The European Commission adopted an opinion on a proposal by seven EU Member States (Austria, Belgium, Bulgaria, Estonia, Slovenia, Spain and Sweden) for a European Investigation Order, a system facilitating justice authorities' work in obtaining evidence for transnational criminal proceedings (or investigations). The proposal would allow authorities to request their counterparts to investigate, share and gather evidence.

The opinion published by the Commission recognises the added value of replacing the current fragmented system for investigative measures with a single legal framework. It also notes the need for clear and detailed rules, which would be fully compliant with the EU Charter of Fundamental Rights. These measures would include minimum standards for gathering evidence so that its admissibility in court is beyond doubt, as well as high data protection standards for sensitive information.

The Commission adopted an analysis of a proposal for evidence sharing,without admissibility standards, put forward by seven EU Member States (Austria, Belgium, Bulgaria, Estonia, Slovenia, Spain and Sweden) on 21 May 2010. The United Kingdom has also notified its wish to participate in the proposed Directive.

Investigators could use one standard form to directly request all kinds of evidence from their counterparts: from sharing witnesses' submissions to triggering house searches. It would also help victims avoid repeating their ordeal several times or travelling to a jurisdiction by giving evidence via video link. Authorities would only be able to refuse to recognise or carry out orders in a limited number of circumstances, such as national security concerns.

However, the Commission noted that authorities will be reluctant to use shared evidence such as bank data, phone records or DNA without first having mutual trust in the way it is obtained. It therefore needs to be accompanied by common minimum standards for gathering evidence across the EU, to ensure their admissibility in court as well as respect for fundamental and fair trial rights. Any exchanges of data would have to comply with EU data protection rules.

All 27 EU Member States will negotiate a final proposal, which would then be voted by the European Parliament under the co-decision procedure. The Commission will then decide whether it needs to make separate proposals, particularly on the obtaining/admissibility of evidence.

Actions for a common legal framework

In line with the objectives set out in its Communication "An area of freedom, security and justice serving the citizen" of 10 June 2009, the Commission proposed to adopt, in November 2009, a further action in order to improve cooperation between Member States on obtaining evidence in criminal matters.

December 2009, European leaders endorsed the Stockholm Programme. The Commission turned these political objectives into an action plan for 2010-2014.