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CJEU ruling casts doubts on the legality of the proposed e-evidence regulation
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Council of Bars and Law Societies of Europe (CCBE): Press release published on 29 May (link):

On 27 May, the Court of Justice of the European Union (CJEU) issued an important ruling concerning the European Arrest Warrant and the extent to which public prosecutors’ offices can be considered ‘issuing judicial authorities’ for the purpose of cross-border judicial cooperation (see this Press Release, pdf). According to the CJEU, “the concept of an ‘issuing judicial authority’ must be interpreted as including the Prosecutor General of a Member State who, whilst institutionally independent from the judiciary, is responsible for the conduct of criminal prosecutions and whose legal position, in that Member State, affords him a guarantee of independence from the executive in connection with the issuing of a European arrest warrant.”

According to the Court, “[t]hat independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive.” [emphasis added]

This ruling is also of importance in the context of the proposal for a Regulation on European Production and Preservation Orders for e-evidence in criminal matters. That proposal also involves the cross-border issuing by prosecutors of European production and preservation orders for e-evidence. In line with the CJEU’s ruling, such orders could not be issued by a public prosecutor’s office in a Member State, such as in Germany, where the prosecutor concerned is exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice.

In these circumstances, the ruling casts further doubts on the legality of the proposal on e-evidence since it underlines that prosecutors cannot always be considered judicial authorities for the purpose of judicial cooperation as set out in Article 82(1) of the Treaty on the Functioning of the European Union (TFEU).

In its position paper on the e-evidence proposal, the CCBE has already questioned the legal basis of the proposal, on the ground that the principle of mutual recognition referred to in Article 82 TFEU is usually understood to be reserved for cooperation between judicial authorities only. The envisaged proposal, however, does not involve the police or judicial authorities of the Member State in which is situated the undertaking in receipt of the request. Instead, it enables judicial authorities in one Member State to order the production of electronic evidence to private entities in another jurisdiction.

Where the issuing authority in a member state is a public prosecutor not possessing the independence required by the present ruling, it renders the legal basis of the proposal even more questionable.

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