The ‘Europeanization’ of the rules and principles on proof in domestic administrative law

Abstract

In this article, we examine the impact of both EU law and the European Convention on Human Rights on rules and principles of proof in domestic administrative law, ie at member state or contracting state level. In both cases, that influence has been subtle and incremental. It follows mostly from case law that has increasingly been deriving duties for administrations and (administrative) courts from general principles of good administration or adjudication or in the process of interpreting legislation. The issues relating to proof on which the Court of Justice of the European Union and the European Court of Human Rights have thus far given their view are often of a fundamental nature. One example is the case law that obliges administrations and/or courts to seek expert advice and the procedural safeguards that should go hand in hand with this. Another example is the question of whether unlawfully obtained evidence should be excluded from further consideration by the administration and (later on) by the domestic courts. With the ever more frequent use by administrations of technologies that are subject to strict regulation in order to safeguard fundamental rights such as respect for private life, the risk of evidence being unlawfully obtained increases. Given the link with fundamental rights, the development of a European approach was thus to be expected, even though both courts do not seem to be entirely on the same page on the criteria to be applied in this respect.