eucrim 2021 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

EPPO Now Operational – Perspectives from European Prosecutors Le parquet européen désormais opérationnel – Perspectives des procureurs européens Die EUStA nimmt ihre Arbeit auf – Perspektiven der Europäischen Staatsanwälte

Editorial Laura Codruţa Kövesi (European Chief Prosecutor)

Perspectives from European Prosecutors: Frédéric Baab (Procureur européen, France) Danilo Ceccarelli (Deputy European Chief Prosecutor, European Prosecutor, Italy) José Eduardo Guerra (European Prosecutor, Portugal) Petr Klement (European Prosecutor, Czechia) Tamara Laptos (European Prosecutor, Croatia) Ingrid Maschl-Clausen (European Prosecutor, Austria) Maria Concepción Sabadell Carnicero (European Prosecutor, Spain) Gabriel Seixas (European Prosecutor, Luxembourg) Kristel Siitam-Nyiri (European Prosecutor, Estonia) Yves Van Den Berge (European Prosecutor, Belgium) Dimitrios Zimianitis (European Prosecutor, Greece) 2021/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim.

Contents

News* Articles

European Union Procedural Criminal Law EPPO Now Operational – Perspec- Foundations 26 Procedural Safeguards tives from European Prosecutors 3 Fundamental Rights 28 Data Protection 5 Reform of the European Union 31 Freezing of Assets 6 Area of Freedom, Security 45 Le parquet européen: un projet entre and Justice Cooperation audace et réalisme politique – Frédéric Baab 8 Schengen 32 Customs Cooperation 8 Legislation 32 European Arrest Warrant 47 A Legal Obstacle in the Regulation? – 37 European Investigation Danilo Ceccarelli Institutions Order 49 The Material Competence of the EPPO 10 Council 37 Criminal Records and the Concept of Inextricably Linked Offences – 12 European Court of Justice 38 Law Enforcement José Eduardo Guerra 12 OLAF Cooperation 14 European Public Prosecutor’s 51 Reporting of Crime Mechanisms and the Office Interaction Between the EPPO and OLAF 15 Europol as Key Future Challenges – Petr Klement 16 Eurojust 17 European Judicial Network Council of Europe 53 EPPO – Diversity and Challenges in Investigation 17 Frontex and Prosecution in 22 Member States – Tamara Laptos 19 Agency for Fundamental Foundations Rights 39 European Court of Human 55 The Permanent Chambers at the Heart Rights of the EPPO’s Decision-Making – Specific Areas of Crime / Ingrid Maschl-Clausen Substantive Criminal Law Specific Areas of Crime 57 The Independence of the European Public 19 Protection of Financial 39 Corruption Interests Prosecutor’s Office – Maria Concepción Sabadell Carnicero 20 Money Laundering Procedural Criminal Law 21 Tax Evasion 42 CCPE 59 Opportunities and Challenges in Cases Involving 22 Counterfeiting & Piracy Proceeds of Crime – Gabriel Seixas 22 Organised Crime 23 Cybercrime 61 EPPO and Digital Challenges – Kristel Siitam-Nyiri 25 Environmental Crime 25 Racism and Xenophobia 63 Role of the Belgian Investigative Judge in EPPO Cases – Yves Van Den Berge

65 EPPO: A Challenging Balance-Striking Exercise in the National and EU Judicial Environment – Dimitrios Zimianitis

* The news items contain Internet links referring to more detailed information. These links are embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Editorial

Dear Readers,

I have been a prosecutor for half of my life. I have combat- perspective, the EPPO is the ted high-level corruption for many years and possess firsthand first powerful tool to defend the experience in the vital importance of fairness, the willingness rule of law in the EU. to comply with commonly agreed rules, the ability to admin- ister justice − in other words, the rule of law. This is the core Lastly, from my perspective, strength of the European Union for me and, I am sure, for mil- even if I agree that setting up lions of European citizens who grew up under dictatorial re- a prosecutor’s office at the EU gimes in a divided Europe: our only effective way to ensure level is a complex and sensitive the rule of law is true democracy in a globalized world. issue, if we wish to make the EPPO work in an efficient and One of the new instruments that can play a key role in this independent manner, the choic- respect is the European Public Prosecutor’s Office (EPPO). It es to be made are ultimately is the outcome of more than twenty years of convincing argu- straightforward. These are the ments and negotiations, and it marks one of the most ambi- key questions that need to be Laura Codruţa Kövesi tious European integration projects of the last decade. answered before we can assess whether the EPPO is capable of fulfilling its potential: The EPPO is a specialized prosecution office. Any fraud in- „„Can we agree that the European Delegated Prosecutors volving EU funds or serious cross-border VAT fraud commit- should work full-time for the EPPO? ted in the participating Member States after November 2017 „„Can we agree how many prosecutors there should be in falls within our jurisdiction. As we have a mandatory com- each of the Member States in order to do the job properly? petence, it is our legal obligation to investigate all new cases „„What types of support and equipment will they receive? from the day we start operations. „„What will the overall budget of the EPPO be? „„Will the EPPO’s central office be able to analyze all the In practice, 22 European Prosecutors in Luxemburg will over- available information in order to genuinely improve cross- see investigations initiated by the European Delegated Pros- border investigations? ecutors in the participating Member States. The European „„Will the EPPO’s central office be able to improve the iden- Delegated Prosecutors will be active members of the judici- tification of criminal assets, thus helping the Member States ary in their respective national systems, and they will perform improve the recovery of damages? prosecutorial functions before the national courts. Our work is that of true pioneers. I am convinced that we are This is the basic definition and description of the EPPO, but ready. And we are not alone. We can count on the European what does it mean? Court of Justice, with all its authority and decisive jurispru- dence. I am confident that we can also count on our fellow From a magistrate’s point of view, the EPPO is the most excit- prosecutors, judges, and police officers in the Member States. ing challenge of our generation. For the first time, a European Union body will investigate, prosecute, and bring to trial crim- Why will the EPPO be a game changer in the fight against inal offences. Of course, it will not be easy to find solutions fraud involving European funds? for 22 different judicial systems, especially because there is no precedent for a European Public Prosecutor’s Office. Until now, the level of protection of the financial interests of the EU varied across the Member States. In some Member From a political perspective, the EPPO establishes a trans- States, thousands of investigations have taken place, while in fer of sovereignty and a new instrument to protect the Union other Member States, there were two or even fewer cases per budget in the 22 participating Member States. From a citizen’s year. From now on, the investigation and prosecution of these

eucrim 1 / 2021 | 1 EPPO Now Operational – Perspectives from European Prosecutors crimes will be a priority for all the European Delegated Pros- We also adopted our financial regulation, our data protection ecutors. This alone should already increase the overall level of rules, and the rules on public access to documents. protection for European funds. The preparation of internal governance tools, such as the code The second, key expected improvement is the likely increase of good administrative behavior, an anti-fraud strategy, and in the efficiency of investigations. The EPPO will be inde- internal control standards, is well underway. We are also final- pendent from national governments, the Commission, and izing our operational templates in addition to the investigation other European institutions, bodies, and agencies. This is very and prosecution policy of the EPPO and related guidelines. important, because the independence of the institution and the independence of prosecutors is the first premise for obtaining We just signed a working arrangement with Europol and Eu- efficient results when fighting corruption and other serious rojust and expect one with OLAF to be signed soon. Discus- crime. Without this independence, we cannot talk about the sions on cooperation between the EPPO and the Commission rule of law or about equality in the face of the law. Independ- are progressing well. We initiated negotiations on working ence is a crucial, basic rule for the functioning of the EPPO. arrangements with non-participating Member States and are And this should be the model followed by all the national pub- about to sign such an arrangement with Hungary. We decided lic prosecutor’s offices. on the number and composition of the permanent chambers – the true engine of the EPPO. A first version of our case man- The main characteristic of the type of criminality that the agement system has already been developed. EPPO will tackle is the speed with which criminals shift their modus operandi in reaction to law enforcement actions. All in all, at the central level, we are ready. We are now wait- ing for the Member States to nominate enough candidates as The EPPO has unprecedented possibilities to act in this re- European Delegated Prosecutors to be able to start. spect: „„Obtaining and aggregating information at the European As prosecutors, we are responsible for enforcing the law. Our level; role is to set the wheels of justice in motion, in order to ensure „„Conducting investigations without being limited by nation- that everyone is equal in front of the law and that no one is un- al borders; touchable. It is now our task to build up a strong and efficient „„Generalizing the use of the most efficient investigative tac- institution which earns the trust of European citizens, is able to tics; protect the financial interests of the European Union, and con- „„Using evidence administrated in another Member State tributes to the enforcement of the rule of law. By protecting the without the need for other formalities; European Union’s budget, we will play an essential role in rein- „„Conducting investigations simultaneously in several Mem- forcing and increasing the trust of all Europeans in the Union. ber States. All we need is to be consistent and keep European interests Where do we stand today? We have adopted internal rules of at heart! procedure, which define our internal processes, including the key appointments of the Deputy European Chief Prosecutors, Laura Codruţa Kövesi the Data Protection Officer, and the Administrative Director. European Chief Prosecutor

2 | eucrim 1 / 2021 News Actualités / Kurzmeldungen*

prepared the report, said: “As MEPs, it is our duty to speak out, loudly and clearly, when it comes to human rights and the need to protect and recognise all those who work tirelessly and in difficult situ- ations to uphold them. To achieve true credibility as the European Union, it is European Union vital that we act and speak with a strong and unified voice on human rights. We Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) should not fail those who look towards Europe with hope.” (TW)

EU Imposes First Sanctions for Human Foundations human rights and democracy challenges, Rights Violations including the protection of human rights After the adoption of the EU Global Hu- defenders and the situation of vulnerable man Rights Sanctions Regime – also Fundamental Rights groups. dubbed the “European Magnitsky Act” The EP made several recommenda- – in December 2020 (eucrim 4/2020, EP: EU Must Be Credible Actor in tions on EU action that should be taken 258), the EU began imposing the first Global Human Rights Protection at the multilateral level, e.g., systemati- restrictive measures on individuals in In its annual report assessing the human cally introducing human rights clauses March 2021: On 2 March 2021, sanc- rights situation in the world in 2019, in all international agreements. The EU tions came into effect against four Rus- adopted in plenary on 20 January 2021, should also develop an explicit strategy sians who had allegedly been involved MEPs expressed deep concerns about to counter the increasing withdrawal in the arbitrary arrest, prosecution, and authoritarian regimes around the world of states from the international human sentencing of activist Alexei Navalny having used the pandemic to repress civ- rights framework. and the repression of peaceful protests il society and critical voices. The MEPs MEPs urged that the new EU Global in connection with his unlawful treat- called for all EU programmes with an Human Rights Sanctions Regime be ment. On 22 March 2021, the Council external dimension to mainstream sup- implemented (eucrim 4/2020, 258). imposed further restrictive measures port of human rights, democracy, the They stressed that this so-called EU- on eleven individuals and four entities rule of law and the fight against im- Magnitsky Act is an essential part of the for serious human rights violations and punity. These policies include devel- EU’s existing human rights and foreign abuses in various countries around the opmental aid, migration, security, the policy toolbox. This sanction mecha- world. This included targeted sanctions fight against terrorism, women‘s rights, nism would strengthen the EU’s role as against Chinese officials for the large- gender equality, EU enlargement, and a global human rights actor, allowing scale arbitrary detention of Uyghurs in trade. The MEPs also called on the EU for targeted sanctions against individu- China, which has generated a great deal to strengthen democratic institutions, to als, state and non-state actors, and other of media coverage. The new mechanism support transparent and credible elec- entities responsible for (or complicit in) toral processes worldwide, to foster serious human rights violations. Acts of * Unless stated otherwise, the news items in democratic debate, to fight against ine- systematic corruption connected with the following sections (both EU and CoE) cover qualities and to ensure the functioning of human rights violations should also be the period 1 January – 31 March 2021. Have a look at the eucrim website (https://eucrim.eu), civil society organisations. In the report, sanctioned. too, where all news items have been published the EP responded to a number of global MEP Isabel Santos (S&D, PT), who beforehand.

eucrim 1 / 2021 | 3 NEWS – European Union adopted in December 2020 enables the Court. Appeals that were still pending at newly-created chambers of the Pol- EU to list individuals or entities respon- were declared closed. Five judges had ish Supreme Court. In the Opinion in sible for serious human rights violations, opposed this in court. For the AG’s opin- Case C-487/19, the composition of the irrespective of where the violations oc- ion in this case eucrim 4/2020, 257. “Chamber of Extraordinary Control and curred. The sanctions consist of the fol- „„10 March 2021: In an ad hoc debate, Public Affairs”, which had to decide on lowing: MEPs express concerns over attacks on the transfer of a Polish regional court „„A travel ban to the EU for listed in- the media in Poland, Hungary, and Slo- judge, was found to be inadequate. The dividuals; venia. MEPs call on the Commission compatibility of the composition of this „„Freezing of assets in the EU for listed and the Council to take action against chamber with the right to an indepen- individuals/entities; governments that violate the principles dent court established by law pursuant „„A prohibition on making funds or of press freedom. Some MEPs were con- to Art. 19(1)(2) TEU and Art. 47 CFR economic resources available to listed vinced that the events in Poland, Hun- was questionable, as the single judge individuals and entities. (TW) gary, and Slovenia justify activation of who made the decision ruled against the the conditionality mechanism for the appointment before the conclusion of Poland: Continued Update on Rule-of- protection of the EU budget (eucrim his appointment procedure and despite Law Developments 3/2020, 174–176). ongoing appeal proceedings. However, This news item continues the last up- „„11 March 2021: Poland and Hungary according to the AG, it is up to the re- date provided in December 2020 on the lodge actions with the CJEU against the ferring court and not the CJEU to de- rule-of-law situation in Poland as far as agreed mechanism making protection termine whether it was an independent it relates to European law. For a more of the EU’s financial interests condi- court. In Case C-508/19, the AG also detailed overview of ongoing develop- tional to adherence to rule-of-law values criticises the proper appointment of ments in Poland, see also the webpage (news under “Protection of Financial judges to the Polish Supreme Court. In “ruleoflaw.pl”. Interests”). The cases are referred to as the context of disciplinary proceedings „„2 March 2021: The CJEU decides in C-156/21 and 157/21. initiated against a Polish district court the preliminary ruling case C-824/18 „„31 March 2021: The Commission re- judge, the independence and impartial- (A.B. and Others v Krajowa Rada fers an action to the CJEU and applies ity of the single judge of the disciplinary Sądownictwa). According to the CJEU, for a declaration that the Polish “muzzle chamber was called into question. Also the procedure for appointing judges to law” infringes Poland’s obligations un- here, it remains the task of the referring the Supreme Court in Poland could vi- der EU law. According to the Commis- Polish court to determine whether there olate EU law, due to the lack of effec- sion, the Polish law on the judiciary of has been a manifest and deliberate vio- tive judicial control of the decisions of 20 December 2019 that entered into lation of the European principles. In the the National Council of the Judiciary force on 14 February 2020 (eucrim event of such a finding, the decisions of (KRS). In addition, there could be a 1/2020, 2–3) undermines the indepen- the Supreme Court are to be left unap- violation of Art. 267 TFEU if the CJEU dence of Polish judges and is incom- plied. (TW) were to be prevented from exercising its patible with the primacy of Union law. preliminary ruling competence. It is ul- The Commission sets out five different Hungary: Update on Recent Rule-of- timately up to the referring Polish court reasons why the Polish “muzzle law” Law Developments to decide on an infringement of the EU violates provisions of EU law protecting This news item outlines the main rule- standards of judicial independence and judicial independence. One particularly of-law developments in Hungary related impartiality. In the event of an infringe- critical point is that the law prevents Pol- to Union law. It continues the ongoing ment, the principle of the primacy of ish courts from submitting references for overview provided in previous eucrim Union law obliges the national court to preliminary rulings on questions of in- issues (eucrim 4/2020, 257). leave respective legislative amendments dependence to the CJEU. This includes „„18 February 2021: The Commission unapplied. The specific case concerns threats to Polish judges about the use of initiates a new infringement procedure amendments regarding the nomination disciplinary proceedings against them. against Hungary for not having reacted to procedure of judges to the Polish Su- The Commission has also asked the the CJEU’s ruling of 18 June 2020 (Case preme Court in 2018 and 2019. They CJEU to order interim measures pending C-78/18). In this ruling, the CJEU de- ultimately resulted in making it impos- the delivery of the final judgment. The clared the Hungarian NGO Act of 2017 sible to lodge appeals against decisions case is referred to as C-204/21. to be contrary to Union law (eucrim of the KRS concerning the proposal or „„15 April 2020: Advocate General 2/2020, 69). Hungary has not made any non-proposal of candidates for appoint- Evgeni Tanchev criticises in two paral- efforts to improve the situation since ment to judicial positions at the Supreme lel cases the appointments of judges then. In the Commission’s view, the

4 | eucrim 1 / 2021 Foundations

disclosure obligation and requirements referred by the Central District Court Italy: The Ambiguous Position for associations and organisations re- of Pest, Hungary. It actually concerns of the Italian Constitutional Court ceiving financial contributions from the scope of the right to interpretation on Life Imprisonment abroad are incompatible with data pro- of a sufficient quality (interpretation of tection rights (Art. 8 CFR) and the free Directive 2010/64/EU) and the right to On 15th April 2021, the Italian Constitu- tional Court ruled on the constitutional- movement of capital (Art. 63 TFEU) be informed of the accusations (Direc- ity of life imprisonment. The main issue within the EU. The Commission has re- tive 2012/13/EU), in the specific case of concerned the possibility of granting peatedly called on Hungary to remedy a trial in absentia. (TW) release on licence to convicted crimi- the situation as a matter of urgency. The nals who have been sentenced to life initiation of the new infringement proce- imprisonment for very severe offences. dure may be referred back to the CJEU, Reform of the European Union The current Italian law provides a form which can impose financial sanctions in of irreducible life imprisonment for the accordance with Art. 260(2) TFEU. EU Launches Conference on the Future most serious crimes (such as Mafia- of Europe type criminal activities) for which no „„25 February 2020: According to Ad- alternative measure or benefit can be vocate General (AG) Athanasios Rantos, Commission President Ursula von der applied at all. Hungary infringed its obligations under Leyen, European Parliament President This form of life imprisonment is also EU law through its 2018 asylum policy David Sassoli, and Portuguese Prime called “obstructive” life sentence (er- reform. The new Hungarian legislation, Minister Antonio Costa (whose country gastolo ostativo). The convicted per- inter alia, criminalises the assistance of holds the Council of the EU’s rotating son can only benefit from rehabilitation organisations to asylum seekers with the presidency) signed the Joint Declaration and resocialisation measures if he/she purpose of initiating international pro- on the Conference on the Future of Eu- “usefully” cooperates with the judicial tection procedures. The AG concludes rope at a ceremony on 10 March 2021. authorities and, thanks to that, is able to prove that contacts with criminal that “the criminalisation of those ac- Since the Treaty of Lisbon, there have organisations have permanently been tivities impinges on the exercise of the been hardly any steps in the EU to fur- broken off. However, this kind of “co- rights guaranteed by the EU legislature ther develop the integration process and operation” does not often take place concerning assistance for applicants for initiate new reforms. The “Conference because, inter alia, the imprisoned international protection.” He points out on the Future of Europe” will create a fears revenge against their relatives that the criminalisation of assistance to new forum for ideas on Europe’s future by the Mafia-type group they were af- filiated to. applicants seeking international protec- with a hybrid format of inter-institution- tion could have a particularly signifi- al negotiations and citizen participation. The Italian Constitutional Court de- clared “obstructive” life sentences cant deterrent effect on any person or The Joint Declaration lays out the unconstitutional, on the basis of the organisation who, knowingly, attempts scope, structure, objectives, and prin- principle of equality, the presump- to promote a change in national legisla- ciples of the planned conference. Ac- tion of innocence (Art. 3 and Art. 27 It. tion concerning international protection cording to the Joint Declaration, “(t)he Cost.) and the prohibition of inhuman or attempts to facilitate applicants’ ac- Conference on the Future of Europe is and degrading treatment (Art. 3 ECHR). cess to the procedure of obtaining that a citizens-focused, bottom-up exercise The ruling is in line with a judgment of the ECtHR (ECtHR, 13 June 2019, Mar- protection or access to humanitarian aid. for Europeans to have their say on what cello Viola v. Italy (no. 2) (application „„15 April 2021: According to Advo- they expect from the European Union. It no. 77633/16)), where the Strasbourg cate General (AG) Priit Pikamäe, Hun- will give citizens a greater role in shap- Court stated that the ergastolo ostativo garian legislation enabling the public ing the Union’s future policies and ambi- violates Art. 3 ECHR. Nevertheless, the prosecutor to bring an action before the tions, improving its resilience. It will do position taken by the Italian Constitu- Hungarian Supreme Court (Kúria) for a so through a multitude of Conference- tional Court is somewhat peculiar. The Court has been postponing the final declaration of unlawfulness of an order events and debates organised across the decision on this topic for one year and for reference made by a lower criminal Union, as well as through an interactive is waiting for the legislator to inter- court and the decision of the Supreme multilingual digital platform.” vene. As a consequence, the problem Court establishing this unlawfulness un- The EU-wide conference will start still remains open and the convicted dermines the power to refer questions on 9 May 2021, Europe Day, and will persons are treated according to the to the CJEU and is incompatible with give citizens the opportunity to express irreducible life sentences they were EU law. On the basis of the primacy of their expectations of European policies subjected. EU law, a national judge must disap- until spring 2022. It will address issues Lucia Parlato, University of Palermo ply such national legislation or judicial included in the Commission’s policy practice. The case (C-564/19, IS) was priorities and the European Council’s

eucrim 1 / 2021 | 5 NEWS – European Union strategic agenda. These include tack- Secretary of State for EU Affairs, Ana of the EU Justice Scoreboard 2021. The ling climate change, Europe’s digital Paula Zacarias; as representative of the roadmap sets out the Commission’s ap- transformation, and the promotion of acting Council Presidency, and by the proach for this year’s ninth report on the European values. It is also open to citi- European Commission Vice-President, state of European justice systems. For zens to raise additional relevant issues. Dubravka Šuica. The Executive Board previous editions eucrim 2/2020, 74– There will also be physical events in all has the task of overseeing the work, pro- 75 and eucrim 1/2019, 7–8. The Justice EU countries (once the pandemic situa- cess, and organisation of the Conference Scoreboard serves to strengthen the rule tion allows). The conference will be co- on the Future of Europe. The Conference of law and helps Member States to iden- chaired by the three institutions. An Ex- was officially launched on 10 March tify potential shortcomings, improve- ecutive Board will oversee the work of 2021 (previous news item). (TW) ments, and “best practices” in national the Conference and prepare its plenary justice systems. This is done on the ba- sessions. The national parliaments will sis of a number of indicators relating to have observer status. Area of Freedom, Security the efficiency, quality and independence Ahead of the Joint Declaration, a and Justice of justice systems. In addition to being Special Eurobarometer Survey was re- used in the context of the Rule of Law leased. The Survey (carried out between EU-LISA Input in Research and Report 2021, this year’s Justice Score- 22 October and 20 November 2020 in Innovation Funding for IT Systems board will also provide assistance in the the 27 EU Member States) reveals that in AFSJ context of the European Semester and the vast majority of Europeans back On 16 March 2021, the Commission in the implementation of the Recovery the Conference on the Future of Eu- (DG Home) and eu-LISA, (the Euro- and Resilience Facility (the latter being rope. Three-quarters of Europeans con- pean Union Agency for the Operational a measure to address the immediate eco- sider that it will have a positive impact Management of Large-Scale IT Systems nomic and social impact of the corona on democracy within the EU. Six from in the Area of Freedom, Security and pandemic). (TW) ten agree that the coronavirus crisis has Justice) agreed on “Terms of Reference” made them reflect on the future of the that will strengthen collaboration in the Commission Launches/Continues European Union. Terrorism is ranked development of research and innovation Infringements Proceedings in Several second after climate change as the main of large-scale IT systems under the re- JHA Matters global challenge affecting the future of spective EU funding programmes. Eu- In February 2021, the Commission the EU. (TW) LISA will provide advice on research launched several infringement proceed- gaps, research activities, dissemination ings against EU Member States for hav- Executive Board Starts Implementation of solutions, testing research results, ing incorrectly transposed various EU of Conference on the Future of Europe capability development, etc. within the instruments in the area of Justice and The Executive Board of the Conference EU’s Framework Programme for Re- Home Affairs (JHA). In the following on the Future of Europe started its work search and Innovation. The Agency’s proceedings, the Commission took the by holding its constitutive meeting on input will ensure that research funded first step by sending a letter of formal 24 March 2021. The first steps taken by the EU provides state-of-the-art tech- notice requesting further information to were to ensure that citizens can become nologies, solutions, and knowledge to the following countries: involved in discussions on the future eu-LISA and to Member States for the „„Belgium, Bulgaria, Finland, Poland, shape and orientation of the European operational management of IT systems and Sweden for not having fully or ac- Union. This is to be accomplished, in in the area of freedom, security and curately transposed EU rules on combat- particular, via a multilingual digital plat- justice. This will help the Commission ing racism and xenophobia by means form that will be launched on 19 April to better plan research funding in this of criminal law (Framework Decision 2021. Given the development of the area, and eu-LISA will be additionally 2008/913/JHA); COVID-19 pandemic, the Executive enabled to better monitor relevant Eu- „„Cyprus, Germany, and Sweden for Board also discussed whether/how to ropean research and innovation that fall the incomplete and/or incorrect trans- host a formal event on 9 May 2021 (Eu- within its remit. The EU will spend over position of the Framework Decision rope Day) in Strasbourg and whether/ €95 billion over the next seven years on 2002/584/JHA on the European arrest how to hold the first Conference Plenary research and innovation projects. (TW) warrant (FD EAW). Here, the Commis- on 10 May 2021. sion thinks that the countries treat their The Executive Board is co-chaired by Roadmap on 2021 Justice Scoreboard own nationals more favourably in com- MEP Guy Verhofstadt, on behalf of the On 11 March 2021, the EU Commission parison to EU citizens from other Mem- European Parliament, by the Portuguese published a roadmap for the new edition ber States or provide additional grounds

6 | eucrim 1 / 2021 Foundations for refusal of warrants that are not pro- lations, the Commission carried out a vided for in the Framework Decision. In detailed assessment of the UK’s relevant European Judicial Network (EJN) 2020, the Commission already initiated law and practice on data protection, e.g., Creates Dedicated Brexit Area infringement proceedings against Aus- the conditions and limitations as well as The EJN has set up a dedicated area tria, the Czech Republic, Estonia, Ire- the oversight mechanisms and remedies on its website, as well as a dedicated land, Italy, Lithuania, and Poland for the applicable in case of access to data by section in its judicial library, to assist incorrect transposition of the FD EAW; UK public authorities, in particular for legal practitioners looking for practical and legal information concerning the „„Estonia, Finland, and Poland for fail- law enforcement and national security judicial cooperation between the EU ing to fully transpose the EU rules on purposes. Based on its findings, the Com- and the UK as of 1 January 2021. strengthening the presumption of inno- mission concluded that the UK ensures Letters from the UK Central Authority cence and the right to be present at the an adequate level of protection for per- to its EU partners, e.g., concerning the trial in criminal proceedings (Directive sonal data transferred from private enti- notification of the competent authori- (EU) 2016/343), in particular as regards ties/competent authorities in the Union. ties according to the Trade and Co- operation Agreement or the handling the EU rules on public references to Considering that the UK rules are cur- of European Investigation Orders re- guilt. rently widely in line with EU legislation ceived after the transition period, are „„In addition, the Commission sent a (the UK implemented both the GDPR recorded in the judicial library. In addi- reasoned opinion (second step of the in- and the LED during its membership to tion, the library contains: fringement procedure) to Malta for not the bloc), the Commission reserves the „„The text of the Trade and Coopera- tion Agreement (in all EU languag- having implemented several provisions right to examine after four years whether es); of the Directive on victim’s rights (Di- the adequacy decisions are still valid be- „„Forms for surrender, and Freezing/ rective 2012/29/EU). Regarding the fail- cause the UK is no longer bound to EU Confiscation (in all EU languages); ure of correct transposition of the Direc- privacy rules after Brexit. „„Notification from the EU regarding tive, further infringement proceedings The Commission drafts now start an the EPPO; are ongoing against Belgium, Bulgaria, adoption process. First, the European „„Notifications from EU Member Latvia, Lithuania, Luxembourg, Poland, Data Protection Board (EDPB) must States regarding competent authori- and Romania. (TW) give an opinion. Second, Member States’ ties; representatives must be addressed in the „„Numerous additional Brexit-related documents. Commission Takes First Steps for so-called comitology procedure. There- International Data Flows Post-Brexit The EJN will regularly update the judi- after, the Commission will be able to cial library’s Brexit section. For a sum- After the UK left the EU on 1 January adopt the final adequacy decisions for mary of the impacts of the Trade and 2021, the rules for international data the UK. Cooperation Agreement on the protec- transmission in the General Data Protec- At the moment, data transfers can be tion of the EU’s financial interests and European criminal law, as well as for tion Regulation No. 2016/679 (GDPR) based on transition clauses as agreed in a note from Eurojust on future judicial and the Directive on the exchange of the Trade and Cooperation Agreement. cooperation with the UK in criminal personal data between law enforcement Until 31 June 2021, the UK is still to be matters, see eucrim 4/2020, 265–271 authorities No. 2016/680 (LED) will ap- treated as an EU country in terms of data and news item below. (CR) ply. Both EU regulations require that the transfers, allowing EU companies or Commission may decide, by means of law enforcement agencies to exchange an implementing act, that a third country data with the UK under the same condi- ance provides an overview of the old, ensures an adequate level of data protec- tions as before Brexit (eucrim 4/2020, transitional, and new regimes and their tion. Under this condition, transfers of 266–267). respective application. It sets out the ap- personal data to a third country may take The EU’s adequacy decisions only plicable measures with regard to surren- place without the need to obtain any fur- concern data flows from the EU to the der, mutual legal assistance, exchange of ther authorisation (except where another UK. Data flows in the other direction are criminal record information, and freez- Member State from which the data were regulated by UK legislation. (TW) ing and confiscation of funds. Further- obtained has to give its authorisation to more, the guidance provides a chart to the transfer). Brexit: Eurojust Note on Judicial clearly illustrate cooperation under the On 19 February 2021, the Commis- Cooperation with the UK transitional and new regime. sion presented two proposals for ad- On 28 January 2021, Eurojust published Concerning the cooperation between equacy decisions – one as required by a note for judicial practitioners on future Eurojust and the UK, the agenda fore- the GDPR, another one as required by cooperation in criminal matters with the saw the conclusion of a working ar- the LED. As stipulated in said EU regu- United Kingdom. This practical guid- rangement that would also enable the

eucrim 1 / 2021 | 7 NEWS – European Union secondment of a UK Liaison Prosecutor Legislation ity of data. The European Council also to Eurojust (for the conclusion of the looks forward to the Commission’s pro- working arrangement on 12 February EU Leaders Give Guidance on EU’s posal for a regulatory framework on ar- 2021 separate news item). Digital Transformation tificial intelligence. (TW) A documentation of criminal-justice- The EU must enhance its digital sov- related items after Brexit on 1 January ereignty in a self-determined and open Commission Sets Out Digital Compass 2021 is provided at the EJN website manner, said EU leaders at the video On 9 March 2021, the Commission pre- (see news item under “Area of Freedom, conference of the European Council on sented a concrete vision, targets, and Security and Justice”). Eucrim also pub- 25 March 2021. The Council is invited avenues for Europe to become a leader lished a summary of the relevant pro- to swiftly examine the Commission’s in the digital area by 2030. The Com- visions for the protection of the EU’s Communication on the 2030 Digital munication “2030 Digital Compass: the financial interests and European -crimi Compass (following news item), in European Way for the Digital Decade” nal law in the TCA (eucrim 4/2020, order to develop the digital policy pro- (COM(2021) 118 final) sets out: 265–271). (CR) gramme. In addition, the European „„A vision for the successful digital Council gave guidance on the follow- transformation by 2030 that is anchored ing issues, which outline the EU’s future in empowerment of European citizens Schengen digital policy priorities: and businesses and ensures the security „„Strengthening the European policy and resilience of its digital ecosystem Ireland Now Connected to Schengen approach as regards further systems and supply chains; Information System of critical infrastructure and strategic „„Clear and concrete objectives along On 15 March 2021, Ireland joined the sectors; the following four cardinal points that Schengen Information System (SIS). „„Widening the EU policy toolbox for will map the EU’s trajectory: a digitally The SIS is the largest and most widely digital transformation; skilled population and highly skilled used IT system for law enforcement co- „„Better exploiting the potential of data digital professionals, secure and perfor- operation and external border manage- and digital technologies for the ben- mant sustainable digital infrastructures, ment in Europe. Irish authorities are now efit of society, the environment, and the digital transformation of businesses, and able to receive real-time information, economy while upholding relevant data digitalisation of public services; e.g., on persons wanted for arrest and protection, privacy, and other funda- „„A framework for digital principles extradition, missing persons, and objects mental rights; that will enable Europeans to make full sought for seizure or use as evidence in „„Strengthening the Single Market for use of digital opportunities and technol- criminal proceedings. Ireland has set up digital services, in particular by swiftly ogies; a new national SIRENE bureau (Sup- adopting the Commission’s proposal „„An outline of a digital compass to plementary Information Request at the on digital services, digital markets, and ensure that the EU will reach its goals. National Entries), which is connected to data governance (eucrim 4/2020, 273– The digital compass provides a gov- other Member States’ bureaux, is opera- 275); ernance structure, a framework to fa- tional 24/7, and is in charge of coordi- „„Promoting digital EU standards at cilitate and accelerate the launch of nating additional information exchange the international level and developing multi-country projects to address gaps in relation to alerts. global digital rules in cooperation with in EU critical capacities, and a multi- Ireland is not a full member of the like-minded partners; stakeholder forum to engage with the Schengen area but participates in the „„Finding a solution for the tax chal- wider public; Schengen’s police and judicial coop- lenges of the digital economy, whereby a „„Actions to project the European ap- eration arrangements. Next to Ireland, common solution within the framework proach to digitalisation on a global stage. 26 EU Member States and four Schen- of the OECD should be sought first. Some of the concrete targets to be gen-associated countries (Iceland, The European Council also made achieved by 2030 include: Liechtenstein, Norway, and Switzer- statements on several data-related issues „„At least 80% of all adults should have land) are connected to the SIS. At the that concern law enforcement. In this basic digital skills; end of 2020, the Schengen Information context, EU leaders stressed the need „„All populated areas should be cov- System contained approximately 93 mil- for law enforcement authorities to rely ered by 5G; lion alerts. It was accessed 3.7 billion on data retention in order to effectively „„Seventy-five percent of companies times in 2020 and consisted of 209,178 combat serious crime. Furthermore, the should use cloud computing services, hits (when a search leads to an alert and EU should create common data spaces, big data, and artificial intelligence; the authorities confirm it). (TW) including access to and interoperabil- „„All key public services should be

