EncroChat and Sky ECC: when ultra-technical interceptions are admissible in criminal cases in Romania
The CJEU clarified in 2024 the conditions under which EncroChat data may be used as cross-border evidence. Romanian courts must verify the chain of custody and the defence's access to decisive evidence.
Admissibility of EncroChat and Sky ECC evidence: what the CJEU ruling means for Romania
According to maglas.ro, the judgment of the Court of Justice of the European Union of 30 April 2024 in case C-670/22, M.N. (EncroChat) establishes a clear framework regarding the conditions under which data obtained by infiltrating encrypted devices in one member state can be transmitted and used as evidence in another state, on the basis of a European investigation order (EIO).
General framework established by the CJEU
The Court ruled that an EIO for the transmission of evidence already in the possession of the executing state — for example, France — may be issued by a prosecutor, not exclusively by a judge, provided that in a purely domestic case, the same prosecutor could legally order such a transmission. The EIO does not need to reproduce the conditions that governed the initial collection of data. However, there must be subsequent judicial control, which guarantees respect for the fundamental rights of the person targeted.
When infiltration of the devices took place on the territory of another member state, that state had to be notified in good time and could request cessation of the measure if it would not have been authorised under its domestic law. The mechanism protects both the sovereignty of the notified state and the rights of the persons targeted.
Exclusion of evidence: the adversarial test
The element with the greatest practical impact is the right of the accused to challenge decisive evidence. If data from chat case files, audio files or other recordings have a preponderant influence on the findings of fact and the defence does not have the necessary means to challenge them — for example, due to lack of metadata, integrity logs or information about the collection method — the court is obliged to exclude them. This is the most powerful instrument available to defenders following the M.N. ruling.
France, 2025: national judicial control in action
On 26 March 2025, the criminal division of the French Court of Cassation admitted a partial quashing in an EncroChat case, after a lower court had rejected an application for annulment as inadmissible on the grounds of "lack of interest" — since the suspect denied being the user of the pseudonymous device. The Court of Cassation found that the case file attributed the device to that person, so the interest in making the challenge existed, and the annulment had to be examined on the merits. The decision resulted in partial quashing of the conviction.
Other rulings handed down on the same day confirm that each link in the chain — legality of collection, cross-border notification, defence access — can be verified by national courts, without the label of "pan-European investigation" being equivalent to automatic validation.
Sky ECC litigation at EU courts
The debate has not ended even at European level. By order of 26 June 2025 in case T-484/24, FF v Eurojust and Europol (Sky ECC III), published on 8 September 2025, the EU General Court ruled on non-contractual liability and alleged unlawful data processing in the context of Sky ECC. Although the greater part of the action was declared inadmissible or unfounded, the order illustrates that challenging the architecture of cooperation — the role of joint investigation teams, Europol and Eurojust, data management — is adjudicated in Luxembourg, not merely the admissibility of evidence in national proceedings.
What must be verified in Romanian cases
EIOs issued by prosecutors. After M.N. (EncroChat), an EIO for the transmission of material already collected in the executing state may be issued by a prosecutor if, domestically, the same authority could legally obtain such a transmission. This does not exempt Romanian courts from real control of compliance with fundamental rights: defence access, effective opportunity to challenge, appropriate notification.
Cross-border notification. If infiltration targeted persons on Romanian territory, the foreign authority was obliged to notify Romania. Romania could have stopped the measure if it would not have been authorisable under domestic law. Absence of clear evidence of notification opens the door to objections by the defence based on the EIO Directive (2014/41/EU) and may justify exclusion of the evidence.
The right to comment on decisive evidence. If chat transcripts or audio files are decisive, and the defence cannot effectively challenge them, the court must exclude them. This remains the most incisive instrument after M.N.
Chain of custody and the role of Europol. Many EncroChat cases involved routing data through Europol servers. M.N. indicates what must be verified: who initially collected the data, how it circulated, what was or was not modified and when the targeted state was notified. The defence should request the complete technical path — hashes, logs, integrity reports — otherwise the evidence risks failing the adversarial test.
Directive 2024/1226 and special investigative techniques
Although not directly addressing EncroChat, Directive (EU) 2024/1226, adopted on 24 April 2024 and entering into force on 19 May 2024, criminalises the violation or circumvention of EU restrictive measures. The transposition deadline was 20 May 2025. On 23–24 July 2025, the European Commission opened infringement proceedings against member states that failed to transpose the directive in time. As this regime consolidates, special investigative techniques used against organised crime will appear increasingly frequently in cases of sanctions evasion — cases in which electronic evidence and cross-border cooperation are essential.
Operational conclusion
The M.N. (EncroChat) ruling does not validate unconditional use of ultra-technical captures. It provides a framework: legally issued EIOs, timely notification and — above all — the right of the defence to challenge. In 2025, national courts, including French ones, demonstrate that they genuinely verify these requirements. In Romania, EncroChat cases, Sky ECC cases and those concerning sanctions evasion will ultimately be determined by evidential discipline and technical transparency — or the evidence risks being excluded.
Source: maglas.ro