Provisional text

delivered on 13 February 2025 (1)

Case C-635/23

WBS GmbH

Criminal procedure

other party:

Generalstaatsanwaltschaft Berlin

(Request for a preliminary ruling from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany))

( Reference for a preliminary ruling – Directive 2014/41/EU – Judicial cooperation in criminal matters – European Investigation Order – Article 2(c)(ii) – Concepts of ‘issuing authority’ and ‘other competent authority acting in its capacity as an investigating authority in criminal proceedings’ – Competence to order the gathering of evidence in accordance with national law – Search measures requiring the authorisation of an investigating judge – Article 6(1) and (2) – Conditions for issuing a European Investigation Order )

Introduction

1.Can an administrative authority which, under national law, is not competent to order an investigative measure in the context of national criminal proceedings order such a measure in respect of an undertaking established in another Member State by issuing a European Investigation Order (‘EIO’) under Directive 2014/41/EU regarding the EIO in criminal matters (2) and, if so, under what conditions may such an EIO be issued? That, in essence, is the question referred by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) in the present request for a preliminary ruling, which concerns the interpretation of Article 2(c)(ii) of that directive.

2.It should be recalled that Article 2(c) of Directive 2014/41, which defines the concept of the ‘issuing authority’ of an EIO, draws a distinction between two categories of authority: on the one hand, judicial authorities, namely ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’, referred to in Article 2(c)(i) of that directive (‘a judicial authority’) and, on the other, non-judicial authorities, namely ‘any other competent authority as defined by the issuing State which … 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’, referred to in Article 2(c)(ii) of that directive (‘a non-judicial authority’).

3.The request for a preliminary ruling was made in the context of a request for execution, in Germany, of an EIO issued by the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia; ‘the KNAB’) concerning WBS GmbH, an undertaking established in Germany (‘the EIO at issue’). The latter, having been the subject of a search under that EIO, brought an action before the referring court claiming, in essence, that the evidence gathered in execution of that EIO was inadmissible because the EIO was not issued by an ‘issuing authority’ within the meaning of Directive 2014/41. More specifically, the KNAB is not an issuing authority on the ground that, first, it does not act as a judicial authority within the meaning of Article 2(c)(i) of that directive and, secondly, it does not satisfy the conditions laid down in Article 2(c)(ii) of that directive, enabling it to be classified as ‘other competent authority’, as it is not competent ‘to order the gathering of evidence in accordance with national law’, since the adoption of search measures in a domestic case is, under Latvian law, reserved to the judicial authorities.

4.While the Court has already had occasion to define the scope of the concept of ‘issuing authority’ within the meaning of Article 2(c) of Directive 2014/41 and to clarify the distinction between ‘judicial authorities’ and ‘other competent authorities’ in accordance with that provision, (3) in the present case it is asked, for the first time, about the scope of the second category of such authorities.

Legal framework

European Union law

‘(5) Since the adoption of Framework Decisions [2003/577/JHA (4)] and [2008/978/JHA (5)], it has become clear that the existing framework for the gathering of evidence is too fragmented and complicated. A new approach is therefore necessary.

…

(7) This new approach is based on a single instrument called the European Investigation Order (EIO). An EIO is to be issued for the purpose of having one or several specific investigative measure(s) carried out in the State executing the EIO (“the executing State”) with a view to gathering evidence. This includes the obtaining of evidence that is already in the possession of the executing authority.

…

(11) The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. The same assessment should be carried out in the validation procedure, where the validation of an EIO is required under this Directive. …’

6. Article 1 of that directive, entitled ‘The European Investigation Order and obligation to execute it’, states:

‘1. A European Investigation Order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (“the issuing State”) to have one or several specific investigative measure(s) carried out in another Member State (“the executing State”) to obtain evidence in accordance with [Directive 2014/41].

The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.

…’

7. Article 2 of that directive, entitled ‘Definitions’, provides in point (c):

‘For the purposes of this Directive the following definitions apply:

(c) “issuing authority” means:

(i) a judge, a court, an investigating judge or a public prosecutor competent in the case concerned; or

(ii) any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law. In addition, before it is transmitted to the executing authority the EIO shall be validated, after examination of its conformity with the conditions for issuing an EIO under this Directive, in particular the conditions set out in Article 6.1, by a judge, court, investigating judge or a public prosecutor in the issuing State. Where the EIO has been validated by a judicial authority, that authority may also be regarded as an issuing authority for the purposes of transmission of the EIO’.

8. In accordance with Article 6 of that directive, entitled ‘Conditions for issuing and transmitting an EIO’:

‘1. The issuing authority may only issue an EIO where the following conditions have been met:

(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and

(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.

9. Article 9 of Directive 2014/41, entitled ‘Recognition and execution’ provides in paragraphs 1 to 3:

‘1. The executing authority shall recognise an EIO, transmitted in accordance with this Directive, without any further formality being required, and 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 provided for in this Directive.

Latvian law

10. The Latvian legal framework for the adoption of an EIO is governed by sections 8871 to 8873 of the Kriminālprocesa likums (Code of Criminal Procedure) of 11 May 2005. (6) Under section 8871(1) of that code, where it is necessary, in criminal proceedings, to take procedural action on the territory of another Member State of the European Union before initiating the prosecution, the person directing the proceedings, when preparing an EIO, must assess its necessity and proportionality in relation to the offence under investigation, after which the public prosecutor leading the investigation must also verify whether the procedural action requested from the EU Member State complies with the requirements of the law and assess its necessity and proportionality in relation to the offence under investigation. Prior to preparing an EIO, the person directing the proceedings must take all the measures that would be necessary if the procedural action were carried out in Latvia.

