eucrim 2021 / 2 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM
Legal effects of COVID-19 Les conséquences juridiques découlant de la Covid-19 Rechtliche Auswirkungen der Corona-Pandemie
Guest Editorial Giovanni Tartaglia Polcini
Corruption and Bribery in the Wake of the COVID-19 Pandemic Peter Csonka and Lorenzo Salazar
The Impact of COVID-19 on Judicial Cooperation in Criminal Matters Mariana Radu and Mário Ernest
Adjusting to COVID-19 under the English Criminal Justice System Rudi Fortson QC
The COVID-19 Pandemic as a Stress Test on the Right to Protection of Personal Data Niovi Vavoula
Dealing with Uncertainties in the Pandemic Katrin Kappler 2021/ 2 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 92 Cybercrime Legal effects of COVID-19 93 Terrorism Foundations 94 Environmental Crime 111 Corruption and Bribery in the Wake 70 Fundamental Rights 95 Racism and Xenophobia of the COVID-19 Pandemic 73 Reform of the European Union Peter Csonka and Lorenzo Salazar 73 Security Union Procedural Criminal Law 74 Area of Freedom, Security 97 Procedural Safeguards 114 The Impact of COVID-19 on Judicial Cooperation and Justice 97 Data Protection in Criminal Matters 76 Schengen 100 Ne bis in idem Mariana Radu and Mário Ernest 77 Legislation 102 Victim Protection 116 Adjusting to COVID-19 under the English Institutions Cooperation Criminal Justice System 80 Council 102 Police Cooperation Rudi Fortson QC 80 OLAF 102 Judicial Cooperation 82 European Public Prosecutor’s 103 European Arrest Warrant 122 The COVID-19 Pandemic as a Stress Test Office 104 European Investigation Order on the Right to Protection of Personal Data 83 Europol 105 Law Enforcement Cooperation Niovi Vavoula 84 Eurojust 84 Frontex 127 Dealing with Uncertainties in the Pandemic 85 Agency for Fundamental Katrin Kappler Rights (FRA) Council of Europe
Specific Areas of Crime / Foundations Substantive Criminal Law 107 Human Rights Issues 85 Protection of Financial Interests Specific Areas of Crime 87 Money Laundering 107 Corruption 88 Tax Evasion 108 Money Laundering 89 Counterfeiting & Piracy 89 Organised Crime Cooperation 92 Trafficking in Human Beings 109 Law Enforcement Cooperation
* 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. Guest Editorial
Dear Readers,
Corruption is extremely flexible and easily adaptable to new practices against corruption scenarios, such as the COVID-19 pandemic. It is generally a taken during the pandemic. The major impediment to prosperity and security because it hinders compendium draws on best sustainable economic growth, distorts market competition, practices already developed to undermines the rule of law, and erodes trust between citizens combat corruption in procure- and governments. In times of emergency and crisis, however, ment fraud and other areas. It the risk increases that corruption can exacerbate these nega- aims to provide guidance on na- tive effects, thwarting efforts geared towards a sustainable and tional anti-corruption responses resilient recovery. Corruption therefore has an even more de- and procedures implemented in bilitating effect during a global pandemic, which enormously the G20 states and to provide challenges societies and economies ‒ it becomes a “thief of useful information on countries’ the future.” responses to the current pan- demic in order to prepare for The G20 has played a significant role in global anticorrup- similar future events. Giovanni Tartaglia Polcini tion efforts. Its Anti-Corruption Working Group (ACWG), established at the Toronto Summit in 2010, was especially The priorities of the Italian Presidency of the ACWG for 2021 designed to prepare “comprehensive recommendations for are ambitious and innovative in terms of content. They focus the consideration of Leaders on how the G20 can continue particularly on modern forms of corruption that are increas- to make a valuable contribution to international efforts in the ingly linked to economic and organised crime. Moreover, they fight against corruption.” This mandate was intended to ensure address the development of reliable indicators to measure cor- that its member countries lead the international community ruption and to enhance prevention in exposed sectors and new by example and make a qualified contribution to international risk areas, e.g., sports. Emphasis has been put on the role of anti-corruption objectives and instruments. In its ten years of reliable indicators, since measurement indices based on the activity, the G20 ACWG has adopted seven Action Plans, ten perceived level of corruption have gradually shown inherent Accountability Reports, fifteen sets of High-Level Principles, limitations since analyses of the phenomenon have turned out and six Compendia of Good Practices; they contribute to de- to be too subjective. velop the global agenda toward a new era of enforcement. The Italian Presidency is highly aware of the new challenges The work of the ACWG, which includes a multi-stakehold- of corruption and the ensuing need for an effective global fight er approach, has been guided by a multiannual Action Plan against corruption, stressing the importance of taking into