The European Investigation Order (“EIO”) is a judicial decision issued by a judicial authority in one European Union (“EU”) to have investigative measures on criminal matters carried out in another EU country. Similar to the European Arrest Warrant[KK1] , the EIO is based on mutual recognition, in line with Art. 82 TFEU, which indicates that “judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions”.[1] The EIO was established by Directive 2014/41/EU,[2] and created a single framework for obtaining evidence, such as hearing of witnesses. The EIO came to replace the Framework Decision 2008/978/JHA on the European Evidence Warrant, partly replace Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence, the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and the 2000 EU Convention on Mutual Assistance in Criminal Matters.
How does the EIO work?
An EIO governs all investigative measures aimed at collecting evidence, including covert investigations, banking information, documents, data, or an interrogation, with the aim of collecting evidence. An EIO shall be issued:
- with respect to criminal proceedings that are brought by, or that may be brought before, a judicial authority in respect of a criminal offence under the national law of the issuing State;
- in proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters;
- in proceedings brought by judicial authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters; and
- in connection with proceedings referred to in points (a), (b), and (c) which relate to offences or infringements for which a legal person may be held liable or punished in the issuing State.[3]
This is done by providing three standardised forms which facilitate swift and catholic criteria and execution between Member States, set out in the annexes of the Directive:
- European Investigation Order (EIO), in Annex A;
- Confirmation of the Receipt of an EIO, in Annex B; and
- Notification of the interception of telecommunications without technical assistance, in Annex C.
By using a standardised form, the EIO contains all relevant information required by the executing State. Once the EIO is drawn up by the competent authority, it is then translated into the official language of the executing State.[4] Once the EIO has been received by the executing State, confirmation of the receipt is sent to the issuing State.[5] In drawing up the EIO form based on national criteria of the issuing State, the competent authority determines whether 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 and whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, for the case at hand
[1] Article 82 Treaty on the Functioning of the European Union https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E082&from=ES
[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 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0041&from=EN
[3] Article 4 Directive 2014/41/EU
[4] Article 5(3) Directive 2014/41/EU
[5] Article 16(1) Directive 2014/41/EU
[KK1]Hyperlink the article on EAW here