11. Searches are governed by sections 179 to 185 of that code. Section 179(1) thereof defines a search as an investigative measure whose purpose is the compulsory investigation of premises, land, a vehicle or an individual for the purposes of locating and seizing the object sought where there are reasonable grounds for believing that the object being sought is located where the search is carried out.

12. Section 180(1) of that code provides that the search is to be conducted following a decision by an investigating judge or a court. The investigating judge is to base his or her decision on a proposal submitted by the person directing the proceedings and the documents annexed thereto.

The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

2.14. By orders of 24 April 2019, that judge granted the KNAB’s application on the ground, first, that it was reasonable to believe that those premises housed documents, data carriers and objects relevant to the proceedings and, secondly, that the searches, the purpose of which was to locate and freeze those documents, data carriers and objects, were necessary and proportionate.

3.15. On 25 April 2019, the KNAB, as the ‘competent authority’ within the meaning of Article 2(c)(ii) of Directive 2014/41, issued the EIO at issue, by which it requested that the Federal Republic of Germany hear two witnesses and execute the abovementioned search orders. The Latvijas Republikas Ģenerālprokuratūra (Prosecutor General’s Office of the Republic of Latvia; ‘the Prosecutor General’s Office of the Republic of Latvia’) validated that EIO and transmitted it to the Staatsanwaltschaft Berlin (Berlin Public Prosecutor’s Office, Germany; ‘the Berlin Public Prosecutor’s Office’).

4.16. Seised by the Berlin Public Prosecutor’s Office, the Amtsgericht Berlin-Tiergarten (Local Court, Berlin-Tiergarten, Germany) ordered the search of the business premises of FF and WBS. Those searches were conducted on 13 May 2019 and resulted in the freezing of a large amount of evidence.

5.17. In the main proceedings, WBS brought an action before the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), the referring court, seeking, inter alia, a declaration that the surrender to the Republic of Latvia of the evidence gathered in execution of the EIO at issue in Germany was inadmissible.

6.18. In support of its application, WBS relied, inter alia, on the judgment in Spetsializirana prokuratura in which the Court held that an EIO concerning an investigative measure the adoption of which is reserved to the courts under the law of the issuing State could be issued only by a court. In the present case, the EIO at issue was issued by the KNAB, which is not a court, whereas, under Latvian law, the adoption of search measures leading to the freezing of evidence in a domestic case is reserved to the courts. In that context, the validation of that EIO by the Prosecutor General’s Office of the Republic of Latvia was carried out pursuant to an EIO adopted by an authority which lacked competence.

7.19. The Berlin Public Prosecutor’s Office asked the Prosecutor General’s Office of the Republic of Latvia whether, where appropriate, the EIO at issue could be re-issued but this time by a court. The latter replied in the negative on the ground that there was no legal basis for that under Latvian law. In that context, the referring court ordered the suspension of the surrender of the evidence gathered.

Before ruling on the admissibility of the mutual assistance measure, that court would like to ascertain whether, as WBS submits, the principles deriving from the judgment in <i>Spetsializirana prokuratura</i> must apply in the case in the main proceedings, which might lead it to conclude that the surrender of evidence in execution of the EIO at issue should not be permitted, or whether, as the KNAB submits, the prior validation of the investigative measures by a court in the issuing State, in accordance with the obligations to make assessments and state reasons in Directive 2014/41, is sufficient for the purposes of surrendering that evidence.

21.In those circumstances, the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Can a [EIO] concerning a measure reserved to the courts under the law of the issuing State be issued by another competent authority, within the meaning of Article 2(c)(ii) of Directive [2014/41], in collaboration with a non-judicial validating authority, if a court of the issuing State has previously authorised the investigative measure in compliance with the obligations provided for in Directive [2014/41] to make assessments and state reasons?’

22.Written observations were submitted to the Court by WBS, the German, Estonian, Latvian, Polish and Portuguese Governments and the European Commission. With the exception of the Estonian and Portuguese Governments, those parties and the Swedish Government also presented oral argument at the hearing held on 13 November 2024.

Analysis

23.By its question for a preliminary ruling, the referring court asks, in essence, whether Article 2(c)(ii) of Directive 2014/41 must be interpreted as meaning that a non-judicial authority which, in accordance with its national law, issues specific investigative measures which, before being executed in another Member State, are validated by a judicial authority, may be classified as an ‘issuing authority’ within the meaning of that provision, whereas the adoption of such investigative measures in a purely domestic case falls within the sole competence of the judicial authorities.

In my view, that question must be answered in the affirmative for the reasons which I shall set out below.

