuing  State,  in a purely  domestic case in that  State, the  initial 

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gathering  of that evidence would have had to be ordered by a judge, but a public prosecutor 
is competent to order the transmission  of that evidence. 
o 

.

The CJEU’s main arguments follow

o 

o 

o 

o 

Article 1(1) EIO DIR provides that an EIO may be issued in two situations: for having one or 
several investigative measures carried out in another Member State, or for obtaining evidence 
that is already in the possession of the executing State. In both cases, a ‘judicial authority’ must 
issue or validate the EIO (para 71). 
The concept of ‘judicial authority’ is not defined in Article 1(1) EIO DIR, but this provision should 
be read in conjunction with Article 2(c) EIO DIR, which includes ‘prosecutors’ among ‘issuing 
Staatsanwaltschaft Graz (Düsseldorf Tax Office for Criminal Tax 
authorities’, subject to  the sole  condition that they have competence in the  case concerned 
Matters)
(paras 72-73, with reference to 

). 

Staatsanwaltschaft Wien (Falsified transfer orders)

If under the law of the issuing State, in a purely domestic case, a public prosecutor is competent 
to order an investigative measure for the transmission of evidence already in the possession of 
the competent national authorities, that public prosecutor is covered by the concept of ‘issuing 
authority’ in the context of the EIO DIR for the purposes of a similar EIO (para 74, with reference 
to 
To  the  contrary,  if  in  a  purely domestic  situation,  such  a  transmission would  have  to  be 
Spetsializirana prokuratura (Traffic and 
authorised by  a  judge,  the  public  prosecutor  cannot  be  regarded as  a  competent issuing 
location data)
authority for a similar EIO (para 75, with reference to 

. 

). 

In  the  present  case,  it  seems  that  the  German Code  of  Criminal Procedure  permits  such 
transmission of  evidence, at  a  national level,  from  one  national  investigative authority to 
another, without requiring the authorisation of  a  judge. However, the referring court  must 
determine whether that is the case (para 76). 

635/23, WBS GmbH, judgment of 10 July 2025 

3.5.  Case C
  Facts. 

‑

In  the Latvian criminal proceedings for  large-scale fraud, large-scale unlawful waste of 
another  person’s  property,  forgery  and  use  of  forgery,  the  Latvian  Office  for  Preventing and 
Combating Corruption (KNAB) wished to search the business premises of WBS GmbH, situated in 
Germany. For that purpose, the KNAB, being an administrative authority acting in its capacity as 
investigative authority in criminal proceedings, asked the Latvian investigating judge to authorise 
the measure, in accordance with Latvian law. After the search was authorised, the KNAB issued an 
EIO  to  Germany  for  the  hearing  of  witnesses  and  the  conduct  of  the  searches,  which  was 
consequently validated by the Latvian Prosecutor, in accordance with Article 2(c)(ii) EIO DIR. WBS 
GmbH brought an action before the Higher Regional Court in Berlin, the referring court, seeking to 
Spetsializirana prokuratura
prohibit the transfer of  the evidence gathered in execution of  the EIO,  claiming that in light of 
, KNAB is not competent to issue that EIO, as 

(Traffic and location data)

  Main question.

the measure in question must be ordered by an investigative judge under Latvian law. 

 Can an administrative authority, acting in its capacity as investigative authority in 
criminal  proceedings  and  whose  investigative  measures  involving  an  interference  with  the 
fundamental rights  of  the  person  concerned  must,  in  accordance  with  national  law,  first  be 
authorised by a judicial authority, be treated as ‘issuing authority’ within the meaning of Article 
2(c)(ii) EIO DIR? 

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  CJEU’s reply. An administrative  authority,  which is  acting in  its  capacity as  an investigating 
authority 
involving  an 
in  criminal  proceedings  and  whose  investigative  measures 
interference  with the fundamental  rights  of the person concerned must,  in accordance with 
national  law, first be authorised  by a judicial  authority,  can be treated  as ‘issuing  authority’ 
within the meaning  of Article 2(c)(ii) EIO DIR. 
o 

The CJEU’s main arguments follow.

