Obtaining Evidence Protected by Banking Secrecy through European Investigation Order in Preparatory Proceedings . Remarks from the Polish Perspective

: The subject matter of considerations undertaken in the paper is the issue of obtaining evidence entailing banking secrecy under the European Investigation Order at the stage of the preparatory proceedings from the Polish perspective. The examination of the described evidence activity is often necessary to make key findings, for example, in the field of the data on bank accounts or bank transactions. Actions taken in this regard may concern the monitoring of banking opera­ tions and may also be used for establishing financial links be­ tween entities operating in different European Union Member States. The procedure for applying the European Investigation Order generates many problems in the analysed scope, in par­ ticular at the stage of the preparatory proceedings, starting from determining the authority competent to issue the European In­ vestigation Order, to the need to consider legitimacy of obtain­ ing the consent by the prosecutor to exempt from banking se­ crecy in order to further request for the required information. Against the background of the issues presented in the article, an attempt was made to analyse the normative institution of the European Investigation Order, used for obtaining evidence covered by banking secrecy, and to show the model that deter­ mines its optimal functioning in the face of existing problems in the application challenges related to the European cooperation in this area.


Introduction
Development of crime, in particular due to the continuous progress in the field of new technologies, has resulted in the gradual transformation of classic crime and its shift into the cyberspace, 1 which became particularly noticeable in the era of the COVID19 pandemic, as it was preconditioned and closely related to a significant increase in human activity in the global network. 2 The category of a threat, and at the same time a factor exposing people to the risk of victimisation, should be perceived as a combination of tools used by standard users of computers and mobile devices as well as not only enabling, but sometimes even imposing from above, dealing with most matters via the network, digitisation of documents or widespread use of electronic banking, often in the absence of appropriate skills allowing for conscious and safe operation of specific applications.This state of affairs, in the face of intensified criminal activity, especially on the Internet, results in a high level of crime threat in the cyberspace, particularly including prop erty offences. 3he Internet, due to the widespread accessibility of online banking, may be used to deposit funds from crime in accounts or to moneylaundering using them.In practice the activity of organised criminal groups is often carried out through bank accounts set up by the socalled money mules". 4herefore, taking into account the fact that it is possible to access bank accounts online and the international nature of criminal organisations, their activities often involve a crossborder component, in particular when, for example, the account to which proceeds of crime were transferred was 1 Cf.Wiesław Pływaczewski, "Współczesne trendy przestępczości zorganizowanej w Euro pie (analiza wybranych zjawisk przestępczych z uwzględnieniem zadań Agencji Unii Eu ropejskiej ds.Współpracy Organów Ścigania -Europol), " Studia Prawnoustrojowe, no.52 (2021): 387. 2 Cf.Marek Smarzewski, "Cyberprzestępczość a zmiany w polskim prawie karnym, " in Reforma prawa karnego, ed.Iwona SepiołoJankowska (Warsaw: C.H. Beck, 2014), 262.   3   Cf.Paweł Urbanovicz, Marek Smarzewski, "Bezpieczeństwo w cyberprzestrzeni a prawo karne, " in Veritas in caritate, eds.Marcin Tkaczyk, Marzena Krupa, and Krzysztof Jaworski (Lublin: Wydawnictwo KUL, 2016), 490-492; cf. also Dominika Skoczylas, "Rozwój teleinfor matyczny państw Europy Wschodniej w kontekście cyberbezpieczeństwa.Zagrożenia a ochro na cyberprzestrzeni -wybrane zagadnienia, " Prawo i Więź 41, no. 3 (2022): 329-330.4   See: Agnieszka Gryszczyńska, "The Impact of the COVID19 Pandemic on Cybercrime, " Bulletin of the Polish Academy of Sciences.Technical Sciences 69, no. 4 (2021): 6.  opened in another country.It may also be that these accounts are used to temporarily transfer funds, which are then withdrawn from ATMs abroad.
It should be noted that it is often a key issue to take prompt action by law enforcement agencies, aimed at obtaining evidence that would allow to identify the perpetrator and circumstances relevant from the perspective of the criminal proceedings at its early stage.At the same time -assuming there are premises in this regard -it is justified to take action as soon as possible to block the proceeds of crime, accumulated on a given account.In such cases, the fact that the information is often covered by banking secrecy, may prove difficult.
A significant problem in the cases involving a crossborder factor is not only the cooperation itself, but also its effectiveness measurable by a fast, automated, and often comprehensive action possible on the basis of exist ing legal instruments regulating the forms of the international cooperation.The institution which, as part of the cooperation between the EU Member States, is the main mechanism for obtaining and transferring evidence is the European Investigation Order (EIO), introduced into the Polish legal order in connection with the implementation of the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. 5n its abstract approach, the EIO is the institution that allows for the es tablishment of the European cooperation in the field of conducting eviden tiary proceedings.Against this background, however, certain doubts and questions arise that will be justified to be answered with the ongoing con siderations.
