Provisional text

delivered on 26 June 2025 (1)

Case C‑325/24 [Bissilli] (i)

HG

Criminal proceedings

other party:

Procura della Repubblica presso il Tribunale di Firenze

(Request for a preliminary ruling from the Tribunale ordinario di Firenze (District Court, Florence, Italy))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/41/EU – European Investigation Order in criminal matters – Material scope – Concept of ‘investigative measure’ – Article 24 – Hearing of the accused person by videoconference – Article 10 – Recourse to a different type of investigative measure – Article 11(1)(f) – Grounds for non-recognition or non-execution – Fundamental rights – Article 24(2)(b) – Fundamental principles of the law of the executing Member State – Article 22 – Temporary transfer of the person in custody to the issuing Member State for the purpose of carrying out an investigative measure – Charter of Fundamental Rights of the European Union – Article 47 – Right to a fair trial )

I.Introduction

1.The present request for a preliminary ruling concerns the interpretation of Article 3, Article 10, Article 11(1)(f), Article 22(1) and Article 24 of Directive 2014/41/EU regarding the European Investigation Order in criminal matters (‘EIO’), (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2.The request has been made in the context of a request for execution, in Belgium, of an EIO issued by the Tribunale ordinario di Firenze (District Court, Florence, Italy), the referring court, concerning HG, a person held in custody in Belgium, for the purposes of criminal proceedings (‘the EIO at issue’). More specifically, by that EIO, the aim of the Tribunale Ordinario di Firenze (District Court, Florence), in accordance with Article 24 of Directive 2014/41, was for the Belgian judicial authorities in cooperation with that court, to conduct by videoconference a hearing of HG, as the accused person, with a view, first, to gathering evidence, by means of his examination and, second, to enabling that person to participate in his trial, taking the view that that EIO was an effective alternative to a European arrest warrant (‘EAW’), given that the conditions for issuing the latter were no longer met. (3) Moreover, the referring court requested, as an alternative to the hearing by videoconference, a temporary transfer to Italy in accordance with Article 22 of that directive. The Belgian judicial authorities refused to execute that EIO, arguing that the investigative measure requested did not exist under Belgian law and that the appearance of the accused person by videoconference would, under that same national law, be contrary to the fundamental right to a fair trial. The alternative request for a temporary transfer was also refused on the ground that the hearing of the accused person at the trial did not constitute an investigative measure under Belgian law. The referring court, considering that the position of the Belgian judicial authorities did not comply with the provisions of that directive which exhaustively identify the grounds for non-recognition or non-execution of an EIO, has referred a number of questions for a preliminary ruling concerning the compatibility of those refusals.

3.Although the Court of Justice has already had occasion to provide clarification on the material scope of the EIO and, in particular, the scope of the concept of ‘investigative measure’, the execution of which may be requested in the context of such an EIO, (4) the present case will enable it, for the first time, to examine, first, the relationship between the various grounds for refusal provided for in Directive 2014/41 and, second, the question of the compatibility, in criminal matters, of the appearance of an accused person by videoconference with regard to fundamental rights, a question which, moreover, has already been the subject of numerous judgments delivered by the European Court of Human Rights (‘the ECtHR’). (5)

II.Legal framework

A.Directive 2014/41

4.Recitals 6 to 8, 10, 12, 19, 24 to 26 and 34 of Directive 2014/41 state:

‘(6) In the Stockholm Programme adopted by the European Council of 10-11 December 2009, the European Council considered that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. …

(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 … with a view to gathering evidence.

(8) The EIO should have a horizontal scope and therefore should apply to all investigative measures aimed at gathering evidence. …

…

(10) The EIO should focus on the investigative measure to be carried out. 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. However, the executing authority should, wherever possible, use another type of investigative measure if the indicated measure does not exist under its national law or would not be available in a similar domestic case. … The executing authority may also have recourse to another type of investigative measure where it would achieve the same result as the investigative measure indicated in the EIO by means implying less interference with the fundamental rights of the person concerned.

…

(12) When issuing an EIO the issuing authority should pay particular attention to ensuring full respect for the rights as enshrined in Article 48 of [the Charter]. The presumption of innocence and the rights of defence in criminal proceedings are a cornerstone of the fundamental rights recognised in the Charter within the area of criminal justice. Any limitation of such rights by an investigative measure ordered in accordance with this Directive should fully conform to the requirements established in Article 52 of the Charter with regard to the necessity, proportionality and objectives that it should pursue, in particular the protection of the rights and freedoms of others.

…

(19) The creation of an area of freedom, security and justice within the Union is based on mutual trust and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.

…

(24) The EIO establishes a single regime for obtaining evidence. Additional rules are however necessary for certain types of investigative measures which should be indicated in the EIO, such as the temporary transfer of persons held in custody, hearing by video or telephone conference …

(25) This Directive sets out rules on carrying out, at all stages of criminal proceedings, including the trial phase, of an investigative measure, if needed with the participation of the person concerned with a view to collecting evidence. For example an EIO may be issued for the temporary transfer of that person to the issuing State or for the carrying out of a hearing by videoconference. However, where that person is to be transferred to another Member State for the purposes of prosecution, including bringing that person before a court for the purpose of the standing trial, [an EAW] should be issued in accordance with [Framework Decision 2002/584].

(26) With a view to the proportionate use of an EAW, the issuing authority should consider whether an EIO would be an effective and proportionate means of pursuing criminal proceedings. The issuing authority should consider, in particular, whether issuing an EIO for the hearing of a suspected or accused person by videoconference could serve as an effective alternative.

…

(34) This Directive, by virtue of its scope, deals with provisional measures only with a view to gathering evidence. …’

5.Article 1(1) of that directive provides:

‘[An 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 this Directive.

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

6.Article 3 of that directive provides:

‘The EIO shall cover any investigative measure with the exception of the setting up of a joint investigation team and the gathering of evidence within such a team …’

7.Article 9(2) of that directive provides:

‘The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Directive and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.’

8.Article 10 of Directive 2014/41 is worded as follows:

‘1. The executing authority shall have, wherever possible, recourse to an investigative measure other than that provided for in the EIO where:

(a) the investigative measure indicated in the EIO does not exist under the law of the executing State; or

(b) the investigative measure indicated in the EIO would not be available in a similar domestic case.

…

(c) the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the executing State;

…

3. The executing authority may also have recourse to an investigative measure other than that indicated in the EIO where the investigative measure selected by the executing authority would achieve the same result by less intrusive means than the investigative measure indicated in the EIO.

…

9.Article 11(1) of that directive provides:

‘Without prejudice to Article 1(4), recognition or execution of an EIO may be refused in the executing State where:

…

(f) there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter;

…’

10.Article 22(1) and (2) of that directive provides:

‘1. An EIO may be issued for the temporary transfer of a person in custody in the executing State for the purpose of carrying out an investigative measure with a view to gathering evidence for which the presence of that person on the territory of the issuing State is required, provided that he shall be sent back within the period stipulated by the executing State.

(a) the person in custody does not consent; or

(b) the transfer is liable to prolong the detention of the person in custody.’

11.Article 24(1) to (5) of that directive is worded as follows:

‘1. Where a person is in the territory of the executing State and has to be heard as a witness or expert by the competent authorities of the issuing State, the issuing authority may issue an EIO in order to hear the witness or expert by videoconference or other audiovisual transmission in accordance with paragraphs 5 to 7.

The issuing authority may also issue an EIO for the purpose of hearing a suspected or accused person by videoconference or other audiovisual transmission.

