Evidence Gathering in the Realm of the European Investigation Order: From National Rules to Global Principles

At first blush the Directive on the European Investigation Order does not seem revolutionary. It does not unify or harmonize the European legislations, and often reworks some old schemes of the previous evidence-gathering tools. However, if one considers its operational implications, it appears clear that the Directive could have the effect of changing the structure of the national evidentiary provisions, turning many of them from rigid “rules” into flexible “principles” that have to be implemented by the judiciary in each concrete situation. Such genetic mutation is full of dangers, since it could worsen the standards of protection of fundamental rights so far granted by the national systems. This article suggests a careful watch over the application of the Directive, putting the issuing and the execution of the Investigation Orders under the lens of the principles of equivalence and proportionality provided by the EU Charter of Fundamental Rights – also referred to herein as the Nice Charter.