ECJ: Can Foreign EncroChat Data Be Used in Court?

May 17, 2024 Benn-Ibler Rechtsanwälte

Decrypting EncroChat was a major step taken by security services to fight organised crime. But the question now is: Under what conditions can EncroChat data be transmitted or used in criminal proceedings that cross national borders?

EncroChat is an encrypted messaging service used by the criminal world and was thought to be unbreakable. However, in 2020, the French and Dutch police forces had success in decrypting EncroChat, which made it possible to siphon off millions of chat messages that had previously been secret. In a criminal case involving drug trafficking, the German public prosecutor issued a European investigation order. The transfer of the data to Germany had been authorised by the competent French court. However, during the proceedings, the prosecuting regional court expressed doubts as to whether the European Investigation Order was lawful and whether the data obtained could be used as evidence, given that the European Investigation Order was issued by the public prosecutor and not a judge.

The competent German regional court referred questions to the European Court of Justice (CJEU) for a preliminary ruling on whether and to what extent data obtained via EncroChat can be used in criminal proceedings.

The ECJ has now given the following ruling:

In principle, prosecutors can use data obtained by foreign authorities. This is true even if the measure would not have been authorised in Germany. Only the national law of the executing state, in this case France, is relevant for the execution of the measure. The transmission is then governed by the Directive on the European Investigation Order in Criminal Matters.

European investigation orders can also be issued by a German public prosecutor. However, this only applies if the authority is also competent to order the transmission of evidence already gathered in purely domestic proceedings, as is the case here.

ECJ, C-670/22 (30 April 24)