(a) the suspected or accused person does not consent; or

(b) the execution of such an investigative measure in a particular case would be contrary to the fundamental principles of the law of the executing State.

3. The issuing authority and the executing authority shall agree the practical arrangements. …

4. If in circumstances of a particular case the executing authority has no access to technical means for a hearing held by videoconference, such means may be made available to it by the issuing State by mutual agreement.

(a) the competent authority of the executing State shall be present during the hearing, where necessary assisted by an interpreter, and shall also be responsible for ensuring both the identity of the person to be heard and respect for the fundamental principles of the law of the executing State.

If the executing authority is of the view that during the hearing the fundamental principles of the law of the executing State are being infringed, it shall immediately take the necessary measures to ensure that the hearing continues in accordance with those principles;

…

(c) the hearing shall be conducted directly by, or under the direction of, the competent authority of the issuing State in accordance with its own laws;

…’

B.Directive (EU) 2016/343

12.Article 8(1) and (2) of Directive (EU) 2016/343 (6) provides:

‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial.

(a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or

(b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.’

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

13.HG is the subject of criminal proceedings in Italy for participation in a criminal organisation and drug trafficking. In particular, he is suspected of having established and directed from Belgium a criminal organisation with operational ramifications in a number of Member States, including Italy, and of having participated, in that context, in drug trafficking. (7)

14.The criminal proceedings brought against HG were referred to the national court.

15.As he did not appear in person before that court during the trial stage of the criminal proceedings, HG was declared absent, since he was aware of the trial and was represented by a lawyer appointed by him.

16.Subsequently, that lawyer made a request for HG to be heard before that court, which ordered that hearing.

17.On 24 May 2022, when only the questioning of HG and the final discussion remained, the Prosecutor’s Office informed that same court that, since 15 February 2022, HG had been placed in provisional detention in Bruges prison (Belgium) in connection with proceedings pending in that Member State.

18.In those circumstances, with the consent of HG, the referring court issued an EIO for the Belgian authorities, in cooperation with that court, to conduct by videoconference a hearing of HG, as the accused person. That hearing, conducted with the assistance of an interpreter, would, in particular, have made it possible to question HG.

20.By letter of 17 February 2023, the Prosecutor’s Office, Bruges (Belgium), informed that court, first, that HG was imprisoned not only in provisional detention but also to serve a sentence and, second, that the EIO which it had issued for the purpose of hearing HG by videoconference would not be executed. Without making any reference to the specific grounds for refusal laid down in Directive 2014/41, the Prosecutor’s Office, Bruges stated, first of all, that Belgian law does not provide for the possibility of hearing an accused person by videoconference in connection with his or her trial, since that person must appear in person before the trial court (8). Next, the Prosecutor’s Office, Bruges recalled that the Belgian legislation transposing Directive 2014/41 makes the possibility of hearing an accused person by videoconference subject to the twofold condition that, first, that person consents to it and, second, the implementation of such a measure is not contrary to the fundamental principles of Belgian law. Lastly, referring to a judgment of the Cour constitutionnelle (Constitutional Court) (Belgium) (9) and to the guidelines issued by the College of Public Prosecutors (Belgium), (10) the Prosecutor’s Office, Bruges, stated that the appearance of an accused person at his or her trial by videoconference would currently be contrary to the right to a fair hearing.

21.As it was not possible for HG to be tried, since his detention abroad was a legitimate impediment to his appearance, his trial was postponed to a later date. In order to overcome that difficult situation, the referring court requested Eurojust’s assistance in the judicial cooperation procedure, which was unsuccessful, however, since the Belgian judicial authorities, first, continued to refuse to hear HG by videoconference and, second, in November 2022, ruled out the possibility of a temporary transfer of the person in custody to Italy, in accordance with a request for an alternative investigative measure to the hearing by videoconference made by Eurojust.

22.In such a context, that court states that it must determine whether that decision refusing execution complies with EU law, with a view to ruling on the appropriateness of issuing a new EIO for the purposes of continuing HG’s trial.

23.In the first place, it notes that, in accordance with Italian law, there is no obligation on the accused person to be present as his or her trial, since the system of trial in absentia has been applicable since its introduction in 2014. (11) Consequently, the trial may be held in the absence of the accused person, provided that it is certain that that person is aware of the trial and that his or her non-participation in the trial is the result of a voluntary choice on his or her part. However, where the person being prosecuted has the right to attend the trial, but is unable to do so as a result, inter alia, of a legitimate impediment, such as his or her detention abroad, the court must postpone the trial until that person’s participation is possible again, unless it obtains from that person a formal and express waiver of the right to appear. Moreover, the participation in the trial of the accused person who is in custody abroad may take place in his or her presence by means of a temporary transfer to Italian territory, (12) or, where provided for by international agreements and in accordance with the rules contained therein, by videoconference.

24.Moreover, in the Italian system of criminal procedure, which is based on the adversarial model of criminal justice, evidence is gathered and entered in the file only during the trial stage before the court and in compliance with the adversarial principle. Therefore, the hearing of the accused person who so requests or consents to it during the trial also has an evidential purpose.

25.Again according to the referring court, the principle of mutual recognition would be thwarted if the executing Member State could call into question the evidential purpose of the investigative measure requested on the basis of its national law and refuse to execute an EIO on the ground that it does not pursue an evidential purpose. In accordance with the principle of mutual recognition, it is for the issuing authority alone to assess whether the measure requested by the EIO pursues an objective of gathering evidence under its national law. Nevertheless, the referring court asks whether it is still possible to issue an EIO where, as in the present case, the hearing of the accused person by videoconference is also intended to ensure his or her participation in the trial.

26.That court considers, in the second place, that it is apparent from the explanations provided by the Prosecutor’s Office, Bruges, that the refusal to execute the EIO at issue is based, first, on the non-availability of the investigative measure indicated in a similar domestic case and, second, on the incompatibility of that measure with the fundamental principles of Belgian law. As regards the first ground for refusal to execute the EIO, that court considers that the hearing of an accused person by videoconference is one of the specific investigative measures referred to in Chapter IV of Directive 2014/41. Unlike the arrangements provided for in that directive for some of those measures, such as covert investigations, Article 24 of that directive, which governs hearings by videoconference, does not provide for a ground for refusal based on the non-availability of the investigative measure in a similar domestic case. As regards the second ground for refusal to execute, the referring court observes that, having regard to Article 24(2)(b) of that directive, the Belgian judicial authorities have not stated the reasons why they consider, in the light, inter alia, of the specific procedural safeguards provided for by Italian law, that such a measure would be contrary to the fundamental principles deriving from Belgian law. The referring court adds that the execution of the EIO it issued could not have been refused on the ground that such an order is incompatible with the fundamental rights of the European Union on the basis of Article 11(1)(f) of Directive 2014/41, without first verifying the compatibility of the relevant provisions of Italian law with the case-law of the ECtHR.

27.The referring court states, in the third and last place, that it is considering, as an alternative investigative measure, issuing an EIO for the temporary transfer of HG to Italy for the purposes of his hearing before it.

28.In those circumstances, the Tribunale ordinario di Firenze (District Court, Florence) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does Article 24 of [Directive 2014/41], read in conjunction with Article 3 [of that directive], permit an EIO to be issued for the hearing by videoconference of an accused person who is in custody in the executing State during the hearing of oral argument, for the purpose of gathering evidence as part of his or her examination and with the additional aim of ensuring that he or she participates in the trial, having regard to the provisions of Article 24 and recitals 25 and 26 [of that directive], in particular where the conditions for issuing an EAW are not met and the national law of the issuing State recognises the right of the accused person to participate in the trial and to be examined, including by videoconference, in order to make statements of probative value?