Preliminary observations

25.At the outset, it should be recalled that Directive 2014/41 replaced the previous fragmented and complicated framework for the gathering of evidence in cases with a cross-border dimension by the establishment of a simplified and more effective system based on a single instrument, namely the EIO. The aim of that system is to facilitate and accelerate judicial cooperation with a view to contributing to the attainment of the objective set for the European Union to become an area of freedom, security and justice, and has as its basis the high level of trust which must exist between the Member States. Thus, the EIO is an instrument falling within the scope of judicial cooperation in criminal matters referred to in Article 82(1) TFEU, which is based on the principle of mutual recognition of judgments and judicial decisions. That principle, which constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is itself based on mutual trust and on the rebuttable presumption that other Member States comply with EU law and, in particular, fundamental rights.

26.In that context, Article 1(1) of Directive 2014/41 defines a ‘European Investigation Order’ as a ‘judicial decision’ which has been issued or validated by a judicial authority of the issuing State to have one or several specific investigative measure(s) carried out in the executing State to obtain evidence, including evidence that is already in the possession of the competent authorities of that Member State.

27.Under Article 1(2) of Directive 2014/41, Member States are required to execute an EIO on the basis of the principle of mutual recognition and in accordance with the provisions of that directive. Under Article 9(1) of that directive, the executing authority is required 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. Under that provision, that authority may decide not to execute an EIO in reliance on one of the grounds for non-recognition or non-execution or on one of the grounds for postponement provided for in that directive. Moreover, Article 9(3) of Directive 2014/41 provides that, where an executing authority receives an EIO which has not been issued by an issuing authority as specified in Article 2(c) of that directive, the executing authority is required to return the EIO to the issuing State.

28.In that regard, Article 2(c) of Directive 2014/41 defines, for the purposes of that directive, the concept of ‘issuing authority’. Thus, that article states that such an authority may be either, under point (i) thereof, ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’, or, under the first sentence of point (ii) thereof, the interpretation of which is the subject of this reference for a preliminary ruling, ‘any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law’.

29.It also follows from the second sentence of Article 2(c)(ii) of that directive that, where an EIO is issued by a non-judicial authority, before it is transmitted to the executing authority, that order must be validated by a judicial authority, within the meaning of Article 2(c)(i) of that directive, which is required to examine the conformity of that order with the conditions for issue under Directive 2014/41, in particular the conditions set out in Article 6(1) thereof. Lastly, the third sentence of that provision provides that the judicial authority which has validated such an EIO ‘may also’ be regarded as an issuing authority for the purposes of transmission of the EIO.

30.It follows from the foregoing that a non-judicial authority, such as an administrative authority, is, in principle, capable of falling within the concept of an ‘issuing authority’, within the meaning of Article 2(c)(ii) of Directive 2014/41, under the conditions noted in the preceding point of this Opinion, namely, first, that it is competent to act as an investigating authority in criminal proceedings and, secondly, that its EIO is validated by a judicial authority before it is transmitted to the executing State.

31.In the present case, it is common ground that the KNAB, which is not a judicial authority, acted, under Latvian law, as the investigating authority in the criminal proceedings. Similarly, before its transmission to the executing State, the EIO at issue was validated by the Prosecutor General’s Office of the Republic of Latvia, whose status as a ‘judicial authority’ within the meaning of Article 2(c)(i) of that directive is not in doubt.

32.However, the doubts expressed by the referring court concern, in essence, whether the KNAB satisfies the condition, laid down in Article 2(c)(ii) of that directive and referred to in point 28 of this Opinion, of being an authority ‘with competence to order the gathering of evidence in accordance with national law’, in so far as, under Latvian law, in national criminal proceedings, the investigative measures at issue in the main proceedings, namely searches, although based on a proposal by the competent investigating authority, such as the KNAB, must be conducted following a decision by an investigating judge or a court, and therefore fall within the exclusive competence of the judicial authorities.

33.That question arises a fortiori since, in the judgment in <i>Spetsializirana prokuratura</i>, the Court held that Article 2(c)(i) of Directive 2014/41 must be interpreted as precluding a public prosecutor from having competence to issue an EIO seeking to obtain traffic and location data associated with telecommunications, where, in a domestic case, the judge has exclusive competence to adopt an investigative measure seeking access to such data.

34.In accordance with the settled case-law of the Court, in interpreting that provision it is necessary to consider not only its wording but also its context and the objectives of the legislation of which it forms part, and in particular the origin of that legislation.

Literal interpretation

35.As regards, in the first place, the wording of Article 2(c)(ii) of Directive 2014/41, referred to in point 28 of this Opinion, it should be observed that that provision does not provide that, in order to fall within the concept of ‘issuing authority’, an administrative authority must necessarily be the authority with competence to adopt those same measures in a domestic case.

36.That provision does not require that an EIO is necessarily issued by the authority which would actually have been competent to order the gathering of evidence ‘in a similar domestic case’, as WBS and the Commission essentially maintain, but merely states that that authority must have the competence to order the gathering of that evidence ‘in accordance with national law’. Those two sentences cannot be regarded as synonymous, since the words ‘with competence to order the gathering of evidence in accordance with national law’ make no reference to any equivalence with a similar domestic case. Nor, moreover, does that provision preclude the issuing of an EIO by an authority which, under the law of the issuing State, is competent to act as an investigating authority, but is not the authority which would have ordered the same measure in a domestic situation.

