New law on European investigation order in criminal matters

By a Law of 1 August 2018 ("Law"), Luxembourg transposed into national law Directive 2014/41/EU on the European Investigation Order in criminal matters ("Directive").

The Directive establishes a single instrument called the "European Investigation Order".

The Directive is not applicable to Denmark or Ireland and does not apply to third countries either. Thus, the Luxembourg Law of 8 August 2000 on international judicial assistance in criminal matters remains in force for international judicial assistance in criminal matters with Member States that are not bound by the Directive (as well as for other Member States until they have transposed it) and for international mutual assistance in criminal matters with third countries.

A European Investigation Order may be issued, inter alia, in the context of criminal proceedings initiated by a judicial authority concerning a criminal offence under the law of the issuing State. It may also be issued in connection with proceedings relating to facts or offences which may give rise to liability or punishment of a legal person in the issuing State.

The Luxembourg authority may refuse to execute a European Investigation Order if, for example, the facts on which it is based do not constitute a criminal offence under Luxembourg law or if it does not meet the penalty threshold provided for in national law for the requested measure.

European Investigation Orders issued to apply coercive measures (e.g. seizures or searches) are subject to specific provisions set out in the Law of 8 August 2000 mentioned above and will impose specific constraints on credit institutions.

Indeed, under Articles 25 and 44 of the Law, credit institutions may not disclose - under penalty of a fine – without the consent of the authority that ordered the measure, that the seizure of documents or the communication of information was ordered by the investigating judge in execution of a European Investigation Order.

In addition, Article 43 of the Law also amends Articles 66-2 and 66-3 of the Code of Criminal Procedure relating to information that the investigating judge may request from credit institutions. Whereas before this Law, credit institutions could only be obliged to inform the investigating judge about facts predetermined by these articles, the power of the investigating judge is now extended to all acts carrying a criminal or correctional penalty, the maximum of which is equal to or greater than 2 years' imprisonment.

Another important new feature of the Law concerns videoconferencing : the Law introduces an amendment to the Code of Criminal Procedure, allowing the use of this procedure in general and not only in European proceedings.