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EU: European Investigation Order: Investigative measures: The EIO would introduce a single regime for obtaining evidence held and gathered in another EU Member States

01 September 2011

- Scope to cover all investigative measures (including covert ones) to gather evidence. This would cover "interception of telecommunications, infiltration, observations etc"

- A request from another Member State cannot be refused even if it would not be authorised under national law

The aim of the draft Directive in the Council of the European Union on the European Investigation Order (EIO) is to introduce a single regime for obtaining evidence held and gathered in another EU Member States. It was drawn up by seven Member States and would replace the European Evidence Warrant Directive only adopted in 2008.

In June 2011 the Council discussions centred on concentrated on two questions:

1) Whether the scope of the EIO would cover all investigative measures (including covert ones) to gather evidence or not? This would include "interception of telecommunications, infiltration, observations etc" (EU doc no: 11569-11, pdf). The JHA Council itself confirmed on 9-10 June 2011 that the measure would indeed covers the use of all investigative measures.

At a meeting of the Article 36 Committee (CATS) in June "a number of delegations" also "reiterated their support" that "the various forms of interception of telecommunications" should also be covered (EU doc no: 12175-11, pdf). This refers to the different surveillance techniques available in some Member State but not others, see: Welcome to the new world of the interception of telecommunications.

2) Whether a request can be refused if the measure would not be authorised in a similar national case.

Article 27 as drafted covers "Investigative measures implying gathering of evidence in real time, continuously and over a certain period of time" and states that the execution of an EIO may be refused:

"if the execution of the measure concerned would not be authorised in a similar national case."

However, a Council Presidency Note states that this was "not considered appropriate" and that the inclusion of additional grounds for refusal "should be avoided"

As Professor Steve Peers noted, regarding covert investigations, in his updated Analysis:

"The rules governing such investigations would change significantly, since the 2000 EU Convention gives the requested Member State a lot of leeway to refuse covert investigations on its territory, whereas the proposed Directive would take most of that leeway away."

See: Statewatch's Observatory on the European Investigation Order