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Latest documents
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Preuves électroniques : état de la situation en Suisse face à l’avancée majeure du droit européen
This contribution is a comparison of the solution adopted in the European Union (EU) concerning cross-border access to electronic evidence and the Swiss law applicable in this area, based on a number of key features of the European system. It gives rise to a reflection on the prospects for relations between the European Union and Switzerland, in particular the opportunity for Switzerland to coordinate its rules with those of European law.
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Mutual Admissibility of Evidence and Electronic Evidence in the EU
A New Try for European Minimum Rules in Criminal Proceedings?
This article seeks to provide arguments in support of legislative action on mutual admissibility of evidence and electronic evidence in criminal proceedings at the EU level. To this end, it will first describe the status quo and then the main features of a corresponding proposal recently tabled by the European Law Institute. In the light of this proposal, the author explains why Member States should reconsider their traditional stance against any EU initiative on evidentiary rules in criminal proceedings. Ultimately, especially in this new digital era, the best solution to prevent the inadmissibility of cross-border evidence is to adopt a set of minimum rules.
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Gathering Electronic Evidence for Administrative Investigations
Exploring an Under-the-Radar Area
The intense debate over the past few years on access to data for criminal investigations has led to the adoption of the E-evidence package. Yet, electronic evidence is no less crucial for punitive administrative proceedings. One administrative investigation authority that could benefit from more extensive access to electronic evidence is OLAF, which, at this point, does not seem to have the power to request data from service providers. Such powers could be essential, however, for the detection and investigation of fraud or corruption. This article argues the need for a general and thorough reflection on access to electronic evidence from Internet Service Providers (ISPs) in administrative punitive proceedings. It also discusses the transfer of this type of evidence between administrative and criminal proceedings (in both directions) in order to more specifically justify an extension of OLAF’s powers to be able to request such evidence.
- Judgment of the Court of Justice First Chamber of 26 October 2023, FT Copies of medical records, C-307/22
- Judgment of the General Court Seventh Chamber, 25 October 2023, BNP Paribas Public Sector v SRB, T-688/21
- Judgment of the General Court Fourth Chamber, Extended Composition of 25 October 2023, Bulgarian Energy Holding and Others v Commission, T-136/19
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The Use of Electronic Evidence in the European Area of Freedom, Security, and Justice
An Introduction to the New EU Package on E-evidence
Digital technologies have advanced more rapidly than any other innovation in modern history and they permeate our daily lives. The benefits to our societies and economies are numerous, but the risks of cyberattacks and crime have also increased. The EU is committed to protecting its citizens against these risks in the Area of Freedom, Security and Justice. Prevention, detection, and enforcement form key components of the EU’s security architecture. Making use of the benefits of digital technologies and ensuring a high level of security across the Union were driving forces behind the latest building block in this architecture: the e-evidence package. Recently adopted, it aims to ensure that judicial and law enforcement authorities can obtain electronic evidence across the EU and beyond in a swift and legally sound manner for the purpose of investigations and prosecutions in criminal cases. This article provides an introduction to the two new EU instruments: the Regulation on European Production/Preservation Orders and the Directive on the designation of designated establishments and the appointment of legal representatives. The authors outline the key elements of this new set of rules and illustrate their implications for stakeholders. Furthermore, the borderless and open character of digital technology also makes it imperative to analyse existing and potential new international agreements in this field, since they will have an impact on the effectiveness of the enacted EU e-evidence package. The article concludes that the adoption of the EU e-evidence rules is an important step in the joint efforts to fight crime effectively. Fundamentally relying on the principle of mutual trust among the EU Member States and a presumption of their compliance with Union law, the rule of law, and fundamental rights and values, the application of the e-evidence package will nonetheless require constant scrutiny, monitoring, and cooperation between all actors involved.
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The E-evidence Package
The Happy Ending of a Long Negotiation Saga
The following article gives an overview of the long internal negotiations on the EU legal instruments aiming at improving cross-border access to e-evidence in judicial proceedings (the so-called e-evidence package), which have finally been concluded. It outlines the main challenges met during the negotiations and how they were overcome to reach a compromise which has become subject to political agreement. This compromise is expected to prove more useful from a practical point of view than previous, more general cooperation tools. In addition, the article puts the EU’s legislative initiative into the context of legal instruments and negotiations on law enforcement access to e-evidence at the international level before turning to expected future developments.
- Judgment of the General Court Third Chamber, Extended Composition of 18 October 2023, Teva Pharmaceutical Industries and Cephalon v Commission, T-74/21