A.J. de Vries
Evidence and Transnational Punitive Enforcement Proceedings in the European Union
Gebonden Engels 2024 1e druk 9789047302209Levertijd ± 6 werkdagen
Gratis verzonden
Samenvatting
In many fields, enforcement of EU policies is performed by the Member States. In principle, Member States are free to decide how and by which means they enforce such policies, albeit under the observance of EU legal principles and harmonised rules. While differences between Member States are inevitable, especially at the interface of criminal and administrative enforcement, they should not create legal obstacles to effective and rule of law-based enforcement in cross-border cases.
In his dissertation, Aart de Vries analyses the legal principles and rules that determine the gathering, sharing, and use of evidence by EU Member States’ administrative and judicial authorities in cross-border enforcement cases to answer an important and current question: do these legal principles and rules enable effective and rule of law-based transnational punitive enforcement of EU policies?
De Vries looks into supranational EU law and national law in The Netherlands, Germany, and France to provide a detailed analysis of the applicable legal framework. On the basis of his findings, De Vries presents a convincing answer to the aforementioned question and puts forward various recommendations to enhance transnational punitive enforcement in the EU. In this light, this dissertation provides insights for academics and practitioners with an interest in punitive (criminal and administrative) enforcement of EU law.
Evidence and Transnational Punitive Enforcement Proceedings in the European Union is part of the Pompe series; publications that combine legal and social-scientific approaches to the problems of criminal law, written by staff members of the Willem Pompe Institute for Criminal Law and Criminology in Utrecht and by authors who share the Institute’s school of thought. Its central theme is the protection and enforcement of fundamental rights in a changing world, focussing on the position of vulnerable groups in relation to the state and on the significance of individual human rights in an international context.
Specificaties
ISBN13:9789047302209
Taal:Engels
Bindwijze:gebonden
Aantal pagina's:775
Uitgever:Eleven International Publishing
Druk:1
Verschijningsdatum:8-4-2024
Hoofdrubriek:Juridisch
Serie:Pompe-reeks
Lezersrecensies
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Inhoudsopgave
1 Introduction 31
1.1 Punitive Enforcement of EU Policies at the Interface of Member States’ Legal Orders – A Conceptual Approach 31
1.2 Defining the Central Problem 39
1.3 Societal and Scientific Context 43
1.4 Approach and Research Methodology 47
1.4.1 The Integral Approach of this Dissertation – Gathering, Sharing, and Use of Evidence 47
1.4.2 Research Methodology 53
1.4.3 Selection and Limitations 54
1.4.3.1 National Jurisdictions – Selection and Justification 55
1.4.3.2 EU Policy Fields – Selection and Justification 59
1.4.3.3 Limitation of the Research Scope 61
1.5 The Structure of this Dissertation – A Reader’s Guide 65
Part I Gathering, Sharing, and Use of Evidence From the Supranational EU Perspective 69
2 Punitive Enforcement Proceedings From the EU Perspective 71
2.1 Setting the Scene – Indirect Enforcement and ‘Conditioned’ National Autonomy in the EU’s Internal Market and AFSJ 71
2.2 Instrumental and Institutional Requirements for National Enforcement of EU Policies 73
2.2.1 Instrumental Enforcement Requirements and the EU Principle of Sincere Cooperation 74
2.2.2 Institutional Requirements to National Enforcement – EU Harmonisation of the National Enforcement Regime and Related Sanctions 81
2.3 The Applicable Procedural Rules and Fundamental Right Standards During Gathering, Sharing, and Use of Evidence in Cross-Border Enforcement Proceedings 84
2.3.1 Determining the Applicable Law During Cross- Border Enforcement Proceedings 86
2.3.2 Harmonisation of National Law in the Context of Enforcement Proceedings 87
2.3.3 Compliance with EU Fundamental Rights Standards and the Role of the Charter 92
2.3.4 The Substance of Fundamental Rights Under the Charter 95
2.3.4.1 The Right to a Fair Trial (Articles 47 and 48 Charter) 95
2.3.4.2 The Right to Private Life (Article 7 Charter) 103
2.3.5 The Role of National Fundamental Rights Standards – Non-Regression and More Protection 107
2.4 EU Cooperation to Obtain Evidence in Cross-Border Enforcement Proceedings – The Role of Mutual Trust and Mutual Recognition 110
2.4.1 Cooperation Within the EU’s Internal Market and AFSJ 111
2.4.1.1 Mutual Administrative Assistance – Sector-Specific Instruments in the Internal Market 112
2.4.1.2 Judicial Cooperation in Criminal Matters – the Primary Role of the EIO Directive 113
2.4.2 Mutual Trust and Mutual Recognition – From the Internal Market to the AFSJ 115
2.4.2.1 Mutual Trust as an Overarching EU Legal Principle 116
2.4.2.2 Mutual Recognition in the Internal Market and AFSJ 119
2.4.3 Mutual Trust, Mutual Recognition and the Observance of Fundamental Rights 122
2.5 The Review of Measures and Evidence – Effective Judicial Protection in Cross-Border Enforcement Proceedings 126
2.5.1 The EU Principle of Effective Judicial Protection 127
2.5.2 Effective Judicial Protection – Legal Remedies in Cross-Border Enforcement Proceedings 130
2.5.3 Effective Judicial Protection – the Implementation of Judicial Review in Cross-Border Enforcement Proceedings 134
2.5.3.1 Judicial Review – Perspective of the Member State Where the Evidence is Gathered 135
2.5.3.2 Judicial Review – Perspective of the Member State Where the Evidence is Used 139
2.6 Conclusions From the Supranational EU Perspective – Looking Ahead to the Member States’ Perspective 147
Part II Gathering, Sharing, and Use of Evidence From the Member
States’ Perspective 149
3 The Implementation of EU Enforcement Duties in the Netherlands
The Gathering, Sharing, and Use of Evidence by Dutch Administrative and Judicial Authorities From the Domestic and Cross-Border Perspective 151
3.1 Introduction to the Dutch Chapter 151
3.2 The National Enforcement Architecture in The Netherlands 153
3.2.1 Setting the Scene – The Interplay of Administrative and Criminal Enforcement in The Netherlands 154
3.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 158
3.2.2.1 Administrative Enforcement in the Field of Customs 158
3.2.2.1.1 The organisation of the Dutch Customs Administration (Douane) 158
3.2.2.1.2 Tasks and competences of the Dutch customs authorities 159
3.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 162
3.2.2.2.1 Organisation of the Inspectie Leefomgeving en Transport (ILT) 163
3.2.2.2.2 Tasks and competences of the competent administrative authorities in environmental matters 163
3.2.2.3 Administrative Enforcement in the Field of Market Abuse 165
3.2.2.3.1 Organisation of the Financial Markets Authority (AFM) 166
