Official Journal of the European Union

C series

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C/2024/3723

(CaseC-670/22, (1) M.N. (EncroChat))

(Reference for a preliminary ruling - Judicial cooperation in criminal matters - Directive 2014/41/EU - European Investigation Order (EIO) in criminal matters - Obtaining of evidence already in the possession of the competent authorities of the executing State - Conditions for issuing an EIO - Encrypted telecommunications service - EncroChat - Need for the decision of a judge - Use of evidence obtained in breach of EU law)

(C/2024/3723)

Language of the case: German

Referring court

Party in the main criminal proceedings

Operative part of the judgment

1.Article 1(1) and Article 2(c) 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 meaning that a European Investigation Order (EIO) for the transmission of evidence already in the possession of the competent authorities of the executing State need not necessarily be issued by a judge where, under the law of the issuing State, in a purely domestic case in that State, the initial gathering of that evidence would have had to be ordered by a judge, but a public prosecutor is competent to order the transmission of that evidence.

2.Article 6(1) of Directive 2014/41 must be interpreted as not precluding a public prosecutor from issuing an EIO for the transmission of evidence already in the possession of the competent authorities of the executing State where that evidence has been acquired following the interception, by those authorities, on the territory of the issuing State, of telecommunications of all the users of mobile phones which, through special software and modified hardware, enable end-to-end encrypted communication, provided that the EIO satisfies all the conditions that may be laid down by the national law of the issuing State for the transmission of such evidence in a purely domestic situation in that State.

3.Article 31 of Directive 2014/41 must be interpreted as meaning that a measure entailing the infiltration of terminal devices for the purpose of gathering traffic, location and communication data of an internet-based communication service constitutes an ‘interception of telecommunications’, within the meaning of that article, which must be notified to the authority designated for that purpose by the Member State on whose territory the subject of the interception is located. Should the intercepting Member State not be in a position to identify the competent authority of the notified Member State, that notification may be submitted to any authority of the notified Member State that the intercepting Member State considers appropriate for that purpose.

4.Article 31 of Directive 2014/41 must be interpreted as being intended also to protect the rights of those users affected by a measure for the ‘interception of telecommunications’ within the meaning of that article.

5.Article 14(7) of Directive 2014/41 must be interpreted as meaning that, in criminal proceedings against a person suspected of having committed criminal offences, national criminal courts are required to disregard information and evidence if that person is not in a position to comment effectively on that information and on that evidence and the said information and evidence are likely to have a preponderant influence on the findings of fact.

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(1) OJ C 35, 30.1.2023.

ELI: http://data.europa.eu/eli/C/2024/3723/oj

ISSN 1977-091X (electronic edition)

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