European Investigation Order – A new approach to transnational criminal investigation in the European Union

Further to Directive 2014/41/EU, which sets up a new legal framework for Member States' judicial cooperation in the area of transnational criminal investigations, the German Legislator has presented a government draft for the integration of the new rules the Act on International Cooperation in Criminal Matters. The Directive replaces the current patchwork of rules with a comprehensive single instrument which will facilitate and speed up the collection and transfer of evidence across EU Member States' borders (with exception of Denmark and Ireland).

A European Investigation Order (EIO) may be issued with respect to criminal proceedings in a wide sense. As not all Member States' legal systems recognise the criminal liability of legal entities, the Directive clarifies that an EIO may also be issued in connection with proceedings relating to offences or infringements for which a legal person may be held liable or punished in the issuing state (in Germany pursuant to Sec. 30 Act on Regulatory Offences). The EIO comprises almost all kinds of cross-border investigation measures such as hearing by video or telephone conference, the temporary transfer of a person held in custody for the purpose of carrying out an investigation measure, the interception of telecommunications as well as obtaining of information on bank accounts and banking or other financial operations. In addition, the EIO may serve to provisionally prevent the destruction or disposal of an item that may be used as evidence. However, there are still specific rules for joint investigation teams and for cross-border surveillance as referred to in Art. 40 of the Schengen Convention.

The Directive introduces a procedure setting up mandatory deadlines for the execution of the investigative measures and foresees the use of a standard form. As the Directive is based on the principle of mutual recognition of judgments and judicial decisions (Art. 82 (1) TFEU) it pursues a completely new approach in mutual legal assistance (MLA) matters. It enables the authorities in one Member State (the issuing state) to request the authorities in another Member State (executing state) to initiate cross-border investigations and to transfer the investigation results.