3.2.2.3.2 Tasks and competences of the Financial Markets Authorities 166
1.1 Punitive Enforcement of EU Policies at the Interface of Member States’ Legal Orders – A Conceptual Approach 31
1.2 Defining the Central Problem 39
1.3 Societal and Scientific Context 43
1.4 Approach and Research Methodology 47
1.4.1 The Integral Approach of this Dissertation – Gathering, Sharing, and Use of Evidence 47
1.4.2 Research Methodology 53
1.4.3 Selection and Limitations 54
1.4.3.1 National Jurisdictions – Selection and Justification 55
1.4.3.2 EU Policy Fields – Selection and Justification 59
1.4.3.3 Limitation of the Research Scope 61
1.5 The Structure of this Dissertation – A Reader’s Guide 65
Part I Gathering, Sharing, and Use of Evidence From the Supranational EU Perspective 69
2 Punitive Enforcement Proceedings From the EU Perspective 71
2.1 Setting the Scene – Indirect Enforcement and ‘Conditioned’ National Autonomy in the EU’s Internal Market and AFSJ 71
2.2 Instrumental and Institutional Requirements for National Enforcement of EU Policies 73
2.2.1 Instrumental Enforcement Requirements and the EU Principle of Sincere Cooperation 74
2.2.2 Institutional Requirements to National Enforcement – EU Harmonisation of the National Enforcement Regime and Related Sanctions 81
2.3 The Applicable Procedural Rules and Fundamental Right Standards During Gathering, Sharing, and Use of Evidence in Cross-Border Enforcement Proceedings 84
2.3.1 Determining the Applicable Law During Cross- Border Enforcement Proceedings 86
2.3.2 Harmonisation of National Law in the Context of Enforcement Proceedings 87
2.3.3 Compliance with EU Fundamental Rights Standards and the Role of the Charter 92
2.3.4 The Substance of Fundamental Rights Under the Charter 95
2.3.4.1 The Right to a Fair Trial (Articles 47 and 48 Charter) 95
2.3.4.2 The Right to Private Life (Article 7 Charter) 103
2.3.5 The Role of National Fundamental Rights Standards – Non-Regression and More Protection 107
2.4 EU Cooperation to Obtain Evidence in Cross-Border Enforcement Proceedings – The Role of Mutual Trust and Mutual Recognition 110
2.4.1 Cooperation Within the EU’s Internal Market and AFSJ 111
2.4.1.1 Mutual Administrative Assistance – Sector-Specific Instruments in the Internal Market 112
2.4.1.2 Judicial Cooperation in Criminal Matters – the Primary Role of the EIO Directive 113
2.4.2 Mutual Trust and Mutual Recognition – From the Internal Market to the AFSJ 115
2.4.2.1 Mutual Trust as an Overarching EU Legal Principle 116
2.4.2.2 Mutual Recognition in the Internal Market and AFSJ 119
2.4.3 Mutual Trust, Mutual Recognition and the Observance of Fundamental Rights 122
2.5 The Review of Measures and Evidence – Effective Judicial Protection in Cross-Border Enforcement Proceedings 126
2.5.1 The EU Principle of Effective Judicial Protection 127
2.5.2 Effective Judicial Protection – Legal Remedies in Cross-Border Enforcement Proceedings 130
2.5.3 Effective Judicial Protection – the Implementation of Judicial Review in Cross-Border Enforcement Proceedings 134
2.5.3.1 Judicial Review – Perspective of the Member State Where the Evidence is Gathered 135
2.5.3.2 Judicial Review – Perspective of the Member State Where the Evidence is Used 139
2.6 Conclusions From the Supranational EU Perspective – Looking Ahead to the Member States’ Perspective 147
Part II Gathering, Sharing, and Use of Evidence From the Member
States’ Perspective 149
3 The Implementation of EU Enforcement Duties in the Netherlands
The Gathering, Sharing, and Use of Evidence by Dutch Administrative and Judicial Authorities From the Domestic and Cross-Border Perspective 151
3.1 Introduction to the Dutch Chapter 151
3.2 The National Enforcement Architecture in The Netherlands 153
3.2.1 Setting the Scene – The Interplay of Administrative and Criminal Enforcement in The Netherlands 154
3.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 158
3.2.2.1 Administrative Enforcement in the Field of Customs 158
3.2.2.1.1 The organisation of the Dutch Customs Administration (Douane) 158
3.2.2.1.2 Tasks and competences of the Dutch customs authorities 159
3.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 162
3.2.2.2.1 Organisation of the Inspectie Leefomgeving en Transport (ILT) 163
3.2.2.2.2 Tasks and competences of the competent administrative authorities in environmental matters 163
3.2.2.3 Administrative Enforcement in the Field of Market Abuse 165
3.2.2.3.1 Organisation of the Financial Markets Authority (AFM) 166
3.2.2.3.2 Tasks and competences of the Financial Markets Authorities 166
3.2.2.4 Criminal Enforcement – The Role of Judicial Authorities in the Investigation and Prosecution of Economic, Financial and Environmental Crime 168
3.2.2.4.1 Organisation of the Dutch Public Prosecution Service (Openbaar Ministerie) 168
3.2.2.4.2 Tasks and competences of the Dutch Public Prosecution Service 170
3.2.3 Coordination and Allocation Between Administrative and Judicial Authorities 173
3.2.3.1 Coordination and Allocation in Customs Matters – the Protocol AAFD 175
3.2.3.2 The National Environmental Chamber and the National Enforcement Strategy in Environmental Matters 176
3.2.3.3 The Convenant Between AFM, FIOD, and OM 178
3.3 The Gathering of Evidence in Domestic Dutch Proceedings 179
3.3.1 Monitoring and Investigations in The Netherlands – The Notions of ‘Toezicht op de Naleving’, ‘Opsporing’, and ‘Bestuurlijk Boeteonderzoek’ 179
3.3.2 The Powers to Gather Evidence under Dutch Administrative and Customs Law 182
3.3.2.1 Monitoring Powers under Dutch General Administrative Law 183
3.3.2.2 Powers under Dutch Customs Law 187
3.3.3 The Investigative Powers to Gather Evidence 190
3.3.3.1 Investigations into Criminal Offences 190
3.3.3.1.1 The available investigative competences under Dutch criminal law 193
3.3.3.2 Investigations into Punitive Administrative Offences 201
3.3.4 Applicable Defence Rights and Procedural Safeguards 204
3.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 204
3.3.4.2 The Right to Private Life 209
3.3.5 Legal Remedies during Dutch Administrative and Criminal Proceedings 212
3.3.5.1 Legal Remedies under Dutch Administrative and Customs Law 212
3.3.5.2 Legal Remedies under Dutch Criminal Law 216
3.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the Dutch Perspective 219
3.4.1 Cross-Border Cooperation in Administrative Matters (Administrative Bijstand) 219
3.4.1.1 Administrative Cooperation in Customs Matters 219
3.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 221
3.4.1.3 Administrative Cooperation in Financial Regulation 222
3.4.1.4 Legal Remedies in the Context of Mutual Administrative Assistance 224
3.4.2 Cross-Border Cooperation in Criminal Matters (Rechtshulp) 225
3.4.2.1 Cooperation on the Basis of the European Investigation Order 226
3.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 227
3.4.2.3 Legal Remedies in the EIO and Classic Mutual Legal Assistance 228
