After implementation of Directive 2014/41 by the EU Member States (bound by the Directive) in 2017 and the first half of 2018, the European Investigation Order (EIO) has become the core instrument for obtaining evidence located in another EU Member State. The EIO simplifies and accelerates cross-border investigations, but practical and legal challenges remain. Such challenges as well as first experiences and best practices in the application of the EIO were discussed among practitioners at a meeting organised by Eurojust in September 2018. This article summarises the main results of the meeting.
Participants acknowledged the need to interpret national law in light of EU law, in line with the principles of mutual recognition and mutual trust, but also underlined the challenge of constantly searching for legally sound and practically feasible solutions between different national legal systems. They agreed on the importance of an overall pragmatic and flexible approach. Views diverged … Read more

The European Investigation Order (EIO) is a major step forward in judicial cooperation in criminal matters within the EU. It has become the main legal tool to gather trans-border evidence, replacing the traditional MLA conventions mainly used for this purpose so far. It co-exists with other instruments, however, which can also be used under certain conditions. This article analyses the EIO Directive and draws rules that guide practitioners as to when EIOs are necessary, when they are merely convenient, and when they cannot be used at all. The article defines a Basic Rule, a Replacement Rule, and a Compatibility Rule, which aim at making the legal scenario easier for practitioners to navigate. In an excursus, the article also deals with the question whether the speciality principle as known in tradition mutual legal assistance cooperation is also applicable to the EIO. The author argues that the speciality principle has not been … Read more

The right of access to the case materials (Art. 7 of Directive 2012/13/EU) is crucial to enable an effective defence and ensure equality of arms in criminal proceedings. However, when it comes to the pre-trial stages of criminal proceedings, Art. 7 of Directive 2012/13/EU is not clear about the timing of access, the scope of access, and about the possible derogations from providing access to suspects and their counsel.
This article outlines the questions that, in our opinion, should most urgently be posed to the CJEU concerning the interpretation of Art. 7 in the context of pre-trial proceedings, e.g.: What are the documents that are “essential for challenging effectively” the lawfulness of arrest and detention under Art. 7(1)? Do the grounds for derogation under Art. 7(4) apply to Art. 7(1)? How should the derogation grounds under Art. 7(4) be understood? Do Art. 7(2) and (3) apply at the pre-trial stages … Read more

With human activity becoming more and more dependent on digital technologies, criminal investigations increasingly depend on digital evidence. Yet the gathering of this type of evidence is far from straightforward. Besides technological challenges, one of the major obstacles that law enforcement authorities encounter is the fact that the data they need is often stored abroad or by a foreign service provider. At the international level, this results in the need to resort to mutual legal assistance and, at the EU level, to the European Investigation Order. Even the length of the procedure when resorting to the EIO is far too slow, because relevant data can be lost in the meantime. This article discusses the initiative of the European Commission to establish a European legal framework regarding direct requests for electronic evidence sent by law enforcement authorities in the EU to service providers in another EU Member State (the "e-evidence initiative"). … Read more

This article seeks to demystify the recently enacted Clarifying Lawful Overseas Use of Data (CLOUD) Act, enacted in March 2018 by the U.S. government in an effort to address challenges faced by law enforcement in accessing data located across borders. It explains the two parts of the act, dealing with: (i) U.S. access to data located outside the United States; and (ii) foreign government access to data held by U.S. companies within the United States. As the article highlights, the CLOUD Act offers a model for both responding to law enforcement needs and setting – and raising – baseline privacy protections. In that regard, it is a step in the right direction, although there is much more work to be done.

In September 2018, the European Commission presented a draft Regulation on preventing the dissemination of terrorist content online. The proposal builds on EU-level initiatives to foster the voluntary cooperation of service providers in stopping the dissemination of terrorist content online, and it echoes ongoing national developments which go a step further in imposing obligations – underpinned by considerable fines – on service providers. This article describes the main features of the proposal and highlights some of the policy challenges, legal questions, and technological concerns it is likely to face on the road to adoption.