ECJ confirms that German Public Prosecutor’s Offices can issue EU investigation orders
The European Court of Justice (“ECJ”) ruled on 8 December 2020 (file no. C-584/19) that German Public Prosecutor’s Offices (“PPOs”) are not prevented from issuing EU investigation orders (“EIO”). While this seems self-evident at first glance, clarification was necessary in this respect due to the ECJ’s own case law on the European Arrest Warrant (“EAW”). The ECJ had previously ruled that the German PPOs lacked the required independence to issue EAWs, due to the possibility of them having to act pursuant to instructions given by the German State Ministries of Justice.
Background to the case
The Hamburg PPO had opened an investigation into fraud and issued an EIO in May 2019, which it had forwarded to the Vienna PPO, requesting it to gather information relating to an Austrian bank account that was relevant to the Hamburg investigation.
The Vienna Regional Court for Criminal Matters that was competent to rule on the enforcement of the EIO was uncertain whether the Hamburg PPO could be classified as a “judicial authority” within the meaning of the EIO Directive. The Vienna court referred to the ECJ’s decision (file no. C 508/18) that German PPOs were not “issuing judicial authorities” within the meaning of the corresponding Council Framework Decision on the EAW, due to the possibility that instructions potentially affecting the PPOs’ decisions could be issued by the German State Ministries of Justice. Additionally, the Austrian court referred to a similar decision concerning Lithuania (file no. C 509/18). Therefore, the Vienna court considered that the same reasoning could be applied to the EIO and it asked the ECJ for clarification in this respect.
The ECJ’s decision
The ECJ ruled that the German PPOs’ dependence on instructions from Ministries does not preclude the issuance of EIOs. The ECJ argued that, unlike the provisions of the Council Framework Decision concerning the EAW, which refers to the “issuing judicial authority” without specifying the authorities covered by this term, the EIO Directive explicitly includes the PPOs in its list of competent authorities. From the ECJ’s perspective, the EIO, unlike the EAW, is not capable of interfering with the subject’s right to liberty as protected by the EU’s Charter of Fundamental Rights. In practice, this means that German PPOs can continue to issue EIOs when investigating in other EU Member States.
The German PPOs will have welcomed this ruling and received it with relief. If the ECJ had ruled otherwise, crossborder investigations within the EU would have been made considerably more difficult – a result that would have clearly contradicted the basic purpose of the EIO. The practical consequences of such a decision would have been unforeseeable and presumably far-reaching. In terms of legal certainty, the ruling is therefore to be welcomed.
Moreover, on 11 January 2021, the Federal Ministry of Justice presented a draft “Law on Strengthening the Independence of Public Prosecutor's Offices and Cooperation in Criminal Matters with the Member States of the European Union” which, against the background of the ECJ decision on the EAW, aims to secure the ability of public prosecutors to act as independent players in criminal prosecutions in Europe. The draft law would exempt German PPOs from being subject to individual ministerial instructions in the sector of judicial cooperation in criminal matters between the EU Member States and expressly set out the narrow limits of the ministerial right to issue instructions in other areas of prosecutorial activity.