ac- that systematically takes up commitments by G20 countries count the challenges posed by COVID-19. On one hand, the to, inter alia, (1) support, and implement the UN Convention response has been to tackle more than just the negative impact against Corruption; (2) criminalise and prosecute foreign brib- of corruption on economic growth, once highlighted by G20 ery; (3) cooperate with other countries to trace, prosecute, and leaders in the High-Level Principles on corruption and growth repatriate the proceeds of corruption; (4) combat money laun- adopted in Brisbane in 2014. On the other hand, consensus dering; and (5) promote integrity in public and private sectors. must be reached on a new set of High-Level Principles on in- tegrity and transparency in case of future emergencies. Coun- G20 countries have been proactive in their response to the tries should be prepared and more resilient against any form of COVID-19 pandemic, both at the national level and within the corruption beyond the medical crisis. ACWG. These efforts resulted,inter alia, in a Compendium of good practices on anti-corruption in response to COVID-19 . With this compendium, the ACWG seeks to leverage the ex- Giovanni Tartaglia Polcini perience of all G20 countries to create a first vision of best Chair of the G20 Anti-Corruption Working Group
eucrim 2 / 2021 | 69 NEWS – European Union
News Actualités / Kurzmeldungen*
ports, including the values of democracy and fundamental rights. It also calls for clear, country‑specific recommendations on how to address the concerns identi- fied. (AP)
Parliament Criticises Informal Agreements on Border Control, Fight European Union against THB, and Return/Readmission Reported by Thomas Wahl (TW), Cornelia Riehle (CR), of Irregular Migrants and Anna Pingen (AP) On 19 May 2021, the European Parlia- ment adopted a report making recom- mendations on human rights protection methodology but emphasised that the within the framework of the EU’s ex- Foundations Commission should distinguish between ternal asylum and migration policy. The systemic breaches of the rule of law and Parliament criticised the practice of the Fundamental Rights individual, isolated breaches. In future, a EU and several Member States that have more analytical report should be drafted been entering into an increasing number Parliament Adopts Resolution on in order to facilitate country-specific of informal agreements with third coun- Commission’s 2020 Rule of Law Report recommendations on how to address the tries since 2016 in order to strengthen On 24 June 2021, the European Parlia- encountered concerns. their operational capacities as regards ment (EP) adopted its Resolution on Monitoring of the independence, border control and the fight against hu- the Commission’s 2020 Rule of Law quality, and efficiency of the Mem- man trafficking. It highlighted that these Report. For the report eucrim 3/2020, ber States’ justice systems is generally informal agreements neither guarantee a 358–359. welcomed; however, parliamentarians predictable policy nor provide any co- MEPs welcomed the Commission’s expressed concerns regarding the dete- herent statutory framework on irregular first annual Rule of Law Report and rioration of the independence of some migration. MEPs also criticised the use encouraged its continuation in order to Member States’ justice systems and the of these informal agreements with third identify risks for fundamental rights and increasing lack of compliance with EU countries with respect to the return and the rule of law in the EU. They expressed law. They sharply criticised the situa- readmission of irregular migrants, argu- their satisfaction that the report contains tion in Poland and Hungary, including ing that these informal agreements lack country-specific chapters and called on the political pressure put on courts to safeguards ensuring the rights of third- the Commission to further engage with prevent national judges from referring country nationals. The Parliament there- national governments and national par- questions to the CJEU about the EU’s fore urged the Commission to sign read- liaments as well as with civil society and judicial independence requirements. mission agreements with third countries other national actors. The Commission The deterioration of media freedom which would replace these informal should further intensify country visits so and media pluralism in some Mem- agreements and called out the lack of that broader engagement and dialogue ber States is another issue of concern, with national authorities and civil soci- and the Resolution notes an increasing * Unless stated otherwise, the news items in ety can be achieved. amount of physical, psychological, and the following sections (both EU and CoE) cover The Resolution welcomed the fact other forms of aggression towards jour- the period 1 April – 30 June 2021. Have a look at the eucrim website (https://eucrim.eu), too, that all Member States are scrutinised nalists. The EP calls for a broader scope where all news items have been published according to the same indicators and to be applied in future rule-of-law re- beforehand.
