CJEU M.N. (EncroChat): Art. 31 protects users, and evidence the defence cannot comment on must be disregarded

On 30 April 2024 the Grand Chamber of the Court of Justice ruled in M.N. (EncroChat) on a reference from the Berlin Regional Court. An EIO for the transmission of evidence already held by another Member State may be issued by a prosecutor where a prosecutor could order the transmission in a purely domestic case. The infiltration of terminal devices to gather traffic, location and communication data is an interception of telecommunications under Art. 31 Directive 2014/41/EU, which must be notified to the Member State where the target is located, and the notification duty also protects the rights of the users affected. Under Art. 14(7) of the Directive, national criminal courts must disregard information and evidence if the accused cannot comment effectively on it and it is likely to have a preponderant influence on the findings of fact. The judgment gives the defence an EU-law basis to challenge opaque EncroChat and SkyECC material.