o 

Under Article 2(c)(ii) EIO DIR, the ‘issuing authority’ must be a national authority which satisfies 
three cumulative conditions: 1) is not one of the judicial authorities referred to in Article 2(c)(i) 
EIO DIR, but an authority, such as an administrative authority, designated by the issuing Member 
State as competent to issue an EIO; 2) is an authority which, in the specific case, is acting in its 
capacity as an  investigating authority in criminal proceedings; 3) is  competent to  order the 
gathering of evidence in accordance with national law (paras 31-35). 
In relation to the third condition of having ‘competence to order the gathering of evidence in 
accordance with national law’(paras 36-39), the mere fact that the law of the issuing Member 
State makes the adoption of the investigative measures requested by the authority responsible 
for  the  investigation subject  to  the  condition  that  they  are  authorised  in  advance  by  an 
investigating judge when they involve an interference with the fundamental rights of the person 
concerned does not preclude that that authority is considered competent to order the gathering 
of evidence in accordance with national law, within the meaning of Article 2(c)(ii) EIO DIR (para 
 
48): 

In accordance with Article 6(1)(a) EIO DIR, the issuing of  an EIO by ‘another competent 
authority’ within the meaning of Article 2(c)(ii) EIO DIR implies a review of the necessity 
and proportionality of that decision at two stages of the procedure in the issuing Member 
State: first, when it is prepared in the context of the domestic investigation procedure, and 
second, when it is validated by a judicial authority before it is transmitted to the executing 
• 
authority (paras 42-44). As regards the first level: 

• 

• 

According to recital 10 EIO DIR, the issuing authority is best placed to decide, on the 
basis of its knowledge of the details of the investigation concerned, which investigative 
measure is to be used (para 46); 
The  fact  that  the  issuing  authority is  the  authority which, in  the  specific  case,  is 
responsible for the criminal investigation, enables it, taking into account its knowledge 
of all aspects of that investigation, to carry out, in accordance with Article 6(1)(a) EIO 
DIR, the review of the necessity and proportionality of the investigative measure that 
it wishes to see carried out in another Member State (para 47); 
The  requirement of  prior authorization by  an  investigative judge ensures that  the 
assessment of the necessity and proportionality of those measures, at the first level, is 
under the supervision of a court (paras 48-49). 

In accordance with Article 6(1)(b) EIO DIR, the issuing authority may issue an EIO only 
where the investigative measures referred to in that EIO could have been ordered under 
the same conditions in a similar domestic case. Therefore, the precise conditions for issuing 
• 
an EIO depend on the national law of the issuing State alone (paras 50-52); 

In the present case, the requirement that the investigative measure proposed by the 
KNAB must be authorised by an investigating judge constitutes precisely a condition 
under Latvian law that an equivalent investigative measure must also satisfy to  be 
executed solely in the territory of Latvia (para 53); 

 

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• 

Spetsializirana prokuratura (Traffic and 

location data)
The situation at issue is distinct from that of 
, which concerned

 t

he interpretation not of point (ii)  but of point (i) of 
Article 2(c) EIO DIR, in a situation where a public prosecutor had issued an EIO for 
measures that, in a  similar domestic case, fall  under the exclusive competence of  a 
judge (paras 54-55); 

A different interpretation would run counter to the distinction between the authorities falling 
within Article 2(c)(i)  and Article 2(c)(ii)  EIO DIR, by  which the EU  legislature wished to 
enable non-judicial authorities responsible for  criminal investigations and competent to 
order investigative measures to be treated as an ‘issuing authority’, leading to the result that 
only  judicial authorities are competent to  issue an  EIO, even though they intervene only 
sporadically in the context of the domestic criminal investigation procedure (paras 56-58);  
It would also deprive Article 2(c)(ii) EIO DIR of its effectiveness, since, in view of the fact that 
the  authorities referred to  in  Article 2(c)(ii)  EIO  DIR  are  not  ‘judicial authorities’, it  is 
legitimate that the Member States frame the adoption of the investigative measures by those 
authorities with procedural guarantees, by providing, inter alia, that investigative measures 
which involve an interference in the fundamental rights of the persons concerned are first 
authorised by a judicial authority (para 59); 
Such an interpretation pursues the objective of the EIO DIR to establish a simplified and more 
effective  procedure  for  cross-border  evidence  gathering,  by  ensuring  that  a  national 
authority responsible for  the  criminal investigation can  be  characterised as  an  ‘issuing 
authority’ even if certain investigative measures must, in accordance with national law, first 
be authorised by a judicial authority when they involve an interference in the fundamental 
rights of the person concerned (paras 60-62); 
Moreover, this interpretation ensures that, where an issuing authority within the meaning of 
Article  2(c)(ii)  EIO  DIR  proposes  several  investigative  measures,  some  requiring 
authorisation by an investigating judge and others not, a single EIO is issued for all of those 
investigative measures. It also  facilities possible exchanges between the issuing and  the 
executing authority under Article 6(3) or Article 10(4) EIO DIR (paras 63-64). 

