1. European Investigation Order Background and Context Steve Peers April 7, 2014

2. Council of Europe 1959 Mutual Assistance Convention - all Member States, all 47 CoE states and 3 more 1978 Protocol to Convention - all Member States, 13 more CoE states (not Swiss/Liech) and 2 more 2001 Second Protocol to Convention - 19 Member States (not AU, CY, FI, DE, GR, HU, IT, LUX, ES), 11 more CoE states (not IC, LIECH) and 2 more

3. EU Conventions Schengen, Arts. 48-53: applied by all MS, and 4 Schengen associates Mutual Assistance Convention, 2000: in force in 24 Member States (not GR, IT, HR, IE), plus Norway and Iceland, in part Swi/Liech Mutual Assistance Protocol, 2001: in force in 23 Member States (not GR, EE, IT, HR, IE), plus Norway and Iceland, in part Swi/Liech

4. European Evidence Warrant Framework Decision, adopted 2008 Deadline to apply: Jan. 2011 Applied by SLVN, NE, FI, DK Only applies to certain forms of evidence, not applicable to: interviews, statements; bodily examinations; obtaining real-time information; analysing documents; intercepting telecommunications Co-exists with other legal instruments (art 21) So can use mutual assistance treaties in specific cases where this would facilitate cooperation, or if there is a wider request for evidence

5. European Investigation Order Proposed 2010, by group of Member States (to forestall Commission proposal) Lengthy negotiations within Council, then between Council and EP, concluded late 2013 Formally adopted March 2014; OJ publication pending Deadline date: 3 years after entry into force, which is 20 days after OJ publication (so probably late April or May 2017)

6. European Investigation Order Applies to all MS except IE and DK Full jurisdiction of CJEU applies to post-Lisbon measures (ie all courts, all participating Member States; final court must refer; infringement proceedings possible) No prospect of UK opt-out once it opts in to a post-Lisbon criminal law measure, as it did here

7. EIO Directive Relations to other legal rules: Art 34: replaces corresponding provisions of Council of Europe Conventions, and bilateral treaties; EU Conventions; Schengen Convention EEW Framework Decision replaced entirely; also 2003 Framework Decision on freezing orders re assets and evidence, as regards evidence Bilateral agreements still allowed if they strengthen the aims & simplify or further facilitate evidence gathering, subject to respect for level of safeguards in the Directive Transitional provision – prior rules apply to requests received before the transposition date

8. UK opt-out No opt-out possible from EIO Directive – but it does not apply until spring 2017 UK govt position, will not seek to opt back in to, EU convention and protocol, EEW; so they cease to apply as of 1 Dec. 2014; will seek to opt back in to Schengen MLA provisions – requires unanimous vote in Council Council can adopt transitional rules regarding the opt- out, will not apply to UK as such JHA opt-out does not apply to CoE conventions – but will other Member States treat UK as a third State under those conventions?

9. Main features of Directive Art 1: all forms of evidence (except Joint Investigation Teams); can be requested by the defence; principle of mutual recognition Art 1.4: does not affect human rights obligations, incumbent on courts Art 2: issuing authorities not just courts and prosecutors, but if not the request must be validated

10. EIO – main points Art 6: only issued if necessary and proportionate, could have been issued in domestic proceedings Conditions assessed by issuing authorities, but executing authorities can consult on this Art 9: obligation to recognise unless a ground for non-recognition applies Art 10: can use different evidence gathering method in some cases, ie requested method does not exist in executing state; but some methods must always exist

11. EIO – main features Art 11 – grounds for refusal, including: immunity or privilege; national security; ne bis in idem; extraterritoriality with lack of dual criminality; substantial grounds to believe that execution would breach Art 6 EU/Charter; lack of dual criminality, subject to EAW list with three-year threshold

12. EIO – main points Art 14 – legal remedies Same as in similar domestic proceedings Substance can only be challenged in issuing state, subject to HR obligations Must usually inform about remedies Effective time-limits for remedies Non-suspensive effect, unless this applies to domestic cases Issuing State must take a successful challenge into account, ensure rights of defence and fairness of proceedings when assessing evidence in EIO

13. EIO – main points Art 15 – postponement in some cases Chapter IV – specific types of investigations Art 22, 23 – temporary transfer Art 24 – videoconference hearing Art 25 – telephone hearing Art 26, 27 – bank accounts Art 28 – real-time gathering of evidence Art 29 – covert operations Chapter V (Arts 30, 31) – telecom interception Chapter VI (Art 32 – provisional measures

14. Contact details Steve Peers Professor of EU & Human Rights Law, University of Essex E-mail: speers@essex.ac.uk Twitter: @StevePeers LinkedIn Editor of EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/