WBS GmbH v Generalstaatsanwaltschaft Berlin (C-635/23)

Contents

Judgment of the Court (Second Chamber)10 July 2025^note(Reference for a preliminary ruling — Judicial cooperation in criminal matters — European Investigation Order (EIO) — Directive 2014/41/EU — Article 2(c)(ii) — Concept of other competent authority acting in its capacity as an investigating authority in criminal proceedings — Competence to order the gathering of evidence in accordance with national law — Search measures requiring the authorisation of an investigating judge — Article 6(1) and (2) — Conditions for issuing an EIO)In Case C‑635/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), made by decision of 20 October 2023, received at the Court on 23 October 2023, in the proceedings relating to the recognition and execution of a European Investigation Order concerningTHE COURT (Second Chamber),composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, M. Gavalec, Z. Csehi and F. Schalin, Judges,Advocate General: A. Rantos,Registrar: M. Krausenböck, Administrator,having regard to the written procedure and further to the hearing on 13 November 2024,after considering the observations submitted on behalf of:– WBS GmbH, by K. Schaefer, Rechtsanwalt,– the Generalstaatsanwaltschaft Berlin, by J. Scherf,– the German Government, by J. Möller, M. Hellmann, A. Sahner and J. Simon, acting as Agents,– the Estonian Government, by M. Kriisa, acting as Agent,– the Latvian Government, by J. Davidoviča, K. Pommere and S. Zābele, acting as Agents,– the Polish Government, by B. Majczyna and J. Sawicka, acting as Agents,– the Portuguese Government, by J.I. Barbosa de Pinho, P. Barros da Costa and J. Ramos, acting as Agents,– the Swedish Government, by H. Eklinder, acting as Agent,– the European Commission, by H. Leupold and J. Vondung, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 February 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 2(c)(ii) 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 (OJ 2014 L 130, p. 1).

2The request for a preliminary ruling has been made in the context of a request for execution, in Germany, of a European Investigation Order (EIO) issued by the Korupcijas novēršanas un apkarošanas birojs (Office for Preventing and Combating Corruption, Latvia) (‘the KNAB’) concerning investigative measures in respect of WBS GmbH.

Legal context

European Union law

3Recitals 5 to 8, 10 and 11 of Directive 2014/41 state:(5) Since the adoption of [Council] Framework Decisions 2003/577/JHA [of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ 2003 L 196, p. 45)] and 2008/978/JHA [of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ 2008 L 350, p. 72)], it has become clear that the existing framework for the gathering of evidence is too fragmented and complicated. A new approach is therefore necessary.(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. The European Council indicated that the existing instruments in this area constituted a fragmentary regime and that a new approach was needed, based on the principle of mutual recognition, but also taking into account the flexibility of the traditional system of mutual legal assistance. The European Council therefore called for a comprehensive system to replace all the existing instruments in this area, including Framework Decision [2008/978], covering as far as possible all types of evidence, containing time limits for enforcement and limiting as far as possible the grounds for refusal.(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 (“the executing State”) with a view to gathering evidence. This includes the obtaining of evidence that is already in the possession of the executing authority.(8) The EIO should have a horizontal scope and therefore should apply to all investigative measures aimed at gathering evidence. However, the setting up of a joint investigation team and the gathering of evidence within such a team require specific rules which are better dealt with separately. Without prejudice to the application of this Directive, existing instruments should therefore continue to apply to this type of investigative measure.…(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. 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. 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.(11) The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. The same assessment should be carried out in the validation procedure, where the validation of an EIO is required under this Directive. The execution of an EIO should not be refused on grounds other than those stated in this Directive. However the executing authority should be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it makes it possible to achieve similar results.’

4Under Article 2(c) of that directive:‘For the purposes of this Directive the following definitions apply:…(c) “issuing authority” means:(i) a judge, a court, an investigating judge or a public prosecutor competent in the case concerned; or(ii) any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law. In addition, before it is transmitted to the executing authority the EIO shall be validated, after examination of its conformity with the conditions for issuing an EIO under this Directive, in particular the conditions set out in Article 6.1, by a judge, court, investigating judge or a public prosecutor in the issuing State. Where the EIO has been validated by a judicial authority, that authority may also be regarded as an issuing authority for the purposes of transmission of the EIO’.