8 | eucrim 1 / 2021 Foundations available online and of 80% citizens mission aims to reach agreement on a criminal justice, however the resolution should use an eID solution. “Declaration of Digital Principles” with includes a number of statements on the The Commission hopes to start a so- the other institutions. In the third quarter use of AI for justice in general as well as cietal debate on digital principles. Ac- of 2021, a Digital Policy Programme to on the challenges for big data analyses, cording to the Commission, the Euro- operationalise the Digital Compass is to e.g., facial recognition. pean approach should be built upon the be proposed. (TW) MEPs emphasised that in any area, fundamental rights, such as freedom of especially those managed by the state expression and protection of personal Public Consultation on Digitalisation (such as justice), AI must remain a tool data and privacy, including the right to of Cross-Border Justice used only to assist decision-making or be forgotten, but include more compre- Following its communication of 2 De- help when acting. AI must be subject to hensive guiding principles, too. These cember 2020 on the digitalisation of jus- human control, allowing humans to cor- could include: tice in the EU (eucrim 4/2020, 262– rect or disable it in case of unforeseen „„Universal access to internet services; 263), the Commission has published behaviour. Moreover, AI is a scientific „„A secure and trusted online environ- a consultation on the digitalisation of advancement which should not under- ment; cross-border criminal and civil proceed- mine the law but, on the contrary, always „„Universal digital education and skills; ings. The consultation period run until be governed by it. Under no circum- „„Access to digital systems and devices 11 May 2021 and is principally open to stances should AI, robotics, and related that respect the environment; everyone but specifically invites those technologies violate fundamental rights, „„Accessible and human-centric digital who are familiar with the use of IT tools democracy, and the rule of law. public services and administration; in cross-border judicial proceedings. Regarding the use of AI in the field „„Ethical principles for human-centric The Commission aims to take con- of justice, MEPs adopted the following algorithms. crete actions in the fourth quarter of positions: The Commission proposes that, af- 2021 to increase the efficiency and resil- „„The use of AI in fighting crime and ter further public consultation, the ience of cross-border judicial coopera- cybercrime could bring a wide range of digital principles could be enshrined tion in civil, commercial, and criminal possibilities and opportunities but, at the in a solemn, inter-institutional declara- matters, and improve access to justice same time, the principle “what is illegal tion between the European Parliament, for citizens, businesses, and legal prac- offline is illegal online” should continue the Council, and the Commission. This titioners through the use of digital tech- to prevail; declaration could complement the Euro- nologies. „„The option of whether it is appropri- pean Pillar of Social Rights. An annual An inception impact assessment sets ate for law enforcement decisions to be Eurobarometer survey should monitor out more clearly the context, the prob- partially delegated to AI should be dis- whether Europeans feel that their digital lem behind the initiative, the objectives, cussed; rights are respected. and the policy options. Citizens and „„When using evidence provided by Ultimately, the Commission wishes stakeholders should reflect on how the AI-assisted technologies, judicial au- that Europe promotes its ideas through existing legislative framework for cross- thorities should be obligated to provide increased international digital partner- border procedures could be modernised reasons for their decisions; ships. To this end, the EU will liaise with while ensuring that all necessary safe- „„Research should explore improve- external funds, so that common global guards are in place. They are particularly ments in the analysis and collection goals can be achieved. invited to provide views on the Commis- of data and the protection of victims, The Communication on the Digital sion’s understanding of the problem (as whereby it must be ensured that safe- Compass follows President von der Ley- well as possible solutions) and to make guards for due process and protections en’s call to make the next years Europe’s available any relevant information that against bias and discrimination are ap- “Digital Decade”; it responds to the they may have, including on possible plied; European Council’s call for a “Digital impacts of the different options. (TW) „„The principles of governance, trans- Compass” and builds on the Commis- parency, impartiality, accountability, sion’s digital strategy presented in Feb- EP Input on AI fairness, and intellectual integrity in the ruary 2020 (eucrim 1/2020, 24). In a resolution of 20 January 2021, the use of AI in criminal justice are impor- The Communication will be followed European Parliament outlined defini- tant; by structured consultations on the tar- tions and several ethical principles as „„It must be guaranteed that the pubic gets and elements of the compass as well regards the application of artificial intel- be kept informed about the use of AI as by an open consultation on digital ligence (AI) in military and civilian sec- and that decisions are personally taken principles. By the end of 2021, the Com- tors. There is no focus on the use of AI in by responsible officials who can, if

eucrim 1 / 2021 | 9 NEWS – European Union necessary, deviate from the results re- to take a clear stance against biometric FRA: Impact of Artificial Intelligence ceived from AI; mass surveillance. In an open letter of On 1 February 2021, FRA published an „„Defendants must have the right 1 April 2021, the organisations request infographic illustrating the potential im- to appeal a decision; such an appeal that any upcoming Commission legisla- pact of artificial intelligence in the areas should be decided without the use of an tive proposal on AI “must take the nec- of social benefits, predictive policing, AI system. essary step of prohibiting applications medical diagnosis, and targeted adver- The resolution also addresses the of AI that irremediably violate funda- tising. phenomenon that AI technologies can mental rights, such as remote biometric The infographic is based on the re- have a deep impact on fundamental identification technologies that enable sults found in the FRA’s report “Getting rights. The Commission is called on to inherently undemocratic mass surveil- the future right – Artificial intelligence assess the consequences of a moratori- lance.” More concretely, the letter calls and fundamental rights in the EU” that um on the use of facial recognition sys- on the Commission to take into account was published on 14 December 2020. tems until the technical standards can the following issues: Looking at the impact of artificial in- be considered fully fundamental rights- „„The legislative proposal on AI must telligence in the area of predictive po- compliant and that there are strict safe- include an explicit ban – on fundamental licing, the report sees, on the one hand, guards in place against misuse. Mass rights grounds – on the indiscriminate a potential positive impact of AI (e.g., scoring applications (monitoring and or arbitrarily targeted use of biometrics higher detection rates resulting in less rating citizens) should be explicitly in public or publicly accessible spaces, crime). On the other hand, a negative banned. The EU should better promote which can lead to mass surveillance; impact may occur due to possible errors its viewpoint in these areas when nego- „„The EU must provide for legal re- (e.g., AI incorrectly suspects innocent tiating laws at the international level. strictions or legislative red lines on all persons). Such negative impacts could The resolution also expresses concern AI uses that contravene fundamental destroy trust in AI or result in the incor- over “deepfake technologies” that have rights; rect detection of crimes. (CR) the potential to “destabilise countries, „„Marginalised and affected communi- spread disinformation and influence ties must be included in the development elections.” Creators should be obliged of EU AI legislation and policy. to label deepfake material or any other The letter underlines that the EU Institutions realistically made synthetic videos as should be the forerunner for a truly “not original” and more research should human-centric approach towards AI Council be done into technology to counter this and make clear that a democratic so- phenomenon. ciety does not allow certain uses of Portuguese Council Presidency The EP resolution aims at giving an AI. The open letter follows a Euro- Programme input into the Commission’s White Pa- pean Citizens’ initiative seeking a ban The Portuguese Presidency of the Coun- per on AI presented in 2020 (eucrim on biometric surveillance practices cil of the European Union began on 1/2020, 8–9). (news at p. 30) and a similar call 1 January 2021 and will run until 30 Independent of the EP resolution, from civil society organisations issued June this year. a virtual conference on AI and human in January 2021. On 8 March 2021, 116 Inspired by the motive “Time to de- rights was held on 20 January 2021, un- MEPs across all parties supported these liver: a fair, green and digital recovery” der the German Presidency of the Coun- calls. In an open letter to Commission the Portuguese Presidency’s programme cil of Europe. The aim was to help cre- President Ursula von der Leyen, they envisages five main lines of action that ate an international legal framework for stressed that the upcoming proposal on will strive to promote a resilient, green, AI at the level of the Council of Europe. AI must respect the EU’s fundamental digital, social, and global Europe. This could consist of both mandatory rights. This may include “the possibil- Concerning migration, the Portu- and soft law components, but always ity to ban or prohibit applications of AI guese Presidency intends to prioritise with respect to human rights, democ- that are incompatible with fundamental the New Pact on Migration and Asylum racy, and the rule of law. (TW) rights…” The Commission’s expected and related initiatives. legislative proposals follow the out- Regarding the future of Schengen and Plans to Regulate AI Technology come of its White Paper on Artificial border management, the Presidency is Enabling Biometric Mass Surveillance Intelligence launched in February 2020 paying close attention to the interoper- under Fire (eucrim 1/2020, 8–9), which laid the ability of information systems, includ- Over 50 civil society organisations basis for subsequent public consulta- ing the implementation of the Entry/Exit called on the European Commission tions and statements. (TW) System (EES) and the European Travel

10 | eucrim 1 / 2021 Institutions

Information and Authorisation System States to ratify the CoE’s Medicrime and the Council focus on targeted, prac- (ETIAS). Another focus is the new man- Convention (eucrim 2/2016, 84–85). tical actions, such as training, aware- date of Frontex. which is to be put into The Convention is the first binding inter- ness raising for the public, proper fund- operation. national instrument in the criminal law ing and monitoring of the relevant acts, In the area of police and judicial co- field on counterfeiting of medical prod- through which the implementation of the operation, the Presidency aims to focus ucts and similar crimes involving threats Charter can be concretely enhanced. on several issues, including: to public health that have a global rel- The justice ministers also dealt with „„Coordinating the fight against organ- evance; judicial training following the Commis- ised and cross-border crime, particularly „„Digitalisation of justice. Ministers sion’s new training strategy presented drug trafficking; agreed to leverage digitalisation in the in December 2020 (eucrim 4/2020, „„Trafficking in human beings; justice area on the basis of the new re- 264). Referring to Council conclusions „„Crimes against women and children; covery and resilience budget. They on boosting the training of justice pro- „„Cybercrime, including child sexual supported the promotion of e-CODEX fessionals of 8 March 2021, the Coun- abuse; (eucrim news of 19 January 2021), in cil calls on Member States to encourage „„Electronic evidence; order to achieve the widest possible ap- the use of training possibilities, invest „„Hate crime; plication. in the digitalisation of judicial training, „„Cooperation and the exchange of in- The project “e-CODEX” (launched enhance training in EU law, emphasise formation on weapons and explosives. by the European Commission) consists the multidisciplinary approach of judi- Furthermore, the Presidency is pay- of a package of software components cial training, and provide support to the ing particular attention to the prevention to enable connectivity between national judiciaries beyond the EU, in particular of terrorism and extremism, especially systems. Thus, it allows users (competent those in the Western Balkans. the challenges of radicalisation and vio- judicial authorities, legal practitioners, Ultimately, the Commission updated lent extremism (of various origins and citizens) to electronically send and re- the justice ministers on the state of play orientations) as well as related online ceive documents, legal forms, evidence, with regard to the implementation of the activities. or other information in a swift and se- EPPO regulation. Work is ongoing in Further priorities of the Portuguese cure manner. In this way, e-CODEX several areas in order to get the EPPO up Presidency include: allows the establishment of interoper- and running as soon as possible. (TW) „„Revision of the Europol Regulation; able and secure decentralised commu- „„Implementation of the EU action plan nication networks between national IT Home Affairs Meetings under on preventing money laundering and ter- systems supporting cross-border civil Portuguese Presidency rorist financing; and criminal proceedings. e-CODEX At their informal videoconference on „„Implementation of the European Pub- already underpins the e-Evidence Digi- 28 January 2021, ministers of home af- lic Prosecutor’s Office; tal Exchange System in relation to Eu- fairs discussed the New Pact on Migra- „„Implementation of the 2020–2025 ropean Investigation Orders and Mutual tion and Asylum, which was proposed EU Strategy on victims’ rights; Legal Assistance in the area of judicial by the Commission in September 2020. „„Launch of the next political cycle for cooperation in criminal matters. During its Council Presidency (which the fight against serious and organised At the informal videoconference of started on 1 January 2021), Portugal international crime. (CR) the justice ministers of 11 March 2021, wants to focus on the external dimension data retention was on top of the agen- of migration, external border control of Informal Justice Affairs Meetings da. The ministers shared the view that the EU, and the balance between the under Portuguese Presidency a common approach is to be followed principles of responsibility and solidar- Discussions of the ministers of justice at which complies with the rulings of the ity. Furthermore, the importance of con- the first informal videoconference under CJEU and fundamental rights. Nonethe- certed safeguarding and management the Portuguese Council Presidency, held less, CJEU case law has a considerable of the Schengen area and the Europol on 29 January 2021, focused on two top- impact on criminal investigations. reform (initiated by the Commission in ics in the area of criminal law: Ministers discussed the strengthen- December 2020) were on the agenda of „„Problems of organised crime as re- ing of the application of the Charter of the ministerial meeting. (TW) gards counterfeiting of medicine and Fundamental Rights. They referred to At the first formal meeting on protective equipment. Portuguese Min- the Commission Strategy of December 12 March 2021, ministers of home af- ister for Justice, Francisca Van Dunem, 2020 (eucrim 4/2020, 259–260 and fairs discussed the proposal for a direc- and European Commissioner for Justice, the Council’s conclusions on this topic tive to enhance the resilience of critical Didier Reynders, called on the Member of 5 March 2021. Both the Commission entities providing essential services,

eucrim 1 / 2021 | 11 NEWS – European Union such as health, transport or drinking wa- European Court of Justice (ECJ) fected the operations of the Court, the ter. They, inter alia, stressed the need number of new and completed cases to make such legislation consistent with AG Proposes Paradigm Shift Regarding brought to Luxembourg remained fairly the measures for a high common level the Duty to Refer for National Last stable: 1,582 new cases and 1,540 com- of cybersecurity. In this field, a reform Instance Courts pleted cases. Indeed, the number of cas- of the Directive on security of network In his opinion dated 15 April 2021 in es might have been higher if the CJEU and information systems (the NIS Di- Case C-561/19 (Consorzio Italian Man- had not been closed from 16 March to rective) is currently under negotiation. agement und Catania MultiserviziSpA / 25 May 2020. Discussions also involved the external Rete Ferroviaria Italiana SpA), Advo- Despite the pandemic, the CJEU was dimension of migration and the state of cate General (AG) Bobek proposed that able to resume its services with stringent play of negotiations on the asylum and the CJEU revisit its case law on excep- health measures, thereby enabling court migration pact. tions from the duty borne by national chambers to remain open to the repre- Ministers supported the Council last-instance courts to refer questions on sentatives of litigating parties and the Presidency’s initiative to enhance co- the interpretation of Union acts to the general public. Representatives of liti- operation between the EU and North CJEU (Art. 267 TFEU). The exceptions gating parties unable to travel were of- African countries. The initiative includ- were established in the CILFIT judgment fered to participate in hearings remotely ed a proposal for a political dialogue of 6 October 1982 (C-283/81); they are by means of a videoconferencing system on justice and home affairs, by means widely known as the “acte éclairé” and specifically designed to enable simul- of which also operational cooperation “acte clair” doctrine. AG Bobek stated taneous interpretation. Forty hearings should be fostered. Ministers voiced that the current approach relies too heav- were held by videoconferencing before different views of whether more inten- ily on the subjectivity of the national the Court of Justice and 37 before the sive cooperation with North African judge and should be replaced by a more General Court. countries should concentrate on migra- objective imperative of securing uni- Lastly, the duration of finalised pro- tion or additionally involve other secu- form interpretation of EU law across the ceedings before the two courts was rity issues, such as counter-terrorism EU. According to his opinion, national brought to an historic low, with an aver- and organised crime. (TW) courts of last instance have a duty to re- age of 15.4 months per case. (CR) fer a case for a preliminary ruling on the EU Starts Dialogue on Anti-Drug interpretation of EU law, provided that New Member of the General Court Policies with China the following three cumulative require- of the EU On 22 January 2021, the EU and China ments are met: On 25 February 2021, Mr David Petrlík officially launched a dialogue on the „„The case raises a general issue of in- was appointed as a judge at the Gen- topic of illicit drugs and the control terpretation of EU law; eral Court of the EU. During his career, thereof. The opportunity was taken to „„EU law can be reasonably interpreted Mr Petrlík has served in several func- exchange views and information on the in more than one possible way; tions in the Czech judiciary and also current situation and to access policies „„The way in which EU law should be worked for the EU. Prior to his new of- of the EU and China. Issues discussed interpreted cannot be inferred from ex- fice, he served as Head of the Legal Sec- included alternatives to coercive sanc- isting CJEU case law or from a single, tion of the European Global Navigation tions, new psychoactive substances, and clear enough judgment of the Court. Satellite Systems Agency (GNSS). (CR) the exchange of experience and best If just one of these requirements is not practice in the field of drug rehabilita- met, the national court of last instance is tion and treatment from a public health relieved of the duty to refer. AG Bobek OLAF perspective. indicated that the CJEU should strive for The EU-China dialogue forms part a paradigm shift (away from its CILFIT OLAF Signs Cooperation Arrangement of the key objectives set out in the EU concept) in order to keep the system of with Prosecutor General’s Office Drugs Strategy 2021–2025 (approved preliminary ruling procedures feasible of Ukraine by the Council on 18 December 2020). and warranted. (TW) On 11 February, OLAF Director-Gener- The strategy delineates the political al Ville Itälä and the Prosecutor General framework and priorities for the EU’s The CJEU in 2020: A Review of Ukraine Iryna Venediktova signed an drug policy from now until 2025. In par- On 5 March 2021, the Court of Justice Administrative Cooperation Agreement ticular, the EU will focus on two main of the European Union (CJEU) present- (ACA). It will allow a more effective drug-related issues, namely supply re- ed its 2020 judicial statistics. Whilst the and targeted exchange of information duction and demand reduction. (CR) COVID-19 pandemic significantly af- between OLAF and the Ukraine’s Gen-

12 | eucrim 1 / 2021 Institutions eral Prosecutor’s Office. OLAF now European Union Intellectual Property OLAF Supports Raid in Poland against have 31 ACAs with partner authorities Office (EUIPO). OLAF mainly support- Illegal Trade in Medical Products in non-EU countries and 13 ACAs with ed the operation by running a targeted On 3 February 2021, OLAF reported counterpart administrative investigative control action and by coordinating the that Polish police successfully raided services of international organisations. activities of customs agencies and mar- premises of a criminal gang that traded For the important external dimension of ket surveillance authorities in the 20 EU in counterfeit and illegal pharmaceutical OLAF’s work Scharf-Kröner/Seyder- Member States involved. Europol coor- products. OLAF coordinated the opera- helm, eucrim 3/2019, 209–218. (TW) dinated operational activities across the tion, which also involved authorities in globe, developed risk indicators, which France and Italy. OLAF Supports Raids against supported national law enforcement Investigations revealed that an interna- Counterfeits and customs authorities in prioritising tionally-operating organised crime group On 30 March 2021, OLAF informed the checks, and provided a platform for imported active substances from Asia to public about successful raids in Belgium real-time information sharing and cross- Poland where they were shipped to other and Germany against counterfeiters. checking of intelligence. Operation countries for the production of counterfeit Supported by OLAF, a raid in a ware- LUDUS was the first operation on this medicines. Then the products, which part- house in Antwerp, Belgium brought scale targeting counterfeit toys. (CR) ly mocked well-known brands, were sold to light hundreds of counterfeit sports in Europe and the US via online shops. shoes and textiles with premium labels. CJEU Puts an End to Dalli Action In addition, the gang traded with genuine Over €25,000 in cash was also seized. against OLAF pharmaceutical products that were stolen The warehouse in Antwerp was identi- On 24 February 2021, the CJEU dis- from production plants. The Polish po- fied as the central hub of a distribution missed the appeal by former Maltese lice in Poznán arrested 13 persons, seized network for counterfeit goods in Europe. Commissioner John Dalli against a hundreds of thousands of counterfeit At the same time, customs raids in other judgment of the General Court of 6 medicine products and drugs (worth € 5.6 spots in Belgium and in Germany led to June 2019 (Case C-615/19 P). In this million), and confiscated instrumentali- the successful seizure of other counter- judgment, the General Court dismissed ties and proceeds of crime, such as luxury feit goods, among them perfumes and an action in which Dalli claimed vehicles and cash. textiles. The operations were coordinat- compensation for non-material dam- Ville Itälä, Director-General of ed by OLAF. They were part of ongoing age caused to him by alleged unlaw- OLAF, highlighted the added value of investigations against the illicit trade in ful conduct against him by OLAF and OLAF in coordinating and facilitating counterfeit goods in the EU. (TW) the Commission (eucrim 2/2019, the exchange of data and information 87–88). Similarly to the General Court, which proved crucial in the case. He Millions of Counterfeit Toys Confiscated the CJEU rejects all arguments put for- also stressed that the operation showed On 8 March 2021, OLAF and Europol ward by Dalli, by means of which he that criminal activities not only defraud- reported on an operation that resulted in claimed that OLAF’s internal inves- ed citizens, but also posed a real risk the seizure of close to five million toys tigations against him for alleged brib- to people’s health. Therefore, OLAF is with a total value exceeding €16 million. ery were unlawful. These arguments increasingly mandated with saving the Between October 2020 and January concern, for instance, the opening of lives of citizens. (TW) 2021, Operation LUDUS ran across 24 investigations, their extension, the col- countries (20 EU Member States and 4 lection of evidence, and the violation OLAF Discovers Fraud in Bulgarian non-EU countries) with 4,768 inspec- of his procedural rights. In addition, Ministry and Signs Cooperation tions carried out. 44,127 samples were the CJEU rejected the argument that Arrangement with Bulgarian Prosecutor tested in laboratories, 125 judicial cases the General Court erred in law when were opened, and 11 individuals were it negated the reality of the damage al- On 1 February 2021, OLAF informed (thus far) arrested. In almost all cases, leged and the existence of a causal link the public that it closed investigations the counterfeit toys had not been subject between OLAF’s conduct and the dam- into the fraud and misappropriation of to mandatory safety tests and had no warn- age invoked. The CJEU stated that the EU funds detected within the Bulgar- ings or advice on the packaging. Many of General Court took this finding only by ian Ministry of Interior. In the case at the toys contained toxic chemicals or ex- way of complementary remark and it issue, the Bulgarian Ministry of Interior ceeded legal decibel limits, thereby plac- was not necessary for the Court to ex- received money from the EU Internal ing the health of children at risk. amine this condition since no unlawful Security Fund in order to purchase all- Operation LUDUS was organised by conduct was established that may be at- terrain vehicles for the police. Inves- Europol and supported by OLAF and the tributed to a Union institution. (TW) tigations revealed that the Ministry of

eucrim 1 / 2021 | 13 NEWS – European Union

Interior unilaterally changed the condi- nesses and internal verification deficits European Public Prosecutor’s Office tions of the grant agreement and ma- regarding the control and management nipulated tenders, as a result of which of EU funds at the competent Slovak Working Arrangement Between EPPO it bought sport utility vehicles (SUVs) managing authority. In two cases, OLAF and Prosecutor-General of Hungary from older stocks with the EU money. issued recommendations for financial European Chief Prosecutor Laura OLAF recommends the competent Eu- and judicial follow-up. In all three cas- Kövesi and Hungary’s Prosecutor Gen- ropean Commission service to recover es, OLAF made several administrative eral Péter Polt signed a working ar- almost €6 million from the beneficiary. recommendations. During the investi- rangement. It entered into force on 6 The Bulgarian Prosecutor’s Office is gations, OLAF also closely cooperated April 2021. Hungary is one of the EU recommended to open a criminal inves- with Eurojust and the competent Slovak countries that does not participate in tigation for abuse of power to the benefit administrative and judicial authorities so the enhanced cooperation scheme of of a third party. that the procedural rights of the suspects the EPPO. The working arrangement The information on this case comes could be ensured. (TW) aims to facilitate the practical applica- shortly after OLAF signed an adminis- tion of the existing legal framework for trative cooperation agreement with the Hits against Illegal Tobacco Trade judicial cooperation in criminal matters Prosecutor’s Office of the Republic of in 2020 between the EPPO and Hungary. It will Bulgaria in January 2021. The agree- In a press release issued on 14 January allow the exchange of strategic infor- ment will allow for a more effective 2021, OLAF took stock of successful mation and establish the framework for and targeted exchange of information operations against illegal tobacco trade operational and institutional coopera- between OLAF and the Bulgarian Pros- in 2020. In 20 operations, national cus- tion. The arrangement ensures that the ecutor’s Office (while respecting the rel- toms and law enforcement authorities EPPO can cooperate directly with the evant rules on confidentiality and data were able to seize nearly 370 million Prosecutor General’s office in Hungary. protection), as well as for operational cigarettes that were foreseen for the The Hungarian Prosecutor General’s assistance and training. It also includes a black market. The potential loss of cus- office will provide an EPPO contact provision on OLAF reports as a judicial toms and excise duties and VAT is esti- point. In addition, Hungary may second follow-up of investigated cases. How- mated at €74 million. OLAF supported a liaison officer to the EPPO’s head- ever, the arrangement neither affects the operations by providing vital infor- quarters in Luxembourg. mutual legal assistance or other forms of mation on the identification and tracking It is also foreseen that high-level and judicial cooperation in criminal matters of lorries and/or containers loaded with technical meetings will take place on a nor future cooperation between Bulgar- contraband cigarettes and exchanging regular basis, and both parties will coop- ian prosecutors and the EPPO. (TW) intelligence information in real time erate on training, conferences and work- with EU Member States and third coun- shops. The arrangement emphasises that OLAF Investigated Irregularities tries. The operations also revealed fraud the relevant Union acts apply as regards in Funding Agricultural Activities and smuggling patterns: approximately the gathering of evidence and data pro- in Slovakia 37% of the cigarettes were seized in tection, e.g. the European Investigation On 21 January 2021, OLAF reported non-EU countries, e.g., Albania, Koso- Order. (TW) on three cases that were closed in 2020 vo, Malaysia, and Ukraine. The major- involving irregularities in agricultural ity of the cigarettes originated from Asia Working Arrangement Eurojust – EPPO funds in Slovakia. The three cases con- (China, Vietnam, Singapore, Malaysia), On 12 February 2021, a working ar- cerned direct payment applications made but a reasonable share also came from rangement between Eurojust and the between 2013 and 2019 by several Slo- Balkan and Eastern European countries EPPO entered into force. The arrange- vakian companies. Investigators found (Montenegro, Belarus, Ukraine), Tur- ment details practical modalities con- that the conditions to receive EU money key, and the United Arab Emirates. cerning cooperation in the fight against from the agricultural funds were not OLAF Director-General Ville Itälä said: crimes that affect the EU’s financial in- given in these cases. Applications were “Our joint efforts have not only helped terests. ineligible, for instance, because land save millions of euros in lost revenues In particular, the arrangement sets out plots were overlapping, land was used and kept millions of contraband ciga- rules for the exchange of information for other purposes than agricultural ac- rettes off the market, they have also held by the case management systems of tivity, or no valid lease contracts existed helped us get closer to the ultimate goal Eurojust and EPPO. Issues concerning for the area claimed. OLAF also stressed of identifying and closing down the judicial, institutional, and administrative that, beside the specific payment-related criminal gangs behind this dangerous cooperation, as well as the processing of aspects, there have been several weak- and illegal trade.” (TW) personal data, are also covered.