 

 

 

 

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4.  Conditions for issuing an EIO  

The CJEU was called on to clarify the conditions for issuing an EIO for the transmission of evidence 
already in the possession of the executing authorities under Article 6 EIO DIR and found that it is 
not subject to the same conditions that apply in the issuing State in relation to the gathering of 
that evidence. Moreover, the issuing authority is not authorised to review the lawfulness of the 
separate procedure by which the executing Member State autonomously gathered the evidence 
sought to be transmitted (

M.N. (EncroChat)

). 

4.1.  Case C-670/22, M.N. (EncroChat), judgment of 30 April 2024 
 

infra

See  also 
7.1 (Interception of telecommunications). 

  Facts. 
supra
  Main question. 

,  3.4  (Issuing  authority, judicial  authority),  5.1  (Admissibility of  evidence)  and 

  CJEU’s reply.

See 

, 3.4 (Issuing authority, judicial authority). 
Does Article 6(1) EIO DIR preclude a public prosecutor from issuing an EIO for the 
transmission of evidence already in the possession of  the competent authorities of the executing 
State where that evidence has been acquired following the interception, by those authorities, on the 
territory of the issuing State, of telecommunications of all the users of mobile phones that, through 
A public prosecutor can issue an EIO for the transmission  of evidence already  in 
special software and modified hardware, enable end-to-end encrypted communication? 
the  possession  of the  competent  authorities  of the  executing  State,  acquired  following  the 
interception,  by 
issuing  State,  of 
telecommunications  of  all  the  users  of  encrypted  mobile  phones  that,  through  special 
software  and  modified  hardware,  enable  end-to-end  encrypted  communication,  provided 
that  the  EIO satisfies  all  the  conditions  under  the  national  law  of the  issuing  State  for the 
transmission  of such evidence  in a  purely  domestic  situation  in that  State.

those  authorities,  on 

territory  of  the 

the 

o 
arguments follow. 

  The CJEU’s main 

Under  Article 6  EIO  DIR,  the  issuing of  an  EIO  is  subject  to  the  two  following  cumulative 
  Necessity and proportionality  (Article 6(1)(a) EIO DIR).
conditions that must be assessed by the issuing authority. 

 This requires an assessment – 
in  the light of  the  law of  the  issuing State only –  on  whether the issuing of  the  EIO is 
necessary and proportionate with respect to the purpose of the criminal proceedings that 
are brought or may be brought before a judicial authority in the issuing State (para 88). 
• 
Therefore: 

• 

the existence, at the time of issuing the EIO, of a specific suspicion of a serious offence 
in respect of each person concerned is not required, unless such a requirement arises 
under the national law of the issuing State (para 89); 
an EIO may also be issued where the integrity of the requested data cannot be verified 
because of the confidentiality of the technology used to intercept it, provided that the 
right to  a  fair  trial is  guaranteed in subsequent criminal proceedings; indeed, the 
integrity of the evidence transmitted may be assessed only in the subsequent criminal 
proceedings, when the competent authorities actually have the evidence in question at 
their disposal (para 90). 

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  The  transmission  of  the  evidence  could  have  been  ordered  under  the  same 

conditions  in  a  similar  domestic  case  (Article 6(1)(b) EIO DIR).

 This means that the 
determination of the precise conditions required for the issuing of the EIO depends only on 
• 
the national law of the issuing State (para 92). Therefore: 

• 

• 

• 

the issuing of an EIO to obtain evidence already in the possession of the executing State 
and concerning the communications of users of encrypted mobile phones is subject to 
the same conditions as those that apply to the transmission of such data in a purely 
domestic case (para 94); 
by contrast, the issuing of such an EIO is not subject to the same substantive conditions 
as those that apply in the issuing State in relation to the gathering of that evidence (para 
96); 
Article 6(1)(b) EIO DIR seeks to  ensure that the rules and procedures of the issuing 
State’s  law  are  not  circumvented;  it  does  not  appear  that  the  gathering  and 
transmission of the evidence would have had that purpose, but it is for the referring 
court to ascertain this (para 97); 
the fact that the executing State gathered evidence on the territory of the issuing State 
and in its interest is irrelevant (para 98). 