Firstly, it should be considered whether the EIO meets the needs of effective evidencegathering at an early stage of the criminal proceedings.Secondly, there are doubts to what extent the principle of mutual recogni tion of judicial decisions functions within EIO in a situation where obtain ing of evidence requires the fulfilment of additional formal requirements, as is the case, for example, with reference to the information protected by bank secrecy.These doubts become all the more significant when it comes to obtaining of evidence in the area covered by banking secrecy at the stage 5 Official Journal of the European Union, L 130, 1 May 2014, p. 1-36; thereafter referred to as "EIO Directive". of the preparatory proceedings, which actually constitutes the subject mat ter of this study.As part of the subject matter, it is also necessary to spec ify the authority competent to issue the EIO in case when the exemption from banking secrecy under the Polish law lies within the competence of the locally competent regional court.The paper also highlights the issues regarding the admissibility of evidence obtained under the EIO and the le gitimacy of applying the principle of specialty in this procedure.According to Aricle 82(1) of the Treaty on the Functioning of the Euro pean Union, 6 the judicial cooperation in criminal matters in the EU is based on the principle of mutual recognition of judgements and judicial decisions and includes the approximation of provisions, inter alia, in the field of -as defined in 82(2)(a) of the TFEU -mutual admissibility of evidence between the Member States.The implementation of these assumptions is reflected in the EIO Directive.In the Polish legal order, the relevant regulations estab lishing the EIO have been implemented in chapter 62c and in chapter 62d of the Polish Code of Criminal Procedure. 7ithin the meaning of Aricle 1(1) of the EIO Directive, the EIO is a ju dicial decision issued or validated by a judicial authority of one Member State (issuing the EIO) in order to request another Member State (execut ing the EIO) to carry out one or several specific investigative measures to obtain evidence.According to general assumption, the EIO is executed on the basis of the principle of mutual recognition (Aricle 1(2) of the EIO Di rective).

Essence of the European
Following the definition expressed in Aricle 2(c) of the EIO Di rective, the "issuing authority" of the EIO is generally a judge, a court, 6 Official Journal of the European Union, C 326/67, 26 October 2012, p. 47-390; thereafter referred to as "TFEU".
an investigating judge or a public prosecutor competent in the case.The power to issue the EIO is also granted by the EIO Directive to any other authority as defined by the issuing State which, in the specific case, is competent to order the gathering of evidence in accordance with the national law.In the latter case, however, the EIO is subject to the val idation of a judicial authority, i.e. a judge, a court, an investigating judge or a prosecutor in the issuing State.
On the plane determined by the selected issues of consideration, the logical point of reference is Aricle 589w of the CPP.In the provision of Aricle 589w § 1 of the CCP, the legislator provided for the powers to issue the EIO ex officio or upon a motion of a party, defence counsel or attorney -both for judicial and preparatory proceedings.This means that the court before which the case is pending is competent to issue the EIO in the meaning of the provisions of the CCP at the jurisdictional stage.On the other hand, in the preparatory proceedings, the authority issuing the EIO will be, in particular, a prosecutor conducting the proceedings.Aricle 589w § 2 of the CCP, however, stipulates that if the investigative or verifying proceedings referred to in Aricle 307 of the CCP are conducted by the Police or by the authorities referred to in Aricle 312 of the CCP (the agencies of the Border Guard, Internal Security Agency, National Tax Administration, Central AntiCorruption Bureau, Military Gendarmerie and other agencies referred to in the special provisions), or if the prepara tory proceedings are conducted by the authorities referred to in Aricle 133 § 1 and Aricle 134 § 1 of the Fiscal Criminal Code,8 the EIO may also be issued by the authority conducting the proceedings.In such a situation, the EIO requires the approval of the prosecutor.
The effectiveness of execution of the EIO depends not only on its issu ance by the competent authority, but also on the fulfilment of the condi tions for admissibility of the EIO set out in Aricle 6(1) of the EIO Directive.It is crucial to carry out checks in this respect because both the issuance and execution of the EIO depends on the recognition of its necessity and proportionality for the purposes of the proceedings, taking into account the rights of the accused, and on the conclusion that in a similar domes tic case ordering an investigative measure is admissible under the same Review of European and Comparative Law | 2023 Vol.54, No. 3 conditions.It is necessary to point out that in the light of the Polish crim inal procedural law, the possibility of issuing the EIO is conditioned by the existence of the interest of the administration of justice in this re spect and the permissibility of examination or obtaining a given evidence (Aricle 589x of the CCP).Moreover, the EIO executing authority is obliged to assess the conditions set out in Aricle 6(1) of the EIO Directive, and in the case of doubts in this regard, it may consult the issuing authority on the purposefulness of the EIO.
