A leading role for the EU in drafting criminal law powers? Use of the Council of Europe for policy laundering

AuthorPaul De Hert,Angela Aguinaldo
Date01 June 2019
Published date01 June 2019
Subject MatterEditorial
A leading role for the EU in
drafting criminal law powers?
Use of the Council of Europe
for policy laundering
In light of the ongoing story on the regulatory steps towards electronic evidence and
transnational production orders, civil rights organizations have expressed both alarm and
astonishment on the regulatory initiatives in the Council of Europe regarding transnational
production orders. Member states of the European Union (EU) engage actively in soft law
entrepreneurship by allowing themselves to obtain directly from service providers subscriber
and other communications content. This has not only been done domestically through
national laws but likewise on a multilateral level as EU member states are now seen drawn
towards the Council of Europe. Within said Council of Europe, member states are now
enabled to stretch the extraterritorial powers exercised by their law enforcement author-
ities in obtaining electronic evidence through a controversial Guidance Note and soon, a
Second Additional Protocol. Interestingly, throughout these developments, the EU remained
passive but as of late, has come up with proposals for the European Production and Pre-
servation Orders, among others. The mixture of alarm and astonishment among civil liberties
representatives about the decision making procedures at the level of the Council of Europe
can be best understood in a broader regulatory context of policy enterpreneurship, rent-
seeking behaviour and, overall, rational choice institutionalism. Comparing the Council of
Europe with the EU, the structure of the former makes it the more attractive venue for
policy actors such as law enforcement authorities to maximize their benefits at the least
amount of costs. Being competitors in policymaking vis-`
a-vis cooperation in criminal matters,
the EU can however lose its sociopolitical ascendancy over time as an institutional venue to
discuss cooperation matters. In light of this, one should not forget that two Europes coexist.
These coexisting realities are now being used to the advantage of laundering policies, testing
which forum would maximize benefits the most. These developments should caution us that
there might be a systemic failure in ensuring safeguards in criminal investigations are always
in place.
Transnational production orders, Council of Europe, European Union, soft law entrepreneurship,
rational choice institutionalism, policy laundering, Guidance Note on production orders, European
Production and Preservation Orders
New Journal of European Criminal Law
2019, Vol. 10(2) 99–106
ªThe Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/2032284419838338

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