(2) If the answer to the first question is in the affirmative, can the rule laid down in Article 10 of [Directive 2014/41], which empowers the executing State to refuse the execution of an EIO if the investigative measure would not be authorised in a similar domestic case, be interpreted as empowering the executing State to refuse the execution of an EIO for the hearing of an accused person who is in custody abroad by videoconference in the trial, in the light of Article 24 [of that directive], which governs the specific rules for the hearing by videoconference without including the ground for refusal at issue?

(3) Must Article 11(1)(f) of [Directive 2014/41], read in the light of Article 47 of the Charter, be interpreted as meaning that the execution of an EIO issued for the hearing of an accused person who is in custody abroad by videoconference at the hearing of oral argument cannot be refused if the procedural safeguards applicable to that videoconference under the law of the issuing State are appropriate in the particular case to ensure the accused person’s effective exercise of his or her rights of defence and the fundamental right to a fair trial within the meaning of Article 47 of the Charter?

(4) Can the concept of “fundamental principles of [the law of] the executing State”, which may constitute a special ground for refusal within the meaning of Article 24(2)(b) of [Directive 2014/41], constitute a limit to the execution of any request for hearing an accused person by videoconference in the trial, on the basis of a general national directive binding on all executing authorities, without any assessment of the particular circumstances of the specific case and the requirements contained in the national law of the issuing State to guarantee the rights of defence of the accused person, applicable in the specific case, or, on the contrary, is it incorrect to regard the refusal of execution as an exception which must be interpreted strictly, in relation to specific procedural aspects provided for in the national law of the issuing State or to particular relevant elements of the specific case?

(5) Does Article 22(1) of [Directive 2014/41], read in conjunction with Article 3 of [that directive], permit the issuing of an EIO for the temporary transfer of an accused person who is in custody abroad in order to [enable] him or her to be heard at a hearing of oral argument, where that hearing has investigatory value under the national law of the issuing State?’

29.Written observations were submitted to the Court by the Italian, Belgian, Netherlands and Austrian Governments and by the European Commission. Those parties, with the exception of the Belgian Government, also presented oral argument at the hearing held on 2 April 2025.

32.The Belgian Government, in its written observations, points out, without formally raising a plea of inadmissibility, that the second and third questions referred for a preliminary ruling are hypothetical since they relate to grounds for refusal other than the one on which the refusal to execute the EIO at issue was based. That government notes in that regard that it is clear from the order for reference that the refusal to execute the EIO issued by the referring court was based on the fact that the investigative measure requested was contrary to the fundamental principles of the law of the executing Member State. The second and third questions are said to concern other grounds for refusal, provided for in Article 10 and Article 11(1)(f) of Directive 2014/41 respectively.

33.In that regard, I would point out that, according to the settled case-law of the Court, a question referred for a preliminary ruling concerning EU law enjoys a presumption of relevance. The Court may refuse to rule on such a question only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (13)

34.In the present case, I note, first, that it is clear from the grounds for refusal to execute the EIO at issue, relied on by the Prosecutor’s Office, Bruges, (14) that the latter based that refusal, inter alia, on the non-availability of the investigative measure under Belgian law, which constitutes a general ground for refusal clearly falling within the scope of Article 10 of Directive 2014/41 and, second, the fact that the investigative measure requested is contrary to the fundamental principles of Belgian law is intrinsically linked to the ground for refusal relating to the existence of substantial grounds for believing that the execution of the investigative measure would be incompatible with fundamental rights, under Article 11(1)(f) of that directive.

35.In those circumstances, I consider that all the questions referred for a preliminary ruling by the national court are admissible.

36.B. Substance

37.1. The first question referred for a preliminary ruling

38.By its first question, the referring court asks, in essence, whether Article 24 of Directive 2014/41, read together with Article 3 and in the light of recitals 25 and 26 thereof, permits a judicial authority of a Member State to issue an EIO, the purpose of which is for the competent authorities of another Member State to organise a hearing by videoconference of an accused person during his or her trial with a view, first, to gathering evidence, by means of his or her examination and, second, to enabling that person to participate in that trial.

39.As a preliminary point, I recall that, in accordance with the first subparagraph of Article 1(1) of Directive 2014/41, the EIO is a judicial decision which has been issued or validated by a judicial authority of a Member State to have one or more specific investigative measure(s) carried out in another Member State to obtain evidence. (15) Next, in accordance with Article 3 of that directive, the EIO covers, in principle, any investigative measure. (16) In accordance with recital 8 thereof, the EIO should have inter alia ‘a horizontal scope and therefore should apply to all investigative measures aimed at gathering evidence’. (17) Lastly, it is clear from recital 25 of that directive that the directive sets out rules on carrying out, at all stages of criminal proceedings, including the trial phase, an investigative measure, if needed with the participation of the person concerned, with a view to collecting evidence. By way of example, that recital states that an EIO may be issued for the temporary transfer of that person to the issuing State or for the carrying out of a hearing by videoconference.

40.It follows, in my view, from a combined reading of those provisions that the scope of Directive 2014/41 is very broad as regards both the type of measures the execution of which may be sought by means of an EIO and the stage of the criminal proceedings during which such a step may be taken, which includes the trial stage. (18) However, that directive applies only to measures aimed at enabling the issuing State to obtain evidence. (19) It follows that the purpose of the measure the execution of which is sought is of decisive importance in determining whether an issuing authority may issue an EIO for that purpose.

41.In that regard, first, it should be noted that the Court has already held, in the judgment in Delda, that if the measure referred to in an EIO pursues only a purpose other than to gather evidence, such as a procedural obligation intended to advance the public prosecution of the person who is the subject of it, that measure does not fall within the scope of Directive 2014/41. Thus, the Court ruled that an order by which a judicial authority of one Member State requests a judicial authority of another Member State to serve on a person an indictment relating to him or her does not, as such, constitute an EIO within the meaning of that directive. (20) In order for it to come within the scope of that directive, the purpose of an investigative measure must be to gather evidence, in accordance with that directive. Therefore, an order by which a judicial authority of a Member State requests a judicial authority of another Member State to enable a person to make observations on the matters set out in the indictment relating to him or her may constitute an EIO within the meaning of Directive 2014/41, in so far as that request for a hearing is intended to gather evidence. (21)

42.Second, it follows from that judgment that where an EIO contains numerous implementing measures, including a measure, taken in isolation, whose purpose is not to gather evidence but which, from the point of view of the criminal proceedings in the issuing State, is ancillary or essential to another measure covered by the same EIO, the purpose of which is the gathering of evidence, then, in that case, those measures must be treated as an indivisible whole falling within the scope of Directive 2014/41. For example, in the case considered in the previous point, if it is established that the purpose of the request for a hearing is to gather evidence and if the issuing authorities had stated, in the EIO, that, under their national law, the hearing could take place only after the indictment was served – a measure whose purpose is not, as such, to gather evidence – it would have to be considered that, notwithstanding what has been stated in the preceding point of this Opinion, such service could be requested by means of an EIO. It follows from Article 9(2) of Directive 2014/41 that the executing authority is, in principle, required to comply with the formalities and procedures expressly indicated by the issuing authority. (22)

43.In the light of those preliminary observations, Article 24 of Directive 2014/41 must be interpreted in order to establish whether an EIO may be issued for the hearing of an accused person by videoconference not only for the purpose of gathering evidence, by means of his or her examination during the trial, but also for the purpose of ensuring his or her participation in the trial.