When issuing an EIO for the transmission of evidence already in the possession of the executing 
State, the issuing authority is not authorised to review the lawfulness of the separate procedure 
by which the executing Member State gathered the evidence sought to be transmitted. This is 
because the EIO is based on the principles of mutual recognition and mutual trust, hence on a 
rebuttable presumption that other Member States comply with EU law and fundamental rights 
(paras 99–100, with reference to
 
The EIO DIR guarantees a judicial review of compliance with fundamental rights: 

 Staatsanwaltschaft Wien (Falsified transfer orders)

6
). 

) (

o 

o 

 

Article 14(1) EIO DIR requires Member States to ensure that legal remedies, equivalent to 
those available in a similar domestic case, are applicable to the investigative measure to 
which  an  EIO  relates; in  that context,  it  is  for  the  competent court  to  verify  that the 
conditions for issuing an EIO are satisfied and, if not, to draw the appropriate conclusions 
as required under national law (paras 102–104); 
Article 14(7) EIO DIR requires Member States to ensure that, in the criminal proceedings 
initiated in the issuing State, the rights of the defence and the fairness of the proceedings 
are respected when assessing evidence obtained through that EIO (para 104); however, if a 
court takes the view that a party is not in a position to comment effectively on a piece of 
evidence that is likely to have a preponderant influence on the findings of fact, that court 
Prokuratuur  (Conditions  of  access  to  data  relating  to  electronic 
must find an infringement of the right to a fair trial and exclude that evidence (paras 104–
communications) 
105,  with reference  to 

7
). 

(

G. K. and Others (European  Public Prosecutor’s  Office)

6
) 
(
7
) 
(

Prokuratuur  (Conditions  of  access  to  data  relating  to  electronic  communications)

See  also Case C-281/22, 
CJEU,  Case  C-746/18, 
,  judgment  of 
2 March 2021,  on the  interpretation  of Article 15(1)  of  Directive  2002/58,  read  in the  light  of  Articles 7,  8 and  11 and 
Article 52(1) CFR. 

, judgment  of 21 December  2023,  para 64. 

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5.  Admissibility of evidence 

Even though the admissibility of evidence gathered in violation of EU law is to be regulated by 
national law, Member States must ensure the fundamental right to a fair trial under Article 47 
CFR  when assessing  evidence obtained through an  EIO.  Therefore,  the  CJEU  established an 
exclusionary rule according to which national courts are required to disregard information and 
evidence that is likely to have a preponderant influence on the findings of fact when the accused 
is not in a position to comment effectively on said evidence (

M.N. (EncroChat)

). 

5.1.  Case C-670/22, M.N. (EncroChat), judgment of 30 April 2024 
 

infra

See also 
7.1 (Interception of telecommunications).

  Facts. 
supra
  Main question.

,  3.4 (Issuing authority, judicial authority), 4.1 (Conditions for  issuing an EIO) and 

  CJEU’s reply.

See 

, 3.4 (Issuing authority, judicial authority).
 Does the principle of effectiveness require national courts to disregard, in criminal 
proceedings against a person suspected of  having committed criminal offences, information and 
Under Article 14(7) EIO DIR, in criminal proceedings against a person suspected 
evidence obtained in breach of the requirements of EU law?
of having  committed  criminal  offences, national  criminal  courts  are  required  to disregard 
information  and  evidence  if that  person  is  not in  a position  to comment effectively  on that 
information and evidence and said evidence is likely to have a preponderant  influence on the 
findings of fact.
o 

 The CJEU’s main arguments follow.

o 

o 

As a preliminary point, there is no need for this question to be answered unless the referring 
court concludes that the EIOs were made unlawfully (para 127).
As EU law currently stands, it is, in principle, for national law alone to determine the rules on 
the admissibility and assessment in criminal proceedings of  evidence obtained in a  manner 
contrary to EU law. In accordance with the principle of procedural autonomy, it is for national 
laws to establish procedural rules for actions intended to safeguard the rights that individuals 
derive from EU law. Those rules must be no  less favourable than the rules governing similar 
domestic actions (the principle of equivalence) and must not render impossible in practice or 
La Quadrature du Net and Others
excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness) 
(paras 28–29, with reference to 
However, Article 14(7)  EIO  DIR  expressly requires Member States  to  ensure  that, without 
prejudice to  the  application of  national procedural rules, the  rights of  the defence and  the 
fairness of  the proceedings are respected in criminal proceedings in the issuing State when 
assessing evidence obtained through an EIO. This means that evidence on which a party is not 
in a position to comment effectively must be excluded from the criminal proceedings (para 130).