70 | eucrim 2 / 2021 Foundations effective judicial remedies for asylum (application no. 4907/18), the ECtHR measures at issue appear highly prob- seekers whose rights may have been finds that the election of judges to the lematic in view of both external and in- violated. (AP) Polish Constitutional Court in 2015 ternal aspects of judicial independence. was irregular and thus infringed the ap- According to the AG, it is worrisome if Poland: Rule-of-Law Developments plicant’s right to a “tribunal established the criteria for secondment of judges are April – June 2021 by law” in accordance with Art. 6(1) not made public, the seconded judges This news item continues the updates in ECHR. The judges in Strasbourg criti- seem not subject to ordinary rules, and previous eucrim issues on the rule-of- cized that a judge sat at the bench of the their secondment is for an indeterminate law situation in Poland as far as it relates Constitutional Court although his seat period of time and can be terminated to European law (inter alia, eucrim had been already legally filled by the old at any moment at the discretion of the 1/2021, 4 and eucrim 4/2020, 257): Sejm (the Polish parliament). They point Minister of Justice. In addition, impar- 6 May 2021: In the infringement pro- out that, after the elections in 2015, the tiality and judicial independence are at ceedings in Case C-791/19 concerning authorities neglected relevant Constitu- risk if the Minister for Justice/General the new disciplinary regime for judges tional Court judgments with a view of Prosecutor, i.e. wearing a “double hat”, within the Polish Supreme Court, Advo- usurping the Constitutional Court’s role is the body that designates judges and if cate General (AG) Tanchev recommends as the ultimate interpreter of the Polish designated judges may hold the position that the Polish legislation does not com- Constitution and the constitutionality of “disciplinary agents”, as it is the case ply with Union law. The AG shares the of law. The case concerned a complaint pursuant to the Polish provisions. The points raised by the European Commis- from a Polish company that sought com- AG’s opinion was triggered by a refer- sion that the disciplinary regime casts pensation from the State for one of its ence for preliminary ruling from a single severe doubts about judicial independ- products before the Polish courts. judge at the Regional Court of Warsaw ence. The possibility of being sanctioned 10 May 2021: In a press release, the (Joined Cases C-748/19 to 754/19). The in disciplinary proceedings on account ECtHR announces that it would examine judge casted doubts that the composition of the contents of decisions exerts par- in detail five more cases related to the of the panel of judges in criminal pro- ticular pressure on Polish judges and controversial Polish judicial reform (for ceedings before the Regional Court still impairs their ability to make substantive other cases pending before the ECtHR, observes the presumption of innocence decisions and to submit questions for pre- eucrim 2/2020, 68). The cases concern and the separation of powers due to the liminary rulings to the CJEU. In addition, the suspension of applicants as judges or possible influence on both the public the doubts about the independence and public prosecutors from their official du- prosecutor‘s office and the judge to the impartiality of the Disciplinary Chamber ties as well as a complaint against the disadvantage of the accused. were justified because of the question- contentious nomination of judges by 20 May 2021: It becomes known able political influence by the National the National Council of the Judiciary. that the Polish Prime Minister Mateusz Council of the Judiciary and the Minister The ECtHR requested from the Polish Morawiecki submitted an over 100-page- for Justice. The provisions of the Disci- government to submit its observations long application to the Polish Consti- plinary Code on the competences and the on the cases. In addition, the ECtHR an- tutional Court which should determine composition of the disciplinary tribunal nounced that all current and future ap- whether certain provisions of the TEU are thus incompatible with the guarantee plications concerning complaints about concerning the primacy of EU law and under Art. 19 para. 1 subpara. 2 TEU on various aspects of the reform of the judi- effective judicial protection are consist- effective legal protection of rights. Al- cial system in Poland will be given pri- ent with the Constitution of the Republic ready in April 2020, the Grand Chamber ority (so-called Category I cases). In ac- of Poland. An unofficial English transla- of the CJEU ordered interim measures in cordance with the Court’s prioritisation tion is provided for at the portal