37.In that regard, as recalled in point 25 of this Opinion, the system established by Directive 2014/41 is based on mutual trust and on the rebuttable presumption that other Member States comply with EU law. That is why Article 2(c)(ii) of that directive leaves it to the issuing State alone to ‘define’ the competent non-judicial authorities and expressly refers to its national law for that purpose, while specifying the various substantive conditions which that law must prescribe. Accordingly, it is for the issuing State alone to define which non-judicial authorities would be competent to issue an EIO, provided that the criteria set out in Article 2(c)(ii) of that directive are met. An interpretation to the contrary cannot be accepted, otherwise that provision and, in particular, the principle of mutual recognition would be deprived of all practical effect.

38.It is therefore solely in the light of the criteria set out in Article 2(c)(ii) of Directive 2014/41, which have been recalled in point 30 of this Opinion, that it must be assessed whether an administrative authority, such as the KNAB, may be classified as an ‘issuing authority’ within the meaning of that directive. That appears to be the case here.

39.First, the KNAB is undoubtedly vested with responsibilities enabling it to act in its ‘capacity as an investigating authority’ within the meaning of Article 2(c)(ii) of Directive 2014/41, since, under national law, it acts as the ‘person directing the proceedings’ during the pre-trial stage of criminal proceedings with regard to combating corruption, whether in the context of criminal proceedings with a national or cross-border dimension. In that regard, it follows from the written and oral observations of the Latvian Government that, under section 27 of the Code of Criminal Procedure, as the ‘person directing the proceedings’, the KNAB (1) organises the conduct of criminal proceedings and the management of the related documents; (2) takes decisions on the direction of the criminal proceedings; (3) exercises public authority itself or through other officials at the relevant stage of the criminal proceedings; (4) requires all persons to comply with their obligations in respect of criminal proceedings and procedural rules; (5) ensures that persons involved in criminal proceedings are able to exercise the rights provided for by law.

40.That finding cannot be called into question by the fact that, under Latvian law, in the context of investigative measures which are capable of resulting in an interference in the life of an individual, such as searches, the KNAB may not adopt such measures but may only propose them to the investigating judge, who alone is competent to adopt them. As the Latvian Government has explained, the investigating judge’s decision consists of an ‘authorisation’ for the search proposed by the KNAB, rather than an independent decision based on the investigating judge’s independent assessment of the facts of the investigation in question. More specifically, it follows from the observations of the Latvian Government that, in the Latvian system of criminal procedure, the investigating judge carries out a review primarily of compliance with human rights in criminal proceedings and not of the appropriateness of the various investigative measures. Consequently, again according to the Latvian Government, the fact that the investigating judge is the authority ordering the search does not mean that national law confers on that judge the responsibility for conducting the investigation in criminal proceedings instead of the ‘person directing the proceedings’. The KNAB therefore remains the ‘person directing the proceedings’ who is responsible for proposing investigative measures and assessing whether they are necessary in order to achieve the objective pursued by that investigation.

41.Secondly, it also cannot be disputed that the condition laid down in the second sentence of Article 2(c)(ii) of Directive 2014/41, that an EIO must be validated by a judicial authority, is also satisfied. As is clear from the usual meaning of the term ‘validation’, that process requires the judicial authority to confirm the legal validity of an EIO. In accordance with Latvian law, the EIO at issue was validated by the Prosecutor General’s Office of the Republic of Latvia, which, after having verified that the evidence sought and the investigative measures chosen were necessary and proportionate for the purposes of the investigation, transmitted it to the Berlin Public Prosecutor’s Office for its execution in Germany. It is that act of validation which forms the basis of that EIO and which confers on it the classification of a ‘judicial decision’ required by Article 1(1) of that directive. Thus, it seems to me to be irrelevant that, in a similar domestic case, those investigative measures should have been issued by a judicial authority, since the validation of the EIO at issue by the Prosecutor General’s Office makes it possible to assimilate the public prosecutor’s office with the author of that order. That is precisely why the third sentence of Article 2(c)(ii) of that directive provides that, where the investigation order has been validated by a judicial authority, that authority ‘may’ also be regarded as an ‘issuing authority’ for the purposes of transmission of the EIO, the EU legislature having left that option to the discretion of the Member States.

42.It follows from the foregoing that, in the light of its wording, Article 2(c)(ii) of Directive 2014/41 does not preclude a non-judicial authority which, in accordance with its national law, issues specific investigative measures which, before being executed in another Member State, are validated by a judicial authority, from being classified as an ‘issuing authority’ within the meaning of that provision, even where the adoption of such investigative measures in a purely domestic case would have fallen within the sole competence of the judicial authorities.

Contextual interpretation

43.In the second place, that interpretation is in no way invalidated by the <i>context</i> of Article 2(c)(ii) of Directive 2014/41. In that regard, it should be recalled that the second sentence of that provision expressly provides that, as part of its validation of the EIO, the judicial authority is required to examine the conformity of that order with the conditions of issue laid down by that directive, in particular those laid down in Article 6(1) thereof. None of those conditions of issue appears to preclude a non-judicial authority, such as the KNAB, which issues investigative measures validated by a judicial authority, from being classified as an ‘issuing authority’, where the adoption of such measures in the context of domestic proceedings would have fallen within the competence of the judicial authorities.

