Documents considered by the Committee on 6 November 2013 - European Scrutiny Committee Contents

7 European Investigation Order



Draft Directive on the European Investigation Order in criminal matters — Text agreed as general approach
Legal baseArticle 82(1)(a) TFEU
DepartmentHome Office
Basis of consideration Minister's letter of 5 July 2013
Previous Committee Reports HC 86-xxxv (2012-13), chapter 15 (13 March 2013)

See also: HC 428-xliii (2010-12), chapter 9 (7 December 2011); HC 428-xxxii (2010-12), chapter 10 (6 July 2011); also see (32800) (31678) 9288/10:- HC 428-xxix (2010-12), chapter 8 (8 June 2011); also see: (31678) 9288/10- HC 428-xxviii (2010-12), chapter 5 (24 May 2011); HC 428-xx (2010-11), chapter 3 (16 March 2011); HC 428-xi (2010-11), chapter 11 (15 December 2010)

Discussion in Council No date set
Committee's assessment Legally and politically important
Committee's decision For debate in European Committee B; further information requested


7.1 The draft Directive is an initiative of Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden acting under Article 76(b) TFEU (under which a quarter or more of Member States can propose legislation in the field of judicial cooperation in criminal matters and police cooperation). Its objective is to create a single instrument, the European Investigation Order (EIO), for obtaining evidence located in another Member State in the framework of criminal proceedings. Currently judicial or law enforcement authorities have to use two different regimes: mutual legal assistance (MLA) on the one hand, and mutual recognition on the other. MLA is regulated by a number of legal instruments,[18] the most important of which is the 2000 EU MLA Convention, and may be used for all cases, irrespective of the type of investigative measure or the type of evidence concerned. Mutual recognition, on the other hand, is limited to areas covered by one of the two instruments currently adopted in the EU: the Framework Decision on the execution in the European Union of orders freezing property or evidence,[19] and the Framework Decision on the European evidence warrant (EEW) for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.[20] The EEW has not yet come into force.

Previous scrutiny

7.2 The Committee first considered the draft Directive on the EIO in March 2011. On 22 January of this year the Minister for Immigration at the Home Office (Mr Mark Harper) wrote with an update on the first reading negotiations with the European Parliament (EP). He explained that the EP adopted its amendments to the EIO in May 2012. This formed the basis of its position going into the trilogue negotiations. However, the negotiations were put on hold because the EP suspended co-operation on this (and four other dossiers) due to disagreements regarding the Schengen Evaluation Mechanism. They began again on 14 November. He drew our attention to the following EP amendments:

·  Article 2 — the proposed definition of "executing authority" as a "judicial authority", which was unworkable for the UK as national executing authorities are generally the police. The Government was therefore seeking to defend the existing Council text on this issue;

·  Articles 5/5a — the proposed amendments on proportionality, which showed there was support for a stronger proportionality check. This amendment created a clear requirement for the issuing State to consider whether the request was proportionate, and now contained a consultation mechanism which could be triggered by the executing State, and which may lead to the withdrawal of the request. Although the Government would have preferred proportionality to constitute a ground for refusal, the practical effect of this proposal was close to the UK's negotiating aims; and

·  Article 10— this remained one of the most contentious provisions. The EP proposed that the dual criminality requirement—that the investigation concerned activity which was recognised as a crime in both States—be a general ground for refusal for all coercive and non-coercive measures, but not for the list of 32 offences (the same exception list that is found in the Framework Decision on the European Arrest Warrant (EAW)). In maintaining the list of exceptions, the EP amendments did not go as far as the Government had hoped (it had hoped to achieve a full dual criminality refusal ground without any exceptions). The Minister reported that there was no appetite to drop the list approach in either the EP or the Council: a full dual criminality test was not considered to be important from a practical perspective and to be a step backwards in cooperation. There were also fears that a full dual criminality refusal ground could make it easier to execute an EAW than an EIO. Given the advanced stage of negotiations, the Minister thought the Government was unlikely to achieve any significant changes on this point at the trilogue stage, although it was continuing to lobby on the issue.

7.3 In addition to these amendments, the EP had suggested a number of other amendments that were attractive to the UK, for example including a human rights ground of refusal and a wider ground of refusal based on territoriality.

7.4 The Minister concluded by saying the Government would continue to work with Member States and MEPs to pursue UK objectives on the EIO, and that he would report back as negotiations progressed.

7.5 In response, we welcomed the proposed strengthening of the proportionality test and the addition of human rights breaches as a ground for refusing an EIO, and trusted the Council would succeed in restoring the definition of executing authority in Article 2.

