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European Investigation Order
The European Investigation Order was proposed by Belgium, Bulgaria, Estonia, Spain, Luxembourg, Austria, Slovenia and Sweden in April 2010. This would replace the European Evidence Warrant adopted in 2008.

Updated 13/05/14


Adoption of the EIO: Council adopts the "European Investigation Order" directive (press release, 14 March 2014, pdf)

- Full text: Directive of the European Parliament and of the council regarding the European Investigation Order in criminal matters (pdf)

- Further information: Fair Trials International's response to the adopted European Investigation Order Directive (pdf) and the European Investigation Order: Key sources (European Parliamentary Research Service, link)

Council of the European Union:
Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive regarding the European Investigation Order in criminal matters (16120-12, pdf) Council discussion on developing its position in response to 1st reading trilogue with the European Parliament, including "controversial issues" And see: earlier Council discussion prior to trilogues (9445-12, pdf)

- European Parliament: Orientation Vote: on the adoption of a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters (pdf) prior to enter 1st reading trilogue meetings with the Council.

- Original Council proposal for the EIO proposed by eight Member States in April 2010 (pdf)

EU: EUROPEAN INVESTIGATION ORDER(EIO): Council of the European Union: State of play in agreeing its negotiating position: Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters - Preamble, forms and annex related to Article 29.1 (pdf) Note even here there are still 95 Member State reservations.

Council of the European Union: Text agreed as general approach (pdf). This is the Council's agreed position before entering 1st reading "trilogue" discussion with the European Parliament.

EU: FUNCTION CREEP: EUROPEAN INVESTIGATION ORDER (EIO): Council of the European Union: Initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden for a Directive regarding the European Investigation Order in criminal matters - Freezing of evidence (EU doc no: 16410-11, 8.11.11, pdf). The Council is discussing extending the scope of the draft Directive to cover not just the "freezing of assets" but their confiscation - covering property (ie: bank accounts, computers) or evidence. As currently drafted the Directive concerns only the "gathering" of evidence. At the Article 36 Committee (CATS)in June: "the Commission and the Council Legal Service appealed to Member States to carefully weight pros and cons of such inclusion". This Council Presidency Note offers three Options which include (Option C) the "both freezing of evidence and freezing of assets" (ie: confiscation). It should be noted that by the nature of the EIO the suspect may not have been either been charged or convicted.

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

EU: EUROPEAN INVESTIGATION ORDER (EIO): Council of the European Union: Initiative Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden for a Directive regarding the European Investigation Order in criminal matters - Follow-up document of the meeting of the "Friends of the Presidency" meeting on 26 October 2011 (EU doc no: 16408/11, pdf). Concerns Chapter IV on "Certain investigative measures" and contains detailed comments byMember States.

EU: EUROPEAN INVESTIGATION ORDER: Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive regarding the European Investigation Order in criminal matters - Follow-up document of the meeting of the Working Party on 22 July 2011(pdf)

EU: EUROPEAN INVESTIGATION ORDER: Opinion of the Meijers Committee: Standing committee of experts on international immigration, refugee and criminal law: Initiative for a Directive regarding the European Investigation Order in criminal matters (pdf) See also: Latest Council of the European Union: Position (8 June, pdf)

Council of the European Union: Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive regarding the European Investigation Order in criminal matters - Follow-up document of the meetings of the CATS on 18 May 2011 (EU do no: 10540-11, pdf)

Draft Article 3 says: "The EIO shall cover any investigative measure" to which there is a Footnote:

"All delegations, except UK which entered reservation on this issue, have also agreed that all forms of interception of telecommunications are covered by the Directive and specific provisions will be introduced in Chapter IV. UK questioned whether the inclusion of provisions related to undercover agents falls within the scope of this Directive." (emphasis added)

In a later version of the proposal which is being submitted to COREPER (the high-level committee of permanent member state representations based in Brussels): EU doc no: 10749-11 (pdf) the UK reservation has disappeared and it now says:

"The experts confirmed the objective of setting broad scope of the Directive, and, in particular to include all forms of interception of telecommunications and under covered agents." (emphasis added)

and on Scope: "It has been noted that the EIO is designed for obtaining evidence in criminal proceedings, but it may also cover some administrative proceedings having a criminal dimension"

Tony Bunyan, Statewatch Director comments: "In plain English the Scope of the EIO will cover the gathering or exchanging of existing evidence on alleged crime or "administrative proceedings having a criminal dimension," including the use of search,seizure, covert and intrusive surveillance."