5Article 6 of that directive, headed ‘Conditions for issuing and transmitting an EIO’, provides:1.The issuing authority may only issue an EIO where the following conditions have been met:(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.2. The conditions referred to in paragraph 1 shall be assessed by the issuing authority in each case.3. Where the executing authority has reason to believe that the conditions referred to in paragraph 1 have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO.’

6Article 10(3) and (4) of that directive provides: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.4. When the executing authority decides to avail itself of the possibility referred to in paragraphs 1 and 3, it shall first inform the issuing authority, which may decide to withdraw or supplement the EIO.’

7When an issuing authority issues an EIO, it is required to complete and sign a form, the pro forma for which is set out in Annex A to Directive 2014/41. The introductory part of that pro forma reads as follows:‘This EIO has been issued by a competent authority. The issuing authority certifies that the issuing of this EIO is necessary and proportionate for the purpose of the proceedings specified within it taking into account the rights of the suspected or accused person and that the investigative measures requested could have been ordered under the same conditions in a similar domestic case. I request that the investigative measure or measures specified below be carried out taking due account of the confidentiality of the investigation and that the evidence obtained as a result of the execution of the EIO be transferred.’

German law

8Paragraph 91d(1) of the Gesetz über die internationale Rechtshilfe in Strafsachen (Law on international mutual legal assistance in criminal matters) of 23 December 1982 (BGBl. 1982 I, p. 2071) reads as follows:‘Mutual legal assistance may be provided only where the Member State sets out its request for assistance in the form in Annex A or Annex C to [Directive 2014/41], as amended, and that request:1. has been issued by a judicial authority within the meaning of Article 2(c)(i) of [that directive] or2. has been issued by an authority other than the authority referred to in point 1, which the issuing Member State has designated as a competent authority for that purpose and has been validated by an authority referred to in point 1, in Section L of the form in Annex A to that directive.’

Latvian law

9Under Article 887¹(1) of the Kriminālprocesa likums (Code of Criminal Procedure, Latvijas Vēstnesis, 2005, No 74), where it is necessary, in criminal proceedings, to take procedural action on the territory of another Member State of the European Union before initiating the prosecution, the person directing the proceedings, when that person issues an EIO, must assess its necessity and proportionality in relation to the offence under investigation, after which the public prosecutor leading the investigation must also verify whether the procedural action requested from that other Member State complies with the requirements of the law and assess its necessity and proportionality in relation to the offence under investigation. Prior to preparing an EIO, the person directing the proceedings must take all the measures that would be necessary if the procedural action were carried out in Latvia.

10Searches are governed by Articles 179 to 185 of the Code of Criminal Procedure. Article 179(1) of that code defines a search as an investigative measure, the purpose of which is the compulsory investigation of premises, land, a vehicle or an individual for the purposes of locating and seizing the object sought where there are reasonable grounds for believing that the object being sought is located in the place where the search is carried out.

11Article 180(1) of that code provides that the search is to be conducted following a decision by an investigating judge or a court. The investigating judge is to base his or her decision on a proposal submitted by the person directing the proceedings and the documents annexed thereto.

The dispute in the main proceedings and the question referred for a preliminary ruling

12On 5 April 2019, the KNAB brought criminal proceedings against officials working for a foundation established in Riga (Latvia) for large-scale fraud, large-scale unlawful waste of another person’s property, forgery and use of forgery. In the course of its investigation, the KNAB considered it necessary to issue an EIO to carry out a search of the business premises of the companies FF GmbH and WBS, whose registered offices are in Berlin (Germany). For that purpose, the KNAB asked the investigating judge of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court, Vidzeme District, Latvia) to authorise that investigative measure, in accordance with Articles 179 and 180 of the Code of Criminal Procedure.

13By two orders of 24 April 2019, that investigating judge granted the KNAB’s application on the ground, first, that it could be assumed that the premises of those two companies housed documents, data carriers and objects relevant to the criminal proceedings and, second, that the searches, the purpose of which was to locate and seize those documents, data carriers and objects, were necessary and proportionate.

14On 25 April 2019, the KNAB issued an EIO (‘the EIO in question’), by which it asked the German authorities to hear two witnesses and to execute the two search orders referred to in the preceding paragraph. The Latvijas Republikas Ģenerālprokuratūra (Prosecutor General’s Office of the Republic of Latvia) validated the EIO in question and sent it to the Staatsanwaltschaft Berlin (Public Prosecutor’s Office, Berlin, Germany).

