Summary

The European Law Institute published a proposal on 8 May 2023, for the establishment of a directive on the mutual admissibility of evidence. In this article, an analysis is conducted to determine whether the establishment of general rules on the admissibility of evidence, as outlined in the proposal, is necessary or if it would duplicate existing regulations within the European Union.

To identify the main issues, the analysis examines whether the proposal aims to address cross-border challenges that could be more effectively resolved at the EU level. The proposal is problematic, firstly because it lacks empirical evidence supporting the existence of problems arising from differences in legal systems among Member States. An empirical study among Member States could determine whether there is a risk to the protection of fundamental rights and the application of EU rules, and whether the differences in admissibility rules are the actual obstacles to applying EU law. Secondly, the proposed directive’s necessity is doubtful because the lex loci principle doesn’t remove distrust about evidence from another Member State’s legal system. Thirdly, discussions at the EU legislative level indicate that intervening in the decisions on the admissibility of evidence made by Member States’ courts could pose a risk to ensuring sufficient protection of fundamental rights.

Additionally, the European Law Institute’s proposal is compared to the existing legal norms in the EU to determine whether the directive would change the current impact of EU law on the admissibility of evidence in criminal proceedings. The comparison shows that the directive would not introduce fundamental changes or additions beyond the existing law. In summary, the author’s viewpoint is that the establishment of the directive on the admissibility of evidence in the proposed form is not necessary due to the lack of added value.