44.To that end, I would point out that Article 24 lays down ‘specific provisions’ for a ‘hearing by videoconference or other audiovisual transmission’. According to the second subparagraph of paragraph 1 of that provision, where a person is in the territory of the executing State, ‘the issuing authority may also issue an EIO for the purpose of hearing [that] suspected or accused person by videoconference or other audiovisual transmission’.

45.It follows from the wording of that provision, and more specifically from the expression ‘for the purpose of hearing [the] suspected or accused person’, that such an investigative measure could be issued with the sole purpose of ensuring the participation of that person in the trial. However, such an interpretation would go far beyond the scope of Article 24, both in the light of the context of that provision and the objective pursued by it.

46.First, as regards the context

42., as is apparent from recital 24 of Directive 2014/41, while that investigative measure, like the other types of measures referred to in Chapter IV thereof, is subject to ‘specific provisions’ in so far as it requires ‘additional rules … which should be indicated in the EIO’, it is no less part of the framework of the single regime for obtaining evidence. The expression ‘for the purpose of hearing a suspected or accused person’ cannot therefore be understood as seeking to safeguard in general the rights of defence of the accused person by guaranteeing the right to participate in judicial proceedings and hearings at which an accused person must be heard. In order for it to come within the scope of Directive 2014/41, in accordance with Article 1(1) thereof, a hearing by videoconference, like any other type of specific investigative measure which may be the object of an EIO, must be carried out ‘to obtain evidence’. As is apparent from point 36 of this Opinion, that interpretation has been confirmed by the Court. (23)

43.Second, as regards the objective pursued by Directive 2014/41, I would point out that that directive 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, 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 that must exist between the Member States. (24) Accordingly, an interpretation according to which Article 24 of that directive could be relied on for the sole purpose of ensuring the rights of an accused person at his or her trial would be detached from the gathering of evidence and would go far beyond the scope of Directive 2014/41. That is implicitly confirmed by recital 25 thereof, which provides that, ‘where that person is to be transferred to another Member State for the purposes of prosecution, including bringing that person before a court for the purpose of the standing trial, [an EAW] should be issued in accordance with … [Framework Decision 2002/584]’. Moreover, if the scope of the directive were to be interpreted too flexibly, that could lead to a risk of the EIO being used for purposes other than those relating to the gathering of evidence.

44.It follows, in practical terms, that Article 24 of Directive 2014/41 cannot be interpreted as seeking to ensure that the accused person has the right to participate in the various stages of the criminal proceedings, including the trial stage, during which he or she is not called upon to give evidence, such as being given the status of accused person or the examination of procedural requests. Thus, an EIO issued ‘solely or principally’ for the purpose of enabling the accused person to participate in the trial cannot fall within the scope of Directive 2014/41, since the executing State is therefore not obliged to execute it, even in the absence of any ground for refusal expressly provided for in that directive.

45.Similarly, in a situation where the EIO is issued for the purposes both of gathering evidence and of participating in one of the various stages of the criminal proceedings, only the part of the request for the accused person to be heard for the purposes of investigation or the gathering of evidence falls within the scope of that directive. That finding applies even where the authority of the issuing State expressly states that the additional objective of the request is to enable the accused person to participate in a stage of the criminal proceedings.

46.However, as noted in point 37 of this Opinion, since the Court has already held that an EIO may include measures which are not investigative measures, but which must be carried out in order to be able effectively to carry out the investigative measure requested, a measure whose purpose is not, as such, to gather evidence, such as participation in the trial in the present case, may, nevertheless, fall within the scope of the directive where, from the point of view of the law on criminal procedure in the issuing State, it is a stage which is merely essential to the execution of another investigative measure which has an evidential purpose. In such a case, those measures must be regarded as an indivisible whole falling within the scope of that directive and the executing Member State will be required to execute the EIO unless one or more justified grounds for refusal, provided for in Article 24 and Article 11 of that directive, exist.

47.By the same logic, where a single measure pursues, in accordance with the national law of the issuing State, two distinct objectives, it is sufficient, in order for it to be the subject of an EIO, for those objectives to include the gathering of evidence. In that regard, in the present case, it would appear that the objective of ensuring the participation of the accused person in the proceedings, primarily with a view to gathering evidence, does not appear to be merely ancillary, but rather constitutes the reason for issuing the EIO at issue. In any event, it is for the referring court to state reasons and determine the main purpose pursued by that EIO. (25)

48.In the light of the foregoing, I consider that the answer to the first question referred for a preliminary ruling must be that Article 24 of Directive 2014/41, read together with Article 3 and in the light of recitals 25 and 26 of that directive, must be interpreted as permitting an EIO to be issued for the hearing by videoconference at the hearing of oral argument of an accused person who is in custody in the executing State, provided that the purpose of the EIO is to gather evidence, since the fact that the issuing authority also seeks to enable the accused person to be present at the hearing by videoconference does not, in itself, preclude the issuing of that order.

2.The second question referred for a preliminary ruling

49.By its second question, which is raised in the event that the first question is answered in the affirmative, the referring court asks, in essence, whether Article 10 of Directive 2014/41, read together with Article 24 thereof, must be interpreted as meaning that an executing judicial authority may refuse to execute an EIO, the purpose of which is to organise a hearing by videoconference of a person as an accused person during his or her trial, on the ground that such a measure would not be authorised in a similar domestic case.

50.In that regard, I would like to point out, as a preliminary point, that Article 10 of Directive 2014/41, as its title indicates, governs the recourse by the executing authority to ‘a different type of investigative measure’ and not the grounds for non-execution which, for their part, are set out exhaustively in Article 11 of that directive. In so doing, that provision is not intended to authorise the executing State to refuse to execute an EIO.

51.In the first place, I note that Article 10(1) of that directive provides that the executing authority must have, wherever possible, recourse to an investigative measure other than that indicated in the EIO where that measure does not exist under the law of the executing Member State or where that measure would not be available in a similar domestic case. (26) Article 10(2) of that directive states, however, that that option does not apply to the investigative measures listed therein, which always have to be available under the law of the executing Member State. Those measures include, in Article 10(2)(c) of Directive 2014/41, ‘the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the executing State’. In the present case, the Belgian judicial authorities would therefore, in principle, not be entitled to rely on Article 10(1) of that directive in order to apply a measure other than that provided for in the EIO, even if the hearing of an accused person by videoconference was not available in a similar domestic case, since paragraph 2(c) of that provision precludes the application of paragraph 1, inter alia, to hearings of accused persons. (27)

52.In the second place, I note that, in accordance with Article 10(5) of Directive 2014/41, if the conditions for the application of paragraph 1 thereof are met, and there is no other investigative measure which would have the same result as the investigative measure requested, the executing authority is required to notify the issuing authority that it has not been possible to provide the assistance requested. It follows, in my view, from that provision that Article 10(5) provides a possibility for the executing authority not to execute the assistance requested where there is no other investigative measure that would have the same result as the investigative measure requested, which could be treated, as regards its effects, as a refusal to execute by the executing authority.

