Andreas Kanakakis, Joint PhD Researcher, VUB – UniLu, Faculty of Law and Criminology
Introduction
On 30 April 2024, the Grand Chamber of the Court of Justice of the EU (CJEU) delivered a landmark ruling in the MNcase (C-670/22)[1], scrutinising the transfer of evidence related to the EncroChat network. Long anticipated, the decision addressed previous dispute between German Courts over the compatibility of using EncroChat data as evidence in criminal proceedings with fundamental rights.
EncroChat, a French service provider, offered end-to-end encrypted communication through modified smartphones, facilitating organised crime, primarily drug trafficking. In 2020, with authorisation from the Criminal Court of Lille, a Joint Investigation Team (JIT) comprising the French Gendarmerie Nationale and Dutch experts, hacked EncroChat phones, accessing encrypted data amounting to users in 122 countries, including Germany. The German Federal Criminal Police Office (Bundeskriminalamt) and Frankfurt’s Public Prosecutor’s Office requested the transmission of this data via European Investigation Orders (EIOs) under Directive 2014/41 (EIO Directive)[2].
This evidence was then used in proceedings against MN, prompting the Regional Court of Berlin (Landgericht Berlin) to question the lawfulness of the EIOs before the CJEU. In its decision, the Court not only clarified the modalities of the issuance and execution of an EIO, underscoring its commitment to ensuring the efficacy of judicial cooperation tools, but also focused on guaranteeing fair trial and defence rights. It ruled that evidence acquired in violation of these rights must be excluded from criminal proceedings, establishing a new approach to evidence admissibility and marking a significant moment for the protection of fundamental rights.
Setting sail: Resolving doubts surrounding the issuance of an EIO
The first three questions from the referring court revolved around the interpretation of Article 6 (1) (a) and (b) of the EIO Directive, namely (i) whether, in the event of evidence transmission, the EIO needs to be issued by a judge, (ii) whether the issuance of an EIO is permitted for the transfer of data acquired from the interception of telecommunications, even if there is no individualised suspicion based on reasonable grounds for the commission of serious crimes and no data integrity verification, and (iii) whether the issuance of an EIO is permitted for the transfer of data acquired in the executing State by an investigative measure, which would be unlawful in a similar domestic case of the issuing State.
Regarding the first question, the CJEU affirmed the view expressed in the academic literature interpreting Article 6 (1) in conjunction with Article 2 (c) of the EIO Directive, thus clarifying that the term ‘issuing authority’ includes any public authority, competent under the law of the issuing State for the transmission of already collected evidence in a similar domestic case.[3] Validating conclusions of previous cases,[4] the Court underlined that to the extent that under the law of the issuing State, public prosecutors are competent to order the transmission of evidence already in possession of national authorities, these public prosecutors fall within the term ‘issuing authority’. An authorisation by a judge is, hence, not necessary.[5]
As for the substantive requirements for the issuance of an EIO, the Court echoed the opinion that any proportionality and necessity assessment emanates from national law and must be performed in concreto by the competent national authorities.[6] Confronting questions (ii) and (iii) in line with the principle of mutual recognition, it established that issuing authorities cannot subject already conducted measures to their domestic proportionality and necessity standards, nor can they challenge their lawfulness anew. In the present case, the German authorities could only assess the proportionality and necessity of the transmission itself, not the measure used by the French authorities to acquire the evidence. Besides, the possibility of reassessment is guaranteed against both the issuance and the execution of the EIO,[7]under the ‘separation model’ of legal remedies outlined in Article 14 of the Directive.[8] Under this framework, challenges to the issuance of an EIO could be brought before the courts of the issuing State, while legal remedies against its recognition and execution are to be sought before the judicial authorities of the executing State.
Manoeuvering against the waves of Article 31 of EIO Directive
The referring court cast additional doubts on Article 31 of the Directive, with an emphasis on the interpretation of the ‘competent authority’ of the Member State that needs to be notified about the interception of telecommunications taking place in its territory. Having established that the investigative measure in question fell within the scope of Article 31, the Court made clear that it is for each Member State to determine which authority (judicial or not) is designated for that purpose.[9] Upon notification, this authority carries the burden of examining if such an interception would be authorised in a similar domestic case. If not, it guides the intercepting Member State on the initiation or continuation of the investigative measure and/or on the use of the already collected evidentiary material.
Most importantly, the Court noted that the objective of the Article extends beyond safeguarding the sovereignty of the notified Member State; it also serves to bolster the rights of the person targeted by such a measure. This commitment to fundamental rights, applicable even to measures that do not constitute an EIO in the narrow sense,[10] highlights the Court’s standards regarding the cross-border collection and use of evidence.[11]
Dropping a new anchor: Introducing a ‘European’ exclusionary rule
The Court of Luxembourg further had to address the issue of evidence admissibility, as the referring court asked whether, in accordance with the principle of effectiveness, evidence acquired through the mechanism of an EIO should be excluded from criminal proceedings if it was collected in violation of EU law. In confronting this question, the Court introduced a new approach to evidence admissibility, departing from its traditional unequivocal deference to national procedural laws of the Member States.
