Prior to the EIO there was Council Framework Decision 2003/577/JHA and this pertained to the mutual recognition of freezing orders for the purpose of securing evidence or subsequent confiscation of property.
This fragmentation was discussed at the Stockholm Program by the European Council in 2009 where it was decided that there needed to be a comprehensive system based on mutual recognition for obtaining evidence in cross-border criminal cases.
[8] The EIO aim is to facilitate and increase efficiency in cross-border criminal investigations by simplifying the process of evidence collection to combat transnational crime.
[9] The EIO is based on mutual recognition of judgements and judicial decisions concerning criminal matters as defined by Article 82(1) TFEU.
[17] Some even went as far as arguing that the EIO’s inception was hasty, as it did not allow for experiences to be drawn from the European Arrest Warrant, and some said it was a patchwork solution in a fragmented frame of mutual recognition.
[citation needed] Article 21(2) only suggest that Member States may consult how to share the costs or modify the EIO if the former is exceptionally high.
This raises a challenge against the equality of arms which is guaranteed by the European Convention of Human Rights as a component of a fair trial.
This is problematic with regards to the rule of speciality, as an issuing state may request evidence for an administrative offence in the executing country but use it for criminal proceedings.
[citation needed] The grounds of non-recognition or non-execution are laid out in Article 11 of the Directive are limited and are the basis on which an executing state may refuse an EIO.
However, when asked questions in a preliminary ruling of the Gavanozov case in 2019, the Court avoided answering regarding the direct legal status of suspects.
The inability to challenge the necessity and legality of a European Investigation Order carrying out searches and seizures in the issuing Member State constitutes a breach of Article 47 of the Charter.
The Court thus follows the recommendation given by the Advocate General Michal Bobek, who in this case advised that as long as the Bulgarian legislature does not remedy this situation, Bulgaria is in constant breach of fundamental rights and can therefore not take part in the mutual recognition scheme.
The Directive was proposed in April 2010, by a group of seven European Union Member States: Austria, Bulgaria, Belgium, Estonia, Slovenia, Spain and Sweden.
However, flexibility is introduced by allowing, in a limited number of cases, the executing authority to decide to have recourse to an investigative measure other than that provided for in the EIO.
[23] In August 2010 the European Commission issued an opinion on the initiative, warning that it may be a system of evidence sharing without the safeguards provided by common admissibility standards.
Before the approval of the EIO could be considered by the European Parliament and EU Council, it was criticised by Fair Trials International, the Fundamental Rights Agency, Statewatch and some UK parliamentarians, who fear that it will allow increased police surveillance and disproportionate use of investigative powers in trivial matters.