53.However, I am not convinced that, in the present case, that provision could be relied on by the executing authority. First, it must be stated that an alternative measure to a hearing by videoconference is easily conceivable, such as the temporary transfer of the accused person, within the meaning of Article 22 of Directive 2014/41, to be heard or questioned at the hearing in the issuing State. That measure would certainly have achieved the same result as the investigative measure indicated in the EIO. Second, I would point out that Article 24(2) of that directive states that, in addition to the grounds for non-recognition or non-execution referred to in Article 11 thereof, execution of an EIO for the purpose of a hearing by videoconference may be refused if the suspected or accused person does not consent or if the execution of such an investigative measure in a particular case would be contrary to fundamental principles of the law of the executing Member State. It seems to me that that provision, as drafted, is intended to specify all the grounds for non-recognition or non-execution that may be relied on when executing an EIO, the purpose of which is to organise a hearing of a person by videoconference.

54.In the third and last place, for the sake of completeness, I would like to point out that Article 10(3) of Directive 2014/41 provides that the executing authority may ‘also’ have recourse to an investigative measure other than that indicated in the EIO where the investigative measure selected by the executing authority would achieve the same result as the investigative measure indicated in the EIO by less intrusive means, in particular in terms of interference with fundamental rights. (28) While, in the present case, the Belgian judicial authorities do not appear to have considered the possibility of having recourse to other investigative measures, such a possibility cannot be ruled out, in particular, in so far as a transfer, within the meaning of Article 22 of Directive 2014/41, as indicated above, would have achieved the same result and, according to the logic of national law, which is not obvious, however, would have implied less interference with the fundamental rights of the accused person.

55.In the light of the foregoing, I propose that the answer to the second question referred for a preliminary ruling should be that Article 10 of Directive 2014/41, read together with Article 24 thereof, must be interpreted as meaning that an executing judicial authority cannot refuse to execute an EIO the purpose of which is to organise a hearing by videoconference of a person as an accused person during his or her trial, on the ground that such a measure would not be authorised in a similar domestic case.

3.The third question referred for a preliminary ruling

56.By its third question, the referring court asks, in essence, whether Article 11(1)(f) of Directive 2014/41, read in the light of Articles 47 and 48 of the Charter, must be interpreted as precluding an executing judicial authority from refusing to execute an EIO, the purpose of which is to organise a hearing by videoconference of a person as an accused person during his or her trial, if the procedural safeguards applicable to that videoconference which are provided for by the law of the issuing Member State ensure respect for the rights of the defence within the meaning of Article 48 of the Charter and the fundamental right to a fair trial in accordance with Article 47 of the Charter.

57.As a reminder, Article 11 of Directive 2014/41, which concerns the grounds for non-recognition or non-execution of an EIO, specifies the cases in which execution of an EIO may be refused. In principle, the wording of that article indicates that those grounds are exhaustive. (29) In that regard, Article 11(1)(f) of that directive allows the executing State to refuse to execute an EIO where ‘there are substantial grounds to believe’ that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter’. (30)

58.It follows that, while it is for the issuing authority, when issuing an EIO, to pay particular attention to ensuring full respect for the rights as enshrined in Article 48 of the Charter and, in particular, the presumption of innocence and the rights of the defence, (31) it is nevertheless for the executing authority to assess whether the EIO at issue constitutes an infringement of Article 6 TEU or Articles 47 and 48 of the Charter, on the basis of substantive, and therefore objective and specific, elements. (32)

59.In that regard, I think it is useful to recall that the Court has repeatedly held that 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. (33) In accordance with recital 19 of Directive 2014/41, the creation of an area of freedom, security and justice within the European Union is based on mutual trust and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should therefore be refused.

60.It follows that the threshold to be reached for an alleged breach of fundamental rights in the issuing Member State to justify a refusal to execute in the executing Member State is very high. (34) In that regard, I feel it would be useful to refer to the case-law developed by the Court in the context of the interpretation of Article 1(3) of Framework Decision 2002/584, as regards the refusal to execute an EAW on a ground relating to the infringement of fundamental rights. (35) Although not directly applicable, the analytical framework established by the Court in the field of EAWs could also be transposed, by analogy, to the refusal to execute an EIO on a ground relating to the infringement of fundamental rights, in so far as the EIO is also based on the principle of mutual trust. (36)

61.Thus, in accordance with that ‘two-step’ examination developed by the Court, the executing judicial authority should, as a first step, determine whether there is objective, reliable, specific and properly updated information to demonstrate that there is a real risk of infringement, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter ‘on account of systemic or generalised deficiencies in that Member State or deficiencies affecting an objectively identifiable group of persons to which the person concerned belongs’. In the context of a second step, the executing judicial authority must determine, specifically and precisely, to what extent the deficiencies identified in the first step of the examination are liable to have an impact on the proceedings to which the person who is the subject of the EIO will be subject and whether, having regard to that person’s personal situation, the nature of the offence for which he or she is prosecuted and the factual context in which that EIO was issued, there are substantial grounds for believing that that person will run a real risk of infringement of the fundamental right to a fair trial. (37)

62.In the present case, it is not apparent from the order for reference that the refusal of the Belgian judicial authorities to execute the EIO issued by the referring court was linked to ‘substantial grounds for believing’ that there was a risk of infringement of Article 47 of the Charter. The referring court does not find any evidence of the existence of such a risk, in particular in the light of the guarantees recognised in the law of the issuing State. (38) Furthermore, the Prosecutor’s Office, Bruges, merely stated that the appearance of an accused person at his or her trial by videoconference would be contrary to the right to a fair trial, but within the meaning of domestic law. When examining whether the execution of an EIO is compatible with EU law, the executing State cannot, in my view, require compliance with its national law and refuse to execute that EIO, since that would run counter to the principle of mutual trust. (39)

63.In any event, the risk of infringement of Article 47 of the Charter as a result of the appearance of an accused person at his or her trial by videoconference seems to me to be difficult to envisage, for the following reasons.

64.First of all, it must be noted that Article 24 of Directive 2014/41 allows the hearing by videoconference of suspected or accused persons present in the executing State to be requested only under certain conditions and compliance with certain rules relating to the hearing to be required, the objective being precisely to protect the right of every person to be heard, for example when a suspected or accused person is involved. The conditions and requirements imposed by Article 24, and in particular the obligation laid down in paragraph 2(a) thereof to obtain the consent of the person to be heard, are intended to ensure that the execution of the EIO is compatible with the protection of the fundamental rights enshrined in the Charter. Where an accused person is represented in the proceedings by a mandated lawyer, it may be presumed that he or she will not give consent if it is feared that his or her rights are not respected.

65.Next, although it acknowledges that the participation of an accused person in hearings by videoconference is not equivalent to his or her physical presence at the trial, nevertheless the ECtHR has consistently held that, such a form of participation is not, in itself, incompatible with the right to a public hearing by an impartial tribunal, (40) provided that that person is able to follow the proceedings, see the persons present and hear what is being said, but also to be seen and heard by the other parties, the judge and witnesses without technical impediments (41) and to communicate effectively and confidentially with his or her lawyer. (42)

66.Lastly, Article 8(2) of Directive 2016/343 permits the use of proceedings in absentia provided that the person concerned has been informed of the trial and is represented by a mandated lawyer. In the present case, those conditions appear to have been met in the proceedings in the issuing State. If the proceedings in absentia concerning the accused person comply with EU law, it seems difficult to conclude that the hearing of that person by videoconference is contrary to his or her rights of defence or to the principle of a fair trial.

67.In the light of the foregoing, I propose that the answer to the third question referred for a preliminary ruling should be that Article 11(1)(f) of Directive 2014/41, read in the light of Articles 47 and 48 of the Charter, must be interpreted as meaning that the execution an EIO for the hearing by videoconference of an accused person who is in custody in the executing State may not be refused by the executing authority unless there are substantial grounds to believe, on the basis of actual and specific indications, that that hearing would infringe the fundamental rights of the accused person, in particular his or her right to a fair trial and his or her rights of defence in accordance with the second paragraph of Article 47 and Article 48(2) of the Charter.