44.First, in accordance with Article 6(1) of Directive 2014/41, read in conjunction with Article 2(c) and recital 11 of that directive, the validation of an EIO, like its issuing, is subject to two cumulative conditions, namely, first, under Article 6(1)(a) of that directive, that the issuing of the EIO is necessary and proportionate for the purpose of the proceedings, inter alia criminal proceedings, referred to in Article 4 of that directive, taking into account the rights of the suspected or accused person and, secondly, under Article 6(1)(b) of that directive, that the investigative measures indicated in the EIO could have been ordered under the same conditions in a similar domestic case. Under Article 6(2) of Directive 2014/41, those two conditions are to be assessed by the issuing authority in each case.

45.While those provisions do not specify how and at what stage of the criminal proceedings the conditions laid down in Article 6(1) of Directive 2014/41 must be met, since those rules necessarily fall within the procedural autonomy of the issuing State, it follows from a combined reading of Article 2(c)(ii), Article 6(1) and (2) and recital 11 of that directive that compliance with those conditions must be assessed both by the non-judicial authority, at the stage of preparing the EIO and in particular of proposing specific investigative measures, and by the judicial authority, at the stage of validating the EIO. That finding is, moreover, corroborated by the fact that the EIO must be ‘validated’ by a judicial authority, the term ‘validation’ necessarily implying confirmation of an initial assessment carried out by the non-judicial authority. That finding supports an interpretation according to which, where such validation exists, that directive does not require the issuing authority to also be competent to order the measures concerned in a domestic case. The EIO must be understood as referring to the act in the form which it takes when it is executed, namely after it has been validated by the judicial authority, since before that stage it does not produce legal effects and cannot be transmitted.

46.In the present case, there is nothing to suggest that those conditions laid down in Article 6 of Directive 2014/41 would not be satisfied in the main proceedings.

47.As regards the first condition, referred to in Article 6(1)(a) of that directive, which concerns, first, the necessity and proportionality for the purpose of the proceedings, it should be noted, as is apparent from the observations submitted by the Latvian Government, that the KNAB obtained the necessary judicial authorisations from the Latvian court for the search measures referred to in the investigation order prior to issuing the EIO at issue. Secondly, as regards the consideration given to the rights of the suspected or accused person, there is nothing in the file submitted to the Court to suggest that the judicial review of the EIO at issue was not capable of ensuring such respect for fundamental rights. On the contrary, it would appear that, in an equivalent domestic case, that EIO would be the subject of a double judicial review, first by the investigating judge and secondly by the Prosecutor General’s Office of the Republic of Latvia, and that that review was based on all the information provided by the non-judicial authority.

48.As regards the second condition, referred to in Article 6(1)(b) of Directive 2014/41, it is also apparent from the information in the documents before the Court that the same investigative measures indicated in the EIO at issue could have been ordered in a similar domestic case, since the KNAB could have proposed those same measures for adoption by the investigating judge. Moreover, the Court has already held that, through the use of the words ‘under the same conditions’ and ‘in a similar domestic case’, Article 6(1)(b) of that directive makes the determination of the precise conditions required in order for an EIO to be issued dependent on the national law of the issuing State alone. That provision seeks to ensure that the rules and guarantees provided for by the national law of the issuing State are not circumvented. No risk of such circumvention can arise from the fact that the EIO is adopted by a non-judicial authority, when it is subsequently validated by a judicial authority.

49.Secondly, beyond the conditions laid down in Article 6(1) of Directive 2014/41, the issuing authority must provide additional explanations in the context of certain specific investigative measures. Thus, Article 26(5) of that directive requires, in respect of information on bank and other financial accounts, the issuing authority to indicate the reasons why it considers that the requested information is likely to be of substantial value for the purpose of the criminal proceedings concerned. Moreover, Article 27(4) and Article 28(3) of that directive also provide, as regards, respectively, information on banking and other financial operations and investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time, that that authority must indicate the reasons why it considers the requested information relevant for the purpose of the criminal proceedings concerned. Those explanations may be provided by a non-judicial authority, irrespective of the fact that, where applicable, in a domestic case, decisions ordering the production of such information would be taken by a judicial authority.

50.Thirdly, Article 14(1) of Directive 2014/41, read in the light of recital 22 thereof, imposes a general obligation on 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 an EIO. Moreover, in accordance with Article 14(3) of that directive, the issuing authority must ensure that the persons concerned by such an order are given sufficient information as to the remedies and time limits for challenging that order laid down by national law, in order to guarantee that their right to a remedy can be exercised effectively. Lastly, under Article 14(7) of that directive, the issuing State must take into account a successful challenge against the recognition or execution of 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. In my view, those obligations to provide information and of respect for the rights of the defence may just as well be carried out by a non-judicial authority, under the supervision of a judicial authority, irrespective of whether the former may order equivalent investigative measures in a similar domestic case.

51.As regards, in the third place, the <i>objective pursued</i> by Directive 2014/41, it seems to me that the interpretation proposed in point 42 of this Opinion is, moreover, apt to ensure the full attainment of that objective, as recalled in point 25 of this Opinion, of establishing a simplified and more effective system based on the EIO, in order to facilitate and accelerate judicial cooperation and thus to contribute to the attainment of the objective of becoming an area of freedom, security and justice on the basis of the principles of mutual trust and mutual recognition.