8
).

) (

La Quadrature du Net and Others

8
) 
(

CJEU,  Case C-511/18, 
of Directive 2002/58,  read in the light of Articles 7, 8 and  11 and Article 52(1) CFR. 

, judgment  of 6 October 2020, on the interpretation of Article 15(1) 

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6.  Legal remedies 

The CJEU clarified that a description of the legal remedies provided by national legislation against 
). 
the issuing of an EIO must not be included in the EIO form by the issuing authority (
Subsequently, it ruled that legal remedies against the issuing of an EIO for carrying out searches, 
seizures  and  the  hearing of  a  witness via  videoconference must be  available to  the  person 
9
). In the absence of  any legal remedy, Member States are not 
concerned in the issuing State (
allowed to issue those EIOs (

Gavanozov  II

). 

Gavanozov

6.1.  Case C-324/17, Gavanozov, judgment of 24 October 2019 
  Facts.

 In the Bulgarian criminal proceedings against Mr Gavanozov for participating in a criminal 
organisation formed for the purpose of committing tax offences, the Bulgarian court competent in 
the case intended to issue an EIO to Czechia requesting searches and seizures of the residential and 
business premises of Y, along with the hearing via video conferencing of Y as a witness. However, 
the court encountered difficulties completing Section J of the EIO form, as Bulgarian law does not 
provide for any legal remedy, either directly as an appeal against a court decision or indirectly by 
means of a separate claim for damages, against decisions ordering a search, a seizure or the hearing 
of  witnesses.  Therefore,  being  uncertain about  the  compatibility between Bulgarian law  and 
Article 14(1) and (2) EIO DIR on legal remedies, the Bulgarian court referred the issue to the CJEU. 
 Does Article 5(1) EIO DIR, read in conjunction with Section J of the form referred to 
in Annex A, require the authority issuing an EIO to include in that section a description of the legal 
  CJEU’s reply. The judicial authority issuing  an EIO is not required to include in Section J of the 
remedies, if any, provided for in its Member State against the issuing of such an order? 
form set out in Annex A to the EIO DIR a description of the legal remedies,  if any, provided for 
in its Member State against  the issuing  of such an order. 
o 

  Main question.

The CJEU’s main arguments follow. 

o 

Under Article 5(1) EIO DIR, the issuing of an EIO presupposes the completion and signing of the 
form referred to in Annex A. 
A description of the legal remedy must be included in Point 1 of Section J of the EIO form only if 
 
a legal remedy has been sought against an EIO (paras 28 and 32): 

 

the use in Point 1 of Section J of the wording ‘if so’ and ‘please provide further details’ show 
that the executing authority is to be informed of any action brought against an EIO that had 
been forwarded to it and not more generally of the legal remedies, if any, that are provided 
for in the issuing Member State against the issuing of an EIO (para 29); 
Point 2 of Section J of the EIO form, which requires the issuing authority to specify the name 
and contact details of the competent authority of the issuing Member State that is able to 
give additional information about the legal remedies in that Member State, would serve no 
purpose if the EIO already includes an abstract description of the legal remedies available 
in the issuing Member State against the issuing of an EIO (paras 30–31); 

EPPO (Judicial review  of procedural acts)

9
) 
(

In Case  C-292/23, 
, judgment  of 8 April 2025,  in relation to the judicial  review of 
the decision  to summon  a witness taken  by the  European  Public  Prosecutor’s Office  (EPPO),  the  Court clarified  that the 
right to effective  judicial  protection under  Article 47  CFR does not require a  specific  direct legal  remedy  for challenging 
that act, but that it is satisfied if the judicial review is carried out by the criminal trial court as an incidental  question (see, 
in particular, paras  76–80). 