15Further to a request from the Public Prosecutor’s Office, Berlin, the Amtsgericht Berlin-Tiergarten (Local Court, Berlin-Tiergarten, Germany) ordered the search of the business premises of FF and WBS. Those searches were conducted on 13 May 2019 and led to the seizure of numerous items of evidence.

16WBS brought an action before the Kammergericht Berlin (Higher Regional Court, Berlin, Germany), the referring court, seeking a declaration that the transfer to the Republic of Latvia of the evidence gathered in execution of the EIO in question cannot be allowed.

17In support of its action, WBS relies on the judgment of 16 December 2021, Spetsializirana prokuratura (Traffic and location data) (C‑724/19, ‘the judgment in Spetsializirana prokuratura’, EU:C:2021:1020), from which it is apparent that an EIO concerning an investigative measure which, pursuant to the law of the issuing Member State, can be issued only by a court may be validly issued only by an authority which has that status. In the present case, first, the KNAB is not a court and, second, under Latvian law, only an authority with that status is competent to order such a search measure.

18The Public Prosecutor’s Office, Berlin, asked the Prosecutor General’s Office of the Republic of Latvia whether, if necessary, the EIO in question could be re-issued by a court. The Prosecutor General’s Office of the Republic of Latvia replied that this was not possible on the ground that Latvian law precluded it.

19In that context, the referring court is uncertain whether the principles arising from the judgment in Spetsializirana prokuratura must apply to the case before it, which must result in it finding that the transfer of the evidence further to the execution of the EIO in question cannot be allowed.

20In the first place, the referring court states that, in the case which gave rise to that judgment, the authority that issued the EIO could be treated as an ‘issuing authority’ within the meaning of Article 2(c)(i) of Directive 2014/41, whereas, in the present case, the KNAB is ‘[an]other competent authority as defined by the issuing State’, within the meaning of Article 2(c)(ii) of that directive. The referring court asks whether the response provided by the Court in that judgment also applies in a situation where an EIO is issued by an authority falling within that second provision.

21According to the referring court, paragraphs 29 and 30 of the judgment in Spetsializirana prokuratura can be understood as meaning that ‘[an]other competent authority’, within the meaning of Article 2(c)(ii) of that directive, may act as the issuing authority for an EIO, even if, pursuant to national law, the investigative measure concerned can be taken only by a court, provided, however, that that court is involved at another stage of the proceedings.

22In the second place, the present case is different from the case which gave rise to the judgment in Spetsializirana prokuratura, in so far as the investigative measure which forms the subject matter of the EIO in question, although it could, pursuant to Latvian law, be ordered only by a court, was authorised, prior to the issue of that EIO, by a Latvian investigating judge who found that it was necessary and proportionate. The consequence of that situation is that the reasons given by the Court, in paragraphs 32 to 38 of that judgment, for its interpretation of Article 2(c)(i) of Directive 2014/41 are irrelevant in the case in the main proceedings.

23Accordingly, first, the Court took the view that the authority competent to order an investigative measure, under national law, is the only authority capable of satisfying the obligations to assess and justify the measure in question and that the issuing authority can issue an EIO only provided that the investigative measure referred to in that EIO could have been ordered under the same conditions in a similar domestic case.

24In the context of the case before it, the referring court considers that the authority competent under national law to order the investigative measure satisfied the obligations to assess and justify that measure, which are laid down in Article 6(1)(a) of Directive 2014/41, in so far as the competent Latvian investigating judge found that the searches in question were necessary and proportionate. Furthermore, the issuing authority issued the EIO in question under the same conditions as those under which an investigative measure would have been ordered in a similar domestic case, since a court intervened to authorise the search measure before that EIO was issued.

25Second, the Court held, in the judgment in Spetsializirana prokuratura, that, under national law, the issuing authority for the EIO must be the authority competent to order, in a domestic case, the investigative measure which forms the subject matter of the EIO, in so far as, were that not to be the case, it would have the effect of complicating and jeopardising the simplified and effective system of mutual legal assistance established by Directive 2014/41.

26The referring court has doubts, however, as to the relevance of that consideration in the present case, since such a requirement may indeed complicate the procedure for mutual legal assistance.

