EU Court sets conditions for transferring and using EncroChat evidence
On 30 April 2024 the EU Court ruled in C-670/22 on conditions for transferring and using EncroChat data. It did not invalidate all interception or all messages.
The reference arose from a drugs case before the Berlin Regional Court. French authorities had infiltrated EncroChat with judicial authorisation. Germany obtained data through European Investigation Orders. The Berlin court questioned those orders and the consequences of possible defects.
The Court held that prosecutors may, under conditions, request evidence already gathered. Requirements for transferring existing evidence are not automatically the requirements for collecting it domestically. Subsequent judicial review of compliance with fundamental rights must remain possible.
A Member State must also be notified in time when another State infiltrates devices on its territory to obtain communications data. Evidence must be disregarded where the person cannot comment effectively on it and it is likely to have a preponderant influence on findings of fact.
The national court must assess the consequences for the criminal case before it.