In this context, it should be noted that while the EIO refers to the per formance of specific investigative measures aimed at obtaining evidence, in the meaning of the EIO Directive and the national law, the EIO may cover any investigative measure, regardless of whether it is explicitly mentioned in the EIO Directive.Nevertheless, without attempting to precisely determine the catalogue of activities that can be carried out within the framework of the EIO, it is necessary to indicate that the content of the EIO Directive provides for detailed regulations regarding certain investigative measures.They relate respectively to: the temporary transfer to the issuing or execut ing State of persons held in custody for the purpose of carrying out an in vestigative measure (Aricle 22 and 23 of the EIO Directive); the hearing by videoconference or other audiovisual transmission (Aricle 24 of the EIO Directive); the hearing by a telephone conference (Aricle 25 of the EIO Directive); the information on bank and other financial accounts (Aricle 26 of the EIO Directive); the information on banking and other financial op erations (Aricle 27 of the EIO Directive); investigative measures implying the gathering of evidence in real time, continuously and over a certain peri od of time (Aricle 28 of the EIO Directive); covert investigations (Aricle 29 of the EIO Directive); interception of telecommunications (Aricle 30-31 of the EIO Directive); provisional measures (Aricle 32 of the EIO Directive).At the same time, it should be noted that section C, annex A to the EIO Directive provides for the possibility of requesting the following evidence activities, in addition to those listed above: obtaining information or evi dence which is already in the possession of the executing authority; obtain ing information contained in the database held by the police or the judi cial authorities; hearing; identification of persons holding a subscription of a specified phone number or IP address.Much more general are the provisions of the CCP concerning the is suance (Aricle 589w -589zd of the CCP) and execution (Aricle 589ze -589zt of the CCP) of the EIO.As a rule, they do not specify the procedure to be followed in the case of individual investigative measures, including the types of information that may potentially be obtained by the proce dural organs through the EIO.It seems, however, that this is not necessary, since the analysis of the objective scope of the EIO determined by the EIO Directive and the provisions of the CCP should lead to the conclusion that the catalogue of investigative activities that may be requested and per formed within the EIO is not closed.
Against the background of such generally presented issues, it can be argued that investigative measures concerning the information protected by banking secrecy play an important role in the criminal proceedings and, consequently, they can often be taken into account as subject of EIO.For this reason, it was logical solution to define in more detail the framework for their taking, whereas banking information is covered by protection and because of the fact that in this case obtaining evidence is subject to the ful filment of additional conditions.Proper interpretation of the provisions of the EIO Directive in this respect is necessary not only due to the frequent use of banking information, but also due to the fact that obtaining such evidence and its admissibility in the criminal proceedings or conducting ongoing monitoring of financial operations, depend on the fulfilment of additional conditions, including in particular release of the institution from the obligation to keep secret information covered by banking secrecy.
According to Aricle 26(1) of the EIO Directive, the EIO may be issued in order to determine whether a person holds or controls one or more bank accounts and consequently obtain all the detailed information regarding the identified accounts.Similarly, Aricle 26(6) of the EIO Directive estab lishes the basis for undertaking identical investigative measures in relations to accounts in a nonbank financial institution.The issuing authority shall justify the reasons why it considers that the requested information is likely to be of substantial value for the criminal proceedings and on what basis it presumes that banks or nonbanks financial institution in the executing state hold the account, and, to the extent available, which banks or non banks institution may be involved in a given case (Aricle 26(5) of the EIO Directive).Comparative Law | 2023 Vol. 54, No. 3 The second group of banking information, that can be obtained un der the EIO, indicated in Aricle 27(1) and ( 5) of the EIO Directive are those concerning the details of specified bank accounts and banking or nonbanking operations which have been carried out during a defined period of time, including the details of any sending or recipient account.In the EIO the issuing authority must justify the reasons why it considers the requested information relevant for the purpose of the criminal pro ceedings concerned (Aricle 27(4) of the EIO Directive).At the same time it should be noted that the obligation to provide the requested information applies only to the extent that the information is in possession of the bank or nonbanking institution (Aricle 27(3) of the EIO Directive).

Review of European and
Within the EIO, it is also possible to monitor of banking or other fi nancial operations that are being carried out through one or more specified accounts.Obtaining the banking information in the indicated manner is acceptable when gathering of evidence requires the conduct of the afore mentioned monitoring in real time, continuously and over a certain period of time (Aricle 28(1)(a) of the EIO Directive).In this context, the issuing authority should justify in the EIO that the requested information is rele vant for the purpose of the criminal proceedings (Aricle 28(3) of the EIO Directive).Therefore, it must also demonstrate the legitimacy of conduct ing these activities in a certain way.
The common denominator of the activities undertaken in this context will, as a rule, be the fact that the information to which the procedural activities relates is covered by banking secrecy.This means that entering the scope of legally protected secret in issuing and executing EIO is subject to prior authorisation for such interference on the basis of the legitimate interests of the proceedings.Therefore, in particular at the stage of prepara tory proceedings, a dilemma arises regarding the authority competent to issue the EIO decision, the subject of which is the information covered by banking secrecy.

Authority Competent to Issue the European Investigation Order and Exemption from Banking Secrecy as the Condition for Issuing the Order
As it can be seen from the previous considerations, unlike the EAW -which, pursuant to Aricle 6 (1) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 9 requires a decision to be made by a judicial authority -in the case of the EIO, the authority conducting or supervising the crimi nal proceedings within the meaning of Aricle 2(c) of the EIO Directive in connection with Aricle 589w § 1 and 2 of the CCP is competent to issue a decision.This authority is determined depending on the stage of pro ceedings.Therefore, in the preparatory proceedings, the role of the pros ecutor, as the authority issuing the EIO or approving the EIO issued by the authority conducting investigative or verifying proceedings, will be of key importance.