4.The fourth question referred for a preliminary ruling

68.By its fourth question, the referring court asks, in essence, whether Article 24(2)(b) of Directive 2014/41 must be interpreted as meaning that the application of the ground for refusal laid down by that provision, namely that it is contrary to the fundamental principles of the law of the executing State, may be based on general directives issued within the executing Member State and binding on all executing authorities or whether it requires an examination in concreto which takes account of all the relevant circumstances of the case, including the requirements contained in the national law of the issuing State to guarantee the rights of defence of the accused person.

69.In that regard, I recall that Article 24(2)(b) of Directive 2014/41 provides that, in addition to the grounds for non-recognition or non-execution referred to in Article 11 thereof, execution of an EIO the purpose of which is the hearing of a person by videoconference may be refused if that execution in a particular case would be contrary to the fundamental principles of the law of the executing Member State.

70.It seems fairly obvious from the wording of that provision, and in particular the words ‘in a particular case’, that the application of the ground for refusal laid down by that provision requires the executing authority to carry out an examination which takes account of all the relevant circumstances of the case. Thus, that ground for refusal must be based on a specific assessment of the situation in question that takes into account all the circumstances, including the requirements contained in the national law of the issuing State to guarantee the rights of defence of the accused person. Such an interpretation is, in my view, supported by the requirement for a strict interpretation of the grounds for refusal to execute laid down by Directive 2014/41. (43)

71.In the present case, it is apparent from the order for reference that the Belgian judicial authorities, in refusing to execute the EIO at issue, relied both on the case-law of the Belgian Constitutional Court and on the circular issued by the Belgian College of Public Prosecutors. (44) Those general considerations do not appear to be sufficient to rely on the ground for refusal set out in Article 24(2)(b) of Directive 2014/41, that requires a specific assessment by the authorities of the executing State in order to establish whether, in the present case, the participation in a hearing by videoconference is likely to constitute a breach of the general principles of Belgian law, particularly since the judgment of the Belgian Constitutional Court itself refers expressly to the case-law of the ECtHR, according to which the participation in a hearing by videoconference does not necessarily entail a breach of the rights of the defence, provided that a number of conditions and safeguards are respected. (45)

72.That said, the requirement to carry out an examination taking account of all the relevant circumstances of the case does not seem to me to preclude, in itself, the Member States from adopting general directives intended to facilitate the implementation of the fundamental principles of their national law. Thus, in the event that the fundamental principles of the law of a Member State preclude the hearing of an accused person by videoconference in connection with his or her trial, the existence of general directives issued within that Member State in order to set out the content of those fundamental principles and to specify the consequences which follow for the national authorities of that Member State in the context of the execution of an EIO does not appear to me to be contrary to Article 24(2)(b) of Directive 2014/41, provided that those authorities apply those general directives having regard to all the relevant circumstances of the case, without those general directives being legally binding or absolute. In that context, the individual examination to be carried out could consist of a check to determine whether the particular case corresponds to the situation covered by those general directives.

73.In the light of the foregoing, I propose that the answer to the fourth question referred for a preliminary ruling should be that Article 24(2)(b) of Directive 2014/41 must be interpreted as meaning that the application of the ground for refusal laid down by that provision, namely that it is contrary to the fundamental principles of the law of the executing State, may be based on general directives, which are neither binding nor absolute, issued within the executing Member State, provided that the executing authority carries out an examination which takes account of all the relevant circumstances of the case, including the requirements contained in the national law of the issuing State to guarantee the rights of defence of the accused person.

5.The fifth question referred for a preliminary ruling

74.By its fifth question, the referring court asks, in essence, whether Article 22(1) of Directive 2014/41, read together with Article 3 thereof, must be interpreted as allowing a judicial authority of a Member State to issue an EIO, the purpose of which is the temporary transfer of a person in custody in the executing Member State to the issuing Member State for the purpose of hearing that person as an accused person in the context of a hearing of oral argument in his or her trial with a view, first, to gathering evidence and, second, to enabling that person to participate in his or her trial.

75.In that regard, I recall that, in accordance with Article 22(1) of Directive 2014/41, an EIO may be issued for the temporary transfer of a person in custody in the executing State for the purpose of carrying out an investigative measure with a view to gathering evidence for which the presence of that person on the territory of the issuing State is required, provided that he or she is sent back within the period stipulated by the executing State. It therefore follows from the wording of that provision that such an EIO may be issued where, as in the present case, a person must be questioned or heard during the hearing for evidential purposes, that hearing also ensuring respect for the principle of a fair trial and the rights of defence of the person concerned.

76.Since that fifth question seeks, in essence, like the first question, to determine whether the fact that the measure which the issuing authority wishes to have executed by the executing Member State pursues distinct objectives precludes the possibility of issuing an EIO for that purpose, I would like to refer to the considerations formulated in that regard in points 34 to 47 of this Opinion.

77.In the present case, in so far as a temporary transfer cannot be ordered by means of an EAW, it is for the issuing authority to decide which investigative measure best serves the evidential purpose of the EIO at issue. Thus, in practice, that authority could choose, on the one hand, to repeat its first EIO, in order to hear the person concerned by videoconference in accordance with Article 24 of Directive 2014/41, or, on the other hand, to issue a new EIO requesting, as proposed in Eurojust’s legal opinion, the temporary transfer of HG pursuant to Article 22 of that directive, provided that the conditions necessary for its application are also met. In that regard, however, it should be noted that, provided that all the procedural safeguards provided for by Italian law are put in place, a hearing by videoconference could be as effective, proportionate and less costly than temporary transfer. (46)

78.For the sake of completeness, I consider it useful to recall that Article 22(2) of Directive 2014/41 provides that, in addition to the grounds for non-recognition or non-execution referred to in Article 11 thereof, the execution of the EIO may also be refused if (i) the person in custody does not consent to the temporary transfer; or (ii) the temporary transfer is liable to prolong the detention of the person in custody. It should be noted, however, that Article 22 does not provide for a ground for refusal comparable to that referred to in Article 24(2)(b) of that directive, which is based on respect for ‘the fundamental principles of the law of the executing State’.

79.In the present case, it is apparent from the information provided by the referring court that the Belgian judicial authorities refused the proposal for a temporary transfer in Eurojust’s legal opinion on the sole ground that hearing the accused person at the trial would not constitute an investigative measure. (47) As is clear from the previous point, that reason cannot constitute a ground for refusal to execute. Moreover, I would point out that those authorities could have refused the temporary transfer on the basis of considerations relating to respect for fundamental rights only if, after examining all the facts and circumstances of the case, they had relied on Article 11(1)(f) of Directive 2014/41, invoking substantial grounds for believing that the execution of an order requiring the temporary transfer of the person in custody is incompatible with compliance with the obligations arising from Article 6 TEU and the Charter. However, such an incompatibility is far from obvious, particularly in so far as the transfer is expressly provided for by that directive.

80.In the light of the foregoing, I propose that the answer to the fifth question referred for a preliminary ruling should be that Article 22(1) of Directive 2014/41, read together with Article 3 thereof, must be interpreted as permitting an EIO to be issued, the purpose of which is the temporary transfer of a person in custody in the executing Member State to the issuing Member State to enable him or her, as an accused person, to attend his or her trial, provided that the purpose of that order is to gather evidence. The fact that, by that decision, the issuing authority also aims to enable the accused person to participate in his or her trial does not, in itself, exclude the issue of that decision.

