Barbara Janusz-Pohl

Is a new constitutive rule born or rather brought to life? Interpreting admissibility of evidence based on the judgment of the CJEU in the EncroChat case

Introduction

Is a new constitutive rule born or rather brought to life? interpreting admissibility of evidence based on the judgment of the cjeu in the encrochat case . Analyzes the CJEU's EncroChat judgment (C-670/22) on evidence admissibility, interpreting a new constitutive rule. Explores EIO implications & its role in legal systems.

Abstract

The article analyzes the admissibility of evidence under Directive 2014/41/EU, focusing on a new constitutive rule for evidentiary action recognized by the Court of Justice of the European Union in the EncroChat case (C-670/22) on April 30, 2024. It begins by introducing the concept of constitutive rules, particularly from the Polish Poznan School of General Theory of Law. The article then summarizes the ruling in the EncroChat case and examines its implications as a source for the new evidentiary rule within the European Investigation Order (EIO). Finally, it discusses the benefits of incorporating constitutive rules into the practical discourse on evidence admissibility, contributing to broader reflections on legitimate sources of such rules in legal systems.

Review

The article, "Is a new constitutive rule born or rather brought to life? Interpreting admissibility of evidence based on the judgment of the CJEU in the EncroChat case," addresses a highly relevant and timely topic concerning the admissibility of evidence within the European legal framework. Focusing on the recent CJEU judgment in *EncroChat* (C-670/22), the paper aims to critically analyze the emergence of a new constitutive rule for evidentiary action under Directive 2014/41/EU. This approach promises a fresh and theoretically grounded perspective on how judicial decisions can shape fundamental principles of legal procedure, making it a valuable contribution to the ongoing discourse on European criminal justice. The proposed structure of the article appears robust and well-conceived. It begins by establishing a strong theoretical foundation, introducing the concept of constitutive rules, specifically drawing insights from the Polish Poznan School of General Theory of Law. This theoretical lens is crucial for a nuanced understanding of how the *EncroChat* ruling might not merely interpret but actively constitute new legal norms. The subsequent analysis of the judgment's implications as a source for an evidentiary rule within the European Investigation Order (EIO) is central to the article's objective, demonstrating a clear link between abstract legal theory and concrete judicial practice. This paper is poised to offer significant insights by bridging the gap between sophisticated legal theory and pressing practical challenges in evidence admissibility. Its unique contribution lies in integrating the concept of constitutive rules into the discourse on European criminal procedure, thereby enriching our understanding of judicial law-making and the evolution of legal norms. By encouraging broader reflections on the "legitimate sources of such rules," the article will undoubtedly stimulate valuable discussion among scholars and practitioners regarding the dynamic interplay between judicial precedent, legislative frameworks, and the practical application of evidence in cross-border investigations.

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