14 | eucrim 1 / 2021 Institutions

According to the arrangement, Euro- mation exchange between EPPO and (EPPO) appointed Olivier Ramsayer as just and the EPPO will mutually support Europol will also be finalised in an ad- its first Administrative Director. Ram- each other during operations, especially ditional memorandum. sayer was previously Director of Cor- in transitional cases involving Member Further measures of enhanced coop- porate Governance at Frontex. His new States that are not part of the EPPO or eration will include regular consultation position includes being the legal repre- third countries. In such cases, the EPPO meetings between liaison officers and sentative of the new body for adminis- may request Eurojust to provide the fol- experts. The tasks, rights, and obliga- trative and budgetary purposes and he lowing support: tions of these officers/experts will be will be responsible for the implementa- „„Organisation of coordination meet- governed by a separate instrument. (CR) tion of EPPO’s budget. (TW) ings; „„Establishment of coordination centres EPPO Suggests Operational Start to carry out simultaneous investigations; on 1 June 2021 Europol „„Setting up of Joint Investigation In a letter sent to the Commissioners Teams; Didier Reynders and Johannes Hahn EDPS Gives Opinion on Europol Reform „„Prevention and solving of conflicts of on 7 April 2021, European Chief Pros- On 8 March 2021, the EDPS published jurisdiction. ecutor Laura Kövesi proposed that the its Opinion 4/2021 on the Commis- Further measures to enhance mutual European Public Prosecutor’s Office sion’s Proposal of 9 December 2020 for cooperation include the setting up of (EPPO) starts its operational activities a Regulation amending Regulation (EU) liaison teams mandated to discuss and on 1 June 2021. According to the EPPO 2016/794 (eucrim 4/2020, 279). The coordinate institutional and operational Regulation, the Commission must fix revision of the current Europol Regula- matters of general interest and to as- the date on which the EPPO can assume tion will mainly include amendments as sess the practical implementation of the its tasks. Since major steps have been regards Europol’s cooperation with pri- working arrangement. (CR) taken, such as the appointment of the vate parties, the processing of personal EPPO College, key decisions on EPPO’s data by Europol in support of criminal Working Arrangement Europol – EPPO procedure, working arrangements with investigations, and Europol’s role on On 19 January 2021, a Working Ar- important partners, etc., the EPPO feels research and innovation. Additional rangement between Europol and the ready to start. (TW) changes will affect the work of Europol, European Public Prosecutor’s Office e.g., the legal regime on data protection, (EPPO) entered into force. The Working EPPO Website transfers of data to third countries, and Arrangement lays down detailed practi- The website of the European Public the entering of alerts into the Schengen cal modalities concerning cooperative Prosecutor’s Office has been launched. Information System (SIS). efforts to fight crimes affecting the EU’s Information about its mandate and tasks, Looking at the impact on data protec- financial interests. members, job vacancies, news, docu- tion rules, the EDPS has raised concerns The agreement sets out a number of ments, etc. is available at: https://www. that exceptions from the current data rules for the exchange of information, eppo.europa.eu/. (TW) protection rules applicable to Europol including: could become reality in practice. He „„The exchange of personal data; Appointment of European Delegated therefore recommends better defining „„The use of information; Prosecutors in Process the situations and conditions in which „„The onward transmission of the infor- The EPPO is still in the process of set- Europol may resort to the proposed der- mation received; ting up its operational capacities. The ogations. „„The assessment of the reliability of process of appointment of the European Concerning Europol’s extended legal the source of the information and the in- Delegated Prosecutors is ongoing. On possibilities to cooperate with private formation itself; 11 March 2021, Belgium became the parties, the EDPS welcomes the inser- „„Secure processing of personal data. tenth EU Member State to send candi- tion of extended safeguards, e.g., the Furthermore, the Working Arrange- dates. The EPPO regularly provides an prohibition of systematic, massive, or ment sets out rules to guarantee the se- update of the state of play of the appoint- structural transfers of data. At the same curity of information. Regarding the ex- ments. (TW) time, however, the EDPS recommends change of classified information, it has that these restrictions be applied to all been agreed that a separate agreement Administrative Director of EPPO exchanges between Europol and private will need to be reached. The establish- Appointed parties, irrespective of their location ment, implementation, and operation of On 20 January 2021, the College of the within or outside the EU. Europol’s le- a secure communication line for infor- European Public Prosecutor’s Office gal role and responsibility when acting

eucrim 1 / 2021 | 15 NEWS – European Union as service provider to national authori- development of anti-doping capacities, EU’s financial interests, migrant smug- ties and thus as a data processor should and monitoring the World Anti-Doping gling, terrorism, and environmental be further clarified in a binding legal act. Code. (CR) crime also figure on the list. In addition, an assessment should be Regarding cooperation with third made of the possible security risks cre- States, Eurojust continued to expand its ated by the opening of Europol’s com- Eurojust network by forming a gateway for pros- munication infrastructure for use by pri- ecutors to 55 jurisdictions worldwide. vate parties. Eurojust Annual Report 2020 In 2020, liaison officers from Albania, Regarding the envisaged use of per- On 23 March 2021, Eurojust published Georgia, and Serbia were deployed to sonal data by Europol for research and its Annual Report for the year 2020. In Eurojust. In line with the Trade and Co- innovation purposes, the EDPS recom- 2020, Eurojust continued to be fully op- operation Agreement, a liaison officer mends clarifying the scope of these ac- erational during the Covid-19 pandemic. was also deployed from the UK after tivities in a binding document. Lastly, The total number of cases supported by Brexit. The network of Eurojust contact the EPDS calls for alignment of his the agency increased 13% compared to points was also extended, with contact supervisory powers vis-à-vis Europol, the previous year, with 8800 cross-bor- points joining from Uzbekistan, Sri Lan- as provided for in Regulation (EU) der criminal investigations. 4200 cases ka, Mexico, and Kosovo. Cooperation 2018/1725 and as applicable to the other were new cases and 4600 ongoing cases with Latin America took a big step for- EU institutions, agencies, and bodies, from previous years. ward through the agreement on broader including the European Parliament, the As in the previous years, the majority access to the Iber@SecureCommunica- Council, and the Commission. (CR) of new cases concerned swindling and tionSystem, which opens the system to fraud (1264), money laundering (595), all national desks at Eurojust. JPSG: Discussion on Europol Reform and drug trafficking (562). 1519 cases Activities involving Eurojust’s gover- On 1–2 February 2021, the Joint Par- were solved with a rapid response, pro- nance and agency management in 2020 liamentary Scrutiny Group on Europol viding support within hours if necessary. included the elections of the president, (JPSG) held its biannual meeting to Furthermore, 74 new agreements for Ladislav Hamram, national member for discuss the revision and strengthen- Joint Investigation Teams (JITs) were the Slovak Republic, and vice-president, ing of Europol’s mandate. The discus- signed – they will join the 188 ongoing Boštjan Škrlec, national member for sion focused on Europol’s handling of JITs. Hence, in 2020, Eurojust provided Slovenia. By the end of 2020, Eurojust large data sets (big data) and included financial and/or operational support to had 332 holders of positions, including a presentation by the European Data 262 JITs. In addition, Eurojust coordi- 26 national members assisted by 60 Protection Supervisor (EDPS). Further nated four major cross-border actions deputies and assistants as well as 223 debates covered topics such as the im- against intellectual property crime in staff members and 22 seconded national pact of COVID-19 on the EU’s internal 2020, taking down 5600 servers. experts. security, the role of police cooperation, In 2020, Eurojust also provided op- Eurojust has continued to contribute cybercrime, and digital resilience. (CR) erational guidance on the application of to the discussions and measures to speed EU judicial cooperation instruments, in up digitalisation of criminal justice Memorandum of Understanding with particular with regard to the European across borders. (CR) the World Anti-Doping Agency Arrest Warrant (1284 cases), the Euro- On 18 February 2021, Europol signed a pean Investigation Order (3159 cases), Cooperation with EUIPO Memorandum of Understanding (MoU) and freezing and confiscation, conflicts On 15 March 2021, Eurojust and the with the World Anti-Doping Agency of jurisdiction, and extradition to third European Union Intellectual Property (WADA). Under the MoU, both agen- countries. It published a joint report with Office (EUIPO) signed a Service-Level cies will exchange knowledge and ex- the EJN on the latter (eucrim 4/2020, Agreement to enhance their coopera- pertise to enhance their cooperation in 288). tion in the fight against criminal abuse the fight against the illegal production Looking at crime-related priority ar- of intellectual property rights in the field and distribution of doping substances eas, Eurojust handled 2647 ongoing and of counterfeiting and online piracy. Un- and their use in sporting events. new cases of swindling and fraud, 1460 der the agreement, Eurojust will receive WADA is an international, inde- cases of money laundering, and 1169 €750,000 in additional funding until the pendent agency composed and funded cases of drug trafficking. Numerous end of 2024 to help build up greater ca- equally by the world’s sport movements cases involving mobile organised crime pacity and expertise with this type of and governments. Its key activities in- groups, trafficking in human beings, cy- crime and to support complex investiga- clude scientific research, education, bercrime, corruption, crimes against the tions in this field. (CR)

16 | eucrim 1 / 2021 Institutions

Cooperation with Latin-American countries, and EJN-associated countries. regions and promote engagement with Partners It aims at evaluating the functioning of the EJN. Another new measure worth During a high-level online meeting of the network with a special focus on its analysing would be the introduction of the Europe Latin America Technical operational functions and its support to a 24/7 availability of the contact points. Assistance Programme against Trans- judicial cooperation. Based on the find- Lastly, the EJN should develop a national Organized Crime (EL PAc- ings of the evaluation, the report sets out broader awareness strategy to pro- CTO) and Eurojust, that was held on an Action Plan with different activities mote the work of the network by, for 5 March 2021, the partners agreed to to be taken by the EJN contact points, instance, producing awareness-raising expand their cooperation by establish- national correspondents, and the EJN material, promoting the insertion of ing Contact Points to assist with judicial secretariat. the EJN website into the intranet pages cross-border cooperation. Hence, Con- In order to improve the cooperation of the judicial authorities, and more tact Points will be established in Costa on cases, the Action Plan recommends strongly using the EJN reporting tool Rica, the Dominican Republic, Ecuador, the establishment of a catalogue of best for EJN cases. (CR) El Salvador, Guatemala, Honduras and practices on the handling of EJN cases, Panama providing for support in inter- including an illustration of the EJN national cases. (CR) case cycle to be developed by the EJN Frontex secretariat. In addition, the report con- Liaison Prosecutors for Albania cludes that cooperation with EJN con- Study on AI-Based Capabilities and Switzerland at Eurojust tact points in third countries and other for Border Security Two new Liaison Prosecutors took up judicial networks should be reinforced On 26 March 2021, Frontex published their positions at Eurojust. through, for instance, further working its final report on Artificial Intelligence At the end of January 2021, Ms Fat- agreements, Memoranda of Under- (AI)-based capabilities for border and jona Memcaj started her work as firstLi - standing, and meetings. EU countries coast guard applications. It presents the aison Prosecutor for Albania at Eurojust. with a lower response rate on opera- main findings of a study commissioned Prior to taking this position at Eurojust, tional cases should be addressed more by Frontex in 2019. Ms Memcaj served as an appellate pros- intensively. Proper allocation of cases The report provides a characterisation ecutor at the dedicated prosecution of- between the EJN and Eurojust should of the evolving landscape of AI-based fice of the Court of Appeals of Tirana, be further promoted. capabilities in border security. It maps where she dealt with topics including To improve the functioning of the the technology, capability areas, and mutual legal assistance and extradition. EJN and the engagement of the con- border security functions to which AI At the beginning of February 2021, tact points, national correspondents may be applied. In addition, it outlines Mr Sébastien Fetter started as Liai- are asked to regularly review the nomi- the current and desired capability levels son Prosecutor for Switzerland. Before nated contact points for their countries for nine selected technology areas, as taking up his new position, Mr Fetter in order to ensure adequate representa- well as the pathways for their adoption. served as a prosecutor specialising in tion, with a view to regional and pro- These technology areas include: cybercrime at the Public Prosecutor’s fessional balance. Furthermore, the na-  Automated Border Control (ABC); Office (PPO) of the canton of Vaud and tional correspondents and the national  Maritime domain awareness; as a senior lecturer at the University of authorities should closely observe the  Machine learning optimisation; Lausanne. Mr Fetter replaces Ms Tanja EJN guidelines on appointing contact  Surveillance towers; Bucher who had held the position since points to make sure that suitable can-  Heterogeneous robotic systems; 2019. (CR) didates are selected. Additionally, na-  Small unmanned aerial systems tional authorities should allocate suffi- (sUAS); cient time for the contact points to fulfil  Predictive asset maintenance; European Judicial Network (EJN) their tasks. The list of contact points on  Object recognition; the EJN website should be improved  Geospatial data analytics. Final Report on EJN Peer Evaluation by supplementing and streamlining the In addition, the report looks at cross- At the end of March 2021, the EJN pub- information on regional competence, cutting enablers of and barriers against lished the final report outlining the out- specialisation, and availability of the adoption of AI-based capabilities in come of its peer evaluation. The peer contact points, including photos. More border security, and it reflects on the evaluation is based on contributions regional and national meetings could implications of the new technology for and input from the EJN contact points provide added value for the functioning Frontex. Several annexes and tables in the EU Member States, EU candidate of the network in the various countries/ complement the report. (CR)

eucrim 1 / 2021 | 17 NEWS – European Union

Vacancies Published crime and return. Building up on the Sta- „„Ensuring clear communication of On 24 March 2021, Frontex published tus Agreement that was agreed between these systems to staff and team - mem three vacancy notices: recruitment of a the EU and Albania in 2019 and that bers, including mandatory training ses- Deputy Executive Director for Returns allowed for the deployment of Frontex sions; and Operations, a Deputy Executive Di- officers to Albania, the renewed agree- „„Immediate recruitment of 40 Fun- rector for Standing Corps Management, ment also includes the exchange of in- damental Rights Monitors (action sup- and a Deputy Executive Director for formation and best practices in the area posed to have been accomplished by European Border and Coats Guard In- of border management and return. (CR) 5 December 2020). formation Management and Processes. Additionally, Frontex shall submit a (CR) Conclusions from the Final Report proposal for the establishment of a trans- on Operations in the Aegean Sea parent process to follow-up on serious Working Arrangement with EMSA and On 5 March 2021, the Management incident reports concerning potential EFCA Signed Board of Frontex met to discuss the find- violations of fundamental rights. The On 18 March 2021, Frontex, the Euro- ings of the final report provided by the Frontex Management Board will moni- pean Maritime Safety Agency (EMSA), Working Group on Fundamental Rights tor the implementation of the report’s and the European Fisheries Control and Legal Operational Aspects of Oper- findings. (CR) Agency (EFCA) signed a new working ations in the Aegean Sea. The report crit- arrangement, in order to further enhance icizes, inter alia, Frontex’s monitoring, First Hearing of the European their cooperation. The arrangement de- recruitment, and reporting procedures. Parliament Scrutiny Working Group fines the precise forms of cooperation Of the 13 incidents investigated, eight On 4 March 2021, the European Par- between the agencies, with the aim of were resolved to the effect that no third- liament Scrutiny Working Group on supporting national authorities carrying country nationals were turned back in Frontex (FSWG) held its first hearing to out coast guard functions at the national, violation of the principle of non-refoule- discuss the implementation of the funda- Union, and (where appropriate) interna- ment. Regarding the remaining five in- mental rights provisions of the last Fron- tional levels. cidents, however, the facts could not be tex mandate; to review the investigation Forms of cooperation set out in the clarified beyond doubt. related to the agency’s activities in the arrangement include: In consequence, the Management Aegean Sea; to debate the interpretation  Sharing, fusing, and analysing in- Board used the report to call on Frontex of applicable rules for the surveillance formation available in ship reporting to revise its own reporting system in or- of the external sea borders; and to clarify systems and other information sys- der to make it more efficient. Proposals the political scrutiny role of the Europe- tems hosted by or accessible to the to improve the system include: an Commission over Frontex. agencies; „„Clear documentation of the allocation Frontex informed the FSWG about  Providing surveillance and communi- of responsibilities within the agency to the agency’s plan to employ a new Fun- cation services based on state-of-the- ensure that all staff and the members damental Rights Officer from March art technology; of the Frontex Management Board can onwards and also noted that 15 of the  Capacity-building; fully exercise their duties; planned 40 Fundamental Rights Moni-  Enhancing the exchange of informa- „„Setting minimum requirements for tors had been recruited. tion and cooperation on coast guard the qualification of experts in the Fron- The FSWG was established in Janu- functions; tex Situation Centre (FSC); ary 2021 following a decision by the  Capacity-sharing. „„Ensuring serious incident reports con- Civil Liberties Committee to better The arrangement also contains specif- cerning alleged violations of fundamental monitor the agency, including its com- ic rules on cooperation for specific pur- rights are always reported to, and assessed pliance with fundamental rights. The poses referring to the relevant Directives by, the Fundamental Rights Officer; group consists of 14 MEPs, two per po- and Regulations as well as provisions on „„Providing that every operational plan litical group. (CR) governance, data protection, and funda- should include a transparent reporting mental rights. (CR) mechanism; Public Access to Documents „„Establishing a systematic monitoring In 2019, Statewatch filed a complaint Cooperation with Albania of the above reporting mechanism; to the European Ombudsman concern- On 17 March 2021, Frontex and Albania „„Clarifying the relationship between ing Frontex. The complaint concerned signed a renewed working agreement to systems to protect whistle-blowers and Frontex’s alleged non-compliance with strengthen their cooperation in border exceptional reporting of serious inci- EU rules on public access to documents, management to better fight cross-border dents; the lack of information about sensitive

18 | eucrim 1 / 2021 Specific Areas of Crime / Substantive Criminal Law

documents in its annual reports, and the The opinion also includes a compara- „„Lack of legal basis for the mechanism agency’s policy to not provide access tive table that details the precise word- in the Treaties; to public documents to non-EU citizens ing the Management Board proposes „„Interference with the competence of residing outside the EU. On 3 February for the list of thematic areas in the next the Member States; 2021, the European Ombudsman closed MAF. Furthermore, a summary of the „„Disbursement of EU funds can only the case with the following conclusions: results achieved through the consulta- be linked to objective and concrete con- „„Concerning access to public docu- tion of stakeholders (held between 21 ditions unequivocally established in a ments, Frontex agreed to update its pub- December 2020 and 15 January 2021) is regulation; lic register of documents. Furthermore, included in an annex. (CR) „„Infringement of the principle of legal the Agency agreed to publish the num- certainty. ber of sensitive documents it holds that At the same time, MEPs fiercely criti- are not included in its public register. cised the Commission for not having ap- „„Regarding requests for access from Specific Areas of Crime / plied the mechanism in order to protect non-EU citizens not residing in the EU, Substantive Criminal Law the EU budget against rule of law breach- the Ombudsman found no maladminis- es. In a plenary debate of 11 March 2020 tration in the agency’s approach to deal- Protection of Financial Interests with Budget Commissioner Johannes ing with such requests on a case-by-case Hahn, MEPs took the view that the basis. (CR) Disputes over Budget Conditionality regulation on the conditionality mecha- Mechanism nism remained untouched and has been On 11 March 2021, Poland and legally binding since 1 January 2021. In spot Agency for Fundamental Rights (FRA) Hungary filed an action with the contrast, the European Council conclu- light CJEU seeking legal review of sions on this matter do not carry any le- FRA Management Board’s Opinion the so-called conditionality mechanism. gal effect. MEPs urged the Commission on Multiannual Framework Under this mechanism, which was to immediately act as guardian of the On 24 February 2021, the FRA Manage- agreed in December 2020 in the wake of Treaties and to activate the mechanism ment Board published its opinion on a the agreement on the EU’s record budget without delay. Mr Hahn countered that new Multiannual Framework (MAF) for the upcoming years, payments to an the Commission will apply the mecha- 2023–2027 for the agency. EU Member State may be cut or frozen nism only after work on the guidelines The Management Board proposes if that country breaches principles of the has been completed, which will also take seven key amendments for the Commis- rule of law (eucrim 3/2020, 174–176). into account a possible CJEU ruling. sion to be considered when proposing To ensure that the mechanism would not On 25 March 2021, MEPs adopted a the new MAF: completely fail because of the veto of resolution in which they urge the Com- „„Clarifying the thematic area of “judi- Poland and Hungary, the European mission to immediately start investiga- cial cooperation”; Council agreed on a compromise: Hun- tions of possible breaches of rule of law „„Adding the thematic areas of “social gary and Poland accepted an “interpreta- principles of a Member State, to apply the inclusion and protection; employment” tive declaration” laid down in the Euro- Conditionality Regulation and to take all as well as “sustainable development” pean Council summit conclusions. appropriate measures to protect the EU and “democratic participation”; Among other things, it was agreed that budget. The resolution reiterates the EP’s „„Revising and widening the thematic no measures be taken on the basis of the viewpoint that any action against the va- area “information society”; regulation until the Commission has fi- lidity of the Conditionality Regulation „„Rephrasing current thematic areas nalised guidelines on the way the condi- before the CJEU has no suspensory effect. where necessary, e.g., with regard to the tionality mechanism will be applied. MEPs insist that the existing rules on chapters on victims of crime and access Furthermore, the Member States can the rule of law cannot be subject to the to justice; migration, borders, asylum, first ask the CJEU to clarify whether the adoption of guidelines. If the Commis- and integration of refugees; rights of the regulation is in line with EU law, and the sion does deem such guidelines neces- child; integration and social inclusion of Commission is obliged to incorporate sary, it must draft them by 1 June 2021 Roma; any elements stemming from a potential and consult the EP prior to their adop- „„Stressing cross-cutting obligations CJEU judgment. tion. If the Commission does not fulfil and activities in the preamble of the According to media reports, Poland its obligations, the EP will consider the MAF, underlining that the FRA is nei- and Hungary oppose the conditionality launch of legal action for failure to act ther obliged nor expected to deal with all mechanism, inter alia, on the following before the CJEU pursuant to Art. 265 thematic areas to the same extent. grounds: TFEU. (TW)

eucrim 1 / 2021 | 19 NEWS – European Union

AG Gives Opinion on Compatibility of judicial reform and the fight against Money Laundering of National Constitutional Court’s corruption. Decisions with PIF Obligations Specifically regarding the obligations Commission: Germany, Portugal, and On 4 March 2021, Advocate General arising from Art. 325(1) TFEU to coun- Romania Failed to Correctly Transpose (AG) Michal Bobek delivered his opin- ter illegal activities affecting the EU’s fi- 4th AMLD ions on cases referred by Romanian nancial interests, AG Bobek clarified the In February 2021, the Commission for- courts, in which doubts were voiced elements that must be taken into account mally initiated infringement procedures over the compatibility of decisions ren- in order to assess the effectiveness of against Germany, Portugal, and Roma- dered by the Romanian Constitutional the protection these interests. In general, nia for having incorrectly transposed the Court in conjunction with Union law, he noted that “the relevant test should 4th Anti-Money Laundering Directive including Art. 325 TFEU. The Joined simply be whether a national rule, case- (Directive (EU) 2015/849). As an initial Cases C-357/19 and 547/19 (Euro Box law or practice, is liable to compromise, step, the Commission sent a letter of for- Promotion and Others) and the Joined from a normative point of view, and re- mal notice requesting further informa- Cases C-811/19 and 840/19 (FQ and gardless of its actual measurable effect tion to each of the countries. The Com- Others) particularly concern the impact in terms of the number of cases affected, mission stressed that it will not tolerate of three Constitutional Court decisions: the effective protection of the financial legislative gaps that may have an impact „„In 2018, the Constitutional Court of interests of the Union.” on the effective fight against crime and Romania held that some panels of the Against this background, the AG the protection of the financial system. Romanian High Court of Cassation and concluded that the 2018 decision of the The Commission alleges that the Justice (HCCJ), the national supreme Romanian Constitutional Court did not countries have not addressed fundamen- court, were not properly composed. compromise the effective protection of tal aspects of the anti-money laundering This enabled some parties to criminal the EU’s financial interests. He argued, framework, including: proceedings involving corruption and inter alia, that the decision did not un- „„The proper exchange of information abuse of office to introduce extraordi- dermine the legal instruments enabling with Financial Intelligence Units (FIUs); nary appeals; the fight against corruption and that the „„Requirements of customer due dili- „„In 2016, the Constitutional Court de- motivation for this decision relied on gence; clared the participation of domestic in- fundamental rights protection. „„The transparency of the central ben- telligence services in technical surveil- Similarly, Union law does not pre- eficial ownership registers. lance measures for the purposes of acts clude a decision by which evidence Germany, Portugal, and Romania of criminal investigation to be uncon- obtained by technical surveillance mea- have two months to provide a satisfac- stitutional. This led to the exclusion of sures is excluded from criminal proceed- tory reply to the points raised by the such evidence in criminal proceedings; ings. EU law does not regulate the man- Commission. Otherwise, the Commis- „„In 2019, the Constitutional Court ner in which investigative measures are sion may launch the second step of the ruled that the HCCJ failed to comply carried out. The fact that a constitutional infringement procedure by addressing a with its legal obligation to establish spe- decision has repercussions for ongoing reasoned opinion to the countries. (TW) cialised panels to deal with corruption or future criminal proceedings relating cases at first instance. As a result, cases to corruption is a necessary and logical AG: Union Law Allows Punishment involving corruption connected with EU consequence. of Self-Laundering funds, which had already been adjudi- Ultimately, the AG took a different In his Opinion of 14 January 2021 in cated, had to be re-examined. stance as regards the 2019 decision de- Case C-790/19 (LG and MH (Auto- The HCCJ and the Regional Court of claring unlawful the composition of pan- blanchiment)), Advocate General Hogan Bihor, Romania, were unsure whether els of the HCCJ not specialised in cor- held that Union law does not preclude the Constitutional Court decisions are ruption. An infringement of Art. 325(1) the interpretation of a national provision compatible with certain provisions TFEU is possible if such a finding is liable which criminalises so-called self-money and principles of EU law, in particular to give rise to a systemic risk of impunity laundering. The case specifically con- Art. 325(1) TFEU and the PIF Conven- regarding offences affecting the EU’s fi- cerns the interpretation of Art. 1(2) lit. tion, Art. 47 of the Charter of Funda- nancial interests. The AG considers that a) of Directive 2005/60/EC on the pre- mental Rights, Art. 19(1) TEU, and the requirements of Art. 325(1) TFEU are vention of the use of the financial sys- Decision 2006/928/EC establishing a not maintained because serious concerns tem for the purpose of money laundering mechanism for cooperation and veri- might be raised regarding the generally and terrorist financing. This Directive is fication of progress in Romania to ad- perceivable or expected practical conse- applicable in the case at issue and es- dress specific benchmarks in the areas quences of the decision at issue. (TW) tablished the following obligation for

20 | eucrim 1 / 2021 Specific Areas of Crime / Substantive Criminal Law

Member States – an obligation that has of money laundering to persons who same criteria; the process of establish- been taken over in subsequent anti-mon- committed the predicate offence. ing the list must be formalised through ey laundering directives that replaced Ultimately, the principle of ne bis in a legally binding instrument by the end Directive 2005/60: “As money launder- idem as provided in Art. 50 CFR does of 2021; ing shall be regarded … the conversion not speak against the result. The activi- „„EU Member States which have tax or transfer of property, knowing that ties of conversion and transfer of illic- avoidance schemes in place must be reg- such property is derived from criminal itly obtained assets and their conceal- ularly evaluated and urged to implement activity or from an act of participation in ment and disguise through the financial recommendations. such activity, for the purpose of conceal- system clearly constitute an additional MEPs also called on the Commission ing or disguising the illicit origin of the criminal act distinguishable from the to put forward a legislative proposal for property or of assisting any person who predicate offence (here: tax evasion). coordinated defensive measures against is involved in the commission of such These laundering activities, moreover, tax avoidance and evasion. The EU’s activity to evade the legal consequences cause additional or a different type of policy towards non-cooperative tax ju- of his action.” damage than that already caused by the risdictions has been a constant issue of This provision was transposed ver- predicate offence. (TW) debate between the European Parlia- batim into Romanian law and the pre- ment, the Commission, and the Council scribed conduct made punishable by a (eucrim 1/2018, 16; eucrim 1/2020, prisons sentence between 3 to 12 years. Tax Evasion 18). (TW) The referring Romanian court wishes to know whether the person who commits EP Calls on Reform of EU Blacklist ECA: EU Exchange of Tax Data System an act which constitutes the offence of on Tax Havens Yet Insufficient to Prevent Tax Evasion money laundering within the meaning By an overwhelming majority of 587 On 26 January 2021, the European Court of this definition in Art. 1(2)(a) of Direc- votes in favour (50 against and 46 ab- of Auditors (ECA) published its Special tive 2005/60 may also be the person who stentions), MEPs adopted a resolution on Report 03/2021 on the exchange of tax committed the predicate offence (the act reforming the EU list of tax havens. The information in the EU. The underlying from which the money to be laundered is resolution backs a motion from Decem- tool is the Directive on administrative derived). The case in question concerns ber 2020 prepared by the Economic and cooperation in the field of taxation (Di- LG’s conviction for money laundering Monetary Affairs Committee ( eucrim rective 2011/16/EU), which has been because he transferred funds stemming 4/2020, 282). In view of the fact that the amended several times in the recent from tax evasion to a company account current list only covers less than 2% of years to widen its scope. The ECA car- and then withdrew them. worldwide tax revenue losses (accord- ried out audits in five Member States The Advocate General is of the opin- ing to a 2020 tax justice report eucrim between 2014 and 2019: Italy, the Neth- ion that neither the wording of the said 4/2020, 281), MEPs reiterated their call erlands, Poland, Spain and, Cyprus. For provision of Directive 2005/60 nor the that the EU’s existing listing system is this purpose, the ECA examined, firstly, objective of the Directive exclude the “confusing and ineffective.” The resolu- how the Commission is monitoring the criminalisation of self-laundering. How- tion of 21 January 2021 makes several implementation and performance of the ever, it was in principle open to Ro- demands for a new approach: tax information exchange system. Sec- mania to provide such an offence in its „„The criterion of whether a country’s ondly, the ECA looked at how Member national law since the legal basis of the tax system is fair or not should not only States are using the information ex- Directive comes from provisions of the be based on preferential tax rates but changed and how they are measuring the EC Treaty that aim to ensure the proper needs to include other harmful tax prac- effectiveness of the system. functioning of the internal market; thus, tices; The ECA found that the exchange of the enactment of penal legislation by the „„Countries with a 0% corporate tax tax information between Member States Member States is not required (but also rate policy or with no taxes on company was not yet sufficient to ensure fair and not excluded). The international context profits should automatically be placed effective taxation throughout the internal – namely the FATF Recommendations on the blacklist; market. Although the system has been and the 1990 Council of Europe (CoE) „„Removal requirements must be more set up in an appropriate manner, there is Convention on money laundering – also stringent; countries that only make token still a need for action in terms of moni- indicate that self-laundering could be tweaks should remain on the list; toring, ensuring data quality, and using criminalised. Both the Recommenda- „„The EU must remedy the lack of the information received. In particular, tions and the Convention empower transparency: all third countries need to the auditors criticise that the information states to also apply the criminal offence be treated and screened fairly using the exchanged was often of limited quality.

eucrim 1 / 2021 | 21 NEWS – European Union

Therefore, the ECA recommends the ish treasury to lose an estimated €17.8 were discovered per 1 million genuine Commission to extend the scope of the million in tax. Twelve suspects were ar- banknotes in circulation in 2020. Com- EU’s legal framework and to strengthen rested; it is possible that the ringleader is pared to 2019, this represents a decrease its monitoring activities and guidance. amongst them. (CR) of 17.7%. €20 and €50 banknotes were Moreover, Member States should make again the most counterfeited: around better use of the information they re- MTIC Scheme Dismantled two-thirds of all counterfeits were of ceive. Gaps in the exchange of tax data On 10 February 2021, Dutch tax au- these two denominations. 94.5% of euro in the EU could provide an incentive for thorities, in cooperation with law en- counterfeits were detected in euro area tax avoidance and evasion. (TW) forcement and judicial authorities from countries, 2.8% in EU Member States four EU Member States and supported outside the euro area and 2.7% in the Council Adopts Amendments to by Eurojust and Europol, smashed an rest of the world. The ECB concludes Administrative Tax Cooperation illegal VAT scheme that involved the that euro banknotes remain a reliable Directive purchase and sale of Secure Digital (SD) and safe means of payment. On 22 March 2021, the Council adopted memory cards. By using a complex On the occasion of the annual report amendments to Directive 2011/16/EU missing trader intra-community (MTIC) on euro counterfeiting, the ECB points on administrative cooperation in the fraud scheme, the criminal network de- out that all euro banknotes can easily field of taxation. The amendments (laid frauded the Dutch treasury of an esti- be checked for authenticity by using the down in Directive (EU) 2021/514, O.J. mated €9 million. (CR) “feel, look and tilt” method as described L 104, 25 March 2021, p. 1) aim at im- in the dedicated section of the ECB’s proving administrative tax cooperation Hit Against “Dieselising Lubricants” website and on the websites of the na- and countering tax fraud/tax evasion. In January 2021, German authorities, tional central banks. In addition, the Eu- They implement the results of an assess- supported by eleven European countries rosystem helps professional cash han- ment cooperation scheme carried out by and Eurojust, revealed a major tax swin- dlers ensure that banknote-handling and the Commission in 2019. The amend- dle involving sales of fuel that allegedly processing machines can reliably detect ments include, inter alia: defrauded German tax authorities of ap- and withdraw counterfeits. The Euro- „„Standardised reporting requirements proximately €8 million. system also supports law enforcement for digital platforms as regards income The so-called “dieselising lubricants” agencies in their fight against currency earned through trade via these platforms; criminal scheme involved suspects pre- counterfeiting. The ECB adds that bank- „„Automatic exchange of this income tending to sell solvents and anti-corro- note integrity is continuously improv- information among the Member States; sion agents or liquids exempt from en- ing: the second series of banknotes – the „„Facilitated information exchange on ergy taxation while, in reality, they were Europa series – is even more secure and groups of taxpayers; selling products containing high quanti- is helping to maintain public trust in the „„Improved rules on simultaneous con- ties of diesel and petrol fuels that are not currency. (TW) trols and the presence of officials in an- exempt from energy taxation. other Member State during an enquiry; As a result of this operation, two of „„New framework for joint audits. the alleged leaders of the criminal net- Organised Crime In a legislative resolution of 10 March work involved were arrested. (CR) 2021, the European Parliament request- Dismantled Encryption Networks: ed a number of additional improvements German Courts Confirmed Use of regarding the text of the new Directive Counterfeiting & Piracy Evidence from EncroChat Surveillance amending Directive 2011/16. The EP Two German courts – the High- spot was only consulted in this matter, how- Number of Counterfeit Euro Banknotes er Regional Court of Bremen light ever, and its statements are not binding at Record Low in 2020 and the Higher Regional Court for the Council. (TW) On 22 January 2021, the European Cen- of Hamburg – confirmed warrants for tral Bank (ECB) reported that in 2020, pre-trial detention against persons whose Fraudulent VAT Scheme Involving around 460,000 counterfeit euro bank- criminal activities had been revealed as Vegetable Oil Dismantled notes had been withdrawn from circula- a follow-up of the infiltration of the en- On 18 February 2021, Polish and German tion – fewer than ever before. Compared crypted communication network Encro- authorities dismantled an international to the total number of banknotes in cir- Chat. The dismantling of EncroChat has VAT fraud scheme with the support of culation of over 25 billion, the number been celebrated by law enforcement au- Europol. The scheme, which concerned of counterfeits remains very low. Ac- thorities as one of the largest strikes the vegetable oil trade, caused the Pol- cording to the report, 17 counterfeits against organised crime in recent years.