The Minister's letter of 5 July 2013

7.6 The Minister explains that four trilogues took place under the Irish Presidency, the most recent on 11 June. These discussions were generally favourable to the UK position. Although a full consolidated text has not yet been published, the following Articles have been agreed in principle (he attaches the draft revised text of these Articles):

·  Article 4 (Types of procedure for which the EIO can be issued);

·  Article 5 (Content and form of the EIO);

·  Article 6 (Transmission of the EIO);

·  Article 7 (EIO related to an earlier EIO);

·  Article 8 (Recognition and execution);

·  Article 11 (Deadlines for recognition or execution);

·  Article 14 (Grounds for postponement of recognition or execution);

·  Article 16 (Criminal liability regarding officials); and

·  Article 17 (Civil liability regarding officials).

7.7 Most of these are non-contentious clauses, the Minister says, and the Government was content with the agreed General Approach text. Discussions have also taken place on Articles 2, 5a, 9 and 10, to which his letter of 22 January also referred:

·  Article 2 (Definitions of Executing/Issuing authorities) — there were concerns about the approach the EP was taking in terms of defining an 'executing authority'. However, the definition now looks likely to cover the UK's system of using a "central authority" to receive, accede to, and ensure the execution of EIOs;

·  Article 5a (Conditions for Issuing and Transmitting an EIO) — it also appears likely that there will be a mechanism to allow an executing authority to return an EIO that it considers disproportionate, so that the issuing authority can consider withdrawing the request; and

·  Article 9 and Article 10 (Recourse to different types of investigative measure / Grounds for non-recognition or non-execution) — the EP remains in favour of a ground for refusal on human/fundamental rights grounds and a clause that ensures that Member States are not obliged to carry out search and seizure where this is not possible in a comparable domestic case. The Government is supportive of a human/fundamental rights refusal ground and is considering the proposals regarding search and seizure. However, negotiations on these clauses remain challenging.

7.8 The Minister concludes by saying that, overall, progress was made under the Irish Presidency. Difficult discussions on grounds for refusal remain, but he is optimistic that negotiations will be concluded during the Lithuanian Presidency. Again, he undertakes to keep us updated on developments during these negotiations.


7.9 We thank the Minister for his letter.

7.10 We understand that negotiations are nearing an end. We therefore recommend the draft Directive be debated in European Committee A as soon as possible, so that the Government is fully aware of opinions within the House on the European Investigation Order before it agrees to its adoption.

7.11 We ask for the following information to be provided to us at least a week before the debate, so that we can report it to the House before the debate takes place.

7.12 From the attachment to the Minister's letter we see that Article 4 (which is agreed) provides as follows:

    "Article 4 —Types of procedure for which the EIO can be issued

    "The EIO may be issued:

    "a) with respect to criminal proceedings brought by, or that may be brought before, a judicial authority in respect of a criminal offence under the national law of the issuing State;

    "b) in proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters;

    "c) in proceedings brought by judicial authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters, and

    "d) in connection with proceedings referred to in points (a), (b), and (c) which relate to offences or infringements for which a legal person may be held liable or punished in the issuing state."

7.13 Paragraph a) of Article 4 states that an EIO can be issued in criminal proceedings brought by, or that may be brought before, judicial authorities in respect of a criminal offence in the issuing State. Paragraphs b) and c) refer to proceedings brought by administrative authorities and by judicial authorities for what appear to be petty criminal and civil offences. In the UK, criminal proceedings are not brought by "judicial authorities" (literally interpreted) but are brought before "judicial authorities". We ask the Minister to explain the meaning of judicial authorities, a judicial authority, and administrative authorities as used in Article 4, and list the national proceedings to which Article 4 could apply.

7.14 In addition, we ask the Minister for a consolidated text of the draft EIO Directive to be deposited as soon as one is available. This should be accompanied by an explanation (in a letter or Supplementary Explanatory Memorandum) of how each Article is consistent with or will change national practice and procedure, of the overall policy implications of the UK agreeing to the adoption of the Directive, and of the consequential effect of the Directive, once adopted, on pre-Lisbon JHA measures falling within the Government's block opt-out.

18   Council of Europe Convention on mutual assistance in criminal matters 1959, supplemented by its additional protocol of 1978 and the second additional protocol of 2001; the Benelux Treaty of 1962; the Schengen Implementing Convention of 1990; and the Convention on mutual assistance between the Member States of the EU of 2000. Many provisions of the 2000 Convention are similar to those of the second additional protocol of 2001 to the 1959 Convention, which some of the Member States also ratified, and the additional protocol from 2001. Bilateral Treaties also exist. Back

19   2003/577/JHA: OJ No. L 196, 22.07.03, p.45. Back

20   2008/978/JHA: OJ No. L 350, 30.12.08, p.72. Back

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Prepared 27 November 2013