27In certain Member States, as in Germany, the court responsible for the investigation does not have a central role in the investigation procedure and intervenes only sporadically, inter alia to authorise certain investigative measures requested by the Public Prosecutor’s Office. In those circumstances, if it were necessary to hold that only that court may be treated as an ‘issuing authority’, within the meaning of Directive 2014/41, whereas, in practice, the Public Prosecutor’s Office is responsible for the investigation procedure, that would result in delays to mutual legal assistance, inter alia, where the executing authority decides to question the issuing authority pursuant to the first sentence of Article 6(3) of Directive 2014/41. Complications relating to the mutual legal assistance procedure may also result from the fact that, in some Member States, certain investigative measures may not come within the exclusive jurisdiction of the national courts, but may be ordered by other authorities. In such a situation, it cannot therefore be excluded that the executing authority may find itself seised of two EIOs, which are issued by two different interlocutors.

28According to the referring court, it is necessary to refer, by analogy, to the case-law stemming from the judgment of 27 May 2019, PF (Prosecutor General of Lithuania) (C‑509/18, EU:C:2019:457), concerning the European arrest warrant, from which it is apparent that the authority that orders the national arrest warrant can be different from the authority that issues the European arrest warrant.

29In those circumstances, the Kammergericht Berlin (Higher Regional Court, Berlin) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Can [an EIO] concerning a measure reserved to the courts under the law of the issuing State be issued by another competent authority, within the meaning of Article 2(c)(ii) of [Directive 2014/41], in collaboration with a non-judicial validating authority, if a court of the issuing State has previously authorised the investigative measure in compliance with the obligations provided for in [that directive] to make assessments and state reasons?’

Consideration of the question referred

30By its question, the referring court asks, in essence, whether Article 2(c)(ii) of Directive 2014/41 must be interpreted as meaning that it is possible to treat as an ‘issuing authority’, within the meaning of that provision, an administrative authority, as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings and whose investigative measures involving an interference with the fundamental rights of the person concerned must, in accordance with national law, first be authorised by a judicial authority.

31Article 2(c) of Directive 2014/41 defines, in points (i) and (ii) respectively, the concept of an ‘issuing authority’ as either ‘a judge, a court, an investigating judge or a public prosecutor competent in the case concerned’ or ‘any other competent authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law’.

32It is thus apparent from the wording of Article 2(c)(ii) of that directive that the ‘issuing authority’, within the meaning of that provision, is a national authority which satisfies the following three cumulative conditions.

33First, it follows from the use of the word ‘other’ that such an authority is not one of the judicial authorities referred to in Article 2(c)(i) of Directive 2014/41, namely a judge, a court, an investigating judge or a public prosecutor, but an authority, such as an administrative authority, which has been designated by the issuing Member State as competent to issue an EIO.

34Second, that authority must be the authority which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings.

35Third, that authority must be competent to order the gathering of evidence in accordance with national law.

36As regards the dispute in the main proceedings, it is common ground that the KNAB satisfies the first two of those conditions. It is apparent from the documents before the Court that the KNAB, as an administrative authority, does not come within the authorities referred to in Article 2(c)(i) of Directive 2014/41. Moreover, in accordance with national law, the KNAB is the authority responsible for investigations in cases concerning the fight against corruption and that authority has been designated as competent to issue EIOs in those cases.

37However, the referring court is uncertain whether that authority satisfies the third of those conditions, referred to in paragraph 35 above, namely whether it has ‘competence to order the gathering of evidence in accordance with national law’.

38In that regard, that court notes that, of the investigative measures which are the subject of the EIO in question, only the measures concerning the hearing of witnesses could be directly ordered by the KNAB, without it having been necessary to obtain prior authorisation from an investigating judge. By contrast, the search measures of the business premises in question in the case in the main proceedings, in so far as those measures resulted in an interference with the fundamental rights of the person concerned, had to be authorised, in accordance with Latvian law, by such a judge, after the KNAB submitted a request for authorisation to that judge.

39In those circumstances, the referring court seeks to establish whether the fact that, in Latvian law, the search measures requested by the KNAB must be authorised by an investigating judge before they can be executed means that that authority cannot be treated as competent to order the gathering of evidence in accordance with national law, within the meaning of Article 2(c)(ii) of Directive 2014/41.

