Below is a presentation and legal interpretation of the key points of the judgment based on our initial analysis.
For a basic understanding, it is important to note that the ECJ did not address the question of whether the data collection in France was lawful or whether the data could be used in German court proceedings. Instead, it solely answered the specific questions referred by the Berlin Regional Court from a European legal perspective. However, the detailed reasoning provides promising defense strategies:
The full text of the decision can be found here.
Paragraph 76:
“In the present case, the German government argues that under Section 100e(6)(1) of the German Code of Criminal Procedure (StPO), evidence may be transferred from one national investigative authority to another at the national level. Moreover, this legal basis, which differs from the one provided for the original data collection, does not require judicial authorization for such a transfer. It is for the referring court, which alone has jurisdiction to interpret national law, to determine whether this is the case.”
--> This makes it clear that the German government directly links the issuance of the European Investigation Order (EEA) regarding EncroChat to the requirements of Section 100e(6)(1) StPO. The ECJ follows this argument, stating that issuing an EEA must meet the conditions for a domestic evidence transfer.
Paragraph 89:
“In this regard, in light of the questions raised by the referring court in paragraphs 82 and 83 of the present judgment, it must first be clarified that Article 6(1)(a) of Directive 2014/41 does not require that the issuance of a European Investigation Order for the transfer of evidence already in the possession of the competent authorities of the executing state necessarily depends on the existence of a suspicion of a serious criminal offense supported by concrete facts against any affected person at the time the European Investigation Order is issued, provided that such a requirement does not arise from the law of the issuing state.”
--> The ECJ clarifies that the requirements for issuing an EEA are to be assessed exclusively under national law, in this case, German law.
Paragraphs 91-95:
“Subsequently, it follows from the wording of Article 6(1)(b) of Directive 2014/41, as well as from the distinction made in Article 1(1) of this Directive, as referred to in paragraph 71 of the present judgment, that if ‘the investigative measure indicated in the EEA’ involves obtaining evidence already in the possession of the competent authorities of the executing state, i.e., the transfer of this evidence to the competent authorities of the issuing state, such an order may only be issued on the condition that this transfer ‘could have been ordered under the same conditions in a comparable domestic case.’
The phrases ‘under the same conditions’ and ‘in a comparable domestic case’ make it clear that Article 6(1)(b) of Directive 2014/41 makes the determination of the precise conditions for issuing a European Investigation Order dependent solely on the law of the issuing state.
Thus, an issuing authority seeking to obtain evidence already in the possession of the competent authorities of the executing state must ensure that all conditions prescribed by its own national law for a comparable domestic case are fulfilled.”
--> This means that the prosecutor's office had to verify whether the conditions for a domestic transfer of evidence were met before issuing the EEA. According to Sections 100e(6) and 100b(1)(1) StPO, in a comparable domestic evidence transfer, specific facts must substantiate a suspicion of a serious offense by the accused (qualified suspicion, case-by-case consideration). However, at the time, neither a qualified suspicion against individual users nor a specific case-by-case reference as required by Section 100b StPO was present.