Public Prosecutor's right to issue European Investigation Order

On 8 December 2020, the Court of Justice of the European Union ruled in Case C-584/19, assessing whether a Member state's Public Prosecutor's Office could be considered as a judicial authority entitled to issue European investigation order under the Directive 2014/41/EU of the European Parliament and of the Council regarding the European investigation order in criminal matters.


European investigation order is regulated in the Slovak Republic by Act no. 236/2017 Coll. on the European investigation order in criminal matters as amended. European investigation order is a judicial decision issued or verified by a Member state's judicial authority to carry out investigative measures to obtain evidence. The Directive established a comprehensive framework for obtaining evidence, whereby investigative measures may include, for example, the hearing of witnesses, the interception of telephones, covert investigations, and information on banking operations.


In this case, information on banking operations was the subject of the investigation order sent by the Hamburg Public Prosecutor's Office to the Vienna Public Prosecutor's Office in criminal proceedings and investigation. Via the investigation order, the Hamburg Public Prosecutor's Office requested copies of bank statements. As the Austrian Public Prosecutor's Office could not carry out such an investigative measure without prior judicial authorization, it asked the Austrian court to authorize the investigative measure. An Austrian court has referred a question to the Court of Justice of the European Union as to whether a Member State's Public Prosecutor's Office should also be considered a judicial authority empowered to issue a European investigation order within the meaning of the Directive.

Court of Justice of the European Union ruled that the concepts of 'judicial authority' and 'issuing authority,' within the meaning of the European Investigation Order Directive, include the Public Prosecutor of a Member State or, more generally, the Public Prosecutor's Office of a Member State, even though they are in a relationship of legal subordination to the executive of that Member State, which exposes them to the risk of being directly or indirectly subject to orders or individual instructions from the executive when adopting a European investigation order.


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Ján Falath

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