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 

 

o 

under Article 14(5) EIO DIR, the issuing and the executing authorities must inform each 
other about the legal remedies sought against the issuing, the recognition or the execution 
of an EIO (para 34); 
this  interpretation makes  it  possible  to  fulfil  the  aim  of  the  EIO  DIR  to  facilitate and 
accelerate judicial cooperation between Member States based on the principles of mutual 
trust and  mutual recognition: the  introduction of  the form  is  intended to  provide the 
executing authority with the minimum official information
required to enable it to adopt 
the decision on the recognition or execution of the EIO in question and, as appropriate, to 
carry out the measure requested within the applicable time limits (paras 35–36). 

Therefore, it is not necessary, in the present case, to interpret Article 14 EIO DIR to determine 
whether it precludes national legislation that does not provide for any legal remedy against the 
substantive grounds for issuing an EIO requesting a search, a seizure of  specific items or the 
hearing of a witness (para 37). 

6.2.  Case C-852/19, Gavanozov II, judgment of 11 November 2021 
  Facts.

Gavanozov

supra

 Following the judgment of the CJEU in 

, 6.1), the same Bulgarian court 
harboured doubts as to  whether it could issue an EIO for  searches, seizures and the hearing of 
witnesses, on the ground that Bulgarian legislation does not allow for  any legal remedies either 
against those investigative measures, or  against the  issuing of  an  EIO issued for  that purpose. 
Therefore, it referred a question to the CJEU.

  (see 

  Main questions.

  CJEU’s reply.

 Do Article 1(4) and Article 14(1) to (4) EIO DIR, read in the light of recitals 18 and 
22 and Articles 7 and 47 CFR, read in conjunction with Articles 8 and 13 ECHR, preclude national 
legislation that does not provide for any legal remedy against the issuing of an EIO for the carrying 
Article 14 EIO DIR, read in conjunction with Article 24(7) EIO DIR and Article 47 
out of searches, seizures and the hearing of a witness via videoconference? 
CFR, precludes  national  legislation  that  does  not provide  for any  legal  remedy  against  the 
issuing  of an EIO for searches,  seizures  and the hearing  of witnesses  via videoconference. In 
such  circumstances,  Article 6  EIO  DIR,  read  in  conjunction  with  Article 47  CFR  and 
Article 4(3) TEU, does not allow the competent authority  of a Member State  to issue  an EIO.

o 
The CJEU’s main arguments follow. 

o 

o 

Article 14(1) EIO DIR requires Member States to ensure that legal remedies at least equivalent 
to  those  available in  a  similar domestic case  are  applicable to  the  investigative measures 
indicated in the EIO, but it does not require Member States to provide additional legal remedies 
to those that exist in a similar domestic case (paras 25–27). 
However, when Member States implement EU law, such as the EIO DIR, they are required to 
comply with Article 47 CFR, which guarantees the right to an effective remedy before a tribunal 
against violations of rights under EU law (paras 28–30). 
As  regards EIOs  for  searches and seizures, the issuing Member State must ensure that the 
persons concerned by its execution have a remedy available before a court of the same Member 
State that enables them to contest the need for, and lawfulness of, that EIO, at the very least 
 
having regard to the substantive reasons for issuing such an EIO (para 41): 

searches and seizures constitute interferences with the right to  respect for  private and 
family life, home and communications under Article 7 CFR, and the right to property under 
Article 17(1) CFR; therefore, any  person who  wishes to  rely  on  the protection of  those 

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o 

o 

 

 

 

provisions must be accorded the right to an effective remedy under Article 47 CFR (paras 
31–32); 
Article 47 CFR, in line with Article 13 ECHR, requires Member States to provide in their 
national  legal  systems  to  the  persons  concerned  by  such  investigative  measures 
appropriate legal remedies enabling them, first, to contest the need for, and lawfulness of, 
those measures and, second, to request appropriate redress if those measures have been 
unlawfully ordered or carried out (paras 33–34); 
in the context of an EIO, this requires a legal remedy against the EIO by which the judicial 
authority of the issuing Member State orders that those investigative measures be carried 
out in another Member State on the basis of the principle of mutual recognition (paras 35–
39); 
under Article 14(2) EIO DIR, the substantive reasons for issuing an EIO may be challenged 
only in the issuing Member State (para 40). 