52.In that regard, the objective relating to simplified and effective cooperation between the Member States requires simple and unequivocal identification of the authority which has issued an EIO for the purpose of determining whether or not such an order must be validated by a judicial authority pursuant to Article 2(c)(ii) of Directive 2014/41. An interpretation based solely on a finding that a non-judicial authority has been ‘defined’ by the issuing State as competent to act as an investigating authority, within the meaning of Article 2(c)(ii) of that directive, makes it possible to determine unequivocally whether an authority falls within point (ii) of that provision, solely on the basis of the choice made by the issuing authority and not on the basis of the nature of the evidence concerned. An interpretation to the contrary would, first, lead to a ‘fragmentation’ of the system, in that different ‘issuing authorities’ could be competent in the context of one and the same investigation, depending on the nature of the various investigative measures and the procedural law applicable to them and, secondly, give rise to legal uncertainty and could make the system for implementing the EIO more complex and, in so doing, jeopardise the establishment of a simplified and effective system of cooperation between the Member States in criminal matters.

53.Next, to that end, it should be recalled that recital 10 of Directive 2014/41 identifies the issuing authority as being ‘best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which investigative measure is to be used’. Thus, there is no doubt that, where a Member State chooses to confer powers on a non-judicial authority to act as an investigating authority, that authority is ‘best placed’, in the particular context of the internal organisation of criminal proceedings, to have a better knowledge of the various details of the investigation enabling it to adopt the investigative measures best suited to the purpose of that investigation and to react quickly to the various procedural situations that may arise. In that situation, it cannot be maintained, as WBS does, that the adoption of the EIO would be much more effective or simpler if the investigating judge, as the issuing authority, had adopted the EIO at issue, in accordance with Article 2(c)(i) of Directive 2014/41. For example, where an EIO is challenged by an interested party in the executing State in respect of the substantive reasons for issuing that EIO, the non-judicial authority in charge of the investigation must be able to receive the information about the challenge, and this will be more effective than a situation where such transmission is made through another authority which is not the one conducting the investigation. Similarly, where the execution of an EIO gives rise to exceptionally high costs for the executing State, arising in particular from complex experts’ opinions or extensive police operations or surveillance activities over a long period of time, the issue of costs might become the subject of consultations between the issuing State and the executing State. In the context of such consultations, the non-judicial authority in charge of the investigation is certainly best placed to assess the usefulness of maintaining and extending an EIO, in particular in the light of the progress made in the investigation.

54.Lastly, in that regard, it should be noted that, in some Member States, the investigating judge does not play a central role in the investigative procedure but comes into contact with the investigation only sporadically, inter alia to authorise certain investigative measures requested by the Public Prosecutor’s Office. As a result, that court has access to the case file only at the time when it issues its decision and therefore has only limited knowledge of the investigation. That court cannot familiarise itself either with the areas of investigation which are not concerned by its decision or with developments which occur after the adoption of that decision. To require that court to be the issuing authority for the EIO would lead to a slowdown in mutual legal assistance process, in particular in the event of a request by the executing authority made under the first sentence of Article 6(3) of Directive 2014/41. As the referring court rightly points out, if only the investigating court is regarded as an ‘issuing authority’ and the executing authority comes back to it with a request for clarification under the first sentence of Article 6(3) of that directive, the investigating court will be obliged to ask the non-judicial authority conducting the investigation to send it the case file and will also have to (re)familiarise itself with the investigation and its progress. Complications could also arise in situations where, as in the present case, the investigative measures do not fall exclusively within the jurisdiction of the courts and may be adopted by other authorities, with the result that the executing authority for a single case could find itself seised of two European Investigation Orders issued by two different interlocutors.

55.In the fourth place, the literal, contextual and teleological interpretation is corroborated by the <i>legislative history</i> of Directive 2014/41. As a reminder, in the preparation of the draft legislation following the initial proposal for the directive submitted by seven Member States, the Council noted that several Member States opposed the provision introducing the obligation to recognise EIOs issued by non-judicial authorities, but that, ‘taking into account the chosen legal basis for [that] proposal’, a compromise was reached based on the introduction of a compulsory validation procedure in respect of the conformity of the EIO with the conditions for issuing an EIO, where the EIO is issued by a competent authority other than a judge, a prosecutor or an investigating magistrate. It follows that that choice was made in the interests of respect for the procedural autonomy of the Member States and the diversity of national systems, and in particular the fact that, in some Member States, the investigation procedure is conducted not by the courts but by the Public Prosecutor’s Office or administrative authorities.

56.In the light of all the foregoing considerations, I consider that the answer to the question referred is that Article 2(c)(ii) of Directive 2014/41 does not preclude a non-judicial authority which, in accordance with its national law, issues specific investigative measures from being classified as an ‘issuing authority’ of an EIO, within the meaning of that provision, even where the adoption of such investigative measures in a domestic case would have fallen within the sole competence of the judicial authorities, provided that those investigative measures are validated before the EIO is issued by a judicial authority which has assessed that all the conditions for issuing and transmitting the EIO provided for by that directive are met.

57.In the fifth place and lastly, I note that, contrary to what is claimed, in essence, by WBS and the Commission, that conclusion cannot be invalidated by the judgment in <i>Spetsializirana prokuratura</i>, by which the Court held that Article 2(c)(i) of Directive 2014/41 must be interpreted as precluding a public prosecutor from having competence to issue 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.

