Towards an inconsistent European Regime of Cross-Border Evidence: The EPPO and the European Investigation Order

Abstract

This chapter focuses on the different approaches to cross-border evidence in two future manifestations of judicial cooperation in criminal matters in the EU: the European Investigation Order (EIO) and the proposed European Public Prosecutor’s Office (EPPO). In the horizontal context of the EIO, the collection and transfer of evidence is based on a redesigned mutual recognition scheme, while the proposed EPPO model selectively combines elements of horizontal and vertical cooperation for the gathering and the Union wide recognition of evidence. The study sets the emphasis on the potential problems of the mixed EPPO regime and its future co-existence with the EIO. With currently no minimum European rules on the mutual admissibility of evidence, no uniform EPPO powers and the reality of the EPPO being established by enhanced cooperation, the author concludes that initial recourse to the EIO in EPPO investigations might be beneficial for various reasons. It might increase the acceptance of the EIO in practice, the trust in future EPPO investigations, the recognition of EPPO-evidence and the coherence of cross-border investigations in the EU in general.