As regards an EIO for  the hearing of a witness via videoconference, the issuing Member State 
must ensure that any person who has been subject to an obligation to present himself or herself 
for being heard, or to answer questions during such a hearing, has a remedy before a court of 
that Member State in order to challenge, at the very least, the substantive reasons for issuing 
 
such an EIO (para 49): 

 

 

Article 24(7) EIO DIR implies that the refusal to testify in the context of the execution of an 
EIO for the hearing of a witness via videoconference could have significant consequences 
for  the person concerned on  the basis of the law of  the executing Member State, as that 
person could be required to appear at the hearing and be obliged to  answer questions, 
failing which penalties could be imposed (paras 43–44); 
according to settled case-law, protection against arbitrary or disproportionate intervention 
by public authorities in the sphere of private activities constitutes a general principle of EU 
law that may be relied upon as a right guaranteed by EU law, for the purposes of Article 47 
CFR, in order to challenge before a court an act adversely affecting that person, such as an 
order to provide information or a penalty imposed on the ground of non-compliance with 
that order (paras 45–46); 
the execution of an EIO for the hearing of a witness via videoconference is likely to adversely 
affect the person concerned, and that person must therefore have a legal remedy available 
against  such  a  decision  that  orders  the  execution  of  such  measures; however,  under 
Article 14(2) EIO DIR, the courts of the executing Member State will not have jurisdiction to 
examine the substantive reasons for that EIO (para 47). 

The absence of  any legal remedies in the issuing Member State against an  EIO for  searches, 
seizures and the hearing of a witness via videoconference constitutes an infringement of the 
right to an  effective remedy under Article 47 CFR, which rules out  the possibility of  mutual 
 
recognition and thus also the possibility of issuing an EIO (paras 56 and 62): 

even though Article 6 EIO DIR on  the conditions for issuing an EIO does not mention the 
taking into account of the rights of  the persons concerned other than the suspect or the 
accused, the EIO procedure is governed by the principle of mutual recognition, which is 
based on mutual trust and a presumption of compliance by other Member States with EU 
fundamental rights (paras 52–54); 
in the context of an EIO, in light of the essential role of the principle of mutual recognition, 
ensuring compliance with fundamental rights lies primarily with the issuing Member State, 

 

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 

which must  create the conditions  under which the  executing authority will be able to 
usefully provide its assistance in accordance with EU law (paras 57–58); 
the  refusal ground based on  fundamental rights under Article 11(1)(f) EIO DIR  allows 
executing  authorities  to  depart  from  the  principle  that  EIOs  are  to  be  executed 
exceptionally, after an assessment on  a  case-by-case basis, where there are substantial 
grounds  to  believe  that  the  execution  of  the  EIO  would  be  incompatible  with  the 
fundamental rights guaranteed in particular by the CFR; however, if there are no remedies 
available in the issuing State, the application of that provision would become systematic 
and this would be contrary to both the common sense of the EIO DIR and the principle of 
mutual trust (para 59). 

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7.  Interception of telecommunications 

The CJEU specified that the concept of ‘interception of telecommunications’ (Articles 30 and 31 
EIO DIR) includes not only telephone wiretapping but also the infiltration of terminal devices for 
gathering traffic, location and communication data of an internet-based communication service. 
Therefore, such measures are also subject to the notification duty under Article 31 EIO DIR, using 
the form provided in Annex C, where they target users located on the territory of another Member 
State and technical assistance from the latter Member State is not required. The CJEU clarified 
that  such  notification  duty  also  protects  the  rights  of  persons  affected  by  such  a  measure, 
including in relation to the use of the data for the purposes of criminal prosecution in the notified 
Member State (

M.N. (EncroChat)

). 

7.1.  Case C-670/22, M.N. (EncroChat), judgment of 30 April 2024 
 

supra

See also 
5.1 (Admissibility of evidence). 

  Facts. 
supra, 
  Main  questions. 

,  3.4 (Issuing authority, judicial authority), 4.1 (Conditions for issuing an EIO) and 

See 

3.4 (Issuing authority, judicial authority). 
Does a measure entailing the infiltration of terminal devices for the purpose of 
gathering the traffic, location and communication data of an internet-based communication service 
constitute an ‘interception of telecommunications’ within the meaning of Article 31 EIO DIR, for 
which notification must be made to a judge of the Member State on whose territory the subject of 
the interception is located? Is Article 31 EIO DIR intended to protect the rights of users affected by 
the interception of telecommunications? 