It is problematic when the EIO relates to the evidence, admission, ob taining or examination of which requires the issue of a prior decision.Ac cording to Aricle 589w § 5 of the CCP, the decision on the EIO replaces the required decision.At the same time, however, the CCP specifies that the provisions concerning determined actions and evidence shall apply accordingly.In such a normative environment, doubts arose in the doc trine and jurisprudence, in particular with regard to determining, firstly, which authority is competent to issue the EIO concerning the informa tion on bank accounts and transactions or the EIO requesting monitoring of banking or financial operations carried out through specified accounts (Aricle 26-28 of the EIO Directive), and secondly, whether in the analysed case the EIO is conditioned to be a prior decision on the exemption from banking secrecy in the issuing state.
The protection of banking secrecy is guaranteed in the provisions of Aricle 104-106e of the Act of 29 August 1997 -Banking Law. 10Due to the subject of considerations and the resulting need to determine the au thority competent to issue the EIO on banking information, it is first nec essary to refer to Aricle 106b of the BL, regulating the mode of exemp tion from banking secrecy.Following Aricle 106b(1) of the BL, apart from the circumstances specified in Aricle 105 and Aricle 106a of the BL, 11 9 OJ L 190, 18 July 2002, p. 34-51.10   Act of 29 August 1997; consolidated text: Journal of Laws 2022, item 2324, as amended; thereafter referred to as "BL".11 Incidentally, it should be noted that Aricle 105 and Aricle 106a of the BL refer to the ob ligation to notify about the possibility of committing a crime especially in connection with the justified suspicion that the bank's activity is being taken advantage of for in the preparatory proceedings, the prosecutor conducting criminal pro ceedings in the case of an offence or fiscal offence may request that the bank, persons employed in the bank or persons through whom the bank per forms banking operations provide information entailing banking secrecy.However, the basis for such a demand is the decision of the locally compe tent regional court issued upon a motion of the prosecutor.
Hence, it may be doubtful whether the competence of the regional court to exempt from banking secrecy coincides with the power of this authority to issue the EIO, or whether in the preparatory proceedings the prosecutor will be competent to decide on the EIO.Considering this issue, Andrzej Sakowicz expresses the opinion, that the lack of the possibility for the pros ecutor to obtain the information covered by banking secrecy without a pri or decision of the competent regional court means that the possibility of issuing the EIO by the prosecutor is also excluded.The aforementioned author argues, inter alia, that if the action demanded by the prosecutor is dependent of the court's decision under the domestic law, then the func tional competence of the court also includes the issuance of the EIO. 12 Bar bara Augustyniak and Hanna Kuczyńska, in turn, have a different view on the problem under consideration, recognising that the decision on the EIO is issued by the prosecutor, but only after the exemption from banking se crecy by the locally competent regional court. 13t is reasonable to agree with the view of Barbara Augustyniak and Hanna Kuczyńska when making a general analysis of the provisions of the CCP and the EIO Directive.In relation to Aricle 2(c) of the EIO Di rective by the issuing authority is understood as, inter alia, court, where EIO Directive refers to the court competent in the case concerned.On the purpose of concealing criminal actions or for the purposes connected with a fiscal offence.See: Jan Byrski, "Komentarz do Aricle 106b ustawy -Prawo bankowe, " in Prawo bankowe.Komentarz the other hand, the locally competent regional court will not often be the court before which the case is pending, but only the court competent to release from banking secrecy pursuant to Aricle 106b of the BL.Un der the preparatory proceedings -in particular in Aricle 589w § 1-2 of the CCP -the prosecutor is expressly provided for as the authority issu ing or approving the EIO.The opposite approach could be supported by Aricle 589w § 5 of the CCP, stipulating that the decision to issue the EIO concerning evidence, whose admission, obtaining or examination requires the issue of a decision, replaces that decision.However, the competent re gional court has only the power to exempt from banking secrecy and not to issue the EIO.Such a statement is justified, since during the preparato ry proceedings, the exclusive competence of its authorities to take deci sion on EIO is envisaged.At the same time, it is important to emphasise the lack of the special provision for the determination of the jurisdiction of such a court at the stage of the preparatory proceedings.Then, there are no sufficient grounds for a different interpretation.Appropriate conclusions can be drawn against the background of the provision of Aricle 589w § 4 of the CCP, from which -in the context of the socalled surveillance and telephone tapping or recording -it follows the competence of the courtat every stage of the proceedings -to make a decision on EIO replacing the court's decision as to the consent to the control and recording conver sations, referred to in Aricle 237 § 1 of CCP.Nonetheless, such a statement cannot be formulated in consideration of Aricle 237 § 5 of the CCP.For this reason, the prosecutor will be competent to issue the EIO, but after obtaining the prior exemption from banking secrecy, and thus after per forming an act that determines the admissibility of demanding under EIO the information covered by the indicated secrecy legally protected under the national law.