3.5 The Interface of Administrative and Criminal Enforcement in the Netherlands – Parallel and Consecutive Proceedings, Sharing of Evidence and Applicable Procedural Safeguards 231
3.5.1 The Interface of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings 232
3.5.1.1 The Options and Limits of Consecutive and Parallel Proceedings under Dutch Law 233
3.5.1.1.1 No exclusive use of monitoring competences for the purpose of an investigation 235
3.5.1.1.2 Observing procedural rights at the interface of monitoring and investigations 236
3.5.1.1.3 Ex post judicial control by Dutch courts 241
3.5.1.2 European Cooperation and Parallel and Consecutive Proceedings 242
3.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities and Vice Versa 242
3.5.2.1 Procedural Bridges – From the Administrative Authorities to the Judicial Authorities 244
3.5.2.2 Procedural Bridges – From the Judicial Authorities to the Administrative Authorities 246
3.5.2.3 Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between Dutch Authorities 248
3.6 The Use and Exclusion of Evidence under Criminal and Punitive Administrative Law 250
3.6.1 The Use and Exclusion of Evidence in Dutch Criminal Proceedings 250
3.6.1.1 The Dutch Rules of Evidence – Legal Consequences to Procedural Breaches on the Basis of Article 359a WvSv 251
3.6.1.2 Legal Consequences to Procedural Breaches Under Dutch Criminal Law 253
3.6.1.3 The Use and Exclusion in Criminal Proceedings of Evidence that has been Obtained by Administrative Authorities 257
3.6.1.4 The Use of Foreign Evidence in Dutch Criminal Proceedings 259
3.6.2 The Use and Exclusion of Evidence in Dutch Punitive Administrative Proceedings 262
3.6.2.1 Development of the Dutch Doctrine Concerning Unlawfully Obtained Evidence in Tax Matters – Introduction of the ‘Manifestly Improper’ Criterion 263
3.6.2.2 Exclusion of Unlawfully Obtained Evidence in Administrative Proceedings – the Expansion of the ‘Manifestly Improper’ Criterion to all Administrative Matters 266
3.6.2.3 Judicial Review of Foreign Evidence in Dutch (Punitive) Administrative Proceedings 270
4 The Implementation of EU Enforcement Duties in Germany
The Gathering, Sharing, and Use of Evidence by German
Administrative and Judicial Authorities From the Domestic
and Cross-Border Perspective 275
4.1 Introduction to the German Chapter 275
4.2 The National Enforcement Architecture in Germany 277
4.2.1 Setting the Scene – Division of Competences between the Federal and State Levels, and the Interplay of Administrative and Criminal Enforcement in Germany 278
4.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 282
4.2.2.1 Administrative Enforcement in the Field of Customs 282
4.2.2.1.1 The organisation of the German Customs Administration (Bundeszollverwaltung) 283
4.2.2.1.2 Tasks and competences of the German customs authorities 286
4.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 290
4.2.2.2.1 Organisation of the competent administrative authorities in environmental matters 291
4.2.2.2.2 Tasks and competences of the competent administrative authorities in waste matters – the German State authorities and customs authorities 292
4.2.2.3 Administrative Enforcement in the Field of Market Abuse 295
4.2.2.3.1 Organisation of the Federal Financial Supervisory Authority (BaFin) 295
4.2.2.3.2 Tasks and competences of the Federal Financial Supervisory Authority 296
4.2.2.4 Criminal Enforcement – The Role of Judicial Authorities in the Investigation and Prosecution of Economic, Financial and Environmental Crime 299
4.2.2.4.1 Organisation of the German Public Prosecution Service (Staatsanwaltschaft) 299
4.2.2.4.2 Tasks and competences of the Public Prosecution Service 301
4.2.3 Allocation and Coordination Between Administrativeand Judicial Authorities 304
4.2.3.1 Allocation and Coordination Between the Staatsanwaltschaft and Customs Authorities 305
4.2.3.2 Allocation and Coordination Between the Competent Administrative Authorities and the Staatsanwaltschaft in the Context of Ordnungswidrigkeiten 308
4.3 The Gathering of Evidence in Domestic German Proceedings 310
4.3.1 Monitoring and Investigations in Germany – The Notions of ‘Gefahrenabwehr’ or ‘Wirtschaftsaufsicht’ and ‘Strafverfolgung’ 311
4.3.2 The Monitoring Powers to Gather Evidence under Customs And Administrative Law 312
4.3.2.1 Powers of the German Customs Authorities 313
4.3.2.2 Powers of the German Authorities in Transfrontier Waste Matters 318
4.3.2.3 Powers of the BaFin 320
4.3.3 The Investigative Powers to Gather Evidence – Criminal Law (Strafrecht) and Punitive Administrative Law (Ordnungswidrigkeitenrecht) 324
4.3.3.1 Investigations into Criminal Offences (Straftaten) 324
4.3.3.2 Investigations into Punitive Administrative Offences (Ordnungswidrigkeiten) 333
4.3.4 Applicable Defence Rights and Procedural Safeguards 334
4.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 335
4.3.4.2 The Right to Private Life 339
4.3.5 Legal Remedies under German Administrative and Customs Law, Criminal Law Sensu Stricto and Ordnungswidrigkeitenrecht 342
4.3.5.1 Legal Remedies During Monitoring – German Administrative Law and Customs Law 342
4.3.5.2 Legal Remedies in Criminal Proceedings Sensu Stricto 347
4.3.5.3 Legal Remedies Under Ordnungswidrigkeitenrecht 349
4.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the German Perspective 350
4.4.1 Cross-Border Cooperation in Administrative Matters (europäische Amtshilfe) 350
4.4.1.1 Administrative Cooperation in Customs Matters 350
4.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 354
4.4.1.3 Administrative Cooperation in Financial Regulation 355
4.4.1.4 Legal Remedies in the Context of Mutual Administrative Assistance 357
4.4.2 Cooperation in Criminal Matters (sonstige Rechtshilfe) 358
4.4.2.1 Cooperation on the Basis of the European Investigation Order 360
4.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 365
4.4.2.3 Legal Remedies in the EIO and Classic Mutual Legal Assistance 367
4.5 The Interface of Administrative and Criminal Enforcement in Germany – Parallel and Consecutive Proceedings, the Sharing of Evidence, and Applicable Procedural Safeguards 371
4.5.1 The Interface of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings 372
4.5.1.1 The Options and Limits of Consecutive and Parallel Proceedings Under German Law 374
4.5.1.1.1 The choice between competences at the interface of monitoring and investigations 374
4.5.1.1.2 Procedural safeguards at the interface of monitoring and investigations 378
4.5.1.2 Parallel and Consecutive Proceedings and European Cooperation 382
4.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities, and Vice Versa 384
4.5.2.1 The Sharing of Evidence from Administrative Authorities to Judicial Authorities, and Vice Versa 388
4.5.2.1.1 Sharing of evidence between administrative and judicial authorities in the context of tax 388
4.5.2.1.2 Sharing of evidence at the interface of monitoring and investigations 389