eucrim 2 / 2021 | 71 NEWS – European Union the ECtHR’s judgment “a non-existent The case is referred to as C-55/20 (Min- whereas abstention is understood as a judgment (sententia non existens).” The isterstwo Sprawiedliwości). (TW) refusal to adopt a position at all and can- Polish judges believe that “the ECtHR not be treated in the same way as a “vote judgment of 7 May 2021 … is based on Hungary: Recent Rule-of-Law cast.” Consequently, the rule laid down arguments testifying to the Court’s ig- Developments in Art. 354 para. 4 TFEU must be inter- norance of the Polish legal system, in- This news item continues the overview preted as precluding abstentions from cluding the fundamental constitutional of recent rule-of-law developments in being taken into account. The CJEU fol- assumptions specifying the position, Hungary. For reports in previous is- lows the opinion of AG Bobek presented system and role of the Polish constitu- sues eucrim 1/2021, 4–5; and eucrim on 3 December 2020. tional court. To this extent, it was issued 4/2020, 257–258; and eucrim 3/2020, 15 June 2021: The Hungarian parlia- without legal grounds, overstepping the 162–163 with further references. ment passes the “Anti-Paedophilia Act”. ECtHR’s jurisdiction, and constitutes 21/26 May 2021: The Hungarian Besides introducing heavier penalties unlawful interference in the domestic Helsinki Committee (HHC) releases for sexual offences against minors, the legal order, in particular in issues which two information notes on the creation ruling Fidesz party made last-minute are outside the ECtHR’s jurisdiction.” of parallel state structures by the Hun- amendments to the bill that sparked con- 17 June 2021: According to Advocate garian government. The first note re- troversy all over Europe. The legislation General (AG) Bobek, a national court lates to the state’s financing of public passed also stipulates several bans that is entitled to disregard national legal universities by public trust funds. The critics find a violation of freedom of ex- provisions on the attribution of juris- second note deals with the creation of pression and LGBTQI+ rights. Accord- diction or rulings of a higher court if it new managerial and regulatory pow- ing to the law, it is forbidden to: considers them incompatible with EU ers to one single supervisory, govern- yyMake available content to minors fea- law, in particular with the principle of ment-sponsored authority in the areas turing portrayals of homosexuality or judicial independence. The AG’s opin- of tobacco retail, judicial enforcement, sex reassignment; ion concerns a legal battle between the gambling, and liquidation. yyPromote homosexuality or sex reas- Polish bar association and the Polish 3 June 2021: The CJEU dismisses an signment when educating students; General Prosecutor/Minister of Justice, action by Hungary seeking annulment yyBroadcast advertisements that por- in which the former has refused to ini- of the European Parliament’s resolution tray or promote “deviation from the tiate disciplinary proceedings against a of 2018, which triggered the procedure identity corresponding to one’s sex lawyer. The referring Disciplinary Court for determining a clear risk of a serious at birth, sex reassignment, or homo- of the Bar Association in Warsaw won- breach – by a Member State – of the sexuality.” dered which procedural consequences values on which the European Union is The Hungarian government defended are triggered by the CJEU’s judgment founded (procedure of Art. 7 TEU). Hun- the bill by arguing that it is not discrimi- of 19 November 2019 that confirmed gary argued that the EP did not count the natory and aims only at protecting chil- that the Disciplinary Chamber of the abstentions among the votes cast when dren. NGOs criticised that “this move Supreme Court lacks judicial independ- adopting the resolution, which required endangers the mental health of LGBTQI ence (eucrim 3/2019, 155–156). The a two-thirds majority. Hungary put forth youth and adults, and inhibits them from Disciplinary Chamber will, upon pos- that only counting the votes cast in fa- accessing information and support in a sible appeal, finally adjudicate on the vour and against the resolution, while timely manner for preventive