The considered problem turned out to be so debatable that it be came the subject of divergent interpretations in caselaw.Differences in the sphere of interpretation concern not only which authority is competent to issue the EIO aimed at obtaining confidential banking information, but also whether it is necessary to release from the banking secrecy before is suing the EIO, since the Polish authority is not able to decide on a direct exemption from the secrecy in relation to a bank from another EU Member State.In the jurisprudence, four positions can be distinguished regarding the determination of the authority competent to issue the EIO at the pre paratory proceedings, when the subject of the EIO is information entailing banking secrecy.
In the first of the presented approaches, it was assumed that the author ity competent to issue the EIO -pursuant to Aricle 106b(1) of the BL -is the locally competent regional court, which is at the same time authorised to exempt from the obligation to maintain confidential information con stituting bank secrecy.This concept was adopted by the Court of Appeal in Gdańsk in its decision of 23 May 2018, expressing the acceptance of the direction of interpretation of Aricle 589w § 1 of the CCP, according to which, if the conduct of the action postulated by the prosecutor depends in domestic law on the decision of the competent regional court, then it is also the issuance of the EIO that falls under the competence of the given court. 14he second out of the positions expressed in the decision of the Court of Appeal in Katowice of 29 January 2019 boils down to the recognition that, since in order to obtain evidence covered by bank secrecy, it is neces sary for the competent regional court to issue a prior decision to exempt it, the issuance of such a decision does not additionally result in the need to obtain a separate decision on the issuance of the EIO by the prosecutor.The Court of Appeal found that the exemption from banking secrecy grant ed by the competent regional court replaces the decision on the EIO. 15s part of the next direction of interpretation, the assumption was made, that at the stage of the preparatory proceedings, the prosecutor is authorised to issue the EIO concerning banking information.In this con text, it is stated that the prosecutor does not have to apply to the region al court, before taking the decision on the EIO, with a motion to exempt from banking secrecy.Such a pattern of conduct is adopted by the courts, taking into account the fact that exemption from legally protected secrecy pursuant to Aricle 106b(1) of the BL does not affect banks that are not within the jurisdiction of the Polish courts.National courts do not have the power to release banks operating in another EU Member State from banking secrecy. 16Therefore, it is sometimes argued that the prosecutor, in order to obtain evidence covered by banking secrecy, should apply direct ly with EIO to the competent authorities of another Member State, which have the exclusive competence to decide on a possible exemption and on the collection and sending of the requested information in the preparatory proceedings. 17ithin the last of the concepts, there is the assumption that in the scope of the procedure for obtaining the information covered by banking secrecy through EIO, the prosecutor is competent to issue the EIO decision after obtaining the decision on the exemption issued by a locally competent re gional court pursuant Aricle 106b of the BL.This approach was initially ex pressed in the decision of the Court of Appeal in Katowice of 4 September 2018. 18Currently, it is confirmed by the latest jurisprudence of common courts 19 and, most importantly, the Supreme Court. 20The presented posi tion seems to be justified in the very essence of the EIO and in reference to Aricle 6(1b) of the EIO Directive.The condition for the issuance of the EIO is the admissibility of ordering an investigative measure under the same conditions as part of the national procedure.It should therefore be empha sised that in order to request for the bank information covered by banking secrecy through EIO, the prosecutor must first obtain the exemption from the obligation to maintain it.It is not important that this exemption will not affect the authority executing the EIO. of the procedure before the issuing authority and is sine qua non condition for issuing the EIO.At the same time, however, the compliance with the na tional procedures required to obtain a given evidence may turn out to be crucial for assessing whether the condition of equivalence of an investiga tive measure is fulfilled in the executing State. 21The Supreme Court rightly pointed out in its decision of 2 June 2022 that the regional court, under the procedure set out in Aricle 106 of the BL, is not entitled to decide on admissibility of evidence or to examine it.Its role is limited to determining whether and, if so, to what extent a given evidence concerning bank infor mation can be gathered by the prosecutor.Therefore, it is the prosecutor, subject to the relevant consent of the national court, who decides to apply to the executing authority with a request contained in EIO to obtain evi dence covered by banking secrecy.

Effectiveness of Obtaining Evidence Covered by Banking Secrecy through European Investigation Order Procedure
It seems justified to put forward the thesis that the effectiveness of the EIO may be conditioned by the proper conduct of the procedure aimed at ob taining banking information already in the issuing country.Recognition of the EIO by the competent authority of the executing State does not, in prin ciple, requires any additional formalities.According to the EIO Directive, its execution should be ensured in the same way and under the same mo dalities as if the given investigative measure had been ordered by an author ity of the executing state.Exceptions to this rule occur when the executing authority invokes one of the grounds for nonrecognition or nonexecution or one of the grounds to postponement (Aricle 9(1) of the EIO Directive).
It has already been established that the issuance of the EIO in order to obtain evidence, the content of which is banking information, will most often depend on a release from secrecy by the competent regional court, and the decision on the EIO itself is issued by the prosecutor.It is impor tant from the perspective of Aricle 9(3) of EIO Directive, since it is en visaged that the EIO shall be returned to the issuing state in the case of 21 Cf.Ariadna Ochnio, "Glosa do postanowienia Sądu Apelacyjnego w Katowicach -Wy dział II Karny z dnia 4 września 2018 r., II AKz 645/18, " Orzecznictwo Sądów Polskich,  no.7-8 (2021): 109-110.