22 | eucrim 1 / 2021 Specific Areas of Crime / Substantive Criminal Law

On 2 July 2020, Europol and Eurojust France, and the Netherlands have been sectors and is now considered a risk to informed the public that a joint investi- able to monitor the information flow the general public. Serious violence gation led by French and Dutch law en- of approximately 70,000 users of Sky does not exclusively affect criminals but forcement authorities enabled the inter- ECC. Many users of EncroChat changed also non-criminals including those en- ception, sharing, and analysis of millions over to the popular Sky ECC platform, gaged in tackling the criminal activities. of messages that were exchanged be- after EncroChat was unveiled in 2020. Challenges that law enforcement tween criminals via the encrypted phone Europol supported the operations by co- agencies face are detailed in the report network provided by EncroChat. Since ordinating the law enforcement activi- and include, for instance, a range of vio- 2017, the French Gendarmerie and judi- ties of the JIT partners and by helping lent techniques, tactics, and procedures cial authorities have been investigating analyse the data. Eurojust facilitated ju- that OCGs use to stymie investigations phones that used the secured communi- dicial cooperation and coordinated Eu- Furthermore, homicides in this context cation tool EncroChat, after discovering ropean Investigation Orders. (TW) are often perceived as isolated events that the phones were regularly found in with the underlying criminal activity of- operations against organised crime Invoice Mill Dismantled ten not apparent. groups and that the company was oper- During an action day conducted on The report recommends embracing ating from servers in France. French po- 2 March 2021, Hungarian authorities a step-by-step comprehensive approach lice put a technical device in place to go were supported by Europol in disman- that focuses on detection and deterrence beyond the encryption technique and tling an organised criminal group (OCG) rather than a one-way approach that were thus able to access the users’ cor- suspected of facilitating VAT fraud and only focuses on dismantling individual respondence. Between April and June money laundering that caused a more groups and confiscating their assets. 2020, the authorities were able to read than €8.2 million tax loss to the Hungar- (CR) the chat messages of thousands of users ian state budget. in real time. Through so-called “invoice mills,” Although Germany was seemingly the OCG generated fictitious invoic- Cybercrime not involved in the initial joint investi- es, fictitious contracts, and involved gation, the surveillance brought to light “missing traders.” Missing traders are Germany: Plans for Punishing Criminal a bulk of data that led to follow-up crim- persons commissioned to perform ser- Trading Platforms on the Internet inal investigations in other European vices without the necessary means to On 10 February, the German Federal countries. The decision of the Higher perform them; they were based in Hun- Government passed a draft law on the Regional Court of Bremen (handed gary and Croatia and received transfers criminal liability of operating criminal down in December 2020) and the de- of money on a monthly basis from ben- trading platforms on the internet and cision of the Higher Regional Court eficiary companies that issued fictitious providing corresponding server infra- of Hamburg (handed down in January invoices. Criminal proceeds were then structures. To this end, a new provi- 2021) in two separate cases confirm that returned in cash to the companies. The sion is to be included into the German the collection of evidence by French operation resulted in the arrest of nine Criminal Code. Anyone who operates a authorities can also be used in German suspects, including the alleged leader of trading platform on the internet whose criminal proceedings if the interception the OCG. Europol pointed out that the purpose is to enable or promote the com- of the surveillance reveals criminal ac- modus operandi of “invoice mills” is be- mission of certain illegal acts, such as tivities from persons residing in Germa- coming increasingly common in the EU. child pornography, trafficking in drugs ny (in the cases at issue: drug trafficking (CR) and weapons, or dealing in stolen data, offences). The information was lawfully is to be liable to a custodial sentence made available to the German Federal The Use of Violence by Organised of up to five years or a fine. Likewise, Police Office via the exchange of spon- Crime Groups anyone who knowingly or intentionally taneous information and intelligence in On 28 January 2021, Europol published provides server infrastructures for corre- accordance with Framework Decision a spotlight report on the use of violence sponding trading platforms is to be pun- 2006/960/JHA. by organised crime groups. Violence by ished. If the trading platform is operated On 10 March 2021, Eurojust and Eu- organised crime groups (OCGs) is of on a commercial or gang basis or if the ropol reported another successful strike growing concern in the EU with an in- perpetrator knows that crimes are being against an encrypted communication creasing number of cases submitted to enabled or promoted by the platform, the network that was predominantly used by Europol. penalties are higher. organised crime groups. As of mid-Feb- OCG-related violence appears to be In addition to the introduction of ruary 2021, authorities from Belgium, increasingly affecting a range of social the new offence, effective investiga-

eucrim 1 / 2021 | 23 NEWS – European Union tion possibilities are to be created. For international cybersecurity standards as itoring of proposals presented under the this purpose, the qualifying offences, well as the EU’s cybersecurity certifica- Cyber Security Strategy. The Council which require acting on a commercial tion schemes; will monitor progress in implementing or gang basis or the targeted promotion „„Swift completion of the EU’s 5G the conclusions through an action plan. of crimes, are to be included in the cata- toolbox with measures that guarantee (TW) logue of offences for which telecommu- the security of 5G networks; nications surveillance, online searches, „„Enhancement of international coop- EDPS Provides Opinion and traffic data collection is allowed. In eration to combat cybercrime, including on Cybersecurity Directive the view of the German government, the the exchange of best practices and tech- On 11 March 2021, the EDPS published new criminal law regulations are neces- nical knowledge and support for capac- its Opinion 5/2021 on the Proposal of sary because the existing rules on aiding ity building; 16 December 2020 for a Directive on and abetting have often proven insuffi- „„Possible establishment of a Mem- measures for a high common level of cient against this criminal phenomenon. ber States’ cyber intelligence working cybersecurity across the Union, repeal- (TW) group in order to strengthen the EU In- ing Directive (EU) 2016/1148 (eucrim telligence Analysis Centre’s (EU-INT- 4/2020, 282). Council Conclusions on Cybersecurity CEN’s) work as a hub for situational The current EU Network and Infor- Strategy awareness and threat assessments on mation Security Directive 2016/1148 On 22 March 2021, the Council adopted cyber issues; (the NIS Directive) of 6 July 2016 conclusions on the EU’s cybersecurity „„Increasing the effectiveness and the concerns measures for a high common strategy. The new cybersecurity strat- efficiency of the cyber diplomacy tool- security level of network and informa- egy for the digital decade was jointly box, which should devote special atten- tion systems across the Union, with the presented by the Commission and the tion to preventing and countering cyber- aim of improving the functioning of the High Representative for Foreign Affairs attacks having systemic effects; internal market. To this end, it obliges and Security Policy in December 2020 „„Strengthened cooperation with in- Member States to: (eucrim 4/2020, 282). It provides a ternational organisations and partner „„Adopt a national strategy on the se- framework for EU action to protect citi- countries in order to advance the shared curity of network and information sys- zens and businesses from cyber threats, understanding of the cyber threat land- tems and to designate tasks related to promote secure information systems, scape. the security of network and information and protect a global, open, free, and se- As regards law enforcement coop- systems to national competent authori- cure cyberspace. eration, the conclusions stress the need ties, single points of contact, and Com- The Council stressed that cybersecu- to improve the capacity of law enforce- puter Security Incident Response Teams rity is essential for building a resilient, ment and judicial authorities to inves- (CSIRTs); green, and digital Europe. In particular, tigate and prosecute cybercrime. This „„Create a cooperation group to sup- it is about achieving strategic autonomy must include facilitated cross-border port and facilitate strategic cooperation to strengthen the EU’s digital leadership. access to electronic evidence, which and the exchange of information among The conclusions highlight a number of must respect due process and other Member States; areas for action in the coming years, e.g.: safeguards. The Council also reaffirms „„Create a CSIRTs network to develop „„Regular and structured exchanges its support for the development, imple- trust and confidence between Member with multiple stakeholders, including mentation, and use of strong encryption States and to promote swift and effective the private sector, academia, and civil as a necessary means of protecting fun- operational cooperation; society organisations; damental rights and the digital security „„Establish security and notification re- „„Swift establishment and implementa- of individuals, businesses, and govern- quirements for operators of essential ser- tion of the European network of cyber- ments. At the same time, the competent vices and for digital service providers. security centres; authorities in the areas of security and An impact assessment conducted „„Creation of security operation cen- criminal justice must be able to obtain by the European Commission in 2020, tres in the EU Member States, which are access to data in a lawful and targeted however, showed that the NIS Directive enabled to further monitor and anticipate manner. has limitations, e.g., a residual low cyber signals of attacks on networks; Next steps: The Council encourages resilience level of businesses operating „„Definition of a joint cyber unit that the Commission and the High Repre- in the EU, inconsistent resilience across would contribute to the EU’s cybersecu- sentative to establish a detailed imple- Member States and sectors, a low level rity crisis management; mentation plan in order to ensure the of joint situational awareness, and a lack „„Engagement in the development of development, implementation, and mon- of joint crisis response.

24 | eucrim 1 / 2021 Specific Areas of Crime / Substantive Criminal Law

Hence, the Proposal of 16 December dangerous force in the world of cyber- tal investigations (where a diverse range 2020 has a threefold aim: crime. of specialised national administrative „„To increase the level of cyber resil- To disrupt the EMOTET infrastruc- authorities are in charge). ience of a comprehensive set of busi- ture, law enforcement and judicial au- Following its findings, the report rec- nesses operating in the EU across all thorities gained control from the inside ommends the following: relevant sectors; and redirected victims’ infected ma- „„Competent administrative, law en- „„To reduce inconsistencies in resil- chines towards their own, controlled in- forcement, and judicial authorities ience across the internal market in the frastructure. (CR) should strive for multidisciplinary coop- sectors already covered by the NIS Di- eration; rective; „„Environmental crime should be rec- „„To improve the level of joint situ- Environmental Crime ognised as organised crime; ational awareness and the collective ca- „„Environmental crime cases should be pability to prepare and respond to cyber- Eurojust Report on Environmental Crime prioritised; security challenges. On 29 January 2021, Eurojust published „„International coordination and coop- The EDPS welcomes the aims of a Report on Eurojust’s Casework on En- eration tools such as Joint Investigation the Proposal of 16 December 2020 in vironmental Crime. The report provides Teams and early involvement of Euro- addressing a wider set of entities than an overview of the legal and operational just should be increasingly used; the NIS Directive and in introducing challenges that arise in such cases and „„Key concepts of environmental crim- stronger security measures, including is based on experiences encountered in inal law need to be further harmonised mandatory risk management, minimum nearly 60 cross-border environmental and more consistently interpreted across standards for these measures, and rele- criminal law cases that were referred the EU Member States; vant supervision and enforcement provi- to Eurojust in the period from 2014 to „„The penalties for environmental sions. To achieve a fully comprehensive 2018. The casework report is primarily crime should also be more uniform and approach, however, the EDPS recom- aimed at members of public prosecution dissuasive. (CR) mends explicitly including Union in- services and the judiciary in EU Mem- stitutions, offices, bodies, and agencies ber States that deal with cross-border into the scope of the legislative act. environmental crime. Racism and Xenophobia The EDPS does not expect the pro- In the aforementioned period, a total posal to affect the application of exist- of 57 environmental law criminal cases Terrorist Online Content: Council ing EU laws governing the processing were registered by Eurojust. The types Agrees on Regulation – Criticism of personal data but instead effectively of environmental crimes that were regis- from NGOs complement them. Therefore, the EDPS tered included: Following the provisional agreement calls for a clear definition of the term „„Trafficking in waste; between the Council and the European “cybersecurity” in the proposal and rec- „„Trafficking in wildlife species; Parliament in December 2020 on a new ommends clearly outlined mechanisms „„Air pollution; regulation addressing the dissemination for involvement of the EDPS, the Euro- „„Illegal trade in hazardous chemicals; of terrorist content online (eucrim pean Data Protection Board, and compe- „„Hazardous contamination of food; 4/2020, 284–285), the Council ap- tent authorities of the regulatory actors. „„Illegal construction works and related proved the text on 16 March 2021. The (CR) issues. regulation will lay down a harmonised „„Furthermore, environmental crimes legal framework that sets out the obli- EMOTET Disrupted are often accompanied by other forms of gations for hosting service providers At the end of January, under the coordi- crime, e.g., organised crime, fraud, doc- to effectively and swiftly detect and nation of Eurojust and Europol, law en- ument forgery, and money laundering. remove online terrorist content from forcement and judicial authorities world- In addition to these statistical data, their platforms. On 18 March 2021, wide disrupted EMOTET, a malware the report also identifies a number of the Commission issued a communica- programme that acts as an unauthorised legal and operational challenges when tion that outlined the main changes door opener for computer systems on combating environmental crime, such made by the Council and the EP to the a global scale. A “unique feature” of as insufficient specialised knowledge Commission’s initial proposal of 2018 EMOTET is that it is offered for hire to and practical experience, different leg- (eucrim 3/2018, 97–98). In the end, other cybercriminals to install various islative and investigative approaches the Commission accepted the position types of malware – so-called “loader” in different jurisdictions, as well as the taken by the Council. The EP is ex- operations. This has made EMOTET a multidisciplinary nature of environmen- pected to adopt the Regulation finally

eucrim 1 / 2021 | 25 NEWS – European Union during its plenary session at the end of sion President Ursula von der Leyen. yet other cases, clear conditions limiting April 2021. It points out research and surveys that the dissemination of information are On 25 March 2021, over 60 civil so- indicate the extent and increase of hate lacking. ciety organisations urged MEPs to vote crime and hate speech (including on- Regarding the right to remain silent against the adoption of the regulation. line), as well as the links between the (Art. 7 of Directive 2016/343), the lim- In an open letter, they pointed out that two and the impact on victims and so- ited scope of national measures is also the compromise detailed in the trilogue ciety. The Commission underlines that a compliance issue. Two Member States negotiations “still contains dangerous there is a need for a common criminal do not explicitly guarantee the right not measures that will ultimately weaken law response at the EU level against rac- to incriminate oneself in national law, the protection of fundamental rights in ist and xenophobic hate speech and hate and the case law of their supreme courts the EU. It also has the potential to set a crime. (TW) does not remedy the gap either. In sev- dangerous precedent for online content eral Member States, which have not spe- regulation worldwide.” Their opinion is cifically transposed Art. 7(5) of Direc- based particularly on the following three tive 2016/343 (prohibiting the drawing aspects: Procedural Criminal Law of negative inferences from exercising „„The proposal continues to incentivise the right to remain silent), compliance online platforms to use automated con- Procedural Safeguards is detrimentally affected because general tent moderation tools, such as upload provisions are not sufficient or not broad filters; Commission Implementation Report on enough in scope. „„There is a lack of independent judi- Presumption of Innocence Directive The Commission stressed that its cial oversight; In a report dated 31 March 2021, the report was only able to assess mainly „„Member States are able to issue European Commission points out that the national legislative transposition cross-border removal orders without key provisions of Directive 2016/343 on measures, which were notified to it by checks. (TW) the strengthening of certain aspects of the Member States. In this context, the the presumption of innocence and of the Commission is disappointed that only Commission: Hate Crime Should right to be present at the trial in criminal one Member State (Austria) fulfilled its Become an EU Crime proceedings have been inadequately im- obligation to send data by April 2020 on On 23 February 2021, the Commission plemented in a number of EU Member how the Directive has been additionally published a roadmap for a proposal to States. The Commission is conducting implemented in practice (Art. 11 of the include hate speech and hate crime into seven infringement proceedings against Directive). Hence, the Commission re- the list of EU crimes for which harmoni- EU Member States for not having fully port also draws on publicly available in- sation of substantive criminal law would implemented the provisions of this Un- formation from the EU Agency for Fun- be possible in accordance with Art. 83(1) ion law. It also draws attention to the damental Rights, which published its TFEU. The Commission plans to pre- fact that some Member States have not report on the practical implementation sent an initiative for a Council decision taken specific transposition measures, as of the Directive in parallel on 31 March that would recognise hate speech and they believed that their legislation was 2021 (following news item). In addi- hate crime as EU crimes. Once adopted, already broadly in line with the require- tion, the Commission took into consid- the Commission will have competency ments of the Directive – however, this eration Commission-funded studies by to propose, in a second step, substantive does not mean that national law fully external stakeholders. legislation (i.e., a directive) harmonis- complies with the Directive. Major defi- The report is addressed to the Euro- ing the definition of and penalties for ciencies relate to the prohibition of pub- pean Parliament and the Council, which hate speech and hate crime. Citizens and lic references to guilt and to the right not will further comment on the findings stakeholders were called on to provide to incriminate oneself. on the implementation of Directive feedback by 20 April 2021 as to whether With regard to public references to 2016/343. (TW) the conditions in Art. 83 TFEU for in- guilt (Art. 4 of Directive 2016/343), clusion, i.e., particular seriousness and the Commission criticises that several FRA Report on Presumption of cross-border dimension of the crime, are Member States have limited its scope, Innocence and Right to Be Present – fulfilled. since their national provisions do not More Needs to Be Done in Practice The roadmap states that the fight cover all public authorities or all stages On 31 March 2021, the EU spot against hate crime and hate speech on of criminal proceedings. In other Mem- Agency for Fundamental Rights light grounds of race, religion, gender, and ber States, the article’s practical imple- (FRA) presented its findings on sexuality is a key priority of Commis- mentation appears to be the problem. In how the rights to be presumed innocent,

26 | eucrim 1 / 2021 Procedural Criminal Law to remain silent, and to be present at trial may include codes of ethics/conduct if made outside the strict procedural – as specifically spelled out in Directive and practitioners’ training; framework; 2016/343 – are applied in practice. The yyPromoting diversity among justice yyLikewise, hearsay evidence by police findings are based on 123 interviews professionals so that they are repre- officers on what suspects confessed with defence lawyers, judges, prosecu- sentative of all cultural, social, and or testified should not be accepted as tors, police officers, and journalists in ethnic backgrounds of a given society. evidence; nine EU Member States (Austria, Bel- „„Public references to guilt: yyEvidence should also be excluded if gium, Bulgaria, Cyprus, Germany, Italy, yyOnly press officers should inform the doubts persist as to whether defend- Lithuania, Poland, and Portugal). The media about ongoing cases; ants were properly informed about report aimed at a practice-oriented eval- yyPersonal data and details about the their rights to remain silent and not to uation of the implementation of the Di- private life of defendants should not incriminate themselves; rective in selected Member States that be included; yyExaminations of suspects and ac- represent different legal traditions. The yyInformation leaks should be strictly cused persons by the police should be report covers various aspects of the prohibited and breaches of rules dis- subject to strict guidelines and strict aforementioned rights, e.g., the attitudes suasively sanctioned; judicial assessment; of criminal justice professionals, public yyStates should provide guidance and yyIndirect methods used to pressure references to defendants’ guilt as well as material to the media in order to raise defendants into providing incriminat- defendants’ physical presentation before awareness of the sensitiveness of pre- ing evidence – such as the promise of or during a trial, and rules on the burden senting defendants in public. milder treatment, reduced sentences, of proof. „„Physical presentation of suspects and or shorter proceedings – should never On the positive side, FRA highlights accused persons: be used; that the conduct of criminal proceedings yyRestraints and security measures yyIn this regard, systematic guidance and is generally regulated well in the legal should only be used when needed; training of police officers is needed. orders of the nine Member States. In yyPhotos should only be allowed of un- „„Rights to be present at trial and to a general, considerable efforts are made restrained defendants; new trial: to conduct a new trial if the suspect was yyMember States should provide for yyLegal orders should promote efforts to absent through no fault of his/her own. possibilities to protect defendants ensure that defendants can be present Yet, FRA also stressed that problems in from public view, e.g., use of side at their trials, including, for instance, implementing the necessary safeguards entrances to courtrooms and covering the need for courts to make reasona- persist. In particular, media coverage faces while transported to and into ble efforts to locate defendants whose of the accused is criticised as being too courtrooms. whereabouts are unknown; one-sided, which may contribute to in- „„Burden of proof: yySystems that presume that defendants fluencing (lay) judges and the public. yyMember States should ensure that the have been notified by a summons The presentation of the accused in hand- defence can request investigating and served to their address should take cuffs in the courtroom and/or isolated prosecuting authorities to investigate additional steps to ensure that this placement away from his/her defence specific circumstances and search for presumption is up-to-date, e.g., when lawyer also often suggest/s his guilt, crucial evidence on its behalf, when defendants are in state custody. even though it has not yet been legally justified; In conclusion, the FRA report on Di- established. Regarding the different el- yyMember States should ensure that rective 2016/343 corroborates previous ements of the procedural safeguards set legitimate presumptions of law or findings on other criminal safeguards. out in the Directive, the report makes facts that reverse the burden of proof These studies identified similar short- several recommendations for future im- are limited to the extent necessary in comings in the practical implementation provement: order to ensure the effectiveness of of the EU’s rights accorded to suspects/ „„Equal application of the right to be criminal proceedings and that the pre- accused persons in criminal proceed- presumed innocent: sumptions always possible to rebut. ings, for example regarding how de- yyEnsuring that the presumption of in- „„Rights to remain silent and not to in- fendants are informed about their rights nocence applies equally to all defend- criminate oneself: in criminal proceedings and how access ants, regardless of their ethnic back- yySuspects must be properly informed to a lawyer is ensured (eucrim 3/2019, ground, status, and gender; of their rights and not treated as wit- 174). The FRA report also supported the yyPutting in place effective measures nesses; Commission in the preparation of its against bias and prejudice among po- yySuspects’ confessions and other testi- own implementation report of Directive lice officers, judges, and jurors, which mony must be excluded as evidence 2016/343, which was also published on

eucrim 1 / 2021 | 27 NEWS – European Union

31 March 2020 (previous news item). lar with the right to remain silent and for an offence cannot undermine the va- (TW) the right against self-incrimination. It lidity of the EU measures. Ultimately, it therefore asked whether the correspond- is for the Member States to ensure that CJEU Delivers Landmark Judgment ing EU provisions in the Directive and natural persons cannot be penalised for on Right to Silence in Administrative the Regulation might be invalid. In that refusing to provide such answers to the (Punitive) Proceedings event, the Italian provision cannot be ap- competent authority. On 2 February 2021, the CJEU, plied. hhPut in focus spot sitting in for the Grand Cham- hhFindings of the CJEU The Grand Chamber of the CJEU re- light ber, rendered an important judg- The CJEU emphasised that rights frained from giving effect to a “dimin- ment on the right to remain silent in ad- protected by the Charter should be inter- ished application” of Charter rights in ministrative proceedings if the person’s preted coherently with the correspond- punitive proceedings. It emphasised that answers might also establish his/her pu- ing rights of Art. 6 ECHR. Therefore, it the right to be silent is at the core of the nitive liability. The case is referred to as referred to the principles on the right to right to a fair trial. It can be concluded C-481/19 (DB v Commissione Naziona- remain silent as established by ECtHR from the case that the right to remain le per le Società e la Borsa (Consob)). case law. As a consequence, the authori- silent not only applies in oral hearings hhFacts of the case ties must respect the right to be silent in but also in the production of incrimina- In the case at issue, Mr DB was, in- two situations: tory documentary evidence. The judges ter alia, fined by the Italian National „„In administrative proceedings that in Luxembourg have pulled the ripcord Companies and Stock Exchange Com- may lead to the imposition of adminis- and refused to transfer their more re- mission (Consob) in an administrative trative sanctions of a criminal nature; strictive case-law developed in competi- proceeding for failure to cooperate in „„In administrative proceedings if the tion law (against legal entities) to natural an insider trading investigation. DB evidence obtained in those proceedings persons. The question remains, however, declined to answer questions when he may be used in criminal proceedings whether this distinction can adequately appeared at a hearing before Consob, against that person in order to establish be justified and whether there should because he seemingly knew facts that that a criminal offence was committed. also be a shift to a more liberal inter- alleged he had committed the adminis- The CJEU stated, in that regard, that pretation when it comes to punitive pro- trative offence of insider dealing. Italian its case law relating to the obligation on ceedings against legal entities. Another law penalises anyone who fails to com- legal persons (undertakings) to provide issue will be that the EU legislator must ply with Consob’s requests in a timely information in administrative cartel pro- pay close attention to ensure laws are manner or delays the performance of the ceedings, which also may subsequently compatible with the Charter. The inter- body’s supervisory functions, includ- be used to establish their liability and pretation found by the CJEU is by no ing with regard to persons in respect of lead to fines, cannot be applied by anal- means obvious if one reads the relevant whom Consob alleges an offence of in- ogy to establish the right to silence of provisions in Directive 2003/6 and Reg- sider dealing (Art. 187 quindecies of the natural persons charged with insider ulation 596/14. (TW) Decreto legislativo n. 58)). By means trading. of this provision, the Italian legislator However, the right to silence cannot implemented EU rules on insider trad- justify every failure to cooperate with Data Protection ing and market abuse (Directive 2003/6/ the competent authorities, such as refus- EC and Regulation (EU) No 596/2014). ing to appear at a hearing or using delay CJEU Confirms Strict Limitations These rules request, inter alia, that ad- tactics. of Data Retention ministrative sanctions be determined for Regarding the validity of the second- spot In its judgment of 2 March 2021 failure to cooperate or to comply with an ary EU legislation on insider dealing light on the Estonian rules on data re- investigation, with an inspection, or with and market abuse, the CJEU noted that tention, the CJEU (sitting in for a specific request that includes question- neither Directive 2003/6 nor Regulation the Grand Chamber) confirmed red lines ing of a person with a view to obtaining No 596/2014 oblige Member States to for access to traffic and location data for information. establish liability for failure to cooper- law enforcement purposes. In a criminal hhQuestion referred ate if the cooperation were inconsistent case that concerned theft, fraud, and vio- The referring Constitutional Court with the right to silence. The absence of lence against persons party to court pro- of Italy expressed doubts as to whether an express prohibition against the im- ceedings, the Estonian criminal courts this obligation is in line with the rights position of a penalty for such a refusal essentially relied on reports drawn up on in Art. 47 and 48 of the Charter of Fun- to provide the competent authority with the basis of the data obtained from the damental Rights of the EU, in particu- answers which might establish liability provider of electronic communications

28 | eucrim 1 / 2021 Procedural Criminal Law services. In particular, the data provided measuring the seriousness of the inter- hhFindings of the CJEU on the second information on who the accused com- ference entailed by such a limitation and question municated with, how, when, for how by verifying that the importance of the The CJEU called to mind its previous long and from where to where during a public interest objective pursued by that case law as regards the substantive and certain period of time. In addition, the limitation is proportionate to the serious- procedural requirements for national case questioned which competent au- ness of the interference; legislation under which competent au- thority can grant access to such data. „„A public authority’s access to a set of thorities can be granted access to the hhQuestions referred traffic or location data that are liable to data in question. This entails that obser- The Estonian Supreme Court basi- provide information regarding the com- vance of the requirements are subject to cally posed two questions to the CJEU: munications made by a user of a means a prior review that is either carried out „„Are national data retention regimes of electronic communication or regard- by a court or by an independent admin- admissible in accordance with Art. 15(1) ing the location of the terminal equip- istrative body. Since the court or body of Directive 2002/58/EC on privacy and ment which he or she uses (and thus must reconcile the various interests and electronic communications, read in the allow precise conclusions to be drawn rights at issue, the status must be so that light of Arts. 7, 8, 11, and 52(1) CFR, concerning the private lives of persons they act objectively and impartially and even if they are not confined to the pre- concerned), is in any event a serious in- be free from any external influence. In vention, detection and prosecution of terference with the fundamental rights the criminal law field, the requirement of serious crimes, but to the duration of ac- enshrined in Arts. 7 and 8 CFR; independence implies that the authority cess and the quantity and nature of the „„Accordingly, only the objectives of entrusted with prior review, first, must data available in respect of such period combating serious crime or preventing not be involved in the conduct of the is limited? serious threats to public security are ca- criminal investigation in question and, „„Can the Estonian public prosecutor’s pable of justifying the interference. second, has a neutral stance vis-à-vis the office, in the light of the various duties Against this background, other fac- parties to the criminal proceedings. That which are assigned to it by national leg- tors relating to the proportionality of a is not the case with a public prosecutor’s islation, be regarded as an “independ- request for access, such as the length office, like the Estonian public pros- ent” administrative authority (within of the period in respect of which access ecution’s office, because it directs the the meaning of the CJEU’s judgment in to the data is sought and the quantity investigation procedure and brings the Tele2 Sverige and Watson), that is capa- or nature of the data available cannot public prosecution before the court that ble of authorising access for the investi- play a role. Therefore, these factors can- has jurisdiction. This conclusion is not gating authority to the data concerned? not have the effect that the objective of changed by the consideration that the For details on the facts of the case preventing, investigating, detecting, and public prosecutor’s office is mandated to and the AG’s opinion eucrim 1/2020, prosecuting criminal offences in general verify both the incriminating and excul- 23–24. is capable of justifying such access. patory evidence, to guarantee the law- hhFindings of the CJEU on the first The CJEU also provided guidance fulness of the pre-trial prosecution, and question concerning when contraventions of the to act exclusively according to the law. The CJEU recalled the content of requirements of EU law may lead to hhPut in focus its recent ruling on data retention in La an exclusion of evidence obtained in Through its judgment on the Estonian Quadrature du Net and Others (eucrim criminal proceedings. In the view of the case, the judges in Luxembourg reaf- 2/2020, 3/2020, 184–186): judges in Luxembourg, the yardstick firmed that Union law does not lead to „„Access by public authorities is pos- is the risk of breach of the adversarial the general ban of data retention. How- sible only in so far as traffic and -loca principle, and therefore, of the right to ever, they repeatedly stressed that data tion data have been retained by a pro- a fair trial entailed by the admissibility retention regimes can only be compat- vider in a manner that is consistent with of such evidence. To this end, national ible with Union law if access to traf- Art. 15(1) of Directive 2002/58; courts must disregard information/evi- fic and location data that allow precise „„Legislative measures are precluded dence obtained via access to traffic and conclusions concerning persons’ private that, for law enforcement purposes, pro- location data in breach of EU law if the lives is limited to the investigation/pros- vide, as a preventive measure, for the suspects “are not in a position to com- ecution of serious crimes or the preven- general and indiscriminate retention of ment effectively on that information[/] tion of serious threats to public security. traffic and location data; evidence and they pertain to a field of Substantive and procedural law must „„Limitations on the rights and obliga- which the judges have no knowledge regulate access to what is “strictly nec- tions laid down in Arts. 5, 6, and 9 of and are likely to have a preponderant in- essary.” Hence, it remains to be seen Directive 2002/58 must be assessed by fluence on the findings of fact.” whether the German data retention

eucrim 1 / 2021 | 29 NEWS – European Union regime, which is currently still under Presidency proposed to start with dis- and regulate access to and processing of scrutiny in Luxembourg (eucrim cussions on two situations where the communication data. 3/2019, 176), is compatible with the CJEU holds surveillance measures to The main contentious issues are the CJEU’s guidelines, since it is actually be permissible. First, targeted retention processing and storage options for ter- restricted to a catalogue of serious crimi- of traffic and location data if certain re- minal devices, the further processing nal offences and includes further access quirements are fulfilled. Second, reten- of collected data, the relationship to the limitations in respect of the principle of tion of the IP address of the source of General Data Protection Regulation, and proportionality. (TW) a communication and civil identity data, the retention of data. The current draft where the CJEU showed some flexibil- of the Council provides in Art. 7 para. Portuguese Council Presidency Pushes ity towards general retention. To this 4 for allowing under Union or Member Forward EU Data Retention Law end, the Portuguese Council Presidency State law the retention of “electronic Following the CJEU’s landmark judg- posed several questions on these two communications metadata” for a limited ment from 6 October 2020 in La Quad- topics and invited the Member States to period of time “in order to safeguard the rature du Net and Others (eucrim comment on them. prevention, investigation, detection or 2/2020, 3/2020, 184–186), the Portu- In addition, the Portuguese Council prosecution of criminal offences or the guese Council Presidency wishes to Presidency took up the matter of data execution of criminal penalties, and the make progress in drafting new EU leg- retention at the highest political level. In safeguarding against and the prevention islation to harmonise the public authori- a discussion paper of 2 March 2021, it of threats to public security.” This is un- ties’ access to traffic and location data invited the national ministers of justice der the caveat that the regime “respects preserved by electronic communication to express their views on the following the essence of the fundamental rights service providers. issues: and freedoms and is a necessary and In a CATS meeting on 8 February „„Should legislation be adopted to en- proportionate measure in a democratic 2021, several Member States, includ- sure a harmonized legal regime on data society.” ing Spain and France, as well as the EU retention at the EU level, taking due ac- The planned regulation thus attempts Counter Terrorism Coordinator, took count of the case law of the CJEU? to tie in the CJEU rulings of 9 October the position that “new EU legislation on „„If so, should a targeted or comprehen- 2020 (Cases C-623/17, joined Cases data retention is urgently needed due to sive approach be adopted? C-511/18, C-512/19 and C-520/18 the legal vacuum existing at the time.” „„On the contrary, could data retention eucrim 3/2020, 184–186), which They proposed that the EU should take in the framework of police and judicial permit the retention of data in cases of the following approach: cooperation be based solely on national threats to public security and to combat „„Include measures, criteria, and safe- data retention laws (which are in line serious crime within narrow limits. guards for the protection of fundamental with the CFR and CJEU case law)? The Council’s agreement on a nego- rights; At their informal meeting on 11 March tiating mandate means that the trilogue „„Combine these measures with chang- 2021, the ministers of justice agreed to negotiations between the Council, the es in secondary legislation such as the follow a common solution. (TW) European Parliament, and the Commis- GDPR; sion can now begin. (TW) „„Adapt the provisions of other instru- Council Agrees on Negotiating ments that affect the data retention re- Mandate for e-Privacy Regulation – Commission Admits Initiative against gime (the ePrivacy Directive and the Data Retention Included Biometric Mass Surveillance Digital Services Act), “in particular with On 10 February 2021, the Council On 7 January 2021, the Commission de- a view to ensuring that the latter would agreed on a negotiating mandate for the cided to register a European Citizens’ In- not limit the scope of the future data re- planned Regulation “concerning the re- itiative entitled: “Civil society initiative tention regime.” spect for private life and the protection for a ban on biometric mass surveillance During the discussions, most Mem- of personal data in electronic commu- practices.” The organisers are calling ber States believed that the implementa- nications” (e-Privacy Regulation). Al- on the European Commission to strictly tion of the CJEU’s guidelines in relation though the Commission presented its regulate the use of biometric technolo- to targeted data retention are not only proposal (COM(2017) 10 final) in Janu- gies in order to avoid undue interference difficult to implement but could also ary 2017 and the Parliament adopted its with fundamental rights. In particular, “be ineffective and insufficient given the report in the same year, the project was EU law should prohibit, in law and in needs of law enforcement authorities.” blocked in the Council for four years. practice, indiscriminate or arbitrary uses In a working paper issued on 19 Feb- The e-Privacy Regulation will replace of biometrics which can lead to unlaw- ruary 2021, the Portuguese Council the e-Privacy Directive 2002/58/EC ful mass surveillance. Intrusive systems