First of all, as the referring court rightly observes, in the case which gave rise to that judgment, the authority which issued the EIO was an ‘issuing authority’ within the meaning of Article 2(c)(i) of Directive 2014/41, namely the Bulgarian Public Prosecutor’s Office, whereas, in the present case, the issuing authority is an ‘other competent authority’ within the meaning of Article 2(c)(ii) of that directive. That distinction implies that the scope of the principles set out by the Court, in particular in paragraphs 29 and 30 of that judgment, by which the Court analysed the wording of Article 2(c)(i) of that directive, are logically limited to judicial authorities and cannot be transposed to non-judicial authorities. In other words, that judgment requires ‘parallelism’, in terms of hierarchical rank, between the authority with competence to adopt the EIO and the authority with competence to adopt the same investigative measures in a domestic case, but only where both those authorities are judicial authorities.

Next, like the referring court, I note that the present case differs from that which gave rise to the judgment in <i>Spetsializirana prokuratura</i> in that the search measure at issue, the adoption of which is reserved to the courts under Latvian law, was, prior to its issue, authorised by an investigating judge and subsequently validated by the Prosecutor General’s Office of that Member State, which deemed it necessary and proportionate. By contrast, in the case which gave rise to the judgment in <i>Spetsializirana prokuratura</i>, the Bulgarian Public Prosecutor’s Office had issued, as the issuing authority within the meaning of Article 2(c)(i) of Directive 2014/41, four European Investigation Orders concerning the collection of traffic and location data relating to telecommunications, without first requesting the involvement of a Bulgarian court, whereas, in a similar domestic case, the Belgian Public Prosecutor’s Office could have ordered such measures only with the authorisation of such a court. Accordingly, that fact means that the grounds relied on by the Court, in paragraphs 32 to 38 of that judgment, which are dedicated to an analysis of the context of and the objectives pursued by that directive, are neither applicable nor relevant to the present case.

With regard, first, to the contextual analysis carried out by the Court in paragraphs 32 to 35 of the judgment in <i>Spetsializirana prokuratura</i> concerning Article 6(1) of Directive 2014/41, it should be noted, as has been done in points 44 to 48 of this Opinion, that the conditions referred to in that provision do not appear to be relevant in the present case. In the present case, the KNAB, acting as the ‘person directing the investigation procedure’, and therefore being the authority with competence to order the investigative measure under national law, fulfilled the assessment obligations in relation to the necessity and proportionality of that measure, provided for in Article 6(1)(a) of that directive, since the competent investigating judge stated in her order that the searches to be carried out in Berlin were necessary and proportionate. Thus, unlike the case which gave rise to the judgment in <i>Spetsializirana prokuratura</i>, there was no need, in the present case, to satisfy any particular requirements in respect of the justification for that measure by the authority itself. Moreover, the KNAB issued the EIO at issue in circumstances in which an investigative measure could have been ordered under the same conditions in respect of a similar domestic case, since the investigating judge intervened to authorise the search prior to the issuing of that EIO.

Secondly, nor may any relevance be attributed to the lessons learned from the analysis of the objectives of Directive 2014/41 in paragraphs 36 to 38 of the judgment in <i>Spetsializirana prokuratura</i>, which led the Court to conclude, in the context of the interpretation of Article 2(c)(i) of that directive, that a potential distinction between the authority which issues the EIO and the authority which is competent to order investigative measures in the context of those criminal proceedings would risk complicating the system of cooperation, thereby jeopardising the establishment of a simplified and effective system. On the contrary, as noted in points 52 to 54 of this Opinion, in the context of the interpretation of Article 2(c)(ii) of that directive, the requirement that the authority which issues the EIO must necessarily be the authority with competence to order the investigative measure at issue under national law may, where that authority is a non-judicial authority, complicate that system of cooperation.

Conclusion

In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) as follows:

Article 2(c)(ii) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters must be interpreted as not precluding a non-judicial authority which, in accordance with its national law, issues specific investigative measures from being classified as an ‘issuing authority’ of a European Investigation Order within the meaning of that provision, even where the adoption of such investigative measures in a domestic case would have fallen within the sole competence of the judicial authorities, provided that those investigative measures are validated before the European Investigation Order is issued by a judicial authority which has assessed that all the conditions for issuing and transmitting it provided for by that directive are met.

*

Original language: French.

Directive of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1).

See, in that regard, judgments of 8 December 2020, <i>Staatsanwaltschaft Wien (Falsified transfer orders)</i> (C‑584/19, ‘the judgment in <i>Staatsanwaltschaft Wien</i>’ , EU:C:2020:1002); of 16 December 2021, <i>Spetsializirana prokuratura (Traffic and location data)</i> (C‑724/19, ‘the judgment in <i>Spetsializirana prokuratura</i>’ , EU:C:2021:1020); of 2 March 2023, <i>Staatsanwaltschaft Graz (Düsseldorf Tax Office for Criminal Tax Matters)</i> (C‑16/22, ‘the judgment in <i>Staatsanwaltschaft Graz</i>’, EU:C:2023:148); and of 30 April 2024, <i>M.N. (EncroChat)</i> (C‑670/22, ‘the judgment in <i>EncroChat</i>’, EU:C:2024:372).

Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ 2003 L 196, p. 45).

Council Framework Decision of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ 2008 L 350, p. 72).

<i>Latvijas Vēstnesis</i>, 2005, No 74.

The Berlin Public Prosecutor’s Office would then be required to return the EIO to the Republic of Latvia in accordance with Article 9(3) of Directive 2014/41.