Review of European and Comparative Law | 2023 Vol.54, No. 3 transmission to the executing authority of the EIO that has not been issued by the issuing authority within the meaning of Aricle 2(c) of the EIO Di rective.In addition, the completion of the national procedure is a key is sue in the context of possible further examination of the socalled "double admissibility" of a given evidence by the EIO executing authority, taking into account the guarantee in the issuing state when assessing evidence ob tained through EIO of the exercise of the rights of defence and the fairness of the proceedings (Aricle 14(7) of the EIO Directive). 22or this reason, the reference should be made to the grounds for the ex emption from banking secrecy under Aricle 106b of the BL.It must be borne in mind that pursuant to Aricle 589x of the CCP, the issuance of the EIO is inadmissible, both when it is not required by the interest of the administration of justice and when the examination or obtaining evi dence is not permissible under the Polish law.As part of the abstract mod el, it is therefore necessary first for the regional court to examine casu ad casum the grounds for the exemption from banking secrecy and to make a positive decision in this respect.Only then it is possible for the prosecutor to assess the premises for issuing the EIO regarding bank information, to the extent to which the exemption took place and within the limits set by the application of Aricle 589w and Aricle 589x of the CCP. 23etermining the reasons justifying the decision on the exemption from the obligation to maintain banking secrecy is important because in Aricle 106b(1) of the BL, the Act does not directly address to the court the prerequisites for obtaining bank information for the purposes of a crim inal trial.According to Aricle 106b(1) in connection with Aricle 106b(2) of the BL, the prosecutor's motion containing the demand to provide information entailing banking secrecy should include the following items: a description number or docket number of a case; a description of the offence, together with its legal qualification; the circumstances justify ing the need to make the information available; an indication of the person or organisational unit that the information concerns; specification of the entity obliged to provide information and related data; specification of the type and scope of information.It can be concluded that the legiti macy of the request in question depends on the prosecutor's demonstrat ing the existence of circumstances justifying the need to disclose infor mation.Therefore, the decision to release from confidentiality should be conditional on the face that is taken in specific preparatory proceedings and it is to refer to the specific type and scope of information requested.This means that the consent cannot be general and blank and must be jus tified in the circumstances of a given case. 24Thus, the prosecutor's motion seems to be justified only when it is impossible to obtain certain informa tion entailing banking secrecy in any other way, and at the same time there is a real need to disclose the demanded information, necessary to achieve the objectives of the proceedings. 25ased on Aricle 106(3) of the BL the regional court, in the case of the positive recognition of the motion, issues the decision, expressing the consent for the confidential banking information to be available, spec ifying the kind and scope thereof, the person or organisational unit that it concerns, as well as the subject obliged to make it available.It is impor tant insofar as the decision on the exemption from banking secrecy de termines the subjective and objective scope of the related EIO.However, doubts may arise as to the manner in which the fact of issuing the decision on the exemption from banking secrecy under the EIO procedure should be formally reflected.the Regulation of the Minister of Justice of 8 February 2018 on specify ing the template of the European Investigation Order form, 26 the relevant mention should be included in section C in the place devoted to describ ing the required assistance or investigative measures or in section G1 ded icated to a summary of the facts justifying the issuance of the EIO.It could also be considered whether the decision on the exemption from bank ing secrecy translated into the language of the executing state or anoth er official language determined by that State should not be annexed to the EIO.It seems, however, that the notification of such a decision trans lated into a given language may become relevant only at the stage of pos sible consultations between the executing authority and the authority is suing the EIO.
Against this background, an important question arises about the role of the decision of the competent regional court on the determination of the grounds for the exemption from banking secrecy under the domestic law, namely whether it has, and if so, what significance, for example in the perspective of assessing the fulfilment of the conditions for the admis sibility of the EIO, in accordance with Aricle 6 of the EIO Directive.As it has already been indicated, when granting permission to waive banking secrecy, the national court, as part of recognising the existence of condi tions of Aricle 106b of the BL, states both the necessity and the propor tionality of the exemption from the secrecy to a certain extent for the pur poses of the proceedings.In relation to the outstanding issue formulated in this way, one can refer to the axiological foundations of the functioning of the EIO, i.e. the principle of mutual recognition, as well as to the trust in relations between Member States, which is necessary for the effective ness of the EIO.The principle of mutual trust should, as a rule, result in the acceptance that the requirements for the execution of the EIO are met, provided that the EIO fulfils the formal conditions and there are no le gal reasons for refusing its recognition or execution.Such an approach is rationally justified from a legal and practical perspective.It should be noted that formally there is a possibility of requesting the state issuing the EIO for appropriate explanations or supplementing information, as part of the consultations referred to in Aricle 6(3) of the EIO Directive, if the information available so far is not sufficient to make a decision on executing the EIO.Consequently, if the essence of the EIO aimed at ob taining legally protected banking information is the existence of a