This revolutionary position was not adopted lightly and without due consideration. Firstly, the Court made clear that this question is subsidiarily linked to the previous ones, as compliance with the Court’s conclusions ensures the lawfulness of the EIOs. Secondly, it was reminded that it lies within the national laws of the Member States to determine the rules governing admissibility and evaluation of evidentiary material in criminal proceedings. Following its long-established reasoning,[12] it underlined that, in light of the principle of procedural autonomy, Member States are entrusted with the competence to establish procedural rules for actions aiming at safeguarding rights deriving from EU law, on condition that they conform with the principles of equivalence and effectiveness.[13]
However, the Court did not hesitate to take a step further, differentiating itself from the opinion of the Advocate General,[14] and boldly shaping a novel exclusionary rule. Based on Article 14 (7) of the Directive, it is emphasised that evidence ‘must be excluded’ from the criminal proceedings if the defendant is not in a position to comment effectively on the way it was collected. This obligation imposed on national courts to ‘disregard’ evidence obtained in breach of EU law stems from the duty to safeguard the rights of the defence and the fairness of the proceedings as enshrined in Article 47 of the EU Charter of Fundamental Rights. This premise counterbalances the Court’s flexibility on the issuance and execution of an EIO under national laws, as it renders the defendant’s opportunity to challenge the evidence collected a prerequisite for its admissibility.
And now, safe and sound?
The MN ruling underscores a carefully considered fundamental shift towards concrete minimum standards on evidence admissibility. The core of mutual recognition remains unscathed, as the Court puts its faith in the conformity of national laws with EU principles and interprets their particularities broadly, in line with the purpose of the EIO Directive to enhance cross-border cooperation in criminal matters. Yet, MN stands as a tangible proof of the Court’s will to establish a higher level of protection for the defendant, consistent with the general orientation of the Union’s legislation.[15]
Moreover, it is aptly argued that, by doing so, the Court consciously differentiates itself from the reserved approach adopted by the European Court of Human Rights (ECtHR) with regard to fair trial and defence rights.[16] The Court does not confine itself to formulating interpretative guidelines or identifying infringements, but autonomously rules the inadmissibility of evidence as a direct consequence of such infringements.
Nevertheless, and despite the potential impact, one would be naïve to believe that a single ruling is capable of overturning long-standing practices or interfering with such sensitive issues as the admissibility of evidence. The traditional reluctance of the Member States to accept any legislative initiative based on Article 82 of the Treaty on the Functioning of the European Union (TFEU) is reflected in the administration of justice, which, while ostensibly drawing on the lessons taught by the two European Courts, in practice resorts to mechanisms provided for in national law. In any case, the MNruling sets the precedent for a European exclusionary rule and inspires discussions on common evidentiary rules in criminal proceedings.
[1] ECLI:EU:C:2024:372.
[2] Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.
[3] Böse M., ‘Die Europäische Ermittlungsanordnung – Beweistransfer nach neuen Regeln?’ (2014) 4 Zeitschrift für Internationale Strafrechtsdogmatik, 152.
[4] CJEU, judgement of 27.05.2019, C-508/18 and C-82/19 PPU (Deutsche Staatsanwälte), paras. 42 et seq.; CJEU, judgement of 08.12.2020, C-584/19 (Staatsanwaltschaft Wien), para. 52.
[5] Para. 77.
[6] Ahlbrecht H., ‘Die Europäische Ermittlungsanordnung – oder EU-Durchsuchung leicht gemacht’ (2013) 2 StV, 114.
[7] Paras. 104-105.
[8] Böse (n 3); Ronsfeld P., Rechtshilfe, Anerkennung und Vertrauen – Die Europäische Ermittlungsanordnung (Duncker & Humboldt 2015) pp. 189-190; Rackow P., ‘Das Anerkennungsprinzip auf dem Prüfstein der Beweisrechtshilfe’ in Ambos K. (ed), Europäisches Strafrecht post-Lissabon (GUP 2011) p. 135.
[9] Paras.115-119.
[10] Leonhardt A., Die Europäische Ermittlungsanordnung in Strafsachen (Springer 2017), p. 89.; Ahlbrecht (n 6).
[11] Para. 124.
[12] CJEU, judgement of 6.10.2020, C-511/18, C-512/18 and C-520/18 (La Quadrature du Net and Others) para. 223.
[13] Paras. 127-129.
[14] Opinion of Advocate General Ćapeta, points 116-131.
[15] As confirmed in recital 18 EIO Directive.
[16] Bernardini L., “On encrypted messages and clear verdicts – the EncroChat case before the Court of Justice (Case C-670/22, MN)”, EU Law Live, 21/05/2024, https://eulawlive.com/op-ed-on-encrypted-messages-and-clear-verdicts-the-encrochat-case-before-the-court-of-justice-case-c-670-22-mn-by-lorenzo-bernardini/.
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