40In so far as the wording of Article 2(c)(ii) of that directive does not alone enable an answer to be given to that question, it is necessary, in accordance with settled case-law, to consider the context and the objectives of the legislation of which that provision forms part (see, to that effect, judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 21 December 2023, G.K. and Others (European Public Prosecutor’s Office), C‑281/22, EU:C:2023:1018, paragraph 46 and the case-law cited).

41In the first place, it is necessary to take into account the context of which that provision forms part.

42First, Article 6(1)(a) of that directive, read in conjunction with Article 6(2) thereof and Annex A thereto, and in the light of recital 11 thereof, imposes on the issuing authority an obligation to assess the necessity and proportionality of the investigative measure which is the subject of the EIO, having regard to the purpose of the proceedings in which that EIO is issued and taking into account the rights of the suspected or accused person (see, to that effect, the judgment in Spetsializirana prokuratura, paragraph 32).

43Furthermore, as regards the situation where an EIO emanates from an ‘issuing authority’, within the meaning of Article 2(c)(ii) of Directive 2014/41, it is apparent from the second sentence of that provision that, before it is transmitted to the executing authority, that order must be validated, after examination of its conformity with the conditions for issuing an EIO under that directive, in particular the conditions set out in Article 6(1) thereof, ‘by a judge, court, investigating judge or a public prosecutor’.

44It follows that, as the Advocate General noted in point 45 of his Opinion, the issuing of an EIO by ‘[an]other competent authority as defined by the issuing State’, within the meaning of Article 2(c)(ii) of Directive 2014/41, implies a review of the necessity and proportionality of that decision at two stages of the procedure in the issuing Member State, namely (i) when it is prepared in the context of the domestic investigation procedure and (ii) when it is validated by a judicial authority before it is transmitted to the executing authority.

45In the present case, the referring court’s doubts regarding the status of the KNAB as an ‘issuing authority’ concern the first of those two levels of review. As regards the second level, it is common ground that, before its transmission to the executing authority, the EIO in question was validated by a prosecutor, namely the Prosecutor General’s Office of the Republic of Latvia, which assessed the necessity and proportionality of that order in accordance with the provisions of that directive.

46In that regard, it is apparent from recital 10 of Directive 2014/41 that that directive identifies the issuing authority as being best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which investigative measure is to be used (the judgment in Spetsializirana prokuratura, paragraph 37).

47As has been pointed out in paragraph 34 above, to be regarded as an ‘issuing authority’ within the meaning of Directive 2014/41, the ‘other … authority’ referred to in Article 2(c)(ii) of that directive must be the authority which, in the specific case, is responsible for the criminal investigation. That position enables it, taking into account its knowledge of all aspects of that investigation, to carry out, in accordance with Article 6(1)(a) of that directive, the review of the necessity and proportionality of the investigative measure that it wishes to see carried out in another Member State under an EIO.

48However, the mere fact that the law of the issuing Member State makes the adoption of the investigative measures requested by the authority responsible for the investigation subject to the condition that they are authorised in advance by an investigating judge when they involve an interference with the fundamental rights of the person concerned does not preclude that that authority, responsible for the investigation procedure, is considered ‘[competent] to order the gathering of evidence in accordance with national law’, within the meaning of Article 2(c)(ii) of Directive 2014/41 and, consequently, that it can be treated as an ‘issuing authority’, within the meaning of that provision.

49That requirement ensures that the assessment of the necessity and proportionality of those measures which is carried out by the authority responsible for the investigation, at the first level referred to in paragraph 42 above, is under the supervision of a court, in order that the latter confirm, inter alia, that the measures proposed are necessary and do not disproportionality interfere with the fundamental rights of the suspected or accused person.

50Second, the interpretation set out in paragraph 48 above is supported by Article 6(1)(b) of Directive 2014/41.

51In accordance with that provision, the issuing authority may issue an EIO only where the investigative measure(s) referred to in that EIO could have been ordered under the same conditions in a similar domestic case.

52Through the use of the words ‘under the same conditions’ and ‘in a similar domestic case’, Article 6(1)(b) of that directive makes the determination of the precise conditions required in order for an EIO to be issued dependent on the national law of the issuing State alone. That provision thus seeks to ensure that the rules and guarantees provided for by the national law of the issuing State are not circumvented (see, to that effect, judgment of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraphs 92 and 97).