  CJEU’s replies. 
  The  infiltration  of terminal  devices  for  gathering  the  traffic,  location  and  communication 
‘interception  of 
internet-based  communication  service  constitutes  an 

data  of  an 
telecommunications’  within the meaning  of Article 31 EIO DIR.
o 

The concept of ‘telecommunications’ must be given an independent and uniform interpretation 
in EU law, having regard not only to the wording of  this provision, but also to the context in 
which it occurs and the objectives pursued by the rules of which it is part (paras 109–110, with 
 
reference to 

Staatsanwaltschaft Wien (Falsified transfer orders)

): 

 

 

first, as regards the wording of Article 31(1) EIO DIR, the term ‘telecommunications’ refers, 
in its ordinary meaning, to all processes for the remote transmission of information (para 
111); 
secondly, as regards the context, Article 31(2) EIO DIR specifies that notification is to be 
made by using the form set out in  Annex C EIO DIR, which, in  its Point B(III) under the 
heading ‘Target of the interception’, envisages a telephone number and an IP address or 
email address; that the term ‘telecommunications’ is to be understood in its broad sense is 
further  confirmed  by  Article 31(3),  which  envisages, generally,  ‘any  material’ already 
intercepted (para 112); 
thirdly, as regards the objective of Article 31 EIO DIR, recital 30 EIO DIR provides that the 
possibilities for cooperating should not be limited to the content of the telecommunications, 
but  could  also  cover  collection  of  traffic  and  location  data  associated  with  such 
telecommunications (para 113). 

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  The intercepting  Member State must notify said measure  to the authority designated  for that 
purpose by the Member State on whose territory  the subject of the interception is located or 
to any  authority  of the notified Member State  that the intercepting  Member  State considers 
appropriate. 
o 

o 

o 

Article 31(1) EIO DIR merely refers to the ‘competent authority of the notified Member State’, 
without specifying whether it should be administrative or judicial (para 115). 
That authority is not included in the information listed in Article 33 EIO DIR of which Member 
States need to  notify  the European Commission. Moreover, it  is  apparent from  the form  in 
Annex C, which must be used in order to notify the ‘interception of telecommunications’ within 
the meaning of Article 31(1) EIO DIR, that the only piece of information that must be provided 
in that respect on that form is the ‘notified Member State’ (para 116). 
It  is  for  each  Member  State  to  designate the  authority  that  is  competent to  receive  the 
notification. Should the intercepting Member State not be in a position to identify the competent 
authority of the notified Member State, that notification could be submitted to any authority of 
the notified Member State that the intercepting Member State considers appropriate for that 
purpose (para 117). 
If the authority that receives the notification is not the competent authority under the law of the 
notified Member State, it must forward the notification on its own initiative to the competent 
authority, which may  give  notice  that  the interception may not  be  carried out  or  is  to  be 
  Article 31 EIO DIR also aims  to protect the rights of those users  affected by the interception 
terminated if the interception would not be authorised in a similar domestic case (para 118). 

o 

of telecommunications. 
o 

o 

o 

o 

Unlike the ‘interception of telecommunications with the technical assistance of another Member 
State’ (Article 30  EIO  DIR),  interceptions that do  not  require technical assistance from  the 
Member State on whose territory the subject of the interception is located (Article 31 EIO DIR) 
are not covered by an EIO; thus, the conditions and guarantees that circumscribe an EIO do not 
apply (para 121). 
Pursuant to Article 31(3) EIO DIR, the competent authority of the notified Member State ‘may’, 
where the interception would not be authorised in a similar domestic case, notify the competent 
authority of the intercepting Member State that that interception may not be carried out or is to 
be terminated, or, where appropriate, that any material already intercepted may not be used, or 
may only be used under conditions which it is to specify (para 122). 
The use of the verb ‘may’ implies that the competent authority of the notified Member State has 
discretion, the exercise of which must be justified by the fact that such an interception would 
not be authorised in a similar domestic case (para 123). 
Article 31 EIO DIR thus aims not only to guarantee respect for the sovereignty of the notified 
Member State but also to ensure that the guaranteed level of protection in that Member State 
with  regard  to  the  interception of  telecommunications is  not  undermined. Insofar  as  the 
interception of telecommunications amounts to an interference with the right to respect for 
private life under Article 7 CFR, Article 31 EIO DIR also aims to  protect the rights of  persons 
affected by such  a measure, including in relation to  the use of  the data for  the purposes of 
criminal prosecution in the notified Member State (para 124). 

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