prior court's decision exempting from the obligation to keep it, this means that, on the basis of the mutual recognition and mutual trust, executing author ities may in principle state the existence of factual grounds for the admis sibility of the EIO. 27t seems justified to state that as regards the assessment of admissibili ty by the executing state, the EIO should function relatively automatically, bearing in mind the need to execute it as soon as possible.Exceptions may 27 See with reference to the mutual recognition of the decision on detention in the context of the EAW procedure: Polish Supreme Court, Decision of 26 June 2014, Ref No.I KZP 9/14, Legalis no.966597.In this context it should be noted that in accordance with the forum regit actum principle regulated in Aricle 9(2) of the EIO Directive, the EIO executing au thority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in the EIO Directive and provided that such formali ties and procedures are not contrary to the fundamental principles of law of the executing State.In order to outline a broader context, it is necessary to consider the doubts raised in the doctrine as to whether the principle of forum regit actum remains consistent with the philosophy based on the mutual trust.Differences between the procedures of individu al EU Member States may result, first of all, in situations where, even if the state executing the EIO complies with the requests of the issuing state, the evidence requested for gathering may turn out to be inadmissible in the issuing state.be generated in situations where there are grounds for the refusal to recog nise or execute the EIO listed in Aricle 11(1) of the EIO Directive.In the context of the analyses of the information entailed bank secrecy, noting that in this respect it is the prosecutor who is the authority issuing the EIO, the potential impact of this circumstance on the effectiveness of the co operation should be considered.In particular, pursuant to Aricle 11(1)(f) of the EIO Directive, the recognition or execution of the EIO may be re fused if there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State's obligations in accordance with Aricle 6 of the Treaty on European Union 28 and the Charter of Fundamental Rights of the Euro pean Union. 29he problem arose in the connection with the procedure for execu tion of the German EIO -containing a request for the transfer of copies of various documents relating to a bank account for a specified periodby Austria.The Regional Court for Criminal Matters in Vienna, examin ing the issue of granting access to the requested information, noted that the German Public Prosecutor's Office is at risk of being subject, directly or indirectly, to instructions or individual orders from the executive and, ac cording to the position of the CJEU, it could not be considered as a judicial authority under the EAW. 30The Austrian court argued that the same kind of reasons could be made in order to refuse the execution of the EIO issued by the German Public Prosecutor's Office.The court further clarified that the requirement of independence of the authority issuing the EIO is im portant because the EIO often entails interference with fundamental rights when it covers all investigative measures.The doubts raised by the execut ing authority resulted in the request to the CJEU for a preliminary ruling regarding the possibility of treating the German Public Prosecutor's Of fice as an authority within the meaning of Aricle 1 (1) and Aricle 2 (c) of the EIO Directive due to the risk of being subordinated to the Minister of Justice.The CJEU responded to the question, ruling that the notion of a judicial authority and an issuing authority in the EIO Directive should be interpreted as included the public prosecutor of the Member State or the public prosecutor's office of a Member State, regardless of any relation ship of legal subordination that might exist between that public prosecutor or public prosecutor's office and the executive of that Member State and of the exposure of that public prosecutor or public prosecutor's office to the risk of being directly or indirectly subject to orders or individual in structions from the executive when adopting EIO. 31 It is indisputable that the cited CJEU judgement is also important from the Polish perspective.However, in the light of the concept already presented -approved by the Supreme Court -regarding the procedure related to the decision on the determination of the grounds for the ex emption from banking secrecy by the competent regional court, before issuing a decision on the EIO by the prosecutor, it should be noted that this perspective is different that the German one.The main difference lies in the fact that the jurisprudence has prevailed the approach guaranteeing the participation of the court in determining the existence of the grounds for the exemption from banking secrecy.The court's decision thus allows us to conclude that the condition of the possibility of obtaining such evi dence under the Polish law is met.
The last problematic issue that may affect the assessment of the ef fectiveness of the EIO is the possibility of evidentiary use of the informa tion obtained through EIO covered by banking secrecy for the purpose of the proceedings other than the one for which the EIO was executed.It is debatable whether the specialty rule applies in EIO proceedings.It should be emphasised that the decision to waive banking secrecy, whether for the purposes of the procedure in the issuing State or already in the exe cuting State, is taken in the context of and for the purposes of the criminal proceedings in question.Consequently, it is made against the background of a specific factual state, because in the realities of a given case, and be sides, it refers to specific offences.It should be noted that the EIO Directive does not regulate the principle of specialty.Nevertheless, there are voices in the doctrine that this principle applies to the cooperation within the frame work of the EIO, as well as opposing opinions that are in favour of exclud ing the application of this rule in the analysed scope.Ultimately, a binding 31 CJEU Judgement of 8 December 2020, Case C584/19, ECLI:EU:C:2020:1002. resolution of the raised issue does not seem possible.However, it would not be right to completely exclude the application of this principle.It is pos sible to imagine using the lack of regulation to abuse cooperation in such a way that, for example, the requested evidence obtained through EIO for a given proceedings would be used in a way that contradicts the grounds for refusing recognition or execution of EIO.In similar cases, the principle of specialty should undoubtedly apply, and evidence in the context of these proceedings could be questioned. 32