purposes.” disciplinary sanctions of the lawyer. excluding the abstentions, is not in line They also pointed out that the new law AG Bobek backs the opinion that the with Art. 354 TFEU and Rule 178(3) of is part of a series of measures that curtail EU Service Directive (2006/123/EC) is the EP‘s Rules of Procedure. The CJEU the rights of LGBTQI people and have applicable in the proceedings at issue holds Hungary’s action for annulment been stigmatizing them since 2018. The and may secure unlawful withdrawal of pursuant to Art. 263 TFEU admissible new law has triggered harsh criticism by lawyers’ authorizations. Lastly, the AG but unfounded (Case C-650/18). The the EU. notes that references for preliminary rul- CJEU notes that the concept of “votes 23 June 2021: European Commission ings may not be the appropriate way to cast” in Art. 354 para. 4 TFEU is not President Ursula von der Leyen calls the tackle pathological situations in a EU defined in the Treaties but invites au- passed Hungarian anti-paedophilia bill “a Member State. He believes that infringe- tonomous interpretation in accordance shame”, which “goes against all the fun- ment actions remain a more appropriate with the usual meaning of the concept in damental values of the European Union.” remedy to settle institutional stand-offs everyday language. As a result, this con- Her staff will send a formal letter to the in a context where one or more actors cept covers only the casting of a positive Hungarian government to clarify the con- refuse to follow the CJEU’s judgments. or negative vote on a given proposal, tent of the anti-paedophilia legislation.
72 | eucrim 2 / 2021 Foundations
24 June 2021: 17 heads of state or citizen, and the engagement of young and expertise between neighbouring government sign a joint letter in the Europeans is especially encouraged. countries; margin of the EU summit in which they The Conference aims to create a Prevent hindrances to strategical, op- pledge to “continue fighting against dis- new public forum in order to stimulate erational and tactical cross-border law crimination towards the LGBTI commu- an open and transparent debate with all enforcement cooperation, in particular nity”. Although the letter does not name European citizens on a variety of topics, in case of travel restrictions; Hungary expressly, it is clearly targeted such as climate change, the environ- Develop and promote information at the Hungarian anti-paedophilia law. ment, a stronger economy, social justice, and awareness campaigns for their citi- Dutch Prime Minister Mark Rutte said the rule of law, and security zens, focusing particularly on the pre- at the summit that, with the LGBT law, The ideas and comments on these vention of cybercrime, misinformation, “Hungary has no place in the EU.” Lux- topics will be published on the platform and hate speech; embourg’s Prime Minister Xavier Bettel and feed into discussions taking place in Develop scenario-based training and commented that Mr Orban was wrong European Citizens’ Panels and Plenar- practical exercises within CEPOL (the to conflate homosexuality with paedo- ies. European Citizen’s Panels will dis- EU agency for law enforcement training) philia within the law. Germany’s chan- cuss different issues that are of crucial to ensure preparedness and resilience for cellor Angelika Merkel condemned the importance for the EU’s development, future pandemics and other crises; act as “wrong”. According to civil rights and the Conference Plenaries will make Share best practices on reporting organisations in Hungary, it remains to sure that the Panels’ recommendations channels for victims of crime, such as be seen how the law will be enforced, are being debated freely. During the domestic violence and sexual abuse. since the legal definitions are apparently conference, several decentralised events Europol is encouraged to support unclear. (TW) will take place next to the European Cit- Member States through the exchange of izens’ Panels and Conference Plenaries. information that affect internal security Rule-of-Law Developments in other The final outcomes of the conference in crisis situations and to develop best EU Countries will then be presented to the Joint Presi- practices from its analytical reports on Beyond Poland and Hungary, a close eye dency in a report and examined by the crime trends and risk assessments during is also being kept on other EU countries European Parliament, the Council, and the current COVID-19 pandemic. The as regards upholding