Legal and Practical Challenges in the Application of the European Investigation Order : Summary of the Eurojust Meeting of 19–20 September 2018

Abstract

After implementation of Directive 2014/41 by the EU Member States (bound by the Directive) in 2017 and the first half of 2018, the European Investigation Order (EIO) has become the core instrument for obtaining evidence located in another EU Member State. The EIO simplifies and accelerates cross-border investigations, but practical and legal challenges remain. Such challenges as well as first experiences and best practices in the application of the EIO were discussed among practitioners at a meeting organised by Eurojust in September 2018. This article summarises the main results of the meeting. Participants acknowledged the need to interpret national law in light of EU law, in line with the principles of mutual recognition and mutual trust, but also underlined the challenge of constantly searching for legally sound and practically feasible solutions between different national legal systems. They agreed on the importance of an overall pragmatic and flexible approach. Views diverged on several topics (e.g. the speciality rule, costs in the context of the proportionality test), but coincided on many others. Recommendations relate inter alia to the scope of the EIO, the use of the forms, the language regime and time limits. Participants envisaged that the support of Eurojust in relation to EIOs will probably be higher, when compared to the MLA regime, as more consultations are foreseen in the EIO Directive. Whilst participants acknowledged that “direct contact” amongst judicial authorities is the core principle of the Directive, they strongly believed that, in bilateral cases, Eurojust’s bridge-making role can facilitate communication between the judicial authorities involved if one of the consultation procedures is triggered and that, moreover, in complex multilateral cases Eurojust has a unique and important coordinating role.