La Procura della Repubblica tra rinvio pregiudiziale ed esecuzione dell'ordine europeo di indagine penale: considerazioni relative alla causa XK

In 1996, the Court of Justice ruled out that prosecutors could refer questions for a preliminary ruling on the grounds that their task is not to settle a dispute in complete independence but to submit it to a court by means of criminal prosecution. In case C-66/20 XK ECLI:EU:C:2021:200, the Court was asked to deal with the same issue in the light of the peculiar EU and national rules governing the execution of European Investigation Orders. The divergent solutions proposed by the AG and the Court of Justice are here illustrated. Subsequently, some thoughts are devoted to prosecutors as European Investigation Order executing authorities, to establish whether they may ensure effective judicial protection. Besides, a potentially problematic aspect resulting from the Court’s ruling is highlighted, which may exclude the referral of preliminary questions by European Investigation Order executing authorities altogether.