30 | eucrim 1 / 2021 Procedural Criminal Law should not be developed, deployed, or ment are justified in the present case third party acting in good faith, is in line used by public or private entities insofar since Spain persisted in its failure to ful- with Art. 17 CFR. as they can lead to unnecessary or dis- fil its obligations. It is the first time that „„Second, in the light of Art. 47 CFR, proportionate interference with people’s the CJEU has imposed both types of fi- the Court of Appeal asked about the fundamental rights. nancial penalties concurrently in a judg- compatibility of the Bulgarian provi- The Commission’s decision only ment following the action for failure to sions that preclude the owner of the means that the Initiative is legally ad- fulfil obligations pursuant to Art. 260(3) means of transport who is not the perpe- missible. An analysis of the substance TFEU. The penalty payment of €89,000 trator direct access to the courts to state of the plea has not been carried out at applies from the date of delivery of the its case. this stage. judgment until the infringement estab- hhFindings of the CJEU Following the registration, the or- lished has been brought to an end. (TW) The CJEU confirmed that both ap- ganisers can start the process of col- proaches of the Bulgarian legislation are lecting signatures of support. Should contrary to Union law. the Initiative receive one million state- Freezing of Assets First, the CJEU rejected interven- ments of support within one year from at tions that it would not have jurisdiction least seven different Member States, the CJEU: Bulgarian Confiscation Rules over because there is no link between Commission will have to react within Excluding Rights for Third Parties the dispute in the main proceedings and six months. The Commission could de- Acting in Good Faith Are Contrary EU law. The CJEU pointed out that the to EU Law cide either to follow or not follow the referring court actually sought guidance request; regardless of the decision, the In its judgment of 14 January 2021, the as to the obligations for the national leg- Commission must explain its reasoning. CJEU clarified EU Member States’ ob- islator to comply with the provisions of (TW) ligations with regard to Framework De- FD 2005/212 that is applicable in the cision 2005/212/JHA on confiscation of present case. The FD provides for rules Spain Must Pay for Non-Transposition crime-related proceeds, instrumentali- relating to the confiscation of instru- of EU Data Protection Directive ties, and property. The case (C-399/19, mentalities and proceeds from criminal On 25 February 2021, the CJEU ordered “OM”) dealt with the rights of third par- offences and the remedies that must be Spain to pay a lump sum of €15 million ties acting in good faith in confiscation available to persons affected by a con- and a daily penalty payment of €89,000 proceedings in Bulgaria. fiscation measure, including bona fide for its ongoing failure to transpose Di- hhFacts of the case third parties. These provisions must be rective 2016/680 regarding the protec- In the case at issue, OM – an employ- interpreted in light of the right to proper- tion of personal data by law enforcement ee at a transport company established ty enshrined in Art. 17 CFR. The right to authorities (for the Directive eucrim in Turkey – used the freight lorry of his property does not constitute an absolute 2/2016, 78). The deadline for transpos- employer to illegally smuggle antique prerogative but may be subject to limi- ing the rules of the Directive into na- coins from Turkey into the EU. After tations. In accordance with Art. 52(1) tional law ended on 6 May 2018. Since crossing the border, Bulgarian customs CFR, limitations may be placed on the Spain had not notified any information checked the tractor unit and found the exercise of the rights and freedoms en- on transposition measures, the Com- coins. Following OM’s conviction, the shrined therein, on condition that those mission initiated infringement proceed- Bulgarian authorities seized the coins limitations genuinely correspond to ob- ings in July 2018 and referred the case and the tractor unit for the benefit of the jectives of public interest pursued by the to the CJEU on 25 July 2019 (eucrim Bulgarian State. The trailer was returned European Union and do not constitute, 2/2019, 104). to the Turkish company. On appeal, in relation to the aim pursued, a dispro- In the proceedings before the Court OM opposed the seizure of the tractor portionate and intolerable interference, (C-658/19), Spain did not contest the unit, claiming that that seizure was con- impairing the very substance of the right failure of transposition, but pointed out trary, inter alia, to the provisions of the so guaranteed. the exceptional political and institu- TFEU and the CFR. The CJEU found that the Bulgarian tional circumstances which hindered the hhQuestions referred legislation aims to prevent unlawful im- country to adopt the necessary organic „„The referring Court of Appeal of portation of goods into the country but law transposing the Directive and which Plovdiv, Bulgaria, first asked the CJEU is a disproportionate and an intolerable should be taken into consideration for whether Bulgarian legislation, which interference of the right to property if the proportionality of the penalties. provides for the confiscation of the it subjects the property of a third party The CJEU found that the imposition means of transport used to commit a acting, in good faith, to a confiscation of both a lump-sum and a penalty pay- smuggling offence even if it belongs to a measure because the property was used

eucrim 1 / 2021 | 31 NEWS – European Union to commit an aggravated smuggling ber of controls to a feasible level differ, European Arrest Warrant offence. which is why similar risks are not ad- As regards the right to a remedy, the dressed in a consistent way. EP Adopted Own Report on EAW CJEU noted that both FD 2005/212 and The auditors recommend that the Implementation

Art. 47 CFR provide for the obligation Commission enhance the uniform appli- spot On 20 January 2021, the Euro- that a third party whose property rights cation of customs controls and establish light pean Parliament adopted its have been affected by a confiscation a full-fledged analysis and coordination own initiative report on the im- measure must be entitled to challenge capacity at the EU level. They stress, plementation of the European Arrest the legality of the measure. Since the however, that progress can only be made Warrant (EAW) and the surrender proce- Bulgarian law does not afford such a with the support of the EU Member dures between Member States. The re- right to a remedy to persons other the States. (TW) port was prepared by MEP Javier Zar- perpetrator of a criminal offence, it is zalejos (EPP, ES) and is also based on contrary to EU law. (TW) Launch of New EU Import Control comprehensive assessment reports draft- System – ICS2 ed by the European Parliamentary Re- On 15 March 2021, the Commission search Service (eucrim 2/2020, 111; Cooperation launched a new import control system to eucrim 1/2020, 26; and the article by improve the protection of the Customs Wouter van Ballegoij, eucrim 2/2020, Customs Cooperation Union against security threats posed by 149–154). For the drafts of the EP report the illegal movement of goods at the in the committees eucrim 3/2020, 193. ECA: Deficiencies in Customs Control EU’s external borders. The new system While MEPs consider that the EAW Hamper EU’s Financial Interests is a core project intended to implement is “generally a success” and has “posi- According to the European Court of Au- customs risk assessment mechanisms. tive effects on the maintenance of the ditors (ECA), customs control in the EU The Import Control System 2 (ICS2) AFSJ [Area of Freedom, Security and still considerably varies, thus hamper- supports the EU’s new “pre-arrival secu- Justice],” they believe that the time is ing the protection of the EU’s financial rity and safety programme,” which will ripe to improve and update the instru- interests. In its Special Report 04/21 remodel the existing process in terms of ment, particularly since digital transfor- of 30 March 2021, the ECA examined IT, legal, and customs risk management/ mations have changed the ecosystem of whether the current EU regulatory cus- controls as well as trade operational per- crime. On the one hand, improvements toms financial risk framework was ap- spectives. The ICS2 will collect data on should make the EAW more effective, propriately designed and has been ap- all goods entering the EU prior to their on the other they should focus on bet- plied in a uniform and consistent way. arrival. Economic operators must de- ter respecting the principle of propor- The ECA found that the framework was clare the security and safety data of con- tionality. In accordance with CJEU case not designed well to ensure a harmo- signments to ICS2, which will enable law, the approach must be maintained nised selection of import declarations customs authorities to carry out high- that the refusal of EAWs should be the for control. In addition, the implemen- risk assessments and intervene, when exception and refusal grounds be inter- tation of the framework by the Member appropriate. ICS2 is being introduced in preted restrictively. However, MEPs call States differs. The main shortcomings of three release phases, each covering dif- for refusal to be permitted where there the framework are: ferent economic operators. are substantial grounds to believe that „„Poorly defined concept of risk and in- The first phase of ICS2, launched the execution of the EAW would be in- sufficiently detailed norms; now, will mainly cover mail and express compatible with the executing Member „„Lack of important features, e.g., ap- shipments entering or transiting the EU State’s obligation in accordance with propriate data-mining techniques and by air. It will gradually improve the col- Art. 6 TEU and the CFR. The report appropriate methods to counter financial lection of supply chain data by customs makes several specific recommenda- risks resulting from e-commerce; authorities and introduce new processes tions to improve the functioning of the „„Member States have not significantly and tools. The aim of this first phase is to EAW, inter alia: changed their control selection proce- curb unsafe traffic in the context of mas- „„The Commission must ensure the full dures; sive and growing flows of e-commerce. and correct implementation of the proce- „„No uniform way of interpreting risk Subsequently, in phase 2, the new func- dural rights directives which is a prereq- signals among Member States; tions will be extended to general air uisite for mutual trust; „„Ineffective sharing of information on freight in March 2023 and, from 2024 „„The Commission should “carry out importers; on, will also cover maritime, rail, and a formal and substantive consistency „„Procedures for reducing the num- road transport modes in phase 3. (TW) assessment of the list of 32 categories

32 | eucrim 1 / 2021 Cooperation that do not require a double criminal- or requested persons of an EAW, whose islator should promote an EU judicial ity check”; to this end, a homogeneous rights and freedoms as guaranteed by cooperation code in criminal matters list of categories of offences should be Union law are violated, has the right to that systematically compiles the existing drawn up, possibly combined with an effective remedy before a tribunal in ac- legislation, so that legal certainty and the annex containing definitions of each list cordance with Art. 47 CFR; however, coherence of the various EU instruments entry; these remedies must be fully in line with can be guaranteed. „„Additional offences should be includ- the time limits set in the FD EAW; The EP resolution is not legally bind- ed on the list so that more automatic sur- „„The introduction of a system of pre- ing but has an appealing character. It ties render is allowed; this extension could cautionary measures, including the in with a long-standing discussion of the include environmental crimes, certain suspension of the instrument, should EAW topic in EU institutions. Already forms of tax evasion, hate crimes, sexual be considered if the person will run the in July 2020, the Commission published abuse, gender-based violence, offences risk of having his/her fundamental rights its report in which the handling of the committed through digital means such contravened in the issuing State; EAW was evaluated (eucrim 2/2020, as identity theft, offences involving the „„Several efforts must be undertaken 110–111). On 1 December 2020, the use of violence or a serious threat against that strengthen mutual trust; these efforts Council adopted conclusions on the public order of the Member States, and include the EU mechanism on democ- EAW under the German Presidency crimes against the constitutional integ- racy, the rule of law, and fundamental (eucrim 4/2020, 290). (TW) rity of the Member States committed by rights as proposed by the EP (eucrim using violence, genocide, crimes against 3/2020, 160–161), a feasibility study on ECtHR: EAW Cannot be Automatically humanity, and war crimes; supplementing instruments on procedur- Executed „„ The possibilities to exercise (broad) al rights, such as those on admissibility spot On 25 March 2021, the Europe- discretion on the part of the executing of evidence and prison conditions in pre- light an Court of Human Rights authority should be diminished as far as trial detention, and measures that ensure (ECtHR) delivered a landmark possible; the follow up to assurances provided by judgment on the relationship between „„Member States are urged to ensure the issuing judicial authorities. the European Convention on Human that an EAW is only issued if less in- MEPs voiced concerns over bad Rights (ECHR) and the EU’s mutual trusive measures would not lead to the prison conditions in some EU Member recognition instruments in criminal mat- same result, e.g., hearings by videocon- States that have a considerable impact ters, i.e., the European Arrest Warrant. ference or similar tools; on the EAW system. They reiterate their The judgment was handed down in the „„Member States should ensure that call for Member States to improve de- cases Bivolaru and Moldovan v. France available alternatives to detention and ficient prison conditions. The Commis- (Application Nos. 40324/16 and coercive measures in EAW proceedings sion is called on to fully exploit the pos- 12623/17). The full judgment is (cur- can be ordered, particularly if a person sibility of financing the modernisation rently) only available in French; a press consents to his/her surrender; of detention facilities through EU Struc- release in English has been provided. „„Effective defence in cross-border pro- tural Funds. hhRecapitulation of principles ceedings must be ensured in full compli- Ultimately, the resolution recom- First, the ECtHR recapitulated its ance with Directive 2013/48; to this end, mends a more coherent EAW legal doctrine as to when the fundamental the Commission and Member States framework. The Commission must pro- guarantees of the ECHR apply in rela- must provide appropriate funding for vide a more coherent policy on mutual tion to Union acts: dual representation of the requested per- recognition that considers CJEU case „„When entering into international son as well as specific training for prac- law and prevent divergences across the obligations, Contracting States remain titioners involved in EAW proceedings; various mutual recognition instruments. bound by their obligations as set out in „„The SIS II and Interpol system should Coherency issues related to the imple- the ECHR; regularly be reviewed in respect of pos- mentation of the FD EAW must be ad- „„If the international organisation in sible withdrawals of alerts, e.g., if the dressed through a combination of practi- question (here: the European Union) EAW has been refused on mandatory cal measures (training of practitioners), conferred on fundamental rights an grounds such as the principle of ne bis soft law (handbooks and recommenda- equivalent or comparable level of fun- in idem. tions), targeted legislation (the definition damental rights protection to that guar- Another set of recommendations con- of judicial authority, ne bis in idem, fun- anteed by the ECHR, measures for ful- cerns fundamental rights, for instance: damental rights, etc.) and, as a second filling these international obligations are „„Member States must guarantee that step, supplementary legislation (pre-trial deemed justified; every person, including victims of crime detention). In the medium term, the leg- „„The applicability of this presumption

eucrim 1 / 2021 | 33 NEWS – European Union of equivalent protection has two prereq- factual basis for the French authori- Bivolaru’s Convention rights could not uisites: (1) the national authorities have ties to find that Mr Moldovan would be be established. no margin of manoeuvre in relation to exposed to a real risk of inhuman and hhPut in focus the international obligation; (2) the case degrading treatment in the Romanian The ECtHR clarified that the EU at issue satisfies “the deployment of the prison cells after his surrender. In par- Member States must comply with the full potential of the supervisory mecha- ticular, information given to the French guarantees of the ECHR when apply- nism provided for by the legal order of authorities on the personal space to be ing EU mutual recognition instruments. the organisation”; allocated to Mr Moldovan in the Roma- It equally confirmed that the ECtHR „„The principle of mutual recognition nian prison centre should have given rise will assess this conformity. Although of judicial decisions in the EU may not to a strong presumption of a breach of the door for accepting breaches of the be applied in an automatic and mechani- Art. 3 ECHR. The assurances provided ECHR is only slightly ajar, the ECtHR cal manner to the detriment of funda- by the Romanian authorities were ste- outlined ways in which successful com- mental rights; reotypical descriptions of the detention plaints could be filed by individuals sub- „„If the presumption of equivalent pro- conditions. Therefore, the ECtHR de- ject to surrender on the basis of EAWs. tection applies, the ECtHR will ascertain termined a breach of Art. 3 ECHR and For the first time, the ECtHR acknowl- whether the application of the mutual ordered France to pay him €5000 just edged a rebuttal of the presumption of recognition instrument renders the pro- satisfaction in compensation. equivalent protection because of a mani- tection of Convention rights manifestly hhApplication of the principles fest deficiency in applying the EAW as deficient or not; in the second case mutual recognition instrument. „„The principles not only apply to the In addition to detention conditions, As regards the assessment of wheth- European Arrest Warrant but also to all the case of Mr Bivolaru also concerned er poor prison conditions can lead to a EU mechanisms of mutual recognition. the implications of his refugee status refusal of extradition, the ECtHR con- In the two cases at issue, both com- in Sweden. The ECtHR noted that the curred with the CJEU approach only plaints concerned the surrender of Ro- French Cour de Cassation had declined insofar as both courts require a real, in- manian nationals from France to Roma- to seek a preliminary ruling before the dividualised risk of breach of the funda- nia. Both complainants argued that the CJEU in this latter question. This failure mental right to human and non-degrad- French courts executing the respective to make a referral led to the second con- ing treatment to have been incurred by Romanian EAWs had not taken account dition for the presumption of equivalent the requested person. Read between the of their individual risks of being ex- protection (involving deployment of the lines, the ECtHR clarified that it applies posed to inhuman and degrading treat- full potential of the relevant supervisory a different methodology than the CJEU: ment in Romania, as a result of which machinery provided for by EU law) not the ECtHR does not follow a two-step Art. 3 ECHR was breached. having been fulfilled. Accordingly, the approach requiring (1) evidence of sys- hhApplication of the protection ECtHR reviewed the manner in which temic and generalised deficiencies in the principles in the first case the executing French authorities had issuing State before (2) any individual In the case of Mr Moldovan, in which examined breaches of Art. 3 ECHR in risk is identified (cf. the CJEU in Aran- poor prison conditions in Romania the light of potential persecution of the yosi and Căldăraru, cited above). were at issue, the ECtHR stated that the defendant on account of his political In addition, the Convention serves as French judicial authorities had to as- and religious beliefs in Romania. The the benchmark if the complaint is not sess the facts and circumstances within ECtHR concluded that the French au- covered by the presumption of equivalent the framework strictly delineated by thorities had examined Mr Bivolaru’s protection (here: failure to make a refer- the CJEU’s case law in Aranyosi and individual situation in depth but had no ral for preliminary ruling to the CJEU). Căldăraru on Art. 4 of the Charter of sufficient factual basis to establish the Although the complaint was not suc- Fundamental Rights (eucrim 1/2016, existence of a real risk of a breach of cessful in the end, the ECtHR vehement- 16). According to the ECtHR, this juris- Art. 3 ECHR and to refuse the execution ly blamed the French Cour de Cassation prudence provides protection equivalent of the EAW on that ground. Similarly, for not having sought guidance from to that provided by Art. 3 ECHR. The there was no solid factual basis for the the CJEU on questions that have not yet executing judicial authority had no au- French authorities to doubt a breach of been decided and that were decisive in tonomous margin of manoeuvre, so that Art. 3 ECHR because of inhuman de- the present case (here: implications of the presumption of equivalent protection tention conditions, since the applicant asylum granted by another EU Mem- applied. However, this presumption was had not provided sufficiently detailed or ber State on the execution of EAWs). In rebutted in the present case. The ECtHR substantiated prima facie evidence on such cases, the yardstick of “manifest found that there had been a sufficient this risk. As a result, a violation of Mr deficiency” is irrelevant. (TW)

34 | eucrim 1 / 2021 Cooperation

CJEU: Convictions of Third Countries side the territory of the issuing State and more extensive rights in Arts. 4, 6, and Executed in EU Member States Can the law of the executing State does not 7 of the Directive which apply to “sus- Be Subject of an EAW allow prosecution for the same offences pects or accused persons who are arrest- In its judgment of 17 March 2021 in when committed outside its territory” ed or detained.” These rights include the Case C-488/19 (JR), the CJEU had to (so-called extraterritoriality clause or re- right to be provided with a written letter address questions on the applicability of fusal ground of double jurisdiction). In of rights on arrest that informs about the the Framework Decision on the Europe- the present constellation, only the crimi- possibility of challenging the lawfulness an Arrest Warrant (EAW) and the scope nal law jurisdiction of the third State of the arrest, obtaining a review of the of refusal grounds. The case, which was (here: Norway), which allowed prosecu- detention, and making a request for pro- referred by the Irish High Court, dealt tion of the offence, is relevant. The in- visional release. with a rather unique constellation: JR, terpretation of the respective ground for Should that question be answered in a Lithuanian national, was sentenced in refusal in the FD EAW must be based the negative, the Specialised Criminal Norway for possession of narcotic sub- on the premise that the impunity of the Court secondly voiced doubt over the stances. Subsequently, Lithuania recog- requested person be avoided. (TW) validity of the FD EAW since the infor- nised this Norwegian judgment and took mation communicated to persons arrest- over further execution of the sentence CJEU Rules on Compliance of FD EAW ed on the basis of an EAW is more lim- against JR in Lithuania. However, JR with Charter of Fundamental Rights ited than the information communicated absconded and went to Ireland. Lithu- In its judgment of 28 January 2021 in to suspects or accused persons who are ania sought his surrender from Ireland in Case C-649/19 (“criminal proceedings arrested or detained in national proceed- order to execute the remainder of the im- against IR”), the CJEU took a stance ings (in accordance with Arts. 4, 6, 7 of prisonment sentence (namely one year on the extent of a person’s rights of in- Directive 2012/13). As a consequence, and seven months). formation if he/she is subject to a Euro- persons requested for the purpose of According to the CJEU, an EAW can pean Arrest Warrant (EAW). In addition, execution of an EAW have excessive also be issued on the basis of a sentence the CJEU had to rule on the validity of difficulties in challenging warrants is- imposed in a third country (here: Nor- Framework Decision 2002/584 on the sued against them. way), provided that the sentence was European Arrest Warrant (FD EAW) in hhFindings of the CJEU on the first recognised in the issuing EU Member the light of the rights to liberty and to an question (scope of information rights) State (here: Lithuania). The prerequi- effective remedy (Arts. 6 and 47 CFR). The CJEU first observed that the sites for this are, however, the imposi- hhFacts of the case wording of the provisions of Directive tion of a custodial sentence of at least In the case at issue, the Specialised 2012/13 does indeed not lead to the four months and compliance with the Prosecutor’s Office in Bulgaria initiated conclusion whether the various rights EU’s fundamental rights in the third- criminal proceedings against IR, accus- are conferred also to persons who are country criminal proceedings. ing the defendant of participation in a arrested or detained for the purposes Although automatic extradition with- criminal group for the purpose of com- of the execution of an EAW. The CJEU out review only applies between EU mitting tax offences. During the pre-trial concluded, however, that the rights en- Member States, the principle of mutual stage of the criminal proceedings, IR shrined in Arts. 4, 6, and 7 do not apply trust extends to the proper recognition of was informed of only some of his rights. to persons in EAW situations because third-country judgments. Accordingly, Since IR absconded, the public prosecu- the context and objective of Directive the issuing Lithuanian authorities are to tor issued an EAW. The referring Spe- 2012/13 are pretty clear in this regard. be trusted that, in the context of recog- cialised Criminal Court annulled this In line with Art. 5 ECHR, Directive nition, the sentence handed down in the EAW. The court had doubts as to wheth- 2012/13 distinguishes situations of per- third country of Norway had been exam- er the EAW is compatible with Directive sons who are deprived of liberty in the ined for compliance with fundamental 2012/13 on the right to information in sense of Art. 5(1) lit. c) and persons who rights, in particular the rights of defence criminal proceedings. are lawfully arrested with a view to de- under Arts. 47 and 48 of the Charter of hhQuestions referred portation and extradition (Art. 5(1) lit. Fundamental Rights. The Bulgarian court first sought guid- f). For the CJEU, it follows from this In addition, the CJEU clarified that ance from the CJEU whether persons that the provisions referring to suspects the ground for refusal in Art. 4 No. 7 lit. requested by means of an EAW for the or accused persons who are arrested or b) FD EAW does not apply in the present purpose of arrest not only enjoy the detained do not concern persons who are case. According to this provision, an ex- rights as explicitly provided for in Art. 5 arrested for the purposes of the execu- ecuting state may refuse to execute an of Directive 2012/13 (“Letter of Rights tion of an EAW. EAW “if the offence was committed out- in EAW proceedings”) but also the other, This interpretation is confirmed by

eucrim 1 / 2021 | 35 NEWS – European Union the fact that Directive 2012/13 sets out State, cannot call into question the effec- him the possibility to defend himself by a twofold objective: (1) It lays down tiveness of the right to judicial protec- providing explanations or presenting of- minimum standards to be applied in the tion. fers of evidence are not covered by the field of information to be given to sus- In sum, none of the concerns put for- notion “other enforceable judicial de- pected or accused persons, in order to ward by the referring court affect the va- cision having the same effect as a (na- enable them to prepare their defence and lidity of the FD EAW. (TW) tional) arrest warrant.” An EAW issued to safeguard the fairness of the proceed- in disregard of this requirement would ings; (2) It also seeks to preserve the CJEU: Consequences of Invalid EAWs be invalid. specific characteristics of the procedure for Pre-Trial Detention in the Issuing Furthermore, because of the principle relating to EAWs, which is characterised State of effective legal protection stemming by a desire to simplify and expedite the In Case C-414/20 PPU (“MM”), the from Art. 47 CFR, it must be possible surrender procedure. CJEU had to rule on the consequences to have the conditions of the EAW re- hhFindings of the CJEU on the second if a Member State issued a European viewed before a court. This also applies question (validity of the FD EAW) Arrest Warrant (EAW) without prior if national law does not provide for this The CJEU first noted that the validity judicial decision that orders the arrest possibility. of the FD EAW must be established in of the requested person. In the case at Lastly, the CJEU stated that neither the light of primary Union law, i.e., Arts issue, MM was prosecuted in Bulgaria the FD EAW nor Art. 47 CFR require a .6 and 47 CFR. In this context, the CJEU for having participated in a criminal national court to release a person who is stressed that the FD EAW forms part of drug-trafficking organisation. The pub- the subject of a pre-trial detention meas- a comprehensive system of safeguards, lic prosecutor only took a decision that ure if it finds that the EAW that led to in which the subject to an EAW is able put MM under investigation; this only that person’s surrender is invalid. An op- to exercise his/her rights. This includes: had the legal effect that MM was noti- posite consequence would be counter to „„According to previous case law fied of the charges against him. Without the aim of the EAW mechanism, which (Joined Cases C-508/18 and C-82/19 a court order for pre-trial detention, the is to ensure that an alleged offender does PPU (eucrim 1/2019, 33–36) and public prosecutor issued an EAW. MM not go unpunished. The EAW has, in C-566/19 PPU and C-626/19 PPU was surrendered from Spain to Bulgaria. principle, exhausted its legal effects af- (eucrim 4/2019, 242–245)), the right Possible deficits of the EAW were not ter the accused person’s surrender to the to liberty must be protected by an inde- examined by the Spanish authorities ex- issuing Member State and it is not an or- pendent review either at the first level, at ecuting the EAW since MM consented der for detention of the person sought in which a national decision, such as a na- to his surrender. the issuing Member State. Therefore, it tional arrest warrant, is adopted, or at the The referring criminal court in Bul- is for the national law to lay down the second level, at which a European arrest garia essentially asked about the con- consequences of an invalid EAW. (TW) warrant is issued; sequences any possible shortcomings „„The person subject to an EAW enjoys concerning the Bulgarian EAW might CJEU: National Arrest Decision and the safeguards of fair proceedings be- have on subsequent criminal proceed- EAW Cannot be Issued by Public cause he/she acquires the status of “ac- ings in Bulgaria, in particular whether Prosecutor Alone cused person” from the moment of his/ pre-trial detention in Bulgaria could be On 10 March 2020, the CJEU decided her arrest, so that all the rights referred to maintained. on the consequences of the Bulgarian in Arts. 4, 6, and 7 of Directive 2012/13 In its judgment of 13 January 2021, criminal procedure system, under which can be exercised (enabling the accused the CJEU first pointed out that an EAW both the European arrest warrant and the person to prepare his/her defence); must be based on a “[national] arrest decision on which it is based had been „„Information provided in Art. 8(1) lit. warrant or any other enforceable judicial issued by the Bulgarian public prosecu- d) and e) corresponds, in essence, to the decision having the same effect” in ac- tor without court review prior to sur- information referred to in Art. 6 of Di- cordance with Art. 8(1) lit c) FD EAW. render. The judgment in the underlying rective 2012/13; According to the CJEU, this provision is Case C-648/20 PPU (European Arrest „„The mere fact that the person who is to be understood in such a way that the Warrant issued for PI) follows up on the the subject of an EAW is not informed EAW may only be based on such legal previous decision of 13 January 2021 about the remedies available in the is- acts which are intended to enable the ar- in Case C-414/20 PPU (“MM” news suing Member State and is not given rest of a person for the purpose of crimi- item above). While the CJEU in MM had access to the materials of the case until nal proceedings. Measures that solely to decide on the legal effects of a poten- after he/she is surrendered to the com- intend to notify the person concerned tially invalid EAW, which was solely is- petent authorities of the issuing Member of the charges against him and to afford sued by the Bulgarian public prosecutor,