the value of the the European Commission. (AP) Commission should support Europol rule of law. Recent developments con- and the innovation lab to set up a com- cern Malta, Romania, and Czechia. For mon, resilient and secure instrument for a more detailed report on these events, Security Union communications in the EU law enforce- please refer to the online publication of ment cooperation framework. this news item dated 8 July 2021. (TW) Council Conclusions: Impact It should be noted that the conclusions of COVID-19 on Internal Security come along with conclusions on the im- On 7 June 2021, the JHA Council pact of COVID-19 on terrorism and vio- Reform of the European Union adopted conclusions “on the impact of lent extremism that were adopted at the the COVID-19 pandemic on internal same JHA Council meeting (separate Launch of the Digital Platform security: threats, trends, resilience and news item under “Terrorism”) (TW) “Conference on the Future of Europe” lessons learned for EU law enforce- 19 April 2021 marked the launch of the ment.” By stressing that the COVID-19 Parliament Calls for Tighter EU multilingual digital platform “Confer- pandemic posed unpredictable risks Cybersecurity Standards for Connected ence on the Future of Europe” (eucrim and threats to the internal security land- Products and Associated Services 1/2021, 5–6). It provides a unique oppor- scape, the conclusions mainly recom- On 10 June 2021, the European Parlia- tunity for European citizens to engage in mend to make better use of the existing ment (EP) adopted a resolution on the the debate about the future of Europe instruments. They call on the Member EU’s Cybersecurity Strategy for the and to exchange views with experts and States and the EU institutions to step Digital Decade in order to make con- EU institutions until spring 2022. The up efforts in order to ensure protec- nected products and associated services launch marks a big step forward in the tion, achieve better preparedness, and secure by design, resilient to cyber in- integration process. Commission Presi- reinforce prevention. Member States cidents, and able to be quickly patched dent Ursula von der Leyen has called all should do the following: if vulnerabilities are discovered. While European citizens to participate in shap- Better coordinate the exchange of MEPs welcomed the Commission’s ing “the Europe they want to live in.” cross-border information, joint law plans for horizontal legislation on cyber Participation is open to every European enforcement operations, best practices security requirements for connected
eucrim 2 / 2021 | 73 NEWS – European Union products and associated services, they eration Agreement (TCA) between the line that the EP must play a full role in also stressed the need for the Commis- European Union and the United King- the monitoring and implementation of sion to harmonise national laws in order dom. The deal received an overwhelm- the Agreement, which must include, for to avoid fragmentation of the Single ing majority of 660 out of 697 votes instance, the EP’s involvement in unilat- Market. The EP called for promotion of cast. To minimise disruption, the agree- eral EU actions under the Agreement or the development of secure and reliable ment has been provisionally applied the taking into account of the EP’s views networks/information systems, infra- since 1 January 2021 (eucrim 4/2020, regarding the implementation of the structure, and connectivity across the 265). The EP’s consent was necessary so TCA by both parties. Union. that the TCA can enter into force perma- The resolution sets out the EP’s The Commission is now called on nently. The period of provisional appli- viewpoint on the various chapters and to assess the need for a proposal on a cation ends on 30 April 2021. topics of the TCA. Regarding issues in regulation introducing cyber-security In addition to the vote on the TCA, connection with the area of freedom, requirements for applications, software, MEPs adopted a resolution that sets security and justice and the protection embedded software, and operating sys- out the EP’s evaluation of and expecta- of the EU’s financial interests (in detail tems by 2023. In addition, MEPs em- tions from the EU-UK Agreement. The summarised at eucrim 4/2020, 265– phasised that outdated applications, soft- resolution passed by 578 to 51 votes, 271) the following points raised can be ware, embedded software, and operating with 68 abstentions. MEPs welcomed highlighted: systems no longer receiving