See, inter alia, recitals 5 to 8, 21 and 38 of Directive 2014/41 and judgments in <i>Staatsanwaltschaft Wien</i> (paragraph 39), <i>Spetsializirana prokuratura</i> (paragraph 36), Staatsanwaltschaft Graz (paragraph 42) and <i>EncroChat</i> (paragraph 86).

See judgments in <i>Staatsanwaltschaft Wien</i> (paragraph 41); of 2 September 2021, <i>Finanzamt für Steuerstrafsachen und Steuerfahndung Münster</i> (C‑66/20, EU:C:2021:670, paragraph 39); and in <i>EncroChat</i> (paragraph 71).

Thus, in the case in the main proceedings, to the extent that, as was noted in paragraphs 32 and 35 above, the fact that the operating resources necessary for the pursuit of the economic activity were not transferred does not necessarily preclude the entity at issue in the main proceedings from retaining its identity, the taking-over of the majority of the drivers must be regarded as a factual circumstance to be taken into account in order to classify the transaction concerned as a transfer of an undertaking. In this respect, it is apparent from the facts at issue in the main proceedings that the members of staff taken on by the new operator are assigned to the same or similar tasks and hold specific qualifications and skills which are essential to the pursuit, without interruption, of the economic activity concerned.

In the light of all the foregoing considerations, the answer to the questions referred is that Article 1(1) of Directive 2011/23 must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

* * *

(1) Language of the case: French.

(2) Directive of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1).

(3) See, in that regard, judgments of 8 December 2020, <i>Staatsanwaltschaft Wien (Falsified transfer orders)</i> (C‑584/19, ‘the judgment in <i>Staatsanwaltschaft Wien</i>’ , EU:C:2020:1002); of 16 December 2021, <i>Spetsializirana prokuratura (Traffic and location data)</i> (C‑724/19, ‘the judgment in <i>Spetsializirana prokuratura</i>’ , EU:C:2021:1020); of 2 March 2023, <i>Staatsanwaltschaft Graz (Düsseldorf Tax Office for Criminal Tax Matters)</i> (C‑16/22, ‘the judgment in <i>Staatsanwaltschaft Graz</i>’, EU:C:2023:148); and of 30 April 2024, <i>M.N. (EncroChat)</i> (C‑670/22, ‘the judgment in <i>EncroChat</i>’, EU:C:2024:372).

(4) Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ 2003 L 196, p. 45).

(5) Council Framework Decision of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ 2008 L 350, p. 72).

(6) <i>Latvijas Vēstnesis</i>, 2005, No 74.

(7) The Berlin Public Prosecutor’s Office would then be required to return the EIO to the Republic of Latvia in accordance with Article 9(3) of Directive 2014/41.

(8) See, inter alia, recitals 5 to 8, 21 and 38 of Directive 2014/41 and judgments in <i>Staatsanwaltschaft Wien</i> (paragraph 39), <i>Spetsializirana prokuratura</i> (paragraph 36), Staatsanwaltschaft Graz (paragraph 42) and <i>EncroChat</i> (paragraph 86).

(9) See judgments in <i>Staatsanwaltschaft Wien</i> (paragraph 41); of 2 September 2021, <i>Finanzamt für Steuerstrafsachen und Steuerfahndung Münster</i> (C‑66/20, EU:C:2021:670, paragraph 39); and in <i>EncroChat</i> (paragraph 71).

(10) See, to that effect, judgment in <i>EncroChat</i> (paragraphs 90 to 93).

(paragraph 97).

28See judgment in <i>Spetsializirana prokuratura</i> (paragraph 33).

29See judgment in <i>Staatsanwaltschaft Wien</i> (paragraphs 60 and 61).

30See judgment in <i>Staatsanwaltschaft Wien</i> (paragraph 62).

31See judgment of 24 October 2019, <i>Gavanozov</i> (C‑324/17, EU:C:2019:892, paragraph 35). See, also, point 25 of this Opinion.

32See, by analogy, judgment in <i>Staatsanwaltschaft Graz</i> (paragraphs 43 and 45).

33See, to that effect, judgment in <i>Spetsializirana prokuratura</i> (paragraph 37).

34See, in that regard, recital 22 of Directive 2014/41.

35See, in that regard, recital 23 of Directive 2014/41.

36See, in particular, the Federal Republic of Germany, and in contrast to other legal traditions, such as in France, where the investigating judge is generally responsible for the investigation.

37See, inter alia, Article 2(a)(ii) of the initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council of … regarding the [EIO] in criminal matters (OJ 2010 C 165, p. 22).

38See Council progress report of 26 November 2010 (16868/10 COPEN 266 EUROJUST 135 EJN 68 CODEC 1369), p. 5.

39See, in that regard, footnote 16 of this Opinion, as well as Bachmaier Winter, L., ‘Further Mutual Assistance: The European Investigation Order’, in Ambos, K. and Rackow, P. (ed.), <i>The Cambridge Companion to European Criminal Law</i>, Cambridge University Press, Cambridge, 2023, pp. 292 to 293, and Gogorza, A., ‘Décision d’enquête européenne – La relativité de la notion européenne d’autorité judiciaire’, <i>Droit pénal</i>, Lexis Nexis, No 2, 2021, p. 44.