36 | eucrim 1 / 2021 Cooperation in the criminal proceedings in Bulgaria, This concept presupposes that judi- administrative authority must therefore the case in PI concerned the handling of cial review is exercised before the arrest be validated by a judge or public pros- such EAWs in the executing Member warrant is executed. In other words, a ecutor in accordance with Art. 2 lit.c)ii) State. court must be involved prior to submis- of Directive 2014/41/EU. hhFacts of the case and question sion of an EAW guaranteeing adequate According to the AG, the purpose of referred protection of the individual rights. Con- the validation procedure (as established In the case at issue, the Westminster sequently, a Bulgarian law that pro- by the EIO Directive) would be coun- Magistrates’ Court (UK) was called on vides only ex post judicial review does tered if a Member States could easily to execute a Bulgarian EAW against PI. not comply with the requirement set by allow the administrative authorities be- The prosecutor of Svishtov Regional Art. 8(1) lit. c) FD EAW and the ex- longing to the executive – by equating Prosecutor’s Office issued an EAW for ecuting judicial authority can refuse the them with the judicial authorities – to the purposes of the criminal prosecution EAW. transmit such an order which had not of PI who is suspected of having com- The CJEU clarified that this finding been validated by the judicial authori- mitted theft of money and jewellery. is not called into question by its deci- ties (including the public prosecutor’s This EAW was based on an order from sion of 13 January 2021 in MM. In this office). said prosecutor that PI be detained for a context, the CJEU states: “[in MM,] the The AG also points out that, in Case maximum period of 72 hours. Court (…) confined itself to holding that, C-452/16 PPU, the CJEU had extended The Bulgarian system does not fore- where the law of the issuing Member the term “judicial authority” to all au- see any participation of a court prior to State does not contain a separate legal thorities participating in the adminis- the issuance of EAWs. It is neither re- remedy, EU law confers jurisdiction on tration of criminal justice while explic- quired that a court reviews the EAW a court of that Member State to review itly excluding administrative authorities nor issues a national arrest warrant. Ac- indirectly the validity of the European that are part of the executive. In certain cording to the Bulgarian system, a court arrest warrant. Accordingly, it cannot countries, the public prosecutor’s office is only involved after surrender of the be inferred from that judgment that the is also subject to individual instructions requested person when a court has to Court ruled that the existence of such by the executive, but unlike administra- impose a preventive measure involving a possibility of ex post judicial review tive authorities – as organs of the ex- deprivation or restriction of liberty. was such as to satisfy the requirements ecutive – it has an autonomous status. The Westminster Magistrates’ Court inherent in the effective judicial protec- In an investigation of tax evasion, the expressed doubts as to whether this ap- tion of the rights of the requested per- tax authority of Münster, Germany felt proach satisfies the requirements of dual son.” (TW) entitled to transmit an EIO requesting level of protection as established by the the search of business premises directly FD EAW as interpreted by the CJEU to an Italian public prosecutor’s office, case law (in particular in Bob-Dogi European Investigation Order since under German law the tax authori- (C241/15 eucrim 2/2016, p. 80) and ties assume the investigative power of OG and PI (C508/18 and C82/19 PPU AG: Tax Authority Cannot Issue EIO the public prosecutor’s office. (TW) eucrim 1/2019, 33–36). without Prior Judicial Validation hhFindings of the CJEU In his Opinion of 11 March 2021 in The CJEU confirmed its standpoint Case C-66/20 (XK / Finanzamt für Criminal Records that the requested person must enjoy a Steuerstrafsachen und Steuerfahnd- dual level of protection for procedural ung Münster), Advocate General (AG) Commission Report on ECRIS and fundamental rights. Art. 8(1) lit. c) Sánchez-Bordona rejects the authorisa- On 21 December 2020, the Commission FD EAW entails that effective judicial tion of administrative authorities – de- presented its second statistical report on protection should be adopted, at least: spite exercising powers as a prosecution the European Criminal Records Infor- „„At the first level, at which a national office in criminal tax matters – to issue mation System (ECRIS). This system judicial decision, such as a national ar- a European Investigation Order (EIO) has allowed judicial authorities to easily rest warrant or a comparable measure, is without the involvement of a judge, exchange information on previous crim- adopted; or court, or public prosecutor. Even if the inal convictions since 2012. The purpose „„At the second level, at which a Euro- tax authority performs investigative of the report is to present the compliance pean arrest warrant is issued (which may tasks, independence from the executive of Member States’ exchanges with the occur, depending on the circumstances, cannot be guaranteed due to the admin- ECRIS legal framework and to identify shortly after the adoption of the national istrative hierarchy and the special inter- any issues regarding the efficiency of judicial decision). est in tax matters. The EIO of a national the system (with a view to remedying

eucrim 1 / 2021 | 37 NEWS – European Union them). It provides an overview of the use Law Enforcement Cooperation points that may affect judicial coopera- of ECRIS in the period from 1 January tion regarding the obtainment of e-evi- 2017 to 31 December 2019. The report New E-Evidence Legislation: Trilogue dence if the Regulation were adopted in is accompanied by a Commission Staff Started – Criticism on EP Stance its current form. In conclusion, the EJN Working Document with detailed graphs After the European Parliament adopted WG believes that the EP’s version is no and tables comparing the use of ECRIS its position on the e-evidence package advancement compared to other existing in the given period. The main findings of in December 2020 (eucrim 4/2020, judicial cooperation instruments. the report include: 295–296), trilogue negotiations be- On the opposite side of the fence, „„In 2019, all EU Member States ac- tween the EP, the Council, and the Com- the civil stakeholder organisation EDRI tively used ECRIS; mission started on 10 February 2021. blamed the EP for having made too far- „„From just under two million mes- The Council had already presented its reaching compromises that water down sages exchanged by all interconnected general approach in 2018 (eucrim adequate safeguards previously included Member States in 2016, the number 4/2018, 206). For the original Commis- in the original drafts of the EP rappor- increased to almost 4.2 million in 2019 sion proposal eucrim 1/2018, 35–36. teur. In particular, the compromise will with an average of 348,000 messages The new legislation aims to simplify put the rights of journalists, lawyers, per month; the ability of law enforcement authori- doctors, social workers, and individu- „„The number of requests for informa- ties to access data held by private digi- als in general at risk. EDRI stated: “The tion has tripled since 2017 – to hit one tal service providers in another national final Regulation will likely be even million in 2019 alone. This high increase jurisdiction. The proposal is highly more underwhelming considering that is explained by the shift in the use of contentious; the EP included several the Parliament will now have to accept ECRIS, not used any more exclusively amendments in its position. In particu- further compromises in its negotiations or even mainly for the purpose of crimi- lar, the lack of judicial control in the with the Council. The Council has pre- nal proceedings, but also – on a regular executing state as well as unresolved viously taken a position on e-evidence basis – for purposes other than crimi- questions regarding notification obliga- which largely ignores even the most ba- nal proceedings (e.g., pre-employment tions were criticised. For the discussion sic protections needed to be in conform- screening, requests on one’s own crimi- and criticism put forward by NGOs, ity with fundamental rights and the EU’s nal record, etc.); navigate to previous eucrim issues un- own rules on due process.” „„Since 2018, ECRIS is consulted der “Law Enforcement Cooperation.” It considers the following issues to equally often for both criminal and other The Council expects difficult nego- be crucial for a sufficient protection of purposes (50/50%), while in previous tiations. In preparatory documents from safeguards: years the use of ECRIS for purposes 25 January 2021, the Council Presiden- „„Involvement of the “affected State”; other than criminal proceedings was, on cy juxtaposes the initial Commission „„Sufficient involvement of the execut- average, 20%; proposal and the respective positions of ing State; „„In 2019, only 19% of replies revealed the EP and the Council, both as regards „„Safeguards against fishing expedi- previous criminal convictions, whereas the proposed Regulation on European tions; in previous years this rate was at a stable Production and Preservation Orders for „„Safeguards against deficiencies in mu- level of around 30%; electronic evidence in criminal matters tual trust and EU judicial cooperation. „„ECRIS is still rarely used for third and the Directive laying down harmo- EDRI also cites European Parliament country nationals (92% of all requests nised rules on the appointment of legal rapporteur MEP Birgit Sippel who an- concern EU nationals). representatives for the purposes of e- nounced that the Parliament’s position The data also revealed that ECRIS is evidence gathering. Regarding the latter won´t “crack before our courts”. EDRI used very differently by the EU Mem- instrument, it should be noted that the commented, however: “[s]adly, there is ber States. It was also found that some EP wishes to merge the provisions of the little chance that her compromise will Member States do not fulfil all their Directive into the Regulation. ever become the final Regulation but is obligations under the Framework Deci- In mid-January 2021, the European merely another small step of weaken- sion 2009/315/JHA on the exchange of Judicial Network e-Evidence Working ing fundamental rights in law enforce- criminal records. In particular, requests Group (WG) criticised the EP’s posi- ment practice in the EU. The next step are sometimes not answered or not an- tion. After having assessed the proposed is going to be the trilogue negotiations swered within the prescribed time limit. amendments made by the EP, the WG with the Council and the Commission, Some Member States did not send noti- believes that the drafted provisions are both of which have even less interest in fications on new convictions or did not inconsistent, confusing, and unclear. subjecting cross-border access to data to send updates. (TW) The WG also commented on eight proper safeguards”. (TW)

38 | eucrim 1 / 2021 Foundations

„„The case deals with an emerging or otherwise significant human rights issue. If any of these criteria are met, the ECtHR may take into account whether the case has had significant media cov- erage domestically and/or is politically sensitive. Council of Europe On the one hand, the new strategy aims to ensure that priority cases in cate- Reported by Dr. András Csúri gories I–III and in the newly categorized “impact” cases (category IV–High) are identified, processed, and decided even more quickly by the Court. This will be Foundations ECtHR: New Case Processing Strategy achieved through increased use of the On 17 March 2021, the European Court Court’s resources and rigorous internal of Human Rights (ECtHR) introduced monitoring. European Court of Human Rights a new case management strategy that On the other hand, the strategy will establishes a new category of “impact” ensure a balanced and productive output Protocol No. 15 to the ECHR Enters cases. The Registry published a sum- through increased standardisation and into Force mary document on the Court’s website streamlining of the processing of non- On 21 April 2021, Italy deposited its describing the main aspects of this new impact category IV cases by using ex- instrument of ratification of Protocol strategy. isting working methods and IT tools. In No. 15 amending the European Conven- As a result of the Interlaken reform the future, the handling of non-priority tion on Human Rights (ECHR), thereby process (2010–2020), the Court has re- and non-impact cases will be handled bringing the Protocol into force for all duced its backlog from 160,000 pend- by committees of three judges instead of CoE member states with effect from 1 ing cases in 2011 to 65,000 at present. chambers of seven judges. The ECtHR August 2021. During this period, a prioritization pol- will strive to produce shorter and more Protocol No. 15 adds a new recital to icy based on seven categories, ranging focused draft judgments in these cases. the Preamble of the ECHR. This reads as from urgent to obviously inadmissible follows: “Affirming that the High Con- applications, allowed for acceleration tracting Parties, in accordance with the of processing times. Nevertheless, there principle of subsidiarity, have the prima- are currently 17,800 potentially well- Specific Areas of Crime ry responsibility to secure the rights and founded category IV cases, which do not freedoms defined in this Convention and involve core rights and take the court an Corruption the Protocols thereto, and that in doing average of 5–6 years to process. Among so they enjoy a margin of appreciation, these category IV cases, a small percent- Human Rights Commissioner: subject to the supervisory jurisdiction of age may raise very important issues of Corruption Undermines Human Rights the European Court of Human Rights es- concern for the State in question and/or and Rule of Law tablished by this Convention.” the Convention system as a whole, justi- On 19 January 2021, the Commissioner The Protocol brings about a reform of fying more expeditious case processing. for Human Rights, Dunja Mijatović, the ECtHR by amending several provi- These cases are identified and labelled issued a comment on how corruption sions of the Convention. In particular, as “impact” cases under the new cat- undermines human rights (HR) and the the time-limit, within which an applica- egory, IV-High. To date, approximately rule of law. In her concluding remarks, tion may be lodged to the ECtHR fol- 650 such cases have been identified so the Commissioner urges Member States lowing a final domestic decision is re- far, based on a list of examples and the to fully implement GRECO’s recom- duced from six to four months. Judge following criteria: mendations. Robert Spano, President of the ECtHR, „„The conclusion of the case might lead Mijatović stressed that, in recent stated that all relevant information on to a change in or clarification of inter- years, citizens of many European coun- the measures taken to ensure the smooth national or domestic legislation or prac- tries have protested against systemic functioning of the work of the Court tice; corruption and demanded respect for will be published on its website in due „„The case touches upon moral or so- the rule of law, accountability, and a de- course. cial issues; termined fight against corruption. She

eucrim 1 / 2021 | 39 NEWS – Council of Europe

warned member states that corruption ations also help increase the representa- „„Public officials need to avoid engage- undermines trust in public institutions, tion of women in senior positions within ments that may involve a conflict of hinders economic development, and has the police and ensure their integration at interest and an increased risk of corrup- a disproportionate impact on the exer- all levels in law enforcement agencies. tion. cise of human rights, especially among Recommendations in this regard have „„States must ensure a well-functioning people belonging to marginalised or been made, for example, in relation to the and adequately funded system of over- disadvantaged groups. It also dispropor- police in Estonia, Denmark, and Spain. sight of police misconduct and provide tionately impacts women, children, and Another issue dealt with in the com- regular training for members of law people living in poverty. In particular, ment is corruption as a significant bar- enforcement agencies on integrity and the access of these groups to basic so- rier to health care access. The practice ethics. cial rights, e.g. health care, housing, and of informal payments in some countries „„Public spending on health care needs education, is hampered. is problematic, as it discourages patients to be effectively monitored. It is estimated that every year cor- (especially those from poor families) Governments must protect the right ruption, bribery, theft, and tax evasion from seeking medical care or doing so to freedom of expression and the safety cost developing countries about USD in a timely manner. The COVID-19 pan- of journalists by fighting impunity for 1.26 trillion a year. This sum would be demic has further exacerbated existing crimes against journalists and by effec- enough to lift the 1.4 billion people liv- systemic problems and increased cor- tively combating SLAPPs. This could ing on less than USD1.25 a day above ruption risks. be done, for instance, by allowing early the poverty line and keep them there for Mijatović emphasized the central dismissal of such lawsuits and introduc- at least six years. As a striking example, role of investigative journalists and ing measures to punish abuses. In par- over 7% of health spending worldwide whistle-blowers in fighting corruption. ticular, member states should reverse is lost to corruption, according to the She pointed to the murder of journal- the costs of lawsuits and minimise the 2019 Transparency International report. ists in CoE member states as well as consequences of SLAPPs by providing The Commissioner highlighted the the phenomenon of so-called “Strategic practical assistance to those being sued. serious threat that corruption poses to Lawsuits against Public Participation” the administration of justice and human (SLAPPs), which are unfounded law- GRECO: Fifth Round Evaluation Report rights. In several CoE member states, suits filed by powerful individuals or on Norway governments have implemented hasty companies seeking to intimidate jour- On 15 January 2021, GRECO published judicial reforms that reinforce the strong nalists into giving up their investiga- its fifth round evaluation report on Nor- influence of the executive branch on the tions (for the discussion at the EU level way. The focus of this evaluation round judiciary, which seriously undermines eucrim 4/2020, 258–259 and eucrim is on the effectiveness of the frameworks judicial independence and weakens ju- 2/2020, 106–107). Since perceptions of currently in place to prevent corruption dicial oversight. Thus, the ability of corruption do not always match real- among persons with top executive func- the judiciary to fight corruption is af- ity, even countries with high levels of tions (ministers, state secretaries, and fected. GRECO has underlined the need trust in their public institutions need to political advisers) and members of the to ensure the genuine independence of implement preventive anti-corruption police. The evaluation focuses particu- judges, namely to prevent undue politi- measures, regardless of their place on larly on issues of conflicts of interest, the cal influence on the judiciary, which can perception indexes. declaration of assets, and accountability lead to biased, corrupt judgments that do Overall, the Commissioner highlight- mechanisms (for other reports on this not serve the public interest. Mijatović ed transparency as an indispensable tool evaluation round: eucrim 4/2020, p. 297 raised these issues with Turkey, Po- in the prevention of corruption ‒ it dem- et seq. with further references). land, Hungary, Romania, and San Ma- onstrates that the public interest remains Norway joined GRECO in 2001 and rino. at the heart of decision-making. Despite holds an unprecedented record in im- Corruption is particularly dangerous the strict anti-corruption standards and plementing GRECO recommendations, in law enforcement, as it affects both cit- GRECO’s effective monitoring, corrup- with 100% of them fully implemented in izens’ safety and their pursuit of justice, tion continues to pose a serious threat all evaluation rounds. The country has including in cases of political corruption to the rule of law and human rights in traditionally performed well in interna- and police misconduct. An interesting the CoE region. Therefore, Mijatović tional perception surveys on corruption. aspect in this regard is GRECO’s ongo- calls on states to fully comply with the It consistently ranks among the top ten ing fifth round of evaluations, which en- relevant CoE standards and implement countries in Transparency Internation- ables a number of recommendations to GRECO’s recommendations. This must al’s Corruption Perception Index (7th in be made to member states. These evalu- particularly include the following: 2020) and in the fight against corruption

40 | eucrim 1 / 2021 Specific Areas of Crime

(5th among 30 advanced economies, ac- mends, in particular, that the following dicate that corruption within the police cording to the 2017 Inclusive Growth be considered in relation to central gov- force is very rare (Global Corruption and Development Report of the World ernments (top executive functions): Barometer, 2013). The reliability of po- Economic Forum). As a result of the „„Providing dedicated training on eth- lice services to protect businesses from World Bank Governance Indicators, ics, conflicts of interest, and corruption crime is considered very high (Global Norway has had an average score of prevention in a systematic manner to Competitiveness Report, 2017). In ad- nearly 100% on corruption control over persons entrusted with top executive dition, the Norwegian government has the past two decades. functions at the start of their term and effective mechanisms in place to inves- The country’s citizens are highly on a regular basis throughout their terms tigate and prosecute corruption among satisfied with services and institutions of office; police officers (Human Rights Report, (OECD Government at a Glance, 2015), „„Establishing a system to ensure con- 2018). administrative corruption and petty sistent interpretation of ethical matters The police is currently being re- bribery are almost non-existent (GAN among those responsible for giving ad- formed in order to streamline its op- Business Anticorruption Portal, Norway vice on them; erations, and steps have been taken to Corruption Report), and Norway’s eco- „„Introducing rules/principles and pro- strengthen internal control and audit nomic crime-fighting unit, ØKOKRIM, viding guidance on how persons entrust- systems in recent years. There have also has proven its proactivity in investigat- ed with top executive functions engage been affirmative moves to improve the ing and prosecuting corruption in Nor- in contacts with lobbyists and other third protection of whistle-blowers, includ- way and abroad (OECD Phase 4 Report: parties who seek to influence govern- ing recent legislative changes in 2020 Norway, 2018). mental processes and decisions; in addi- and the development of guidelines and There are other corruption-related tion: increasing the transparency of the operational arrangements. Nevertheless, challenges, however, such as close net- purpose of such contacts, e.g., the identi- more needs to be done in order to ensure works and conflicts of interest. The ty of the person(s) involved and the spe- a more well-coordinated and proactive country essentially relies on high expec- cific subject matter(s) of the discussions; integrity policy, such as refining risk as- tations and trust in its senior officials. „„Amending standards for retaining or sessment/information collection tools Violations of integrity standards have accepting paid and unpaid secondary and better monitoring/cross-checking limited formal consequences other than positions, occupations, or other paid as- of integrity-related registers (e.g., busi- political repercussions. As a result, just signments in connection with the prohi- ness interests, disciplinary action data, like in other countries, disagreements in bition of such activities, unless a writ- reviews and reconsiderations, internal this regard often lead to heated public ten (well-considered) authorisation is deviation reports, etc.). Furthermore, the debate. In 2017, the Office of the Audi- received that is also made available to Code of Conduct for the Police needs to tor General found that Parliament had the public; be accompanied by additional measures disregarded standard procurement rules „„Developing general guidelines to ad- to make it meaningful. and other safeguards for major construc- dress the conflicts of interest that can With regard to law enforcement agen- tion projects, leading to an avalanche of arise from private activities, both when cies, GRECO therefore recommends the costs and the resignation of the President entering and leaving a government posi- following: of Parliament. In 2018, the Minister of tion; „„Adopting a coordinated corruption Fisheries resigned after having violated „„Subjecting state secretaries and po- prevention and integrity policy for the security rules during a private trip. litical advisors to the same disclosure police, based on systematic and compre- GRECO therefore calls for further requirements as ministers and possi- hensive review of risk-prone areas, cou- measures to prevent corruption and rec- bly requiring the same information for pled with a regular assessment mecha- ommends strengthening accountability spouses and dependent family members; nism; and law enforcement mechanisms. In „„Filing disclosures electronically to „„Supporting implementation of the addition, more effort should be made to avoid the possibility of transcription er- Code of Conduct by means of a more ensure formalized training and guidance rors on the part of the registrar; uniform, coordinated, and comprehen- on ethical issues for all senior execu- „„Enacting enforceable sanctions for sive approach, including training pro- tives. Further measures should be taken failing to file or knowingly make false grammes and awareness-raising meas- with regard to the rules governing how statements on the disclosure reports; ures on integrity/professional ethics and persons in top executive positions inter- „„Enacting formal systems for review systematic confidential counselling on act with lobbyists ‒ and with regard to of the declarations of persons entrusted these matters; revolving doors. with top executive functions. „„Developing a streamlined system for In this context, GRECO recom- As for the police, public surveys in- authorisation and recording of secondary

eucrim 1 / 2021 | 41 NEWS – Council of Europe activities within the police, coupled with Council of Europe Treaty State Date of ratification (r), effective follow-up measures; signature (s) , accession „„Conducting dedicated training and (a) or entry into force (e) awareness-raising activities on whistle- blowing for all hierarchy levels and Protocol amending the Convention Spain 28 January 2021 (r) chains of command within the police; for the Protection of Individuals Finland 10 December 2020 (r) with regard to Automatic Processing „„Establishing national statistics on of Personal Data (ETS No. 223) Liechtenstein 7 December 2020 (s) disciplinary measures and clearly com- Malta 2 November 2020 (r) municating them to the public while re- Cyprus 21 September 2020 (r) specting anonymity. Estonia 16 September 2020 (r) Mauritius 4 September 2020 (s) Bosnia and Procedural Criminal Law Herzegovina 2 July 2020 (s) Romania 26 June 2020 (s) CCPE: Opinion on the Role of Serbia 26 May 2020 (r) Prosecutors in Emergency Situations Lithuania 23 January 2020 (r) On 21 March 2021, the Consultative Protocol amending the Additional Hungary 31 March 2021 (s) Council of European Public Prosecu- Protocol to the Convention on the Ukraine 1 December 2020 (r) tors (CCPE) published Opinion No. 15 Transfer of Sentenced Persons on “The role of public prosecutors in (ETS No. 222) Austria 8 July 2020 (r) emergency situations, in particular when Netherlands 23 January 2020 (s) facing a pandemic.” The Opinion was adopted in November 2020; it is avail- Council of Europe Convention Greece 2 March 2021 (r) on Offences relating to Cultural Property Montenegro 8 April 2019 (s) able in different languages on the CCPE (ETS No. 221) website. Russia 8 November 2018 (s) Opinion No. 15 sheds light on the Mexico 6 September 2018 (r) implementation of the usual tasks of Latvia 22 February 2018 (s) prosecutors in emergency situations, Platzhalter Cyprus 7 December 2017 (r) their new or expanded tasks in response Italy 24 October 2017 (s) to such situations, the management of Ukraine 11 September 2017 (s) challenges faced by prosecutors in emer- Slovenia 4 July 2017 (s) gency situations, and the modalities of San Marino 19 May 2017 (s) international cooperation during a pan- demic, while ensuring that prosecutors Armenia 19 May 2017 (s) carry out their mission with the highest Portugal 19 May 2017 (s) quality and efficiency and respect for the Additional Protocol to the Council Switzerland 25 May 2021 (r) rule of law and human rights. of Europe Convention on the Prevention San Marino 1 May 2021 (e) The Opinion emphasizes that a for- of Terrorism (ETS No.217) mal declaration of a state of emergency Croatia 15 March 2021 (r) is required for emergency measures and Russia 24 January 2020 (r) derogations from rights set forth in in- Council of Europe Convention against Spain 1 April 2021 (e) ternational instruments, including the Trafficking in Human Organs Switzerland 21 October 2020 (r) ECHR. Furthermore, the restrictions in- (ETS No. 216) troduced as a result of the pandemic may affect not only civil and political rights Council of Europe Convention on the Greece 16 June 2020 (r) protected by the ECHR but also eco- Manipulation of Sports Competitions (ETS No. 215) nomic, social, and cultural rights, with the possible risk that they may entail dis- Protocol No. 16 to the Convention for Bosnia and crimination against certain groups. This the Protection of Human Rights and Herzegovina 9 March 2021 (r) particularly affects health care workers Fundamental Freedoms (ETS No. 214) Luxembourg 14 May 2020 (r) and racial and ethnic minorities, which

42 | eucrim 1 / 2021 Procedural Criminal Law

temporariness, effective (parliamentary Council of Europe Treaty State Date of ratification (r), signature (s) , accession and judicial) scrutiny, predictability of (a) or entry into force (e) emergency legislation, and loyal coop- eration among state institutions. Protocol No. 15 amending the Convention Italy 21 April 2021 (r) The integrity of the prosecution ser- for the Protection of Human Rights and Bosnia and vice ‒ including its competencies, inde- Fundamental Freedoms (ETS No. 213) Herzegovina 8 September 2020 (r) pendence, and impartiality ‒ should be protected in the same way as the integ- Convention on the counterfeiting of Ecuador 7 May 2021 (s) rity of the court system. Where appropri- medical products and similar crimes Niger 19 February 2021 (s) involving threats to public health ate, prosecutors should pay particular at- (ETS No. 211) Belarus 28 September 2020 (r) tention to whether the use of emergency Bosnia and measures interferes with fundamental Herzegovina 18 September 2020 (r) human rights to a greater extent than is strictly necessary. Prosecutors may also Council of Europe Convention on the Ireland 1 April 2021 (e) be called upon to monitor the necessity, Protection of Children against Sexual Armenia 7 September 2020 (r) Exploitation and Sexual Abuse proportionality, and appropriateness of (ETS No. 210) emergency measures outside the crimi- nal justice sphere. Council of Europe Convention on Laun- Austria 28 July 2020 (r) The establishment of crisis response dering, Search, Seizure and Confiscation Lithuania 28 April 2020 (r) of the Proceeds from Crime and on the teams could be envisaged and, taking Financing of Terrorism (ETS No. 198) into account legal diversity, guidelines should be issued for cooperation mecha- Council of Europe Convention on the San Marino 1 May 2021 (e) nisms both within and outside the pros- Prevention of Terrorism (ETS No. 196) Switzerland 25 March 2021 (r) ecutor’s office in special emergencies. In emergencies, special cooperation and Additional Protocol to the Criminal Law Estonia 1 April 2021 (e) coordination mechanisms can be estab- Convention on Corruption (ETS No. 191) lished by prosecutors’ offices with other Additional Protocol to the Convention Sweden 28 April 2021 (r) institutions such as law enforcement on Cybercrime, concerning the criminali- agencies, health care facilities, and rep- sation of acts of a racist and xenophobic resentatives of mass media. nature committed through computer Emergencies, such as a pandemic systems (ETS No. 189) with closed borders and quarantine mea- Convention on Cybercrime (ETS No. 185) Sweden 28 April 2021 (r) sures, pose particularly serious problems Colombia 16 March 2020 (a) for international cooperation, which can lead to the complete breakdown of cer- Second Additional Protocol to the Euro- Liechtenstein 25 September 2020 (r) tain elements of cooperation. For such pean Convention on Mutual Assistance situations, more effective and innovative in Criminal Matters (ETS No. 182) forms of cooperation must be developed Latest Update: 22 May 2021 (by Clara Arzberger) in order to maximize operational ef- ficiency. In this context, consideration should be given to using simplified pro- cedures in emergencies, such as accept- can lead to hate speech, racism, xeno- of measures in emergency situations ing and processing MLA and extradition phobia, attacks on and forced returns of must primarily respect non-derogable requests by electronic mail. refugees and asylum seekers, mistreat- rights. Measures affecting other rights Lastly, the CCPE invites member ment of foreigners and migrants, sexual must be based on the overarching prin- states to share the results of possible violence, gender-based violence, and ciple of the rule of law and on the prin- evaluations on the impact of the pan- domestic violence. ciples of necessity, adequacy, equality demic on their judicial systems in order Legislation governing the enactment and non-discrimination, proportionality, to update the Opinion.

eucrim 1 / 2021 | 43 Articles* Articles / Aufsätze

Fil Rouge It is now official: the European Public Prosecutor’s Office the new body to start working efficiently from day one, in (EPPO) will start its operational activities as from beginning particular decisions on rules of procedure, the Permanent of June this year. Chambers, recruitment and working conditions of the EDPs, On 7 April 2021, the European Chief Prosecutor, Laura Kövesi, the conclusion of working arrangements with Europol and submitted to the European Commissioner for Justice, Didier Eurojust, and, most recently, the operational guidelines on Reynders, and to the European Commissioner for Budget investigation, evocation, and referral of cases. and Administration, Johannes Hahn, her proposal to start This special issue is devoted entirely to the concrete func- the EPPO’s operational activities. Having assessed that the tioning of the EPPO. eucrim wishes both to pay a formal trib- conditions laid down in Regulation (EU) 2017/1939 are ful- ute to the new supranational body and to give voice to sev- filled and that the EPPO is set up and ready to assume its eral important components of the Office: eleven European investigative and prosecutorial tasks, the European Com- Prosecutors, representing half of the College, outline their mission adopted the necessary implementing decision on views on the major challenges and opportunities ahead for 26 May 2021; it determines the date on which the European the EPPO. The European Chief Prosecutor delivers her per- Public Prosecutor’s Office assumes its operational work. spective in the guest editorial. The decision was published in the Official Journal L 188 of The panoply of topics reaches from the independence of 28 May 2021. The EPPO will assume its investigative and the EPPO to the defence of procedural rights. It ranges prosecutorial tasks conferred on it by the Regulation on from abandoning or transforming the role of the investiga- 1 June 2021. tive judge still present in some participating countries (e.g. The appointment process of European Delegated Prosecu- France and Belgium) to the crucial role of the Permanent tors (EDPs) is already advanced. On the eve of the official Chambers in the decision-making process and in ensuring start, only two participating Member States (Finland and the genuine multinational element in the EPPO’s proceed- Slovenia) have not yet proposed their candidates for the ings. Contributions also tackle the reporting mechanisms, EDP positions (though for very different reasons); 88 EDPs the interplay between the EPPO and OLAF; questions on of a total number of 140 have already been appointed by the the material competence of the EPPO to fight fraud, includ- College. ing the tricky concept of “inextricably linked offenses; the According to the Commission and the European Chief gathering and admissibility of evidence in the participating Prosecutor, the lack of appointment of the EDPs from two Member States; the deprivation of illicit proceeds of crime Member States should not prevent the effective start of and – last but not least – challenges in connection with digi- the EPPO’s operational work. This approach takes into ac- talisation. count the possibility that the European Prosecutors of the United in diversity – this motto of the European Union is well concerned Member State can conduct the investigation reflected in the many contributions in this issue. On the one personally in those Member States, with all the powers, re- hand, they reveal the enormous challenges posed by this sponsibilities, and obligations of an EDP in accordance with revolutionary project in the field of European criminal law. Art. 28(4) of the EPPO Regulation. On the other hand, they show the irrepressible enthusiasm Considering that the entire project of the European Public of the authors, who are well aware of the historic moment Prosecutor, from its conception, took more than a quarter they are contributing to in realizing the efficient protection of a century the EPPO will become functional at last, after of the EU budget – in particular against the background of an intense preparatory phase which started at the end of the unprecedented amount of new resources made avail- September 2020 when the European Chief Prosecutor and able through the long-term 2021–2027 budget and the the 22 European Prosecutors took an oath before the Euro­ “NextGenerationEU” financial instrument. pean Court of Justice. Since then, a number of decisions Lorenzo Salazar, Deputy Prosecutor General to the Court of the College have already been adopted in order to allow of Appeal of Naples; Member of the eucrim Editorial Board

* N.B. The contributions by the European Prosecutors reflect the personal views of the authors and not necessarily those of the Office they are affiliated with.

44 | eucrim 1 / 2021 Le parquet européen désormais opérationnel – Perspectives des procureurs européens

Le parquet européen: un projet entre audace et réalisme politique

Le parquet européen devrait entrer en fonction au cours du premier semestre 2021. N’ayant pas obtenu un accord unanime au Conseil, il débutera son activité dans le cadre d’une coopération renforcée réunissant vingt-deux États membres. Cet échec apparent est en fait un succès, car il possèdera malgré tout une dimension suffisante pour peser réellement dans son champ de compétence – la défense des intérêts finan- ciers de l’Union – mais aussi au niveau institutionnel.