4.5.2.2 The Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between German Authorities 391
4.6 The Use and Exclusion of Evidence under Criminal and Punitive Administrative Law 394
4.6.1 The Use and Exclusion of Evidence in German Criminal Proceedings 394
4.6.1.1 Exclusion of Evidence – Constitutional Benchmarks in the German Legal Order 397
4.6.1.2 Beweisverwertungsverbote – Doctrine and Rules on the Exclusion of Evidence 398
4.6.1.3 The Use and Exclusion in Criminal Proceedings of Evidence that has been Obtained by Administrative Authorities 405
4.6.2 The Use of Evidence in German Punitive Administrative Proceedings 406
4.6.3 The Use of Foreign Evidence in German Criminal Proceedings 408
4.6.3.1 The Review and Exclusion of Evidence that has been Gathered Unlawfully in Another Member State 409
4.6.3.2 The Review and Exclusion of Evidence that has been Obtained Lawfully in Another Member State 412
5 The Implementation of EU Enforcement Duties in France
The Gathering, Sharing, and Use of Evidence by French
Administrative and Judicial Authorities From the Domestic
and Cross-Border Perspective 415
5.1 Introduction to the French Chapter 415
5.2 The National Enforcement Architecture in France 417
5.2.1 Setting the Scene – The Interplay of Administrative and Criminal Enforcement in France 418
5.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 420
5.2.2.1 Administrative Enforcement in the Field of Customs 420
5.2.2.1.1 The organisation of the French Douane 420
5.2.2.1.2 Tasks and competences of the French Douane 423
5.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 425
5.2.2.2.1 Organisation of the competent administrative authorities in environmental matters 425
5.2.2.2.2 Tasks and competences of the competent administrative authorities in environmental matters 427
5.2.2.3 Administrative Enforcement in the Field of Market Abuse 431
5.2.2.3.1 Organisation of the Financial Markets Authority (AMF) 431
5.2.2.3.2 Tasks and competences of the Financial Markets Authority 433
5.2.2.4 Criminal Enforcement – The Role of Judicial Authorities in the Investigation and Prosecution of Economic, Financial, and Environmental Crime 437
5.2.2.4.1 Organisation of the French judicial authorities 438
5.2.2.4.2 Tasks and competences of the French judicial authorities 441
5.2.3 Coordination and Allocation Between Administrative and Judicial Authorities 445
5.2.3.1 Coordination and Allocation in Customs Matters 446
5.2.3.2 Coordination and Allocation in Waste Matters 450
5.2.3.3 Coordination and Allocation of Market Abuse Offences 454
5.3 The Gathering of Evidence in Domestic French Proceedings 457
5.3.1 Monitoring and Investigations in France – The Notions of ‘Police Administrative’ and ‘Police Judiciaire’ 458
5.3.2 The Powers to Gather Evidence under French Administrative Law 460
5.3.2.1 Powers of the French Customs Authorities 460
5.3.2.2 Powers of the French Environmental Authorities in Waste Matters 468
5.3.2.3 Powers of the French Financial Markets Authority 471
5.3.3 The Investigative Powers to Gather Evidence under French Criminal Law 476
5.3.3.1 Investigations Under the Auspices of the Procureur de la République (Enquête Judiciaire) 478
5.3.3.1.1 Investigative competences during the enquête judiciaire 480
5.3.3.2 Investigations Under Supervision of the Investigative Judge (Instruction) 489
5.3.3.2.1 Investigative competences during an instruction 490
5.3.4 Applicable Defence Rights and Procedural Safeguards 494
5.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 494
5.3.4.2 The Right to Private Life 502
5.3.5 Legal Remedies during French Administrative and Criminal Proceedings 505
5.3.5.1 Legal Remedies under French Administrative Law 505
5.3.5.2 Legal Remedies under French Criminal Law 507
5.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the French Perspective 509
5.4.1 Cross-Border Cooperation in Administrative Matters (Entraide Administrative) 509
5.4.1.1 Administrative Cooperation in Customs Matters 510
5.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 511
5.4.1.3 Administrative Cooperation in Financial Regulation 512
5.4.2 Cooperation in Criminal Matters (Entraide Judiciaire) 514
5.4.2.1 Cooperation on the Basis of the European Investigation Order 514
5.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 515
5.4.2.3 Legal Remedies in the Context of the European Investigation Order and Classic Mutual Legal Assistance 517
5.5 The Interface of Administrative and Criminal Enforcement in France – Parallel and Consecutive Proceedings, the Sharing of Evidence, and Applicable Procedural Safeguards 520
5.5.1 The Interface of Administrative and Criminal Enforcement 521
5.5.1.1 Options and Limits of Consecutive and Parallel Proceedings 522
5.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities and Vice Versa 525
5.5.2.1 Applicable ‘Procedural Bridges’ Under Administrative and Criminal Law 526
5.5.2.2 The Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between French Authorities 528
5.6 The Use and Exclusion of Evidence under Criminal and Administrative Law 530
5.6.1 The Use and Exclusion of Evidence in French Criminal Proceedings 530
5.6.1.1 The ‘Nullities’ in French Criminal Proceedings 531
5.6.1.2 The Use of Foreign Evidence in French Criminal Proceedings 538
5.6.2 The Use of Evidence in French Punitive Administrative Proceedings 539
5.6.2.1 Use and Exclusion of Evidence During Punitive Administrative Proceedings Before the AMF 541
5.6.2.2 The Use of Foreign Evidence in Punitive Administrative Proceedings Before the AMF 544
Part III Gathering, Sharing, and Use of Evidence and Transnational
Punitive Enforcement in the EU 547
6 The Comparative Analysis Common Ground and Differences between the Principles
and Rules that Determine the Gathering, Sharing, and Use of Evidence during the Implementation of EU Enforcement Duties in the Netherlands, Germany, and France 549
6.1 Organisation of Enforcement in the Netherlands, Germany, and France 550
6.2 Gathering of Evidence – Competences, Procedural Safeguards, and Defence Rights, and Legal Remedies under Administrative and Criminal Law 552
6.2.1 Monitoring and Investigations in the Netherlands, Germany, and France 552
6.2.2 Available Competences During Monitoring 554
6.2.3 Available Competences During Criminal and Punitive Administrative Investigations 557
6.2.3.1 Competences During Criminal Investigations Sensu Stricto 558
6.2.3.2 Competences During Administrative Investigations 563
6.2.4 Procedural Guarantees and Defence Rights 566
6.2.4.1 The Right to a Fair Trial – The Privilege Against Self- Incrimination and the Right to Remain Silent 566
6.2.4.2 The Right to Private Life 568
6.2.5 Legal Remedies under Administrative and Criminal Law 569
6.2.5.1 Legal Remedies Under Administrative Law 569
6.2.5.2 Legal Remedies Under Criminal Law 571
6.3 EU Cooperation from the Perspective of the Netherlands, Germany, and France 572