53As is apparent from the documents before the Court, the requirement that an investigative measure proposed by the KNAB under an EIO, where that measure involves an interference with the fundamental rights of the person concerned, must be authorised by an investigating judge constitutes precisely a condition under Latvian law that an equivalent investigative measure must also satisfy to be executed solely in the territory of Latvia.

54In that regard, it should be made clear that the situation at issue in the main proceedings is distinct from that which gave rise to the judgment in Spetsializirana prokuratura.

55That case concerned the interpretation not of point (ii) but of point (i) of Article 2(c) of Directive 2014/41, in a situation where a public prosecutor had issued, during the pre-trial stage of criminal proceedings, an EIO seeking to obtain traffic and location data associated with telecommunications, whereas, in a similar domestic case, the judge had exclusive competence to adopt an investigative measure seeking access to such data.

56Third, an interpretation of Article 2(c)(ii) of Directive 2014/41 other than that adopted in paragraph 48 above would run counter to the distinction made by the EU legislature between the authorities falling within Article 2(c)(i) and Article 2(c)(ii) of that directive, respectively.

57By that distinction, the EU legislature wished to enable non-judicial authorities which, in accordance with national law, are responsible for criminal investigations in a domestic case and are competent to order investigative measures to be treated as an ‘issuing authority’, within the meaning of Article 2(c).

58However, to hold that the intervention, at the first level of review referred to in paragraph 42 above, of a judicial authority, required by national law in order to authorise the adoption of some of those measures, necessarily implies that only that judicial authority can be treated as an ‘issuing authority’ would lead to the result that only the judicial authorities referred to in Article 2(c)(i) of that directive are competent to issue an EIO, even though those judicial authorities intervene only sporadically in the context of the domestic criminal investigation procedure.

59Such an interpretation would deprive Article 2(c)(ii) of that directive of its effectiveness since, in view of the fact that the authorities referred to in that provision are not required to have the status of ‘judicial authorities’, it is legitimate that the Member States frame the adoption of the investigative measures by those authorities with procedural guarantees, by providing, inter alia, as in the present case, that investigative measures which involve an interference in the fundamental rights of the persons concerned are first authorised by a judicial authority.

60In the second place, as regards the objectives of Directive 2014/41, it is intended, as is apparent from recitals 5 to 8 thereof, to replace the fragmented and complicated existing framework for the gathering of evidence in criminal cases with a cross-border dimension and seeks, by the establishment of a simplified and more effective system based on a single instrument, namely the EIO, 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 which must exist between the Member States (the judgment in Spetsializirana prokuratura, paragraph 36 and the case-law cited).

61As has been stated in paragraph 46 above, that directive identifies the issuing authority as being best placed to decide, on the basis of its knowledge of the details of the investigation concerned, which investigative measure is to be used.

62Therefore, having regard to that consideration and the objectives of a simplified and more effective procedure, which underpin Directive 2014/41, it seems justified that a national authority which is actually responsible for the criminal investigation can be characterised as an ‘issuing authority’, within the meaning of Article 2(c)(ii) of that directive, even if certain investigative measures that it wishes to have carried out must, in accordance with national law, first be authorised by a judicial authority when they involve an interference in the fundamental rights of the person concerned.

63Such an interpretation of Article 2(c)(ii) of that directive ensures that, where several investigative measures are proposed by such an authority in the context of the same criminal proceedings, some of which must be authorised by an investigating judge and others not, a single EIO is issued by that authority for all of those investigative measures, in its capacity as an ‘issuing authority’ within the meaning of that provision.

64That interpretation also facilities possible exchanges between the issuing authority and the executing authority in respect of the EIO under Article 6(3) of that directive or Article 10(4) thereof.

65In the light of the foregoing considerations, the answer to the question referred is that Article 2(c)(ii) of Directive 2014/41 must be interpreted as meaning that it is possible to treat as an ‘issuing authority’, within the meaning of that provision, an administrative authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings and whose investigative measures involving an interference with the fundamental rights of the person concerned must, in accordance with national law, first be authorised by a judicial authority.

Costs

66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Second Chamber) hereby rules: Article 2(c)(ii) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal mattersmust be interpreted as meaning that it is possible to treat as an ‘issuing authority’, within the meaning of that provision, an administrative authority as defined by the issuing State which, in the specific case, is acting in its capacity as an investigating authority in criminal proceedings and whose investigative measures involving an interference with the fundamental rights of the person concerned must, in accordance with national law, first be authorised by a judicial authority.