Le projet, souvenons-nous, est né d’une réflexion collective conduite par la pro- fesseure de droit, Mireille Delmas-Marty, qui a débouché sur le fameux « Corpus Juris » sur la protection des intérêts financiers de l’Union publié en 1997. Celui-ci proposait déjà de créer un parquet européen chargé de poursuivre les auteurs des infractions portant atteinte au budget européen. La proposition était d’autant plus audacieuse que l’espace judiciaire européen n’existait pas encore, Eurojust non plus. Elle sera reprise à l’article 86 du Traité de Lisbonne (TFUE) qui lui sert de base légale. Frédéric Baab Procureur européen (France) Une idée audacieuse et simple à exprimer – un parquet européen –, mais dont la mise en œuvre était singulièrement complexe, au moins pour deux raisons. La pre- mière était purement technique. Rien de plus compliqué, en effet, que de créer de toutes pièces un ministère public européen. Car il faut tout prévoir si l’on veut que Le parquet européen n’est pas ça marche : la répartition des pouvoirs entre l’échelon central et l’échelon natio- seulement un projet audacieux, nal, la structure et le fonctionnement interne de l’organe, le droit applicable aux c’est aussi un bouleversement pour enquêtes et aux poursuites, la coopération transnationale, etc... La seconde difficulté les ordres juridiques internes, en était de nature politique. Il faut bien comprendre qu’au-delà des aspects juridiques et particulier dans les pays, comme la techniques, la création d’un parquet européen représentait un véritable transfert de France, qui connaissent encore le juge souveraineté au profit d’une autorité judiciaire supranationale. Or les États membres d’instruction. n’étaient pas disposés à accepter un tel sacrifice sans obtenir quelques garanties en retour. Le projet a donc donné lieu, dès le départ, à deux conceptions assez éloignées l’une de l’autre : d’un côté, celle de la Commission européenne qui voulait un organe entièrement intégré et sans « lien national » avec les États membres ; de l’autre, une approche plus réaliste portée par la France et l’Allemagne à laquelle la plupart des États membres se sont ralliés ensuite.

Après de nombreux rebondissements, c’est la vision des États membres qui s’est finalement imposée. Que contient-elle ? D’abord cette idée que le parquet européen ne peut se satisfaire de demi-mesures : sa création devra entraîner un vrai trans- fert de compétences. Dans le champ d’action qui est le sien, toutes les prérogatives d’action publique (direction des enquêtes, exercice des poursuites) seront désormais exercées par un office central européen. Deuxième élément : l’indépendance. Ce par- quet européen n’aura de légitimité que s’il est pleinement indépendant à l’égard des États membres – cela va de soi –, mais aussi à l’égard des institutions européennes. Troisième idée : un parquet collégial. C’est sur ce point que le désaccord s’était cris- tallisé entre les États membres et la Commission européenne qui croyait y déceler le

eucrim 1 / 2021 | 45 Le parquet européen désormais opérationnel – Perspectives des procureurs européens retour à bas bruit du modèle intergouvernemental. Ce qui n’était pas notre intention. La collégialité que nous voulions n’était pas celle de l’agence Eurojust où chaque Membre national représente son pays. Il était clair pour nous, dès le départ, que les procureurs européens agiraient au nom et pour le compte d’un intérêt supérieur aux intérêts nationaux, un intérêt commun à tous les États membres, un intérêt européen. Quatrième et dernière idée : l’application du droit national. Il était hors de question, en effet, de s’engager dans la négociation d’une procédure pénale européenne dont personne ne voulait : c’eût été le meilleur moyen de tuer le projet dans l’œuf.

C’est sur ces bases que le règlement UE 2017/1939 a été adopté le 12 octobre 2017. Il confère au parquet européen le statut d’organe de l’Union et pose le principe de son indépendance en apportant de solides garanties à la nomination de ses membres. Celui-ci s’établit à deux niveaux : un échelon central situé à Luxembourg repré- senté par le chef du parquet européen, le collège des procureurs européens et le directeur administratif ; un échelon décentralisé représenté par les procureurs eu- ropéens délégués dans chaque État participant. Le niveau central s’appuiera, à la fois, sur les procureurs européens qui « superviseront » les enquêtes conduites dans leur propre pays et sur les « chambres permanentes », composées chacune de trois procureurs européens, qui prendront toutes les décisions d’action publique dans les dossiers (exercice des poursuites et appels éventuels). Le texte détermine enfin la manière dont le parquet européen exercera son droit d’évocation sur la base des in- formations transmises par les États membres. Ces règles ont été complétées par une série de dispositions concernant notamment le contrôle par la Cour de Justice, ainsi que la coopération opérationnelle avec les partenaires (OLAF, Europol, Eurojust).

L’étape suivante a été la transposition de ce règlement en droit national. Car même s’il est d’application directe, sa mise en œuvre nécessitait l’adoption d’un cadre procédural spécifique. C’était particulièrement vrai dans les pays qui connaissent le juge d’instruction. Le point était délicat à traiter, car le maintien d’un magistrat ins- tructeur était par principe incompatible avec la mise en place d’un parquet européen. Autorité de poursuite à part entière, ce dernier n’avait pas vocation à se dessaisir au profit d’une autorité judiciaire nationale. La France a fait le choix de conférer les pouvoirs du juge d’instruction au procureur européen délégué. Ces dispositions figurent dans la loi relative au parquet européen du 24 décembre 2020 qui lui per- met d’être conforme au règlement tout en préservant l’ordre juridique français. S’il l’estime opportun, le procureur européen délégué pourra donc conduire ses enquêtes « conformément aux dispositions applicables à l’instruction » ; et c’est lui in fine qui saisira – ou non – la juridiction de jugement conformément aux instructions données par la chambre permanente. Voilà donc un procureur qui portera de temps en temps les habits d’un juge. Le projet, on le voit, n’était pas seulement audacieux, il conte- nait dès le départ de grands bouleversements!

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The EPPO and the Fight against VAT Fraud – A Legal Obstacle in the Regulation?

Fighting profit-driven crime is at the core of the mission of the European Public Prosecutor’s Office (EPPO). The first ever EU prosecution body is invested with the mandate of protecting the Union’s financial interests and its sphere of competence is naturally focused on fighting financial crime.

It is estimated that, on a world scale, drug trafficking is the most lucrative crime. At the EU level, the drug market is estimated to have a minimum retail value of €30 billion per year.1 Other criminal activities seem more profitable, however, at least within the EU. In 2018, imports of counterfeit and pirated products into the EU amounted to as much as €121 billion (6.8% of EU imports).2 Tobacco smug- gling, a core offence within the competence of the EPPO, costs the EU budget more than €10 billion annually in lost public revenue3 ‒ a significant amount, especially when compared to customs duties on all products imported to the EU, which amounted to €25 billion in 2018.4 Recently, OLAF reported that, based on detected cases, fraudulent irregularities affected the EU’s expenditure slightly in excess of €1 billion in 2018. Danilo Ceccarelli Deputy European Chief Prosecutor, However, multiple sources reveal that the most profitable crime in the EU is prob- European Prosecutor (Italy) ably intra-EU VAT fraud. Missing trader intra-community (MTIC) fraud costs around €60 billion annually in tax losses5 – a figure strongly corroborated by independent indicators. The EU’s VAT gap in 2018 was €137.5 billion6 and a significant part of it arises from VAT fraud, although the difference between expected and actual VAT rev- The questionable decision to exclude enue represents more than just fraud,.7 Moreover, a recent study8 revealed that the EU the competence of the EPPO for has been running massive trade surpluses with itself for years ‒ a logical impossibility criminal offences in respect of and a strong indicator of fraud. The €307 billion self-surplus in 2018 (86% of the en- national direct taxes could adversely tire global self-surplus) for that year suggests possible VAT fraud amounting to up to affect its capacity to fight VAT fraud. €64 billion in that year. In respect of VAT fraud ‒ regularly presented as one of the EP- PO’s “core offences” ‒ the EPPO is competent if the offence is connected with the terri- tory of two or more Member States and involves a total damage of at least €10 million.

VAT fraud often goes hand in hand with direct tax offences and is ultimately commit- ted either by presenting false, incorrect, or incomplete statements or documents or by non-disclosing VAT-related information. Frequently, this conduct simultaneously involves both VAT and direct taxes. In case of simulated transactions in a “carousel fraud,” an economic operator might not only illegally claim VAT reimbursement but also deduct from the taxable base the expenses related to the simulated purchase. Both the VAT and the direct tax offences would be committed via one and the same false or incorrect tax statement. In addition, in the context of a foreign company that avoids creating a permanent establishment9 in an EU Member State with the purpose of avoiding taxes, the charges might include both direct taxation and VAT as a consequence of non-disclosing information related to both taxes. Therefore, it can be well submitted that, in such cases, VAT and direct tax offences would be “inextricably interlinked.”

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Council Regulation (EU) 2017/1939 establishing the EPPO does not give a clear definition of the notion of “inextricably linked offences.” Recital 54 makes refer- ence to the “ne bis in idem principle” and to “concrete circumstances which are inextricably linked together in time and space.” The “ne bis in idem principle” is a fundamental guarantee for the defendant, whereas in this case the Regulation has an entirely different purpose, i.e. setting out an operational and procedural rule in order to establish which prosecutor’s office is competent. Common practice and criminal procedure law in Member States allow ‒ and often oblige ‒ national prosecutors to investigate and prosecute connected offences in the same proceedings, even if they are not “inextricably linked.” This is done in the interest of justice and in order to ensure the consistency of the prosecutorial action.

It is expected that the interpretation of the notion of “inextricably linked offences” will become a very controversial legal issue, but there is no doubt that offences in- volving both VAT and direct taxes at the same time should fall under this legal defini- tion, as outlined above. It is surprising, however, to read in Art. 22(4) of Regulation 2017/1939 that the EPPO apparently will not be able to investigate and prosecute both the offences.

The rationale of this provision is obscure. Neither the recitals of the EPPO Regula- tion nor the PIF Directive10 provide any background on the reasons why, exclusively in respect of direct taxes, the rules on inextricably linked offences do not apply. Moreover, this is not consistent with the rules and operational practice followed by prosecution services in the Member States. Undoubtedly, there is the risk that this approach might substantially affect the capacity and the competence of the EPPO to investigate serious cross-border VAT fraud.

The operational activity of the EPPO will soon reveal the exact consequences that Art. 22(4) of the EPPO Regulation may create and whether a reasonable interpreta- tion is possible. This could be the first and most important provision to undergo the “review clause” foreseen in Art. 119 of the EPPO Regulation, well before the five- year timeframe established therein for evaluation is up.

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The Material Competence of the EPPO and the Concept of Inextricably Linked Offences

According to Art. 22 of Council Regulation (EU) 2017/1939 (the “EPPO Regula- tion”), the material competence of the new EU body shall cover three different clus- ters of criminal conduct: „„First and foremost, at least from a quantitative point of view, the Regulation cov- ers offences affecting the financial interests of the European Union that are pro- vided for in the PIF Directive (Directive (EU) 2017/1371), as implemented in national law;11 „„Secondly, the Regulation covers participation in a criminal organisation, as de- fined in the applicable national law implementing Framework Decision 2008/841/ JHA, as long as the organisation is focused on committing PIF offences; „„Thirdly, the Regulation covers offenses that areinextricably linked to those falling in the first cluster (but not in the second one).

While the first two clusters are – each on their own – conceivable and immediately understood by experienced legal practitioners, the third cluster has a rather “fluid” nature. In fact, it is possible to produce a list of offences or to outline a number of José Eduardo Guerra criminal activities falling under paragraphs 1 and 2 of Art. 22, but cases in which European Prosecutor (Portugal) paragraph 3 shall be applicable can only be perceived in connection to an actual situ- ation involving a PIF offence, as defined in paragraph 1 of Art. 22. In other words, paragraph 3 does not provide for a stand-alone material competence; this compe- tence can only exist if, at the same time, the EPPO is materially competent based on The effectiveness of the EPPO paragraph 1.12 One could say that paragraphs 1 and 2 of Art. 22 establish the core demands a functional interpretation of the EPPO’s material competence, whereas paragraph 3 contains an extension of of Art. 22(3) of the EPPO Regulation. said competence. Yet, the precise contour of this functional interpretation is far from The reasons for extending the competence of the EPPO to any other criminal of- being shaped, and such a task must fence inextricably linked to a PIF crime can be found in Recital 54 of the EPPO be accomplished by practitioners, Regulation. They stem from the need to carry out efficient investigations and from academics, and jurisprudence in the the implications of the ne bis in idem principle. As noted by some authors, this ex- years to come. tended or ancillary competence may encompass non-harmonized offences and even offences that do not fall under the scope of the Union’s (prescriptive) jurisdiction, as defined in Art. 83(1) and (2) TFEU.13 The extension is limited, however, by the application of the principle of preponderance,14 along with other criteria such as the instrumentality of the offence or the amount of damage caused or likely to be caused to the Union’s financial interests, as laid down in Art. 25(3) of the EPPO Regulation. It goes without saying, of course, that any extension of the EPPO’s material compe- tence under Art. 22(3) must be in line with Art. 86 TFEU.15

As already mentioned, the construction of a concept of inextricably linked offences, as a key component of the (extended) material competence of the EPPO, must take two aspects into consideration:

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„„The need for an efficient investigation of offences affecting the Union’s financial interests; „„The implications of the ne bis in idem principle in light of the case law of the CJEU.

The legislator expressly mentioned that the concept in question must be considered in light of the jurisprudence of the CJEU on ne bis in idem,16 which has consistently rejected a normative vision and affirmed “idem” as a factual notion. In Van Esbroeck (C-436/04), the Court established the identity of the material acts as the relevant criterion for the application of Art. 54 of the Convention implementing the Schengen Agreement (CISA). This jurisprudence was followed by the Court in subsequent rul- ings, for instance in Kraaijenbrink (C 367/05):17 26 (…), it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck, paragraph 36; Case C 467/04 Gasparini and Others [2006] ECR I 9199, paragraph 54, and Case C 150/05 Van Straaten [2006] ECR I 9327, paragraph 48). 27 In order to assess whether such a set of concrete circumstances exists, the competent na- tional courts must determine whether the material acts in the two proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter (see, to that effect,Van Esbroeck, paragraph 38; Gasparini and Others, paragraph 56, and Van Straaten, paragraph 52).

Based on this jurisprudence and in line with Recital 54, two offences should be con- sidered inextricably linked if the underlying facts are substantially identical, regard- less of their legal classification, such that a decision on the merits of one would bar the prosecution and/or trial of the other.18 This approach is only one side of the same coin, however, the other being the efficiency of the investigations.

The effectiveness of the EPPO demands a functional interpretation of Art. 22(3) that, within the limits of the Treaty and in line with the jurisprudence of the CJEU, might lead to a solution allowing for an extension of the material competence of the EPPO to include ancillary offences based on identical facts but also avoid any artificial splitting of the criminal conduct or an erosion of the guarantees of defence. Yet, the precise contour of this functional interpretation is far from being shaped, and such a task must be accomplished by practitioners, academics, and jurisprudence in the years to come.

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Reporting of Crime Mechanisms and the Interaction Between the EPPO and OLAF as Key Future Challenges

The establishment of the EPPO overwrote the topography of both EU and national bodies protecting the financial interests of the EU and created a breaking point in the field of criminal law. For the first time in history, apart from international crimi- nal tribunals, the right to investigate and prosecute criminal offences was given to a supranational authority in the EU. National prosecution services will hand over control of their policies to combat PIF offences to the new body at the EU level. This contribution highlights two future challenges: the need for effective reporting chan- nels between the EPPO and other bodies involved in detecting PIF crimes (a) and the interplay between the EPPO and OLAF (b). a) In order to achieve its goals, the EPPO will need to establish smart information flows between the central office in Luxembourg, delegated prosecutors, and national authorities and, at the same time, avoid causing delays in the information exchange. Aside from adjusting the reporting mechanism to the various procedural rules of the 22 participating Member States, the reporting system will have to incorporate lines of communication and case-related information exchange with other EU bodies like Petr Klement Eurojust, Europol, the European Court of Auditors (ECA), the European Investment European Prosecutor (Czechia) Bank (EIB), and especially with OLAF.

The EPPO Regulation left untouched the duty of the national authorities to report to the Commission any irregularities that were the subject of primary administra- The EPPO and OLAF shall not only ­­ tive or judicial findings and to update and amend the information on a quarterly co-exist, but also take advantage basis.19 This is one of the ways in which OLAF receives information about irregu- of their capacities, professional larities, usually through the system of the anti-fraud coordination service (AFCOS) knowledge and the new legal options established to facilitate effective cooperation.20 The national authorities shall also in order to become a powerful tool for transmit to OLAF any other document or information relating to the fight against combating fraud. fraud, corruption, and any other illegal activity affecting the financial interests of the Union.21 Fraud and corruption, however, are not purely administrative irregularities but typical categories of criminal law.

In parallel to the obligation to inform OLAF, the national authorities shall, without undue delay, report to the EPPO any criminal conduct in respect of which it could exercise its competence,22 even cases involving damage caused to the EU’s financial interests of less than €10.000. We should bear in mind that the requirements for the initial reports to the EPPO are much lower than to those for the system of reporting irregularities.23

Without prejudice to the ideas of shared competence between the EPPO and na- tional authorities and the complementarity of OLAF investigations, it is necessary to streamline and rationalize the existing information and reporting channels so that the national authorities can report PIF crimes to one single point of contact. In this context, it is important to underline that the EPPO is the only EU institution able to apply means of criminal law to combat crime affecting the EU’s financial inter-

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ests. Therefore, if “there are reasonable grounds to believe” that an offence within the EPPO’s competence has been committed, all information should be forwarded directly to the EPPO, which is in the exclusive position of being able to assess its own competence. In this regard, some of the existing EU mechanisms concerning de facto reporting of PIF crimes seem to be obsolete, as well as national law duties to report such information to a national prosecution office in advance or in parallel to the EPPO. Similarly, if OLAF finds there are facts that could give rise to criminal proceedings and trigger the competence of the EPPO as late as the final drafting of the OLAF report, it seems to be reasonable to inform the EPPO exclusively.24 Spreading information across too many communication lines may be harmful to the main objective of the EPPO, namely the effective prosecution of PIF crimes and bringing criminal offenders to trial. b) Art. 101 of the EPPO Regulation is an opportunity for the EPPO and OLAF to overcome obstacles of cooperation with the authorities in the 22 participating Mem- ber States and to imbue the results of OLAF investigations with a new value in criminal proceedings. According to Art. 101, the EPPO may request OLAF to sup- port and complement the EPPO’s activity, inter alia, by providing information or conducting administrative investigations. However, such requests will need to come from the prosecution in open criminal proceedings, with the clear intent of giving evidence in trial.

Two conditions are crucial for the success of this cooperation. First, it is important not to diverge from the standard of procedural safeguards in Chapter VI of the EPPO Regulation and from EPPO instructions to adhere to specific formal procedures. Sec- ond, OLAF investigators shall, upon instruction and in cooperation with the EPPO prosecutors, focus on the investigation of facts concerning particular offences and on building up a criminal case. In particular the latter aspect will entail changes at the part of OLAF. Until now, OLAF’s remit has not been to document all elements of a particular criminal offence (actus reus and mens rea) beyond reasonable doubt in its final reports. Regulation 883/2013 merely indirectly indicates OLAF’s bur- den of proof as “facts, which could give rise to criminal proceedings” or it remains completely silent. There is a much higher standard of proof in criminal proceedings, especially for proving the mens rea beyond reasonable doubt. Until now, OLAF was supposed to document suspicion of fraud more on the balance of probabilities and, in most cases, did not receive sufficient feedback from any subsequent criminal proceedings.

Building up a criminal case means focusing on proving all elements of crime while taking into account national procedural rules from the outset of the investigation, es- pecially specific guarantees and the rights of suspects and victims. This approach is the only way to avoid diminishing the value of evidence in trials, having to recollect evidence (on the part of national authorities), and the procedures becoming thwart- ed, on occasion, as a result of the deliberate destruction of evidence by criminals.

The new legal framework introduces unique options for OLAF/EPPO cooperation, a cooperation which could benefit from OLAF’s networks and experience and from the EPPO’s powers. The new situation requires streamlining of information chan- nels, however, as well as respecting the sine qua non conditions of criminal proce- dures. The will towards an effective cooperation, not just co-existence, has already been expressed by both sides.

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EPPO – Diversity and Challenges in Investigation and Prosecution in 22 Member States

For an efficient functioning of the EPPO, all participating Member25 States are obliged to meet the substantive and procedural preconditions. The substantive pre- conditions are covered by the criminal offenses and penalties transposing the PIF Directive26 into the national laws. Although the Directive harmonises the legal or- ders, it should be stressed that the underlying criminal law provisions are those of the national legal orders of the Member States.

The procedural preconditions relate to the implementation of the EPPO Regula- tion.27 Compared to the substantive aspect, the situation is a little different: Euro- pean Delegated Prosecutors (EDPs) will conduct investigations in accordance with the Regulation and, for matters not covered by it, in accordance with national law. Furthermore, Art. 30(1) of the EPPO Regulation lists certain investigative measures that the Member States are obliged to provide in their national criminal procedure laws and which the EDP must be able to request or order.28 Although the EPPO may order or require investigative measures to be taken throughout the EU, the possibil- ity to enforce investigative measures depends, to a large extent, on the conditions Tamara Laptos laid down by the national laws of the Member States. Practice will show to which European Prosecutor (Croatia) extend courts will hold investigative measures admissible if they are carried out on the basis of an EPPO order but are not prescribed by their national law. In this con- text, it should be noted that Union law obliges the Member States to apply and inter- pret national law in accordance with EU law, in this case the EPPO Regulation. The Differences in the criminal systems EPPO Regulation does not set any common standards for national rules of criminal of the 22 participating Member States procedure, however, which means that Member States are free in this respect.29 will certainly be a challenge for the EPPO when conducting investigations The chosen approach means that EDPs in 22 Member States have to apply 22 differ- at the national level and, in particular, ent laws of criminal procedure. This will create certain difficulties in their daily work when using evidence obtained from on specific subjects. In some Member States, for instance, EDPs will conduct their other Member States. How competent own investigations, whereas, in others, they will only supervise investigations car- courts in individual Member States ried out by the police. In a number of Member States, it will also be possible for two react to the impact of evidence or more prosecutors to conduct the same investigation, while it will not be possible gathered in other Member States in others. In some Member States, EDPs will be able to apply a simplified prosecu- under the EPPO Regulation will be tion procedure in the investigation phase but, in others, they will only be able to do shown in practice. Surely, the sooner so after the indictment has been filed.30 the EPPO starts producing some tangible results, the sooner it will be All these differences in the national criminal procedures pose a major challenge to recognized by European taxpayers as the Permanent Chambers, which will be tasked with monitoring and directing inves- an effective and efficient instrument tigations and prosecutions conducted by EDPs. Here, a great role and responsibility in the protection of the European falls to the supervising European Prosecutors, who will present summaries of the Union’s budget. cases under their supervision and make proposals for decisions to be taken by the Permanent Chambers. The role of European Prosecutors will also be important in explaining to the president and members of the Permanent Chambers not only the facts of the case but also the specifics of their national legislation.

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As mentioned, the EPPO is responsible for conducting investigations throughout the EU. The EPPO Regulation supports this objective by making cross-border collection of evidence faster and more efficient.31

Nonetheless, if investigative measures need to be taken in the territories of differ- ent Member States, the admissibility of the measures and their form of execution is determined by the law of the Member State upon whose territory the investigative measure is taken. This concept implies the following: „„Cross-border gathering of evidence in the traditional sense, as an activity involv- ing the judicial authorities of different countries, will not be applicable in EPPO cases; „„Evidence gathered during the investigation, which the EPPO will submit when filing the indictment, comes from different criminal procedural systems; „„Not only prosecutorial activities, but also other activities, e.g., the indictment and conducting the criminal trial, will remain at the national levels of the Member States.

The issue that evidence is gathered under different legal orders will certainly raise the question of admissibility of evidence. The Regulation is quite clear in this regard: evidence presented by the EPPO in court should not be denied admission solely on the ground that the evidence was collected in another Member State or in accordance with the law of another Member State.32 Nonetheless, the criminal justice systems of the Member States have had or will have to undergo certain adjustments and chang- es. The way in which prosecutors (EDPs) and other parties in criminal proceedings work and act will need to be adapted, especially concerning a preliminary procedure in which the EPPO will carry out all actions and assume the rights and obligations of prosecutors through the EDPs.

The EPPO will soon begin its work on specific criminal cases detrimental to the EU’s financial interests. Successful and efficient work by the EPPO will require both the contributions of EPPO officials at the central and decentralised level and those of all other competent national authorities belonging to the participating Member States. Only then will the joint work and motivation of all participants who combine their expertise via the new Office lead to concrete results in protecting the EU’s financial interests, regardless of the differences in the criminal justice systems of the 22 participating Member States. The sooner the EPPO starts producing tangible results, the sooner it will be recognised by European taxpayers as an effective and efficient instrument in the protection of the EU budget.

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The Permanent Chambers at the Heart of the EPPO’s Decision-Making

As a former Eurojust National Member for Austria and as a public prosecutor spe- cialised in economic crime cases, I have experienced first hand that the success of investigations into cross-border, white-collar crime depends as much on the compat- ibility of the different applicable legal regimes as on the national judicial authorities’ willingness to find “out-of-the-box” solutions where such compatibility is lacking.

Council Regulation 2017/1939 of 12 October 2017 implementing enhanced co­ operation on the establishment of the European Public Prosecutor’s Office (“EPPO Regulation”) sets up the EPPO as one single office with a central and a decentralised level.33 Whilst the investigations are to be conducted by the European Delegated Prosecutors (EDPs) at the decentralised level, the “main decisions” – e.g., whether to file an indictment, to dismiss the case, to apply a simplified prosecution procedure, or to refer a case to the national authorities – will be taken by the Permanent Cham- bers at the central level.34

Even before the initiation of an investigation, the Permanent Chamber may have to Ingrid Maschl-Clausen take a decision, notably when the EDP, after verification of a criminal complaint, European Prosecutor (Austria) is of the view that there are no reasons to initiate an investigation. The Permanent Chamber can “overrule” the EDP’s decision and instruct the EDP to start an inves- tigation. Equally, at later stages of the proceedings, e.g., when the verdict is handed down at the end of the trial, the decision whether to lodge an appeal or not, will, in The Permanent Chambers are the principle,35 be taken by the Permanent Chamber at the central level upon proposal genuine multinational element in the from the EDP who represents the EPPO in court.36 EPPO’s proceedings.

The Permanent Chambers monitor and direct the investigations and prosecutions conducted by the EDPs, ensure the coordination of investigations and prosecutions in cross-border cases, and, by way of implementing decisions taken by the College in accordance with Art. 9(2) of the EPPO Regulation, ensure coherence, efficiency, and consistency in the EPPO’s prosecution policy throughout the Member States.37 The members of the Permanent Chambers generally take their decisions following proposals submitted by the EDPs conducting the proceedings. The case virtually goes back and forth between the decentralised and the central levels of the EPPO.

By way of College Decision 015/2020, the EPPO has established 15 Permanent Chambers.38 The cases will be randomly allocated to any one of the Permanent Chambers by the EPPO’s Case Management System, with the right of the European Chief Prosecutor to suspend the allocation of new cases to one or several Permanent Chambers for a specified period of time, so as to ensure an equal distribution of workload between the Permanent Chambers.39

Each of the Permanent Chambers consists of a chairperson (i.e., the European Chief Prosecutor, one of the two Deputy European Chief Prosecutors, or a European Pros- ecutor) and two European Prosecutors as permanent members.40 Additionally, the

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European Prosecutor supervising an investigation or prosecution in an individual case (i.e., the European Prosecutor from the Member State of the EDP handling the case) takes part in the deliberations and decision-making of the Permanent Chamber in that individual case.41

The decision-making Permanent Chambers, which are composed of three plus one members from different Member States and different legal traditions, are the genuine multinational element in the EPPO’s proceedings. Otherwise, proceedings would be conducted by the EDPs almost entirely as if they were acting as national prosecutors on the basis of national law.42 While this setting guarantees the EPPO’s indepen- dence from national judiciaries and from (individual) Member States, on the one hand, it creates a number of linguistic, legal, and practical challenges, on the other.

The proceedings will be conducted in the official language of the Member State of the EDP handling the case-. The case file will be in that language, too. To allow the (three permanent) members of the Permanent Chambers to have access to the content of the case file in a language they understand, the acts of the criminal inves- tigation that are essential for the central Office to carry out its tasks, will have to be made available in English,43 where appropriate in summary form.44 In each single case dealt with by the EPPO, one of the Permanent Chambers will take a decision at least once and, in most cases, much more often during the lifetime of an EPPO case. As the Permanent Chambers consist of (only) the 22 European Prosecutors and the European Chief Prosecutor, the Permanent Chambers will also have to find ways to counter the risk of becoming the “bottleneck” in the EPPO’s future casework.

The future work of the Permanent Chambers is poised to fulfil their objective of ensuring coherence, efficiency, and consistency in the EPPO’s prosecution policy is achievable without a harmonised criminal procedure applicable to all EPPO pro- ceedings.

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The Independence of the European Public Prosecutor’s Office

An efficient and impartial European public prosecution service cannot exist with- out effective external independence of the EU institutions and the Member States. Likewise, the internal autonomy of its members is of utmost importance. The idea of independence has been underscored from the project’s inception in the late 1990s to Regulation 2017/201945 (hereinafter, the Regulation), which ultimately established the European Public Prosecutor’s Office (EPPO). In fact, independence is one of the EPPO’s main, if not its most important feature. It is an essential guarantee against abuse of power, which is not only in the prosecutors’ own interests but also in the interest of society itself and in the interest of the rule of law. Thus, the Regulation emphasises this fundamental principle by categorically establishing in Art. 6 that the EPPO shall be independent and act in the interest of the Union as a whole. This central provision also stipulates that the EPPO shall refrain from seeking or taking instructions from any person or entity outside it while at the same time obliging Member States and EU entities to respect the EPPO´s independence. Moreover, the Regulation does not merely affirm this external independence but also lays down specific rules to ensure that independence, in line with the case law of the European Maria Concepción Sabadell Carnicero Court of Human Rights reiterated by the Venice Commission.46 These rules relate European Prosecutor (Spain) inter alia to the manner of appointment of the EPPO´s prosecutors, the duration of their terms, and the existence of guarantees against external pressures, including decision making on budgetary matters. An efficient and impartial European With regard to the European Chief Prosecutor and the European Prosecutors (EPs), public prosecution service cannot the Regulation requires them to be professionals whose independence is beyond exist without effective external doubt. It also provides for selection and appointment procedures that, in principle, independence from the EU institutions should confirm their independence, as they involve international selection panels and the Member States and internal and different EU institutions.47 In the same vein, their non-renewable terms and the autonomy of its members. fact that the decision on their dismissal is entrusted to the European Court of Justice will act as safeguards of their independence. The Regulation also advocates the ex- ternal independence of the European Delegated Prosecutors (EDPs)48 who are clear- ly more exposed to external pressure, as they will directly carry out the EPPO´s pro- ceedings in their respective Member States. In these cases, however, and although the appointment of the EDPs is a matter for the EPPO College, their selection is assigned to the Member State; the College may only reject those candidates who do not fulfil the legal requirements. It is also worth noting that EDPs are recruited for a renewable term of five years and will eventually return to their national systems. Furthermore, the Regulation allows for the possibility of so-called “double-hatted” prosecutors, who will exercise their functions both within the EPPO and in their national prosecution services, making them subject to two different sets of rules, two sets of disciplinary proceedings, and, in certain cases, two chains of command.

It is clear from the above that mechanisms need to be put in place to ensure the EDPs’ independence. To this end, the Decision of the College on the conditions of employment of the EDPs has explicitly established the EPPO’s assistance to EDPs

eucrim 1 / 2021 | 57 EPPO Now Operational – Perspectives from European Prosecutors in the event of personal threats or damages resulting from the proper discharge of their functions. With the same objective, the College has also decided to specifically regulate the disciplinary offences and sanctions applicable to EDPs. Likewise, the College must pay special attention to the rules for the assignment and reassignment of cases between EDPs.