See: EU: Welcome to the new world of the interception of telecommunications: under the new forms of interception Member States simply authorise themselves - Italian government EIO survey response: "it is probably possible that the telecommunications are in a way "deviated" to the requesting state without listening in Italy." and - "the legal framework with respect to transnational searches of such devices is not well-developed." (EU-G6 Interior Ministers)


Analysis

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

Analysis: Update The Proposed European Investigation Order (pdf) by Steve Peers, Professor of Law, University of Essex:

"while the proposed changes will entail a significant improvement as compared to the original proposal, there remain significant flaws with the proposed EIO.

It remains the case that at least in some cases, the combined abolition of dual criminality and territoriality requirements under the Directive represents both a fundamental threat to the rule of law in criminal law matters – which is required by Article 7 ECHR (legal certainty of criminal offences) and Article 8 ECHR in this field (invasions of privacy must be in accordance with the law) – and an attack on the national sovereignty of Member States, which would in effect lose their power to define what acts are in fact criminal if committed on the territory of their State." (emphasis in original)

Analysis: The proposed European Investigation Order: Assault on human rights and national sovereignty (pdf) by Steve Peers, Professor of Law, University of Essex:

"the combined abolition of dual criminality and territoriality requirements represents both a fundamental threat to the rule of law in criminal law matters – which is required by Article 7 ECHR (legal certainty of criminal offences) and Article 8 ECHR in this field (invasions of privacy must be in accordance with the law) – and an attack on the national sovereignty of Member States, which would in effect lose their power to define what acts are in fact criminal if committed on the territory of their State."

For example: "The combination of these changes would mean that a person who committed an act which is legal in the Member State where the act was carried out could be subject to body, house and business searches, financial investigations, some forms of covert surveillance, or any other investigative measures within the scope of the Directive as regards any ‘crime’ whatsoever which exists under the law of any other Member State, if that other Member State extends jurisdiction for that crime beyond its own territory."


Council of the European Union

EU doc no: 7014/1 (pdf)

EU doc no: 18918-11 (pdf)

EU doc no: 16410-11 (pdf)

EU doc no: 15651-11 (pdf)

EU doc no: 15065-11 (pdf)

EU doc no: 14326-11 (pdf)

Eu doc no: 14389-11 (pdf)

EU doc no; 14445-11 (pdf)

EU do no: 13224-11(pdf)

EU doc no: 12175-11 (pdf)

EU doc no: 11569-11 (pdf)

EU doc no: 10749-11 (pdf)

Follow-up document of the meetings of the CATS on 18 May 2011 (EU do no: 10540-11, pdf)

EIO: Proposals of Presidency - grounds for refusal to execute (EU doc no: 9500-11, pdf) and Proposals of Presidency - costs and remedies (EU doc no: 9499, pdf)

European Investigation Order (EIO): Proposed Directive regarding the European Investigation Order in criminal matters - Follow-up document of the meetings of the Working Party on 7-8 February 2011, 8 March 2011 and 1 April 2011 (8474/11, 19.4.11, with Member State positions, pdf)

- Initiative regarding the European Investigation Order in criminal matters - Proposal from the Presidency regarding EIO (grounds for refusal of recognition) (7654/11, pdf)

-
State of play report (8369/11, pdf).

- Follow-up document of the meeting of the Council on 8-9 November 2010 and the Working Party on 11-12 January 2011 (5591/11, pdf)

- Progress report (16868/10, pdf)

- Follow-up document of the meeting of the Council on 8-9 November 2010 and the Working Party on 17-18 November 2010 (EU doc no: 16643/10, pdf)

- Outstanding issues: October 2010 (EU doc no: 15329/10, pdf)

- Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters - Orientation debate (pdf)

- The Delegation of Hungary (pdf) - The Netherlands (pdf) and Sweden (pdf)

- Follow-up document of the meeting on 12-13 July 2010 (14 pages, pdf).

- Initiative for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters - Detailed Statement (42 pages, pdf)

- Discussion paper on the European Investigation Order (pdf)

- UK opt-in (pdf)

- Discussion paper on the European Investigation Order (pdf)

- Initiative for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters - Detailed Statement (42 pages, pdf)

- European Investigation Order: Proposed by Belgium, Bulgaria, Estonia, Spain, Luxembourg, Austria, Slovenia and Sweden April 2010


European Data Protection Supervisor (EDPS): Opinion on the European Protection Order and the European Investigation Order in criminal matters (pdf)

Civil Society and media

- Statewatch Analysis: Update: The Proposed European Investigation Order

- JUSTICE: Briefing on the European Investigation Order (pdf)

- Fair Trials International: Submission on a European Investigation Order (pdf)

- New EU police investigation co-operation alarms civil liberties watchdogs (euobserver, link).

- Statewatch Analysis: The proposed European Investigation Order: Assault on human rights and national sovereignty


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