6.3.1 Cross-Border Cooperation in Administrative Matters 572
6.3.1.1 Incoming and Outgoing Requests 573
6.3.1.2 Legal Remedies in the Context of Mutual Administrative Assistance 573
6.3.2 Cross-Border Cooperation in Criminal Matters 573
6.3.2.1 Incoming and Outgoing EIOs and the Naples II Convention 574
6.3.2.2 Legal Remedies in the Context of Judicial Cooperation in Criminal Matters 575
6.4 The Interplay of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings, Sharing of Evidence, and Procedural Safeguards 576
6.4.1 Principles and Rules Governing Parallel and Consecutive Proceedings 578
6.4.2 Sharing of Evidence Between Administrative and Judicial Authorities 581
6.5 The Use and Exclusion of Evidence in Criminal and Punitive Administrative Proceedings in the Netherlands, Germany, and France 585
6.5.1 Judicial Review of Evidence in National Criminal and Punitive Administrative Proceedings 585
6.5.2 Judicial Review of Foreign Evidence 588
7 Legal Obstacles to Effective and Rule of Law-Based Transnational Punitive Enforcement Proceedings in the EU 593
7.1 Direct and Indirect EU Cooperation at the Cross-Roads of Administrative and Criminal Enforcement 595
7.1.1 Mutual Administrative Assistance Versus Judicial Cooperation in Criminal Matters 596
7.1.2 Direct Cooperation Between Administrative and Judicial Authorities 598
7.1.3 Indirect Cooperation Between Administrative and Judicial Authorities 600
7.2 Diverging Rules and Standards in Cross-Border Punitive Enforcement Proceedings 609
7.2.1 Determining the Applicable Law 611
7.2.2 Divergence and the ‘Silver Platter Scenario’ 613
7.2.3 Divergence as an Obstacle to Cooperation 616
7.2.4 Divergence in Cross-Border Diagonal Cooperation 622
7.2.5 Divergence in Cross-Border Parallel and Consecutive Proceedings 624
7.3 Judicial Protection and the Lawfulness and Fairness of Evidence in Cross-Border Enforcement Proceedings in the EU 633
7.3.1 Deciding the Competent Court of Review in Cross- Border Proceedings 635
7.3.2 Judicial Protection in Cross-Border Punitive Enforcement Proceedings I – the Review of
Evidence in the Executing cq Requested Member State 636
7.3.2.1 Judicial Cooperation in Criminal Matters – Perspective of the Executing Member State 637
7.3.2.2 Mutual Administrative Assistance – Perspective of the Requested Member State 639
7.3.2.3 The Implementation of Judicial Review in the Executing cq Requested Member State 642
7.3.2.4 Extraterritorial Effect of Legal Remedies? 644
7.3.3 Judicial Protection in Cross-Border Punitive Enforcement Proceedings II – Review of Evidence in the Issuing cq Requesting and Forum Member State 648
7.3.3.1 Judicial Review in the Issuing cq Requesting Member State 649
7.3.3.2 Judicial Review of Foreign Evidence in the Forum Member State 651
7.3.3.3 The Implementation of Judicial Review in Cross- Border Enforcement Proceedings – the Right to a Fair Trial and the Right to Private Life 658
7.3.3.3.1 Evidence that was obtained unlawfully in another Member State 658
7.3.3.3.2 Evidence that was obtained lawfully in another Member State 664
7.4 Conclusions – Legal Obstacles to Effective and Rule of Law- Based Transnational Punitive Enforcement in the EU 673
7.4.1 The Selected Legal Obstacles and Effective and Rule of Law-Based Enforcement 673
7.4.2 Effective and Rule of Law-Based ‘Transnational’ Punitive Enforcement in the EU? 677
28 Evidence and Transnational Punitive Enforcement Proceedings in the European Union
8 Recommendations to Achieve Effective and Rule of Law- Based Transnational Punitive Enforcement in the EU 679
8.1 Enabling Direct Cooperation Between Administrative and Judicial Authorities During Punitive Enforcement Proceedings 682
8.1.1 The EIO Directive as the Overarching Instrument of ‘Cooperation in Punitive Matters’ 685
8.1.1.1 Requirements to Include Administrative Authorities and Punitive Administrative Proceedings into the Framework of the EIO Directive 686
8.1.1.2 Reaffirming the Principles and Rules of ‘Cooperation in Punitive Matters’ 688
8.1.2 Mutual Administrative Assistance and (Punitive) Administrative Enforcement 692
8.1.2.1 Mutual Administrative Assistance and EIO Directive – Delimitation Between the Two EU Cooperation Mechanisms and Addressing Pertinent Issues 692
8.2 Establishing Common EU Rules and Standards for Investigative Competences and Transnational Parallel and Consecutive Proceedings 695
8.2.1 Common Rules and Standards for Investigative Competences 696
8.2.2 Common Rules and Standards for Transnational Parallel and Consecutive Proceedings 699
8.2.3 The Role of National Rules and Standards 703
8.3 Development of an Integrated Horizontal ‘Complete System of Judicial Remedies’ for Transnational Punitive Enforcement Proceedings 704
8.3.1 Judicial Review in Transnational Enforcement Proceedings 705
8.3.2 Rules and Effects of Judicial Remedies in Transnational Enforcement Proceedings 710
8.4 Introduction of Common Minimum Rules of Evidence for Transnational Punitive Enforcement Proceedings on the EU level 716
8.4.1 Common Minimum Rules of Evidence in Transnational Punitive Enforcement Proceedings 718
8.4.2 Legal Consequences of Unlawful and Unfair Evidence 723
8.4.3 The Role of National Fundamental Rights Standards During Judicial Review 725
8.5 Development of the ‘Horizontal Preliminary Rulings Procedure’ Between National Courts 726
8.5.1 Legal Basis of the Horizontal Preliminary Rulings Procedure 727
8.5.2 Characteristics of the Horizontal Preliminary Rulings Procedure 728
8.6 Developing and Supervising the Proposed System – Between
National and European Legislators and Courts 730
Short Summary (in English) 735
Bibliography 739
Cited case law of European and national courts 759
Curriculum Vitae
3.2.2.4.1 Organisation of the Dutch Public Prosecution Service (Openbaar Ministerie) 168
3.2.2.4.2 Tasks and competences of the Dutch Public Prosecution Service 170
3.2.3 Coordination and Allocation Between Administrative and Judicial Authorities 173
3.2.3.1 Coordination and Allocation in Customs Matters – the Protocol AAFD 175
3.2.3.2 The National Environmental Chamber and the National Enforcement Strategy in Environmental Matters 176
3.2.3.3 The Convenant Between AFM, FIOD, and OM 178
3.3 The Gathering of Evidence in Domestic Dutch Proceedings 179
3.3.1 Monitoring and Investigations in The Netherlands – The Notions of ‘Toezicht op de Naleving’, ‘Opsporing’, and ‘Bestuurlijk Boeteonderzoek’ 179
3.3.2 The Powers to Gather Evidence under Dutch Administrative and Customs Law 182
3.3.2.1 Monitoring Powers under Dutch General Administrative Law 183
3.3.2.2 Powers under Dutch Customs Law 187
3.3.3 The Investigative Powers to Gather Evidence 190
3.3.3.1 Investigations into Criminal Offences 190
3.3.3.1.1 The available investigative competences under Dutch criminal law 193
3.3.3.2 Investigations into Punitive Administrative Offences 201
3.3.4 Applicable Defence Rights and Procedural Safeguards 204
3.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 204