Ultimately, as stated above, the external independence of the EPPO is also linked to the allocation of sufficient financial resources in order to fulfil its mandate and linked to the necessary budgetary autonomy to manage them. As established by the Regulation, adequate financing of the EPPO lies with both the EU, through the general budget of the Union, and with each participating Member State, as they are obliged to provide their EDPs with the resources and equipment needed to carry out their duties.49

Along with this external independence, the internal autonomy of prosecutors han- dling the EPPO´s cases is necessary to ensure the protection of citizens’ rights, in particular the rights to a fair trial and to equality before the law. This encompasses objective and impartial performance of the prosecutors’ duties. In the context of the internal dimension of independence, the hierarchical system established by the Regulation, which requires EDPs to comply with the instructions of the Permanent Chambers and the EPs, does not breach internal independence, since the Regulation provides for checks and balances that aim at ensuring the discharge of prosecutorial functions impartially and in accordance with the principle of legality. These checks and balances include making it impossible for the Permanent Chambers to dismiss a case that an EDP has proposed bringing to judgment50 and making it possible for the EDPs to request the review of the instructions received.51 In order to enable such a review, the internal rules of procedure adopted by the College foresee the relevant procedure, assigning the final decision to a Permanent Chamber other than the one that issued the instruction, so that three more EPs examine whether the instruction is legally compliant. In any event, if the EDPs disagree with said decision, their re- placement might be considered, as recommended by the Council of Europe.52

As regards impartiality and objectivity, the Regulation explicitly lays down the EP- PO’s duty to act in an impartial manner, seeking all relevant evidence ‒ whether inculpatory or exculpatory.53 It also prohibits the intervention of an EP in proceed- ings where a conflict of interests may exist.54 In this respect, the internal rules of procedure adopted by the College regulate the procedure for the substitution of EPs and EDPs in case of conflicts of interest in order to ensure their impartiality. Ultimately, one more important aspect should be mentioned: independence cannot be understood without accountability. As with any authority granted power in de- mocracy, the EPPO is accountable to the society it serves. Thus, the Regulation imposes an obligation on the EPPO to issue annual reports on its general activities,55 stressing the necessary transparency in order to build credibility.

In short, the EPPO Regulation has laid the foundation for ensuring the independence of the new body, but its effective implementation requires joint and determined ac- tion by those who make up the EPPO, the EU institutions, and the Member States. This independence will enable the EPPO to discharge its functions fairly and ef- fectively, improve public trust in justice, and serve as an example for other public prosecutors’ offices.

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Opportunities and Challenges in Cases Involving Proceeds of Crime

The Union has set itself the objective of establishing an area of freedom, security and justice. To achieve this goal and strengthen the trust of citizens in our institu- tions, the protection of the Union’s financial interests is an absolute necessity and of utmost importance. Every year, the Member States indeed lose billions of euros in revenue, inter alia value added tax (VAT), due to cross-border carousel fraud depriv- ing the European Union of a substantial amount of its budget. In addition, hundreds of millions of European structural funds are misappropriated or misused for wrong- ful purposes each year.

Until now, the offenses affecting the financial interests of the European Union (PIF offenses) have not been sufficiently investigated and prosecuted at the national level. In addition, the proceeds generated were usually not sufficiently identified and re- covered as a priority, thus causing a definitive loss to the Union budget. In the con- text of this specific financial criminality, the expression “crime does not pay” makes full sense. The most effective measure is to deprive the perpetrators of any advantage in connection with the offense. Gabriel Seixas European Prosecutor (Luxembourg) The recovery of proceeds generated by PIF offenses shall thus be a top priority of the European Public Prosecutor’s Office (EPPO). In order to achieve this objective, the EPPO will adopt an entirely new approach and devote all its resources to enhancing the fight against cross-border VAT fraud, corruption harming the Union’s interests, The European Public Prosecutor’s and the laundering of the proceeds of PIF crimes by criminal organisations. Office should ensure that crime does not pay. As the EPPO will operate across the territories of 22 participating Member States and have access to a wide range of information, including that provided by the Eu- ropean Union, it will be able to promptly detect cases of fraud and initiate investiga- tions, so that the necessary preservation measures can be taken. In all cases generat- ing proceeds of crime, the EPPO shall develop and proactively promote (parallel) financial investigations at the very outset of its operation and initiate money-laun- dering cases to facilitate the recovery of misappropriated funds, where appropriate. The identification, tracing, seizure, and confiscation of proceeds of crime shall be pursued by the EPPO as a priority in all its cases. Furthermore, the use of multi- disciplinary task forces specialised in financial or asset recovery investigations shall be endeavoured at the national level in order to enable a swift exchange of information and knowledge.

The “follow the money” approach will become even more important during the on- going COVID-19 pandemic crisis: the European Union is willing to spend money more flexibly through the EU Next Generation Programme to support the economies and health services, but flexible spending also opens up new and different opportuni- ties for fraudsters to misappropriate Union funds.

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The challenge is huge, as the EPPO will have to coordinate its specific actions in a harmonised and consistent way through the participating Member States as well as across their borders when concrete links appear. Yet, the judicial systems and tradi- tions vary significantly from one country to another, e.g., in relation to the level of cooperation and exchange of information between competent authorities, in relation to access to relevant databases, and, last but not least, in relation to the analytical, technical, and human capabilities available at the national level in order to perform appropriate financial analyses.

The EPPO will have to circumvent these differences and set up common standards applicable to the investigation and prosecution of PIF offenses all across Europe. In order to add benefit to its operations, the EPPO will also need to develop an ad- equate operational capacity at the central level in order to assist and complement the complex financial investigations carried out by the European Delegated Prosecutors at the national level. The aim is to identify existing links in a specific case within the territories of other countries, thus affording the Permanent Chambers a unique overview of ongoing cross-border criminality and the possibility to take immedi- ate action. Ultimately, the EPPO should also perform strategic reviews of ongoing criminality related to PIF offenses in order to identify recurrent typologies as well as new trends, risks, and vulnerabilities, with the aim of sharing the valuable experi- ences gathered during its operations and raising awareness of cross border crime in the public and private sectors.

In the end, the overall protection of the Union’s financial interests can only be achieved if all levels within the EPPO work together closely. There is also a need for the EPPO to work hand in hand with the national competent authorities, rely on the support of Eurojust, Europol and OLAF as well as of a network of practitioners as the Camden Asset Recovery Inter-Agency Network in order to increase the efforts to deprive criminals of their illicit profits.

Cooperation with other institutions, bodies, offices, and agencies of the Union will also be essential for the EPPO from an administrative recovery perspective, of course ‒ always taking into account, however, the proper conduct and confidential- ity of its investigations.

I am convinced that, by doing so, the EPPO will ultimately fill the existing gaps in convictions and, as a result, achieve a higher level of repatriation of misappropriated Union funds.

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EPPO and Digital Challenges

One of the challenges for the European Public Prosecutor’s Office (EPPO), which the Member States identified during the negotiations on the EPPO Regulation, was the speed of criminal proceedings. How can we make sure that investigations will not take even longer with the addition of this new actor in the chain of criminal jus- tice? Considering that most legal decisions during the investigation of a PIF crime will now be made in Luxembourg, will this make criminal proceedings even more bureaucratic?

One of the major principles, which was agreed on in the EPPO Regulation, is that the work of the EPPO should be carried out in electronic form. A case management system is to be established, owned, and managed by the EPPO.56 It is clear that the EPPO can be effective only if the information exchange between the central office in Luxembourg and the European Delegated Prosecutors in the Member States is fast and smooth.

According to Art. 24 (2) of the EPPO Regulation, when a judicial or law enforce- Kristel Siitam-Nyiri ment authority of a Member State initiates an investigation in respect of a criminal European Prosecutor (Estonia) offence for which the EPPO could exercise its competence, that authority shall in- form the EPPO without undue delay, so that the latter can decide whether or not to exercise its right of evocation. We still do not know how large the current backlog of cases in the Member States is, in which the EPPO must decide on evocation. The Digital solutions play the key role in initial estimates from the Member States indicate that this number could be around the effectiveness of the European 3000 cases. There is no transitional period foreseen for when the EPPO becomes Public Prosecutor’s Office. operational; it will start with full speed from day one, and any evocation decision must be made within 5 days.57 In a “paper era,” this would most likely be impossible. Imagine truckloads of case files (the volume of one case file for an average PIF crime could be anywhere from 50 to several thousand pages) transported to Luxembourg from 22 Member States – the logistics would inevitably raise questions about secu- rity, storage, time, workload, etc.

Taking into consideration that the College of the EPPO only started in early autumn of 2020 and that the time for actual preparatory work has been extremely short, it is quite impressive that, as of February 2021, the first version of the EPPO Case Man- agement System (CMS) is ready to be launched. There is still a huge amount of work ahead of us, but this is a good starting point.

The main challenge in developing the CMS was that Member States and their ju- dicial systems are at very different levels of digitalisation. When discussing digital procedure, we often speak in different languages. For some Member States, digi- talisation means scanned pdf documents, for others it means sending a memory stick back and forth between law enforcement authorities, for yet a third group, it means metadata and the use of artificial intelligence. The EPPO’s CMS must work for all of them, and it has to be a user-friendly tool facilitating the smooth exchange

eucrim 1 / 2021 | 61 EPPO Now Operational – Perspectives from European Prosecutors of information. The CMS must allow the EPPO to operate as a single office, where the case files administered by European Delegated Prosecutors are available to the central level for the exercise of its decision-making, monitoring, directional, and supervisory tasks.58

It is extremely difficult to digitalise cross-border judicial cooperation if the Member States are not digitalised at the national level. Yet, it is reassuring to see that the Eu- ropean Commission has acknowledged and emphasised this problem in its commu- nication outlining plans to speed up the digitalisation of justice systems,59 including a toolbox and an action plan.

In order to ensure swift information exchange during investigations between the central office and the decentralised level, the EPPO will also rely on the cooperation and willingness of the Member States. I believe that EPPO’s CMS could provide the impetus needed for those Member States still taking their first steps towards digitali- sation. At the same time, we must keep in mind that we should not hold back states that are already more advanced in this field.

Digital tools are not only meant for communication between the EPPO’s central office and European Delegated Prosecutors. We also need digital information ex- change with Eurojust, Europol, and OLAF. It is necessary to cross-check different cases and information in order to coordinate the fight against cross-border crime in the most effective way. This requires developments in the respective case manage- ment systems but also possible updates to the legal framework.

We know that technology has become a horizontal dimension for all types of crimi- nality. As criminals are increasingly using digital means to commit offences, it is clear that law enforcement and judicial authorities also have to take advantage of the rapid advancement of technology in order to keep up. Whether we talk about the interconnectivity of databases, asset recovery, predictive policing software, digital forensics, the use of analytical tools, etc., the use of technology in the fight against serious and cross-border crime, including crimes against the EU’s financial interests, is crucial.

I believe that the EPPO will play an important role here. We can and should be ambitious in the use of digital tools. This way, we can create new synergies in cross- border cooperation and improve the effectiveness of justice.

As already mentioned above, we still have a huge amount of work ahead of us in order to ensure that the EPPO will be a modern and effective institution, with fully equipped digital processes. Being the pioneer in the field of prosecution at the EU level is definitively not only a challenge and responsibility but also a valuable op- portunity. As we are starting a new organisation, we will not have to go to the trouble of adapting or changing the customary workflows. Instead, we will have the advan- tage of creating our own working processes, which will be up-to-date from the very beginning ‒ using all the possibilities the digital world has to offer.

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Role of the Belgian Investigative Judge in EPPO Cases

In the investigation phase, Belgian criminal procedure is characterized by a dual- level system: (i) the preliminary enquiry under total control of the public prosecu- tor’s office and (ii) the judicial investigation, which is led by the investigative judge and monitored by the public prosecutor’s office.60 This puts Belgium in an excep- tional position in the European Union. Only France, Luxembourg, Spain and Slo- venia grant similar powers to the investigative judge, as a result of which this judge assumes the role of both judge and investigator in certain (usually more serious) criminal cases. The investigative judge is “both Maigret and Salomon,” according to the famous quote by Robert Badinter, the former French Minister of Justice.

The four aforementioned countries, which are also participating members of the Eu- ropean Public Prosecutor’s Office (EPPO), have adapted or will adapt their criminal investigation and prosecution procedures in light of the forthcoming operations be- ing conducted by the EPPO.61 For these criminal cases, the EPPO and, in particular, the European Delegated Prosecutors (EDPs) will take over the leading investigative tasks from the investigative judges. For certain intrusive measures restricting per- Yves Van Den Berge sonal liberty and the right to private life, the investigative judges will still be able European Prosecutor (Belgium) to intervene in the investigation ‒ as real judges, who guarantee the protection of fundamental rights and freedoms by granting or refusing judicial authorisation. They will therefore become judges of the investigation (or judges of the liberties) rather than investigative judges. Is the Belgian legislative position of retaining the leading role of the By contrast, Belgium will not change its criminal procedure for EPPO cases.62 The investigative judge in certain EPPO two main reasons are the political will to preserve the decisive role of the judicia- criminal investigations in accordance ry in important criminal investigations63 and the prevention (and fear) of potential with the EPPO Regulation? In view of discrimination and unconstitutionality64 (due to a difference in treatment between the wording of the Regulation and the EPPO cases and similar, purely national cases). The Belgian examining magistrates preparations leading up to it at the remain in charge of the EPPO cases. The Belgian investigative judges will remain European level, the answer can only in charge of the EPPO cases, when requested by the Belgian EDPs. This judicial be in the affirmative. request is mandatory under Belgian law if it is necessary, for instance, to carry out a home search without permission, an interception of telecommunication data, an insight operation into an IT system, or an arrest warrant. The EDPs will of course follow these judicial investigations closely and submit judicial claims to the inves- tigative judges where necessary. In the event of contradictory decisions or poor or lengthy investigations, the EDPs may (like other prosecutors) appeal to, or turn to, the Court of Appeal. At the end of the investigation, it is also their task to take a final decision (after approval by the Permanent Chamber) and to ask another judge (the so-called “chambre de conseil”) whether the case should be referred to the criminal court. It should be noted that the Belgian legislator provides for the appointment of investigative judges specialised in financial crime, who will deal with the files for which the EPPO is competent as a matter of priority.

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The question now is whether the Belgian legislative position of retaining the lead- ing role of the investigative judge in certain EPPO criminal investigations is in ac- cordance with the EPPO Regulation. In view of the wording of the Regulation and the preparations leading up to it at the European level, the answer can only be in the affirmative.65 Some of the key provisions of the EPPO Regulation, whereby the EPPO continues to rely on national rules, are contained in Arts. 28, 30, and 41 and in Recital 15. Let us have a closer look at the wording of these provisions.

Art. 30(3) stipulates that certain investigation measures may be subject to further conditions, including limitations, provided for in the applicable national law. As in- vestigative powers are and will remain national, so too will be the relationship be between actors in criminal investigations. Thus, the Regulation does not prohibit the intervention of a judge in a Member State, even if he/she is a leading investigative judge. This ratio legis can also be found in Recital 15: “This Regulation is without prejudice to Member States’ national systems concerning the way in which crimi- nal investigations are organized.” The original European Commission proposal did not include such an explicit recital.66 Art. 28(1) also does not prohibit intervention or evocation by the investigative judge: “The European Delegated Prosecutor han- dling a case may, in accordance with this Regulation and with national law, either undertake the investigation measures and other measures on his/her own or instruct the competent authorities in his/her Member State. Those authorities shall, in accor- dance with national law, ensure that all instructions are followed and undertake the measures assigned to them.” This provision does not change the role of the national judge in the preliminary investigation of EPPO cases, either (the judge may always decide otherwise or refuse to accede to the request of the delegated prosecutor).

Since its genesis, the EPPO Regulation, all the more so with regard to Art. 28, did not intend to drastically change the national relationship between the prosecution and the judiciary ‒ quite the opposite is the case. For example, the above-mentioned original Commission proposal did contain another, stricter position in Art. 18(1) on the powers of the EPPO: “The designated European Delegated Prosecutor shall lead the investigation on behalf of and under the instructions of the European Public Prosecutor. The designated European Delegated Prosecutor may either undertake the investigation measures on his/her own or instruct the competent law enforce- ment authorities in the Member State where he/she is located. These authorities shall comply with the instructions of the European Delegated Prosecutor and execute the investigation measures assigned to them.” Hence, the Commission proposal did not include a reference to national law. The Member States subsequently intervened dur- ing the negotiations in the Council, and this led to the previously cited Art. 28(1) of the current EPPO Regulation, namely the deletion of “shall lead the investigation.”67

As a consequence, in EPPO cases that will be conducted in Belgium, the EPPO may not be the day-to-day leader in the judicial investigation phase, but the Belgian delegated prosecutors will still be able to influence the work of the Belgian investi- gative judge and be able to give orders, often after the intervention and decisions of the supervising European Prosecutor and the Permanent Chamber. Moreover, every criminal investigation and prosecution begins and ends with actions by the EPPO.

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EPPO: A Challenging Balance-Striking Exercise in the National and EU Judicial Environment

The European Public Prosecutor’s Office (EPPO) is expected to tackle corruption and severe cross-border criminality against the EU’s financial interests via a more coherent and efficient strategy compared to that applied up to now by the national judicial authorities. The Office has to demonstrate the need to invest in such an in- novative judicial body at the EU level by providing new means to support a com- prehensive Union strategy in the area of freedom, security and justice.68 In thus sig- nificantly promoting the intensification of European integration, it will also face a number of challenges.

Some challenging issues stem from the EPPO Regulation itself and are partly attrib- uted to the reluctance of the EU legislator to provide clear, uncontested solutions. These issues will soon have to be addressed in practice, as they are linked with the core performance of the EPPO. One example is that the EPPO is expected to actively intervene in all relevant stages, since a new landscape seems to be emerging in the field of national criminal proceedings. This will inevitably necessitate a rearrange- ment of the balance between the parties to the criminal proceedings (prosecutorial Dimitrios Zimianitis and other competent judicial national authorities, victims, suspects, and defendants) European Prosecutor (Greece) in light of the specific provisions of the EPPO Regulation (Chapter VI), as comple- mented by the EPPO’s Internal Rules of Procedure, by the EU procedural rights acquis, and by the ECtHR jurisprudence. It should be reiterated that, in the area of procedural rights, no common rules were foreseen, even in the Corpus Juris, while, The EPPO will possibly have to handle at the EU level, the EU procedural rights directives simply articulate a list of mini- procedural rights issues against the mum relevant guarantees and leave it to the Member States to choose the means by background of a relatively variable which to implement safeguards. Furthermore, the EPPO Regulation leaves it to the geometry at the national level. national courts to rule on possible ambiguous areas, while no direct recourse to the European Court of Justice (CJEU) is foreseen. Although the CJEU’s jurisprudence is therefore limited to preliminary rulings, it will undoubtedly trigger the need to revisit the current regulatory framework.

Against the background of such an emerging, variable procedural geometry, the way in which the EPPO will handle possible procedural rights issues is important. Ul- timately, they should not be perceived as a source of risk that might endanger the EPPO’s tasks but rather as an opportunity to act proactively. As existing differences among national legislations may affect cross-border cooperation,69 the EPPO will have to play a key role in reconciling differences between national criminal proce- dures and find a way to overcome them.

Another challenging field concerns the developing relationship between the EPPO and OLAF. The EPPO will profit not only from OLAF’s expertise but will also need to preserve the institutional balance between the two bodies, which is crucial for achieving their goals, all of which are based on complementarity and mutual coop- eration.

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The mission of European Prosecutors also appears to be complex, yet essential. Notwithstanding them being formally separate from the national judiciary, they will have to essentially contribute to the sound organisation of the decentralised EPPO level, to perform in-depth oversight of investigations, and to focus on critical, na- tional areas in which the EPPO must dedicate special efforts towards establishing its added value, in particular during the initial operational phase. Therefore, apart from accomplishing the preparatory work, which is currently being realised at the central level, in order to enable the swift launching of the operational work of the EPPO, the intervention of the European Prosecutors at this stage is essential in many ways.

The European Prosecutors will have to encourage the double-hatted European Del- egated Prosecutors (EDPs) to perceive themselves as a real supranational judicial body divested from their national identities. They will also have to ensure that the bidirectional flow of information between the EPPO levels (centralised and decen- tralised levels) and, ultimately, the handling of cases is accomplished in the best in- terest of justice. In addition, it is up to the European Prosecutors to detect the areas in their respective Member States in which the EPPO has a guiding role to play under the current EU political agenda.70

Given that the urge to create the EPPO has been dictated by the reduced capability of Member States to combat severe financial crime against the EU budget, the EPPO will be expected to address these gaps. The EDPs, with the guidance of the European Prosecutors, will be the designated tool to not only close the gaps but also achieve tangible results that had been unattainable up to now.

Furthermore, when the EPPO’s operational activity starts, the European Prosecu- tors’ coordination activity will need to take into account the EPPO’s priorities at the national level. Such first-stage actions may include, for instance, charting the fields where the EPPO can offer drastic solutions and ensure progress in tackling crimes falling within its remit. They may also take into consideration developments stem- ming from national commitment to align with stakeholders’ recommendations71 or to follow international obligations,72 in order to better achieve the EPPO’s goals, develop its crime-fighting strategy, and demonstrate its added value.

Ultimately, both due coordination of the EDPs’ tasks and ensuring that the instruc- tions issued by the EPPO’s central level are respected, entails full awareness of pos- sible weaknesses of national judicial structures and proceedings. This, again, is an area where European Prosecutors have a key role to play.

Responding successfully to all of the above challenges engages the EPPO both at the central level (College, European Prosecutors, Permanent Chambers) and at the decentralised level (European Delegated Prosecutors and other national authorities in the participating Member States). It is crucial for all actors involved to find their respective position in the rather complex EPPO structure, to cooperate produc- tively, and to overcome shortcomings inherent to this new judicial experiment, so that the functionality and effectiveness of the new supranational prosecutorial body is ensured.

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Notes

1 European Monitoring Centre for Drugs and Drug Addiction/Europol, 23 Art. 24(4) of Regulation 2017/1939 vs. Art. 28 of the Commission Regu- “EU Drug Markets Report”, 2019. lation (EC) No 1828/2006. 2 OECD/EUIPO, “Trends in Trade in Counterfeit and Pirated Goods”, 2019. 24 Pursuant to Art. 24(1) and 25(1) of Regulation 2017/1939 and Art. 12c of 3 Commission, “31st Annual Report on the protection of the European Un- Regulation 883/2013. ion’s financial interests – Fight against fraud – 2019; EURACTIV, “EU anti- 25 i.e. the EU Member States that support the EPPO by accepting the en- fraud official: Tobacco smuggling is ‘major source’ of organised crime”, hanced cooperation procedure. Hereinafter referred to as “Member States”. 7/2/2017; World Bank Group, “Confronting Illicit Tobacco Trade: An Update 26 Directive (EU) 2017/1371 of the European Parliament and of the Council on EU Policies”, 2019. of 5 July 2017 on the fight against fraud to the Union’s financial interests by 4 C. Fuest and J. Pisani-Ferry, “Financing the European Union: new con- means of criminal law, O.J. L 198, 28 July 2017, 29. text, new responses”, Policy Contribution, Issue no 16, September 2020. 27 Council Regulation (EU) 2017/1939 of 12 October 2017 on the implemen- 5 Europol, “MTIC (Missing Trader Intra Community) fraud”, ; European Parliament, ber 2017, 1. “VAT fraud –Economic impact, challenges and policy issues”, October 28 It should be added that Art. 30(1) further stipulates that this obliga- 2018; ECA Special report 2015/24, “Tackling intra-Community VAT fraud: tion applies at least in cases in which the offense under investigation is More action needed”; J. Sarnowski and P. Selera, “European compact punishable by a maximum term of imprisonment of at least four years. against tax fraud – VAT solidarity and new dimension of effective and 29 Of course, to the extent that the national rule is not contrary to the coherent tax data transfer”, (2020) 21 ERA Forum, 81–93. Regulation. 6 VAT Gap in the EU, TAXUD/2015/CC/131. 30 For the application of simplified prosecution procedures, cf. Art. 40 of 7 N. Hangáčová and T. Strémy, “Value Added Tax and Carousel Fraud the EPPO Regulation. Schemes in the European Union and the Slovak Republic”, (2018) 26 Euro- 31 Cf. Art. 31 of the EPPO Regulation. pean Journal of Crime, Criminal Law and Criminal Justice, 132–159. 32 Cf. Art. 37(1) of the EPPO Regulation. 8 M. T. Braml and G.l J. Felbermayr “The EU Self-Surplus Puzzle: an 33 Art. 8(1) and (2) of the EPPO Regulation. Indication of Vat Fraud?”, Kiel Working Paper 2146, published 12/2019 (see 34 Art. 10(3) of the EPPO Regulation. also T. Wahl, (2020) eucrim, 17). 35 When it is not possible to wait for the instructions of the Permanent 9 OECD BEPS Action 7, “Preventing the Artificial Avoidance of Permanent Chamber within the deadline for the legal remedy, the EDP will take a Establishment Status”. subsequent decision autonomously and, where applicable, instructions 10 Directive (EU) 2017/1371 of the European Parliament and of the Council from the Permanent Chamber as to whether or not to maintain or withdraw of 5 July 2017 on the fight against fraud to the Union’s financial interests by the appeal. means of criminal law, O.J. L 198, 28.7.2017, 29. 36 Art. 16(7) of the EPPO Regulation. 11 And involving the limitation as regards VAT fraud also expressed in 37 Art. 10(2) of the EPPO Regulation. Art. 22(1) of the EPPO Regulation. 38 Art. 2(1) of College Decision 015/2020. 12 D. Brodowski, in: H-H. Herrnfeld, D. Brodowski, and C. Burchard, 39 Arts. 4 and 5 of College Decision 015/2020. European Public Prosecutors Office, Article-by-Article Commentary, 2021, 40 Art. 10(1) of the EPPO Regulation. Art. 22, mn. 100 (p. 168). 41 Art. 10(9) of the EPPO Regulation. 13 P. Caeiro and J. Amaral Rodrigues, “A European Contraption: The rela- 42 The main differences in the applicable procedural law are the inde- tionship between the competence of the EPPO and the scope of Member pendence from Member States, the principle of mandatory prosecution, State’s jurisdiction over criminal matters”, in K. Ligeti, M. João Antunes and and the exhaustively listed grounds for dismissal (Art. 39(1) of the EPPO F. Giuffrida (eds.), The European Prosecutor’s Office at Launch, 2020, p. 65. Regulation), which apply instead of national legal provisions. 14 See Recitals 55 and 56 on the criteria of preponderance. 43 Art. 1(1) of College Decision 002/2020 establishes English as the work- 15 For a thorough analysis on the need to keep the application of Art. 22(3) ing language for the EPPO’s operational and administrative activities. of the EPPO Regulation in line with Art. 86 of the TFEU, see E. Sitbon, 44 According to Art. 2(4) of the Internal Rules of Procedure, the EDP “Ancillary Crimes and Ne Bis in Idem”, in: W. Geelhoed, L.H. Erkelens and handling the case has to ensure the translation. Based on Art. 3(1) of the A.W.H. Meij (eds), Shifting Perspectives on the European Public Prosecu- Internal Rules of Procedure, the EPPO will seek to use electronic transla- tor’s Office, 2018, pp. 129 et seq. tion tools for speedy and high-quality translations. 16 See Recital 54 of the EPPO Regulation. 45 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing 17 Extensive information on the jurisprudence of the CJEU can be found enhanced cooperation on the establishment of the European Public Pros- in the Eurojust report on case law by the Court of Justice of the European ecutor’s Office (‘the EPPO’), O.J. L 283, 31 October 2017, 1. Union on the principle of ne bis in idem in criminal matters, April 2020, 46 CDL-AD(2016)007, Rule of Law Checklist adopted by the Venice Com- available at: . See also 47 Arts. 14 and 16 of Regulation 2017/1939. A. Weyembergh, “La Jurisprudence de la CJ relative au principe ne bis in 48 Art. 13 of Regulation 2017/1939. idem: une contribution essentielle à la reconnaissance mutuelle en matière 49 Arts. 91 and 96 of Regulation 2017/1939. pénale”, in: The Court of Justice and the Construction of Europe: Analyses 50 Art. 36 of Regulation 2017/1939. and Perspectives on Sixty Years of Case-law, 2013, pp. 539 et seq. 51 Recital 34 of Regulation 2017/1939. 18 Critically, see N. Bitzilekis, “The Definition of Ancillary Competence 52 Recommendation Rec(2000)19 of the Committee of Ministers of the According to the Proposal for an EPPO Regulation”, in: Petter Asp (ed.), Council of Europe on the role of public prosecution in the criminal justice The European Public Prosecutor’s Office – Legal and Criminal Policy Per- system. spectives, p. 112, 114–115. 53 Art. 5 of Regulation 2017/1939. 19 Art. 28 (1), (3) of Commission Regulation (EC) No 1828/2006 of 8 De- 54 Art. 12 of Regulation 2017/1939. cember 2006. 55 Arts. 6 and 7 of Regulation 2017/1939. 20 Cf. Art. 12a of Regulation (EU, Euroatom) No 883/2013 of 11 September 56 Recital 47, Arts. 44 and 45 of the EPPO Regulation. 2013 as amended by Regulation (EU, Euratom) 2020/2223 of the European 57 Art. 27 paragraph 1 of the EPPO Regulation. Parliament and of the Council of 23 December 2020. 58 Art. 8 paragraph 1, Art. 45 paragraph 2, and recital 47 of the EPPO 21 Art. 8(3) of Regulation No 883/2013. Regulation. 22 Art. 24 of Council Regulation (EU) 2017/1939 of 12 October 2017 estab- 59 .

eucrim 1 / 2021 | 67 EPPO Now Operational – Perspectives from European Prosecutors

60 In French: respectively “l’information” and “l’instruction”. 66 Proposal for a Council Regulation on the establishment of the Euro- 61 France: Loi n° 2020-1672 du 24 décembre 2020 relative au Parquet pean Public Prosecutor’s Office, 17 July 2017, COM(2013) 534 final. européen, à la justice environnementale et à la justice pénale spécialisée; 67 Proposal for a Regulation on the establishment of the European Public Luxemburg: Projets de loi en cours d’examen à la Chambre des Députés Prosecutor’s Office – Draft Regulation, 31 January 2017, Council doc. (7759/7760). 5766/17, Art. 23(1), p. 67. 62 La loi du 17 février 2021 portant des dispositions diverses en matière 68 Communication from the Commission to the European Parliament, de justice, Doc.parl., Chambre, 2020–2021, n° 55-1696, Moniteur belge the European Council, the Council, the European Economic and Social 24 février 2021. Committee and the Committee of the Regions on the EU Security Union 63 A Commission for the reform of criminal procedural law was appointed Strategy on the EU Security Union Strategy, COM(2020) 605 final, p. 22. by the former Belgian Minister of Justice Koen Geens. The Commission 69 See E. Sellier and A. Weyembergh, Criminal procedural laws across submitted via the Minister a proposal for a new Code of Criminal Proce- the European Union, Study requested by the European Parliament LIBE dure. The redefinition of the role of the investigative judge in the Code Committee, 2018, available at: , reported Code is still pending in Parliament: Proposition de loi contenant le Code de at eucrim 2/2018, 100. procédure pénale, Doc.parl., Chambre, 2020–2021, n° 55-1239/001. 70 See OLAF’s 2019 Report, p. 25, where reference is made to the EU 64 In its judgment of 21 December 2017 (no. 148/2017), the Belgian political agenda focusing on the growing threat of environmental fraud. Constitutional Court annulled the law that allowed the public prosecutor to See also the Commission’s 31st Annual Report on the protection of the Eu- ask the investigative judge to authorise a home search without the latter ropean Union’s financial interests –Fight against fraud – 2019, COM(2020) being obliged to lead the investigation (the so-called “mini-instruction”/ 363 final, para. 4.3.2.3 and Transparency International’s Corruption mini-investigation). The Constitutional Court argued that allowing a search Perceptions Index (CPI) 2020 Report of 28 January 2021 on the corruption by means of such a mini-investigation (judicial authorisation), without risks in wake of the COVID-19 crisis. additional safeguards to protect the defence, constitutes an infringement 71 See GRECO’s 2nd Compliance Report on Greece, 24 September 2020, of the right to private life and of the inviolability of the home. The Court paras. 41, 43. See also the progress made in Greece as regards the Corrup- ruled that a full-fledged judicial investigation under the leadership of the tion Perceptions Index, Transparency International, op. cit. (n. 3). investigative judge is required. 72 I.e., as regards Greece, the recent unification of the Prosecutor’s Of- 65 For this analysis, see also F. Verbruggen, V. Franssen, A.-L. Claes, fice against Financial Crime and the Prosecutor’s Office on anti-corruption A. Werding, Implementatie van het Europees Openbaar Ministerie in de in a single body by means of Law 4745 of 6 November 2020 could bring Belgische rechtsorde/Mise en oeuvre du Parquet européen en droit belge, about a more effective fight against corruption and financial crime, includ- 2019-08, pp. 77–86. ing EPPO cases.

68 | eucrim 1 / 2021 Imprint Impressum

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