This article provides an overview of current national, European, and international legal efforts to regulate cross-border access to electronic evidence. At the level of the EU, it was recently decided to harmonise the legal systems of the Member States by means of regulations and directives, which is to be flanked by an agreement between the EU and the USA in the future. In addition, there are already agreements under international law, such as the Second Additional Protocol to the Convention on Cybercrime (Budapest Convention) of the Council of Europe. Meanwhile a future UN Cybercrime Convention is being negotiated in the UN. This article outlines these developments.

Electronic evidence (e-evidence) is necessary and relevant with regard to many cases of serious, organised, or cross-border crime. This is also true for cases investigated by the European Public Prosecutor’s Office (EPPO). This article outlines the current legal framework, procedures, and mechanisms available to the EPPO for the collection of e-evidence in different case scenarios. It also takes into account the requirements for the protection of personal data, in particular arising in the transfer of operational data to authorities and private parties in third countries.

The first preliminary ruling request concerning the EPPO Regulation raises several interesting questions regarding the interpretation of its Art. 31 on cross-border investigations. Advocate General Ćapeta presented her Opinion and proposals to the Court of Justice of the European Union on 22 June 2023. Her analysis shows the difficulties that the Court will presumably face when trying to find proper answers to the questions raised by the Higher Regional Court of Vienna (Austria), as it is difficult to reconcile the wording and context of its provisions and its legislative history with the Union legislator’s presumed objectives, namely, to establish an efficient system for cross-border cooperation. The author concludes that a proper solution will in any case require an amendment of Art. 31 by the Union legislator. In particular, it should be up to the legislator to clarify the scope of review to be undertaken in the course of any ex … Read more

In EU Member States, tax administrations are the public organs that make most use of artificial intelligence (AI) and machine learning (ML) systems to perform State prerogatives. At least 18 EU Member States frequently use AI tax enforcement systems. In certain areas of taxation, such as value-added tax, AI and ML are already used throughout the EU. These systems perform a relatively broad range of tasks, reflecting the wide array of prerogatives of the administration itself. Generally, these different systems can be categorized into two archetypes: coercive and non-coercive AI systems. While non-coercive AI tax systems do not generate significant risks of conflict with taxpayers’ fundamental rights, coercive AI tax systems used for tax enforcement bring about serious risks of conflict with taxpayers’ fundamental rights and tax procedure as a whole. These risks have already materialised in a number of cases and have even led to serious scandals, such as … Read more

With the rise and spread of ICT-enabled crimes and illicit money flows (IMFs), law enforcement authorities and financial intelligence units need innovative investigative tools and skills, and organisational and regulatory adjustments to counter crime. The multi-disciplinary TRACE project is developing AI solutions to identify, track, and document IMFs to pave the way for effectively prosecuting money laundering and predicate offences and recovering criminal proceeds. In this article, the authors present the TRACE project to reveal some of the challenges faced by law enforcement authorities in adopting AI-driven investigative tools, taking into account the ongoing legislative procedures in preparation for the adoption of the EU Artificial Intelligence Act. It is argued that more empirical research is required on the design and feasibility of these AI-enabled tools given their implications for various legal principles, such as privacy, data protection, and the right to a fair trial. An “ethics and rule of law … Read more

For centuries, “doing justice” has been a fundamentally anthropocentric effort: Humankind has been placed at the centre of emerging paradigms and systems such as (quite self-evidently) human rights, constitutionalism, and – gradually – also international law. In addition to focusing adjudication on individuals and their litigated interests, this has meant an administration of justice taking the form of human activity. The advent of automated public decision-making, including adjudication based on artificial intelligence (AI) tools, has raised concerns of possible shortcomings and abuses of justice resulting from their application. So is it time to change this anthropocentric mindset? More specifically, has the time come to replace human judges with AI? Can we do without them? Technological progress, rather than legal considerations, is likely to decide the fate of the anthropocentric outlook. This is why this essay aims to focus on the future of human judges. The proposition put forward is that … Read more