3.3.4.2 The Right to Private Life 209
3.3.5 Legal Remedies during Dutch Administrative and Criminal Proceedings 212
3.3.5.1 Legal Remedies under Dutch Administrative and Customs Law 212
3.3.5.2 Legal Remedies under Dutch Criminal Law 216
3.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the Dutch Perspective 219
3.4.1 Cross-Border Cooperation in Administrative Matters (Administrative Bijstand) 219
3.4.1.1 Administrative Cooperation in Customs Matters 219
3.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 221
3.4.1.3 Administrative Cooperation in Financial Regulation 222
3.4.1.4 Legal Remedies in the Context of Mutual Administrative Assistance 224
3.4.2 Cross-Border Cooperation in Criminal Matters (Rechtshulp) 225
3.4.2.1 Cooperation on the Basis of the European Investigation Order 226
3.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 227
3.4.2.3 Legal Remedies in the EIO and Classic Mutual Legal Assistance 228
3.5 The Interface of Administrative and Criminal Enforcement in the Netherlands – Parallel and Consecutive Proceedings, Sharing of Evidence and Applicable Procedural Safeguards 231
3.5.1 The Interface of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings 232
3.5.1.1 The Options and Limits of Consecutive and Parallel Proceedings under Dutch Law 233
3.5.1.1.1 No exclusive use of monitoring competences for the purpose of an investigation 235
3.5.1.1.2 Observing procedural rights at the interface of monitoring and investigations 236
3.5.1.1.3 Ex post judicial control by Dutch courts 241
3.5.1.2 European Cooperation and Parallel and Consecutive Proceedings 242
3.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities and Vice Versa 242
3.5.2.1 Procedural Bridges – From the Administrative Authorities to the Judicial Authorities 244
3.5.2.2 Procedural Bridges – From the Judicial Authorities to the Administrative Authorities 246
3.5.2.3 Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between Dutch Authorities 248
3.6 The Use and Exclusion of Evidence under Criminal and Punitive Administrative Law 250
3.6.1 The Use and Exclusion of Evidence in Dutch Criminal Proceedings 250
3.6.1.1 The Dutch Rules of Evidence – Legal Consequences to Procedural Breaches on the Basis of Article 359a WvSv 251
3.6.1.2 Legal Consequences to Procedural Breaches Under Dutch Criminal Law 253
3.6.1.3 The Use and Exclusion in Criminal Proceedings of Evidence that has been Obtained by Administrative Authorities 257
3.6.1.4 The Use of Foreign Evidence in Dutch Criminal Proceedings 259
3.6.2 The Use and Exclusion of Evidence in Dutch Punitive Administrative Proceedings 262
3.6.2.1 Development of the Dutch Doctrine Concerning Unlawfully Obtained Evidence in Tax Matters – Introduction of the ‘Manifestly Improper’ Criterion 263
3.6.2.2 Exclusion of Unlawfully Obtained Evidence in Administrative Proceedings – the Expansion of the ‘Manifestly Improper’ Criterion to all Administrative Matters 266
3.6.2.3 Judicial Review of Foreign Evidence in Dutch (Punitive) Administrative Proceedings 270
4 The Implementation of EU Enforcement Duties in Germany
The Gathering, Sharing, and Use of Evidence by German
Administrative and Judicial Authorities From the Domestic
and Cross-Border Perspective 275
4.1 Introduction to the German Chapter 275
4.2 The National Enforcement Architecture in Germany 277
4.2.1 Setting the Scene – Division of Competences between the Federal and State Levels, and the Interplay of Administrative and Criminal Enforcement in Germany 278
4.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 282
4.2.2.1 Administrative Enforcement in the Field of Customs 282
4.2.2.1.1 The organisation of the German Customs Administration (Bundeszollverwaltung) 283
4.2.2.1.2 Tasks and competences of the German customs authorities 286
4.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 290
4.2.2.2.1 Organisation of the competent administrative authorities in environmental matters 291
4.2.2.2.2 Tasks and competences of the competent administrative authorities in waste matters – the German State authorities and customs authorities 292
4.2.2.3 Administrative Enforcement in the Field of Market Abuse 295
4.2.2.3.1 Organisation of the Federal Financial Supervisory Authority (BaFin) 295
4.2.2.3.2 Tasks and competences of the Federal Financial Supervisory Authority 296
4.2.2.4 Criminal Enforcement – The Role of Judicial Authorities in the Investigation and Prosecution of Economic, Financial and Environmental Crime 299
4.2.2.4.1 Organisation of the German Public Prosecution Service (Staatsanwaltschaft) 299
4.2.2.4.2 Tasks and competences of the Public Prosecution Service 301
4.2.3 Allocation and Coordination Between Administrativeand Judicial Authorities 304
4.2.3.1 Allocation and Coordination Between the Staatsanwaltschaft and Customs Authorities 305
4.2.3.2 Allocation and Coordination Between the Competent Administrative Authorities and the Staatsanwaltschaft in the Context of Ordnungswidrigkeiten 308
4.3 The Gathering of Evidence in Domestic German Proceedings 310
4.3.1 Monitoring and Investigations in Germany – The Notions of ‘Gefahrenabwehr’ or ‘Wirtschaftsaufsicht’ and ‘Strafverfolgung’ 311
4.3.2 The Monitoring Powers to Gather Evidence under Customs And Administrative Law 312
4.3.2.1 Powers of the German Customs Authorities 313
4.3.2.2 Powers of the German Authorities in Transfrontier Waste Matters 318
4.3.2.3 Powers of the BaFin 320
4.3.3 The Investigative Powers to Gather Evidence – Criminal Law (Strafrecht) and Punitive Administrative Law (Ordnungswidrigkeitenrecht) 324
4.3.3.1 Investigations into Criminal Offences (Straftaten) 324
4.3.3.2 Investigations into Punitive Administrative Offences (Ordnungswidrigkeiten) 333
4.3.4 Applicable Defence Rights and Procedural Safeguards 334
4.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 335
4.3.4.2 The Right to Private Life 339
4.3.5 Legal Remedies under German Administrative and Customs Law, Criminal Law Sensu Stricto and Ordnungswidrigkeitenrecht 342
4.3.5.1 Legal Remedies During Monitoring – German Administrative Law and Customs Law 342
4.3.5.2 Legal Remedies in Criminal Proceedings Sensu Stricto 347
4.3.5.3 Legal Remedies Under Ordnungswidrigkeitenrecht 349
4.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the German Perspective 350
4.4.1 Cross-Border Cooperation in Administrative Matters (europäische Amtshilfe) 350
4.4.1.1 Administrative Cooperation in Customs Matters 350
4.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 354
4.4.1.3 Administrative Cooperation in Financial Regulation 355
4.4.1.4 Legal Remedies in the Context of Mutual Administrative Assistance 357
4.4.2 Cooperation in Criminal Matters (sonstige Rechtshilfe) 358
4.4.2.1 Cooperation on the Basis of the European Investigation Order 360
4.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 365
4.4.2.3 Legal Remedies in the EIO and Classic Mutual Legal Assistance 367