V.Conclusion

81.In the light of the foregoing considerations, I propose that the Court of Justice should answer the questions referred for a preliminary ruling by the Tribunale Ordinario di Firenze (District Court, Florence, Italy) as follows:

(1)Article 24 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, read in conjunction with Article 3 and in the light of recitals 25 and 26 of that directive,

must be interpreted as permitting a European investigation order to be issued for the hearing by videoconference at the hearing of oral argument of an accused person who is in custody in the executing State, provided that the purpose of the EIO is to gather evidence, since the fact that the issuing authority also seeks to enable the accused person to be present at the hearing by videoconference does not, in itself, preclude the issuing of that order.

(2)Article 10 of Directive 2014/41, read together with Article 24 thereof,

must be interpreted as meaning that an executing judicial authority cannot refuse to execute a European investigation order, the purpose of which is to organise a hearing by videoconference of a person as an accused person during his or her trial, on the ground that such a measure would not be authorised in a similar domestic case.

(3)Article 11(1)(f) of Directive 2014/41, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that the execution of a European investigation order for the hearing by videoconference of an accused person who is in custody in the executing State may not be refused by the executing authority unless there are substantial grounds to believe, on the basis of actual and specific indications, that that hearing would infringe the fundamental rights of the accused person, in particular his or her right to a fair trial and his or her rights of defence in accordance with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union.

(4)Article 24(2)(b) of Directive 2014/41

must be interpreted as meaning that the application of the ground for refusal laid down by that provision, namely that it is contrary to the fundamental principles of the law of the executing State, may be based on general directives which are neither binding nor absolute issued within the executing Member State, provided that the executing authority carries out an examination which takes account of all the relevant circumstances of the case, including the requirements contained in the national law of the issuing State to guarantee the rights of defence of the accused person.

(5)Article 22(1) of Directive 2014/41, read together with Article 3 thereof,

must be interpreted as permitting a European Investigation Order to be issued, the purpose of which is the temporary transfer of a person in custody in the executing Member State to the issuing Member State to enable him or her, as an accused person, to attend his or her trial, provided that the purpose of that order is to gather evidence. The fact that, by that decision, the issuing authority also aims to enable the accused person to participate in his or her trial does not, in itself, exclude the issue of that decision.

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1Original language: French.

iThe name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2Directive 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).

3In accordance with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

4See, in particular, judgment of 9 January 2025, Delda (C‑583/23, ‘the judgment in Delda’, EU:C:2025:6).

5See, inter alia, judgments of the ECtHR of 5 October 2006, Marcello Viola v. Italy (CE:ECHR:2006:1005JUD004510604; ‘the judgment in Marcello Viola’); of 9 November 2006, Golubev v. Russia (CE:ECHR:2006:1109DEC002626002); of 27 November 2007, Zagaria v. Italy (CE:ECHR:2007:1127JUD005829500); of 27 November 2007, Asciutto v. Italy (CE:ECHR:2007:1127JUD003579502); of 2 November 2010, Sakhnovskiy v. Russia (CE:ECHR:2010:1102JUD002127203); of 16 February 2016, Yevdokimov and Others v. Russia, (CE:ECHR:2016:0216JUD002723605); of 2 October 2018, Bivolaru v. Romania (No 2) (CE:ECHR:2018:1002JUD006658012), and of 8 June 2021, Dijkhuizen v. Netherlands (CE:ECHR:2021:0608JUD0061591160).

6Directive of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

7On 26 February 2015, HG was the subject of an order for reference before the referring court to answer numerous offences relating to his involvement in a drug trafficking organisation. According to the facts alleged against him, from 2007 to 2009, HG was one of the leaders of the organisation and had coordinated the illegal activities from Antwerp (Belgium), where he lived. During the criminal investigation, HG had reached the end of the provisional detention ordered by the EAW and, at the same time, of the detention ordered for the purpose of serving a sentence handed down in Belgium, with the result that, when the order for reference was issued, he had already been released due to the expiry of the period of provisional detention.

8However, Belgian law provides for the possibility of hearing certain witnesses (namely those who are threatened or reside abroad) and experts (namely those who reside abroad) by videoconference.

9Judgment of 21 June 2018, No 76/2018.

10Circular of 16 July 2021, 880/2021.

11See Law No 67 of 28 April 2014, as amended by Legislative Decree No 150 of 10 October 2022, referred to as the ‘Cartabia reform’.

12Such a transfer may be effected by issuing an EAW. In the present case, not all the legal requirements for the issue of such a warrant were met, since the order for provisional detention or execution of a custodial sentence was not made in the context of the criminal proceedings (see Article 28 and Article 29(1) of Law No 69/2005, adopted in the implementation of Framework Decision 2002/584).

13See judgment of 20 March 2025, Arce

(C‑365/23, EU:C:2025:192, paragraph 38).

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14(14) See point 19 of this Opinion.

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15(15) See, to that effect, judgment in Delda (paragraph 26), and recital 34 of Directive 2014/41.

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16(16) With the exception of the setting up of a joint investigation team and the gathering of evidence within such a team. Moreover, it follows from recital 9 of Directive 2014/41 that it should not apply to cross-border surveillance as referred to in the Convention implementing the Schengen Agreement.

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17(17) Emphasis added.

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18(18) The Court has also referred to the possibility of issuing an EIO for the purpose of hearing an accused person by videoconference in the context of procedural steps subsequent to its judgment (see judgment of 11 March 2020, SF (European arrest warrant – Guarantee of return to the executing State) (C‑314/18, EU:C:2020:191, paragraphs 56, 61 and 62).

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19(19) See judgment in Delda (paragraphs 27 to 35).

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20(20) See judgment in Delda (paragraphs 37 and 49). More specifically, the Court considered that the purpose of the EIO issued by the Spanish judicial authorities to the French judicial authorities to serve on AK, who was in custody in France, an indictment issued by a Spanish court, so that she could ‘state her case as to the matters in question’ in the presence of her lawyer, was not to obtain evidence, but was a procedural obligation intended to advance the public prosecution of AK and that, accordingly, service of such a document was, in principle, governed not by Directive 2014/41 but by Article 5 of the Convention established by the Council in accordance with Article 34 [TEU] on Mutual Assistance in Criminal Matters between the Member States of the [Union] (OJ 2000 C 197, p. 3).

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21(21) See judgment in Delda (paragraphs 42 to 44, and 49). In particular, the Court held that, in order for it to come within the scope of that Directive 2014/41, although expressly provided for in Article 10(2)(c) and the second subparagraph of Article 24(1) thereof as a measure that may be the object of an EIO, a request to hear a person who is the subject of an indictment ‘[must have] the purpose … to gather evidence’. Conversely, a hearing that is intended solely to enable the accused person to make observations on the indictment laid against him or her cannot be regarded as an investigative measure within the meaning of that directive.

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22(22) See judgment in Delda (paragraph 44).

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23(23) Moreover, contrary to the reasoning followed by the referring court, that interpretation cannot be invalidated by recital 26 of Directive 2014/41. As a reminder, that recital states that, ‘with a view to the proportionate use of an EAW, the issuing authority should consider whether an EIO would be an effective and proportionate means of pursuing criminal proceedings. The issuing authority should consider, in particular, whether issuing an EIO for the hearing of a suspected or accused person by videoconference could serve as an effective alternative’. The purpose of such an examination by the issuing authority is to take into consideration an alternative possibility of hearing the person remotely, but always for evidential purposes.

