EIO in the Council

The Council discussed the issue of proportionality in its meeting of December 2010.⁸⁰⁶ The grounds for non-recognition and non-execution were also discussed. Handling was already launched in the Working Party on Cooperation in criminal matters (COPEN). In April 2011, the Hungarian Presidency issued a state of play report on EIO. Grounds for non-recognition or non-execution were one key outstanding issue in the negotiations and the Presidency concluded that they should be as specific and as limited as possible.⁸⁰⁷ In a ministerial meeting of June 2011, safeguards regarding these issues were deemed important in order to protect defence rights of concerned persons.⁸⁰⁸ This was reflected in the partial general approach of the Council.⁸⁰⁹

The institutions were able to make some progress in the trialogue negotiations in 2013. Only fragments of information on the detailed negotiations are publicly available.⁸¹⁰ It is nevertheless important to point out that a sufficient level of political will existed in order to take proportionality duly into account in the compromise. The same applies for ne bis in idem.

The EIO Directive was published in the Official Journal of the European Union on 1 May 2014.⁸¹¹ In the final version adopted by the institutions, Article 6 setting out conditions for issuing and transmitting EIO was significantly strengthened compared with the initial proposal of a group of Member States.

In paragraph 1 (a) proportionality was stipulated as a clear condition.

Moreover, Article 11 on grounds for non-recognition and non-execution now includes the principle of ne bis in idem. The recitals of the final text carried improvements in terms of fundamental rights and proportionality.

Proportionality was also raised to the discussion by some Member States' parliaments. In November 2010, the President of the Austrian Federal Council submitted its EU Committee's opinion on subsidiarity of the EIO. The failure to establish any minimum requirements that the issuing authority can refer to when deciding on an investigation order was criticized. According to the Committee, it did not contain legality nor a proportionality test.⁸¹² The Senate of Italy also took a critical view with regard to proportionality in the text.⁸¹³ The UK Parliament, for its part, took a rather skeptical approach towards the EIO in terms of fundamental rights.⁸¹⁴

806 Press release, 3051st Council meeting Justice and Home Affairs, Brussels 2-3 December 2010, 16918/10, Presse 322, PR CO 41.

807 Council document 8369/1/11. 7 April 2011.

808 Press release 3096th Council meeting Justice and Home Affairs, Luxembourg 9 and 10 June 2011, 11008/11, Presse 161, PR CO 37.

809 Council document, 11735/11. 17 June 2011.

810 See for example Council document 9747/1/13 REV 1, 29 May 2013.

811 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. OJ L 130/1, 1.5.2014.

812 Council Document 16340/10, 15.11.2010.

813 Council Document 8055/11, 22.3.2011.

814 Human Rights Joint Committee: Fifteenth Report. The Human Rights Implications of UK

extradition Policy. Available at http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15602.htm. Visited on 1

August 2014. The Committee held that "the lessons from the EAW must be learned when negotiating the

6. Assessment of the case in relation to the ex ante review of fundamental rights

Many countries and international legal systems have increasingly transformed towards judicial review with a significant role given to juristocracy as a result of constitutionalisation.⁸¹⁵ In the empowerment of ex ante review of fundamental rights at the EU level, we can see signs of the partial come-back of the legislature to the core of constitutional control, however.

Dworkin makes a distinction between principles of integrity. The first part of this set is the principle of integrity in legislation. This means that the law-makers must keep the law coherent in principle. The other principle is the principle of integrity in adjudication, according to which those in charge of adjudication must enforce the law in a coherent manner.⁸¹⁶ Incoherence with regard to proportionality, in accordance with law and noting the ne bis in idem, were key problems in this piece of legislation that the legislator had to cope with. In the course of the proceedings, the institutions managed remove significant fundamental right problems, such as that of ne bis in idem, which had a significant impact in this case as had in accordance with law criterion. It is therefore noteworthy to state that this part of the limitation test as applied by the legislator proved useful.

Proportionality can be considered to be a doctrinal tool to establish whether an interference with a prima facie right is justified. Furthermore, this justification succeeds if the interference is proportionate.⁸¹⁷ On the basis of examining the various texts regarding EIO, it is relatively easy to conclude that biggest problem was proportionality. It is therefore easy to associate oneself with views expressed, for example by the UK Parliament on inadequate proportionality. A partial explanation to the shortcomings in proportionality assessment probably has to do with the lack of the impact assessment.

When addressing the principle of proportionality, one should not deal with it in isolation of other legal principles, such as legal certainty, non-discrimination and subsidiarity. As I tend to approach the selected legal files from the point of view of both positive and negative obligations, it is good to

form of the EIO. The Government must ensure that there is an effective proportionality safeguard in the Directive, in order to ensure that the EIO operates effectively and that there are not numerous requests for information in minor cases".

815 Hirschl, pp. 214-215. See also Beatty David M.: The Ultimate Rule of Law. Oxford University Press. Oxford 2004, pp. 2-3.

816 See Dworkin Ronald: Law’s Empire. Hart Publishing. Oxford 1998, p. 167. As for the principle of integrity in adjudication Dworkin claims that “the second principle explains how and why the past must be allowed some special power of its own in court, contrary to the pragmatist’s claim that it must not”.

817 See Möller Kai: Proportionality and Rights Inflation. LSE Law, Society and Economy Working Papers 17/2013. London School of Economics and Political Science. Law Department. 2013. p. 2. In the same context Möller discusses the issue of right inflation, i.e. the phenomenon that increasingly relatively trivial interests are protected as rights and finds that proportionality is not only compatible with rights inflation, but it rather necessitates it. p. 6.

admit that in this case the negative obligations prevailed. With such visible proportionality concerns, we can hardly avoid the entanglement of negative obligation, the limitations to fundamental rights to the proportionality considerations. Nevertheless, we should not see positive and negative obligations as mutually excluding elements. We can see both these obligations even in same provisions in the same legal texts. There were also attempts to bring positive obligations into the text in this file, especially by the EP. Why did the EIO end up to some extent in difficulties with regard to the above-mentioned aspects? The absence of an impact assessment must be considered the main source of the problem. The same applies for the rather adaptive position of the Council, as well as the less significant role of the Commission in legislative files with their roots in initiatives of a group of Member States.

Having no proper impact assessment whatsoever in such a fundamental right sensitive file can only lead to problems at a later stage of the process.

In terms of substance, the EP had a key role in pushing for stronger safeguards for ne bis in idem. In the end, the EP was able secure in the negotiation process this important fundamental right objective. Similarly, proportionality was underscored throughout this legislative process by the EP. It is worth noting that collaboration of the EP with FRA was intense regarding key fundamental right issues in the EIO. As a consequence, many positions of the FRA were introduced in the final text through EP positions.

Therefore, the EIO sheds an interesting light on the practical co-operation of technical expert bodies with political EU institutions.

The role of the FRA is also fascinating in ensuring compliance with fundamental rights, especially in the Member States’ legislative initiatives that are unaccompanied by impact assessments. It is particularly important to have the FRA tightly involved in the analyses of fundamental rights aspects in such cases. Probably the FRA can be especially useful in compensating for the lack of impact assessments in this fundamental rights sensitive field, also bringing the necessary institutional neutrality into the process.