4.5 The Interface of Administrative and Criminal Enforcement in Germany – Parallel and Consecutive Proceedings, the Sharing of Evidence, and Applicable Procedural Safeguards 371
4.5.1 The Interface of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings 372
4.5.1.1 The Options and Limits of Consecutive and Parallel Proceedings Under German Law 374
4.5.1.1.1 The choice between competences at the interface of monitoring and investigations 374
4.5.1.1.2 Procedural safeguards at the interface of monitoring and investigations 378
4.5.1.2 Parallel and Consecutive Proceedings and European Cooperation 382
4.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities, and Vice Versa 384
4.5.2.1 The Sharing of Evidence from Administrative Authorities to Judicial Authorities, and Vice Versa 388
4.5.2.1.1 Sharing of evidence between administrative and judicial authorities in the context of tax 388
4.5.2.1.2 Sharing of evidence at the interface of monitoring and investigations 389
4.5.2.2 The Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between German Authorities 391
4.6 The Use and Exclusion of Evidence under Criminal and Punitive Administrative Law 394
4.6.1 The Use and Exclusion of Evidence in German Criminal Proceedings 394
4.6.1.1 Exclusion of Evidence – Constitutional Benchmarks in the German Legal Order 397
4.6.1.2 Beweisverwertungsverbote – Doctrine and Rules on the Exclusion of Evidence 398
4.6.1.3 The Use and Exclusion in Criminal Proceedings of Evidence that has been Obtained by Administrative Authorities 405
4.6.2 The Use of Evidence in German Punitive Administrative Proceedings 406
4.6.3 The Use of Foreign Evidence in German Criminal Proceedings 408
4.6.3.1 The Review and Exclusion of Evidence that has been Gathered Unlawfully in Another Member State 409
4.6.3.2 The Review and Exclusion of Evidence that has been Obtained Lawfully in Another Member State 412
5 The Implementation of EU Enforcement Duties in France
The Gathering, Sharing, and Use of Evidence by French
Administrative and Judicial Authorities From the Domestic
and Cross-Border Perspective 415
5.1 Introduction to the French Chapter 415
5.2 The National Enforcement Architecture in France 417
5.2.1 Setting the Scene – The Interplay of Administrative and Criminal Enforcement in France 418
5.2.2 Administrative and Criminal Enforcement in the Fields of Customs, Transfrontier Shipment of Waste, and Market Abuse 420
5.2.2.1 Administrative Enforcement in the Field of Customs 420
5.2.2.1.1 The organisation of the French Douane 420
5.2.2.1.2 Tasks and competences of the French Douane 423
5.2.2.2 Administrative Enforcement in the Field of Transfrontier Shipment of Waste 425
5.2.2.2.1 Organisation of the competent administrative authorities in environmental matters 425
5.2.2.2.2 Tasks and competences of the competent administrative authorities in environmental matters 427
5.2.2.3 Administrative Enforcement in the Field of Market Abuse 431
5.2.2.3.1 Organisation of the Financial Markets Authority (AMF) 431
5.2.2.3.2 Tasks and competences of the Financial Markets Authority 433
5.2.2.4 Criminal Enforcement – The Role of Judicial Authorities in the Investigation and Prosecution of Economic, Financial, and Environmental Crime 437
5.2.2.4.1 Organisation of the French judicial authorities 438
5.2.2.4.2 Tasks and competences of the French judicial authorities 441
5.2.3 Coordination and Allocation Between Administrative and Judicial Authorities 445
5.2.3.1 Coordination and Allocation in Customs Matters 446
5.2.3.2 Coordination and Allocation in Waste Matters 450
5.2.3.3 Coordination and Allocation of Market Abuse Offences 454
5.3 The Gathering of Evidence in Domestic French Proceedings 457
5.3.1 Monitoring and Investigations in France – The Notions of ‘Police Administrative’ and ‘Police Judiciaire’ 458
5.3.2 The Powers to Gather Evidence under French Administrative Law 460
5.3.2.1 Powers of the French Customs Authorities 460
5.3.2.2 Powers of the French Environmental Authorities in Waste Matters 468
5.3.2.3 Powers of the French Financial Markets Authority 471
5.3.3 The Investigative Powers to Gather Evidence under French Criminal Law 476
5.3.3.1 Investigations Under the Auspices of the Procureur de la République (Enquête Judiciaire) 478
5.3.3.1.1 Investigative competences during the enquête judiciaire 480
5.3.3.2 Investigations Under Supervision of the Investigative Judge (Instruction) 489
5.3.3.2.1 Investigative competences during an instruction 490
5.3.4 Applicable Defence Rights and Procedural Safeguards 494
5.3.4.1 The Privilege Against Self-Incrimination and the Right to Silence 494
5.3.4.2 The Right to Private Life 502
5.3.5 Legal Remedies during French Administrative and Criminal Proceedings 505
5.3.5.1 Legal Remedies under French Administrative Law 505
5.3.5.2 Legal Remedies under French Criminal Law 507
5.4 The Gathering of Evidence in Cross-Border Proceedings – EU Cooperation From the French Perspective 509
5.4.1 Cross-Border Cooperation in Administrative Matters (Entraide Administrative) 509
5.4.1.1 Administrative Cooperation in Customs Matters 510
5.4.1.2 Administrative Cooperation in Transfrontier Waste Shipment Matters 511
5.4.1.3 Administrative Cooperation in Financial Regulation 512
5.4.2 Cooperation in Criminal Matters (Entraide Judiciaire) 514
5.4.2.1 Cooperation on the Basis of the European Investigation Order 514
5.4.2.2 Classic Mutual Legal Assistance – the Role of the Naples II Convention 515
5.4.2.3 Legal Remedies in the Context of the European Investigation Order and Classic Mutual Legal Assistance 517
5.5 The Interface of Administrative and Criminal Enforcement in France – Parallel and Consecutive Proceedings, the Sharing of Evidence, and Applicable Procedural Safeguards 520
5.5.1 The Interface of Administrative and Criminal Enforcement 521
5.5.1.1 Options and Limits of Consecutive and Parallel Proceedings 522
5.5.2 The Sharing of Evidence from Administrative Authorities to Judicial Authorities and Vice Versa 525
5.5.2.1 Applicable ‘Procedural Bridges’ Under Administrative and Criminal Law 526
5.5.2.2 The Sharing of ‘Foreign’ and ‘Unlawful’ Evidence Between French Authorities 528
5.6 The Use and Exclusion of Evidence under Criminal and Administrative Law 530
5.6.1 The Use and Exclusion of Evidence in French Criminal Proceedings 530
5.6.1.1 The ‘Nullities’ in French Criminal Proceedings 531
5.6.1.2 The Use of Foreign Evidence in French Criminal Proceedings 538
5.6.2 The Use of Evidence in French Punitive Administrative Proceedings 539
5.6.2.1 Use and Exclusion of Evidence During Punitive Administrative Proceedings Before the AMF 541
5.6.2.2 The Use of Foreign Evidence in Punitive Administrative Proceedings Before the AMF 544
Part III Gathering, Sharing, and Use of Evidence and Transnational
Punitive Enforcement in the EU 547
6 The Comparative Analysis Common Ground and Differences between the Principles