Conclusions
The EIO is one of the key legal remedies for the purposes of the criminal proceedings, in those cases where significant arrangements and activities must be made in cooperation with other EU Member States.The EIO, at least from a legal theoretical perspective, is an instrument that allows for the effective obtaining of evidence, even in the face of a perceived crisis in the mutual trust and mutual recognition of judgements.This is largely due to the positioning of the EIO in the horizontal model as an intermediate mechanism between the traditional international cooperation and the au tomatism resulting from the principle of mutual recognition. 33he main advantage of the EIO is the fundamental possibility of its use by the authorities conducting the proceedings at a given stage, which are to the greatest extent able to identify the steps necessary to make the rel evant findings.In addition, it is plausible to state that the EIO procedure seems to be sufficiently guaranteeing, since it refers to the examination of proportionality and the admissibility of carrying out a given investigative measure both in national law and in the executing state.In the context of 32 Cf.Júlio Barbosa e Silva, "The Speciality Rule in CrossBorder Evidence Gathering and in the European Investigation Order -Let's Clear the Air, " ERA Forum, no.19 (2019): 492-499.In the practice of cooperation within EIO, there have been cases where the executing state required an additional declaration that the documents or evidence provided under EIO will be used only for a given proceedings.Joanna Klimczak, Dominik Wzorek, Eleonora Zielińska, Europejski nakaz dochodzeniowy w praktyce sądowej i prokuratorskiej -ujawnione problemy i perspektywy rozwoju (Warsaw: Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2022), 172. the decision on the recognition or execution of the EIO, it is also impor tant to evaluate it from the point of view of, inter alia, respect for funda mental rights. 34gainst this background, one may wonder whether the approach to the proceedings in order to obtain evidence covered by banking secrecy through EIO, shaped in the caselaw of the Supreme Court, is optimal.Pri or to the issuance of the EIO, the need to consent to the exemption from banking secrecy by the competent regional court extends the path to ob taining evidence.Sometimes, in such cases, quick action can be crucial.Therefore, the question may be raised whether it would not be preferable to have the prosecutor issue the EIO without the prior authorisation of the court.When addressing the outstanding issue presented in this way, it is necessary to take into account the issues related to the assessment of the admissibility of evidence from the perspective of the competent author ity within the national procedure, and, on the other hand, the fact that it is the decision of the judicial authority that determines the limits of the re quest contained in the EIO.The concept, which found its support in the de cision of the Supreme Court of 2 June 2022 appears to be correct, as it is an expression of a guarantee approach.This seems particularly important for assessing the fairness of the proceedings in the issuing state. 35n conclusion, it should be emphasised that at the stage of the prepara tory proceedings, obtaining banking information is one of the most fre quently undertaken investigative measures within the EIO.The conducted research shows that the activities of prosecutors aimed at obtaining bank documentation, determining financial flows or the link between entities in Poland and abroad are important particularly in matters relating to the so called VAT carousels. 36Taking into account the specificity of today's crime, including the often occurring crossborder factor in the scope of trading 34 Cf.Fabrizio Siracusano, "The European Investigation Order for Evidence Gathering Abroad, " in EU Criminal Justice, eds.Tommaso Rafaraci and Rossana Belfiore (Cham: Springer, 2019), 98. funds as part of or in connection with criminal activity, it should be as sumed that obtaining information entailing banking secrecy through EIO will often be the key evidentiary activity in individual proceedings for mak ing significant factual findings.For these reasons, it is necessary to improve and deepen the cooperation in the analysed scope.
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Cf. Hanna Kuczyńska, "Admissibility of Evidence Obtained as a Result of Issuing an Euro pean Investigation Order in Polish Criminal Trial, " Review of European and Comparative Law 46, no. 3 (2021): 74; Martyna Kusak, "Mutual Admissibility of Evidence and the Euro pean Investigation Order: Aspirations Lost in Reality, " ERA Forum, no.19 (2019): 399.
Review of European and Comparative Law | 2023 Vol.54, No. 3 Moreover, the forum regit actum prin ciple applies only in the relationship between the issuing State and the executing State.See: Martyna Kusak, "Common EU Minimum Standards for Enhancing Mutual Admissibility of Evidence Gathered in Criminal Matters, " European Journal on Criminal Policy Research, no.23 (2017): 338-339; Martyna Kusak, "Reguły forum regit actum, locus regit actum oraz zasada specjalności, " in Dowody zagraniczne.Gromadzenie i dopuszczalność w polskim procesie karnym.Przewodnik z wzorami (Warsaw: Wolters Kluwer Polska, 2019), LEX/ el.; Gert Vermeulen, Free Gathering and Movement of Evidence in Criminal Matters in the EU.Thinking beyond Borders, Striving for Balance, in Search of Coherence (Antwerp-Apel doorn-Portland: Maklu, 2011), 41-43.The solution to the existing problems in the indicat ed scope could be the introduction of common standards for the admissibility of evidence in the European Union.See in this context: ELI Proposal for a Directive of the European Parliament and the Council on Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings.Draft Legislative Proposal of the European Law Institute (Austria: Eu ropean Law Institute, 2023), accessed August 30, 2023, https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI_Proposal_for_a_Directive_on_Mutu al_Admissibility_of_Evidence_and_Electronic_Evidence_in_Criminal_Proceedings_in_ the_EU.pdf. of European and Comparative Law | 2023 Vol.54, No. 3