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24(24) See, in particular, recitals 5 to 8, 21 and 38 of Directive 2014/41 and in my Opinion in WBS (C‑635/23, EU:C:2025:95, case-law cited in point 25).

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25(25) As the Commission observes, if the issuing State had completed section H2 of the EIO form by ticking the box ‘hearing [of a] suspected or accused person’, that could corroborate the fact that the main purpose of the EIO was the hearing of the person and not merely his presence at the trial.

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26(26) Recital 10 of Directive 2014/41 states that availability should refer to occasions where the indicated investigative measure exists under the law of the executing State, but is only lawfully available in certain situations, for example where the investigative measure can only be carried out for offences of a certain degree of seriousness, against persons for whom there is already a certain level of suspicion or with the consent of the person concerned.

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27(27) In that regard, I would point out that, while the wording of Article 10(2) of Directive 2014/41 refers only to a ‘hearing’ without specifying whether it is a hearing by videoconference or other audiovisual transmission, within the meaning of the second subparagraph of Article 24(1) since the hearing of a suspected or accused person by videoconference is intended to be conducted in the territory of the executing Member State, it could be considered that it constitutes only one of a number of means of hearing that person in that territory within the meaning of Article 10(2) of that directive. Moreover, in paragraph 41 of the judgment in Delda, the Court appears to have treated as equivalent the investigative measure referred to in those two provisions. Furthermore, that directive makes no reference to hearing measures other than those by videoconference or other audiovisual transmission (see, to that effect, recitals 24 to 26 and Articles 24 and 25 thereof).

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28(28) See recital 10 of Directive 2014/41.

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29(29) See, to that effect, judgment of 16 December 2021, Spetsializirana prokuratura (Traffic and location data) (C‑724/19, EU:C:2021:1020, paragraph 49).

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30(30) Emphasis added.

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31(31) See recital 12 of Directive 2014/41.

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32(32) Article 11(3) of Directive 2014/41 provides that, before deciding not to recognise or not to execute an EIO, in whole or in part, on the basis, inter alia, of that subparagraph 3, point (f), the executing authority is required to consult the issuing authority, by any appropriate means, and must, where appropriate, request the issuing authority to supply any necessary information without delay.

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33(33) See, inter alia, recitals 2, 6 and 19 of Directive 2014/41. Thus, under Article 1(2) of that directive, 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. Similarly, under Article 9(1) of that directive, the executing authority is to recognise an EIO 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.

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34(34) By way of example, the Court has held that the absence of ‘any legal remedy’ enabling an EIO to be challenged in the issuing Member State, constitutes an infringement of the right to an effective remedy enshrined in Article 47 of the Charter such as to preclude the execution of that order by the executing Member State (see judgment of 11 November 2021, Gavanozov II, C‑852/19, EU:C:2021:902, paragraphs 56 to 62).

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35(35) See, inter alia, judgments of 31 January 2023, Puig Gordi and Others, (C‑158/21, ‘the judgment in Puig Gordi’, EU:C:2023:57, paragraphs 97, 102 and 106 and the case-law cited), and of 29 July 2024, Breian, (C‑318/24 PPU, EU:C:2024:658, paragraphs 38 and 77 to 79 and the case-law cited). That case-law stems from the judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 81 to 94), concerning the risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the context of the common European asylum system.

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36(36) I would point out that, in its judgment of 9 November 2023, Staatsanwaltschaft Aachen (C‑819/21, EU:C:2023:841, paragraphs 28 to 30), the Court held that that case-law could be transposed to Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24), which is an instrument for cooperation in criminal matters closely linked to Framework Decision 2002/584, it being understood that both those two framework decisions concern the means of enforcing decisions involving deprivation of liberty. The Court gave that judgment in a case in which systemic or generalised shortcomings in the judicial system of the issuing Member State, in particular as regards the independence of the judiciary, were relied on under Article 47 of the Charter.

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37(37) See, by analogy, judgments in Puig Gordi (paragraphs 102 and 106 and the case-law cited), and of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraphs 78 and 79). See, however, Opinion of Advocate General Richard de la Tour in Županijsko državno odvjetništvo (C‑8/24, EU:C:2025:430, points 37 to 116), which maintains that the analytical framework may vary depending on the specific features of the instruments concerned (the judgment not having been delivered at the time of drafting this Opinion).

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38(38) On the contrary, the wording of the third question referred for a preliminary ruling and the explanations relating to the justification for that question even suggest that the referring court considers that there is no such risk in the present case. That court states, in essence, that the legal framework established in Italian law relating to the participation in the trial of the accused person by videoconference complies not only with the requirements of Article 24(5) of Directive 2014/41, but also with those of the case-law of the ECtHR.

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39(39) Moreover, if the authority of the executing State has doubts as to whether fundamental rights have been respected under its domestic law, it may always have recourse to the additional ground for refusal provided for in Article 24(2)(b) of Directive 2014/41, which is the subject of the fourth question referred for a preliminary ruling.

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40(40) See judgment of the ECtHR of 2 October 2018, Bivolaru v. Romania (No 2) (CE:ECHR:2018:1002JUD006658012, § 138 and 139 and the case-law cited), in which the ECtHR clearly regarded questioning by videoconference as a measure to ensure the effective participation of the suspect or the accused person in the proceedings. In particular, according to paragraph 139: ‘… [t]hat method of questioning could, in the Court’s view, be an appropriate means of ensuring that the person concerned is heard directly and diligently by the High Court’ (emphasis added). In that case, the applicant argued that he had not been heard in person, but the Court found no violation of the right to a fair trial provided for in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), since the competent court had taken all the measures that could reasonably have been expected of it within the applicable legal framework to ensure the presence of the accused person at the trial. Similarly, in its judgment in Marcello Viola (§§ 65 to 67), the ECtHR also held that the participation of the accused person in the trial by videoconference is not, in itself, contrary to the ECHR, provided that it is provided for by law and that it is guaranteed in each individual case that the videoconference pursues a legitimate aim and that its application is compatible with the requirements of respect for the right to a fair trial as established by Article 6 of the ECHR. See, also, judgment of the ECtHR of 27 November 2007, Asciutto v. Italy (CE:ECHR:2007:1127JUD003579502, § 64 and 72).

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41(41) See judgment of the ECtHR of 16 February 2016, Yevdokimov and Others v. Russia, (CE:ECHR:2016:0216JUD002723605, § 43 and the case-law cited).

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42(42) See judgment of ECtHR of 2 November 2010, Sakhnovski v. Russia (CE:ECHR:2010:1102JUD002127203, § 98 and the case-law cited).

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43(43) See, to that effect, judgment of 8 December 2020, Staatsanwaltschaft Wien (Falsified transfer orders), (C‑584/19, EU:C:2020:1002, paragraph 64 and the case-law cited). See also, by analogy, judgment in Puig Gordi (paragraph 68 and the case-law cited).

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44(44) See point 19 of this Opinion.

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45(45) See judgment of 21 June 2018, No 76/2018, point B.10.4.1, which refers, inter alia, to the judgment of the ECtHR of 2 October 2018, Marcello Viola (§ 67).

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46(46) Moreover, although irrelevant in the present case, given that, according to the referring court, it was no longer possible to issue an EAW, I would like to point out that a hearing by videoconference could constitute an alternative, less intrusive measure than the temporary transfer by means of an EAW, which involves deprivation of individual freedom.

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47(47) It should be noted that the Belgian Government, in its observations, has not indicated any other relevant information in that regard, preferring not to submit observations on the fifth question referred for a preliminary ruling.