and Rules that Determine the Gathering, Sharing, and Use of Evidence during the Implementation of EU Enforcement Duties in the Netherlands, Germany, and France 549
6.1 Organisation of Enforcement in the Netherlands, Germany, and France 550
6.2 Gathering of Evidence – Competences, Procedural Safeguards, and Defence Rights, and Legal Remedies under Administrative and Criminal Law 552
6.2.1 Monitoring and Investigations in the Netherlands, Germany, and France 552
6.2.2 Available Competences During Monitoring 554
6.2.3 Available Competences During Criminal and Punitive Administrative Investigations 557
6.2.3.1 Competences During Criminal Investigations Sensu Stricto 558
6.2.3.2 Competences During Administrative Investigations 563
6.2.4 Procedural Guarantees and Defence Rights 566
6.2.4.1 The Right to a Fair Trial – The Privilege Against Self- Incrimination and the Right to Remain Silent 566
6.2.4.2 The Right to Private Life 568
6.2.5 Legal Remedies under Administrative and Criminal Law 569
6.2.5.1 Legal Remedies Under Administrative Law 569
6.2.5.2 Legal Remedies Under Criminal Law 571
6.3 EU Cooperation from the Perspective of the Netherlands, Germany, and France 572
6.3.1 Cross-Border Cooperation in Administrative Matters 572
6.3.1.1 Incoming and Outgoing Requests 573
6.3.1.2 Legal Remedies in the Context of Mutual Administrative Assistance 573
6.3.2 Cross-Border Cooperation in Criminal Matters 573
6.3.2.1 Incoming and Outgoing EIOs and the Naples II Convention 574
6.3.2.2 Legal Remedies in the Context of Judicial Cooperation in Criminal Matters 575
6.4 The Interplay of Administrative and Criminal Enforcement – Parallel and Consecutive Proceedings, Sharing of Evidence, and Procedural Safeguards 576
6.4.1 Principles and Rules Governing Parallel and Consecutive Proceedings 578
6.4.2 Sharing of Evidence Between Administrative and Judicial Authorities 581
6.5 The Use and Exclusion of Evidence in Criminal and Punitive Administrative Proceedings in the Netherlands, Germany, and France 585
6.5.1 Judicial Review of Evidence in National Criminal and Punitive Administrative Proceedings 585
6.5.2 Judicial Review of Foreign Evidence 588
7 Legal Obstacles to Effective and Rule of Law-Based Transnational Punitive Enforcement Proceedings in the EU 593
7.1 Direct and Indirect EU Cooperation at the Cross-Roads of Administrative and Criminal Enforcement 595
7.1.1 Mutual Administrative Assistance Versus Judicial Cooperation in Criminal Matters 596
7.1.2 Direct Cooperation Between Administrative and Judicial Authorities 598
7.1.3 Indirect Cooperation Between Administrative and Judicial Authorities 600
7.2 Diverging Rules and Standards in Cross-Border Punitive Enforcement Proceedings 609
7.2.1 Determining the Applicable Law 611
7.2.2 Divergence and the ‘Silver Platter Scenario’ 613
7.2.3 Divergence as an Obstacle to Cooperation 616
7.2.4 Divergence in Cross-Border Diagonal Cooperation 622
7.2.5 Divergence in Cross-Border Parallel and Consecutive Proceedings 624
7.3 Judicial Protection and the Lawfulness and Fairness of Evidence in Cross-Border Enforcement Proceedings in the EU 633
7.3.1 Deciding the Competent Court of Review in Cross- Border Proceedings 635
7.3.2 Judicial Protection in Cross-Border Punitive Enforcement Proceedings I – the Review of
Evidence in the Executing cq Requested Member State 636
7.3.2.1 Judicial Cooperation in Criminal Matters – Perspective of the Executing Member State 637
7.3.2.2 Mutual Administrative Assistance – Perspective of the Requested Member State 639
7.3.2.3 The Implementation of Judicial Review in the Executing cq Requested Member State 642
7.3.2.4 Extraterritorial Effect of Legal Remedies? 644
7.3.3 Judicial Protection in Cross-Border Punitive Enforcement Proceedings II – Review of Evidence in the Issuing cq Requesting and Forum Member State 648
7.3.3.1 Judicial Review in the Issuing cq Requesting Member State 649
7.3.3.2 Judicial Review of Foreign Evidence in the Forum Member State 651
7.3.3.3 The Implementation of Judicial Review in Cross- Border Enforcement Proceedings – the Right to a Fair Trial and the Right to Private Life 658
7.3.3.3.1 Evidence that was obtained unlawfully in another Member State 658
7.3.3.3.2 Evidence that was obtained lawfully in another Member State 664
7.4 Conclusions – Legal Obstacles to Effective and Rule of Law- Based Transnational Punitive Enforcement in the EU 673
7.4.1 The Selected Legal Obstacles and Effective and Rule of Law-Based Enforcement 673
7.4.2 Effective and Rule of Law-Based ‘Transnational’ Punitive Enforcement in the EU? 677
28 Evidence and Transnational Punitive Enforcement Proceedings in the European Union
8 Recommendations to Achieve Effective and Rule of Law- Based Transnational Punitive Enforcement in the EU 679
8.1 Enabling Direct Cooperation Between Administrative and Judicial Authorities During Punitive Enforcement Proceedings 682
8.1.1 The EIO Directive as the Overarching Instrument of ‘Cooperation in Punitive Matters’ 685
8.1.1.1 Requirements to Include Administrative Authorities and Punitive Administrative Proceedings into the Framework of the EIO Directive 686
8.1.1.2 Reaffirming the Principles and Rules of ‘Cooperation in Punitive Matters’ 688
8.1.2 Mutual Administrative Assistance and (Punitive) Administrative Enforcement 692
8.1.2.1 Mutual Administrative Assistance and EIO Directive – Delimitation Between the Two EU Cooperation Mechanisms and Addressing Pertinent Issues 692
8.2 Establishing Common EU Rules and Standards for Investigative Competences and Transnational Parallel and Consecutive Proceedings 695
8.2.1 Common Rules and Standards for Investigative Competences 696
8.2.2 Common Rules and Standards for Transnational Parallel and Consecutive Proceedings 699
8.2.3 The Role of National Rules and Standards 703
8.3 Development of an Integrated Horizontal ‘Complete System of Judicial Remedies’ for Transnational Punitive Enforcement Proceedings 704
8.3.1 Judicial Review in Transnational Enforcement Proceedings 705
8.3.2 Rules and Effects of Judicial Remedies in Transnational Enforcement Proceedings 710
8.4 Introduction of Common Minimum Rules of Evidence for Transnational Punitive Enforcement Proceedings on the EU level 716
8.4.1 Common Minimum Rules of Evidence in Transnational Punitive Enforcement Proceedings 718
8.4.2 Legal Consequences of Unlawful and Unfair Evidence 723
8.4.3 The Role of National Fundamental Rights Standards During Judicial Review 725
8.5 Development of the ‘Horizontal Preliminary Rulings Procedure’ Between National Courts 726
8.5.1 Legal Basis of the Horizontal Preliminary Rulings Procedure 727
8.5.2 Characteristics of the Horizontal Preliminary Rulings Procedure 728
8.6 Developing and Supervising the Proposed System – Between
National and European Legislators and Courts 730
Short Summary (in English) 735
Bibliography 739
Cited case law of European and national courts 759
Curriculum Vitae
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