regular the conclusion of the EU-UK Trade The Commission should remain vigi- patches and security updates constitute and Cooperation Agreement that limits lant on questions of taxation and money a significant share of all connected de- the negative consequences of the UK’s laundering, where all available tools vices and a cyber-security risk – this is- withdrawal from the EU. However, they such as the listing processes should be sue therefore needs to be included in the consider Brexit a “historic mistake” and used to dissuade the UK from adopting Commission’s proposal. recall that “a third country cannot have unfair practices; The MEPs acknowledged that the the same rights and benefits as a Mem- A decision of the adequacy of the COVID-19 crisis has further exposed ber State.” They also stress that the goals UK’s data protection framework must be cyber-vulnerabilities in several critical pursued by the EP have been largely in line with the CJEU case law, should sectors, e.g., healthcare, and the number achieved by the TCA. This achievement not be taken rashly and cannot be the ob- of cyber-attacks on healthcare systems is, inter alia, ensured through an en- ject of negotiation between the UK and is on the rise. The resolution cautioned forceable level playing field (including the EU; that the use of hybrid threats (includ- for state aid, social and environmental The part on law enforcement and ju- ing the use of disinformation campaigns standards), a long-term settlement on dicial cooperation in criminal matters and cyber-attacks on infrastructure) is fisheries, an economic agreement which with the UK is of an unprecedentedly increasing and that they risk affecting will mitigate many of the negative con- close nature with a third country; democratic processes, such as elections, sequences of the UK’s withdrawal from The suspension and termination legislative procedures, law enforcement, the EU, and a new framework for justice, mechanism in relation to law enforce- and the administration of justice. The police and internal security cooperation ment and judicial cooperation is to be lack of agreement on cyber-intelligence based on full respect for the ECHR and welcomed, in particular the ECHR con- collaboration at the EU level and the the EU’s data protection legal frame- ditionality; lacking collective response to cyber- work. The EP regrets nonetheless that The EU should keep an eye on UK and hybrid attacks are also cause for the UK was not willing to extend coop- practices that may develop harmful tax concern. (AP) eration to important areas, such as for- schemes (including in UK Crown De- eign and security policy and participa- pendencies and Overseas Territories tion in the student exchange programme where the TCA does not apply) or im- Area of Freedom, Security Erasmus+. Furthermore, it is regrettable pact the financial stability of the EU; and Justice that judicial cooperation in civil matters The UK must respect its financial was not part of the negotiations for the commitments under the TCA that ensure Brexit: EP Formally Approves future partnership between the EU and the protection of the EU’s financial in- TCA and Requests its Involvement the UK. terests; in Implementation MEPs criticise that the TCA was hast- Strong cooperation on VAT and cus- In its plenary session of 27 April 2021, ily negotiated which impacted the demo- toms duties is needed in order to ensure the European Parliament (EP) consented cratic oversight of the final text ahead of proper collection and the recovery of to the conclusion of the Trade and Coop- the provisional application. They under- claims; cooperation must include swift
74 | eucrim 2 / 2021 Foundations exchange of information among the cus- MEPs call on national authorities to Recent JHA-Relevant Infringement toms authorities and the fight against suspend data transfers to the UK if guar- Procedures VAT and customs fraud; antees are not included. If necessary, the On 9 June 2021, the Commission pre- The implementation of the control Member States must conclude no-spy sented information about the opening mechanisms must be ensured, including agreements with the UK. MEPs also and progress of several infringement the right of access of Commission ser- share the opinions by the European Data procedures in the area of justice and vices, the ECA, OLAF and the EPPO; Protection Board (EDPB) of April 2021 home affairs / security law and PIF. For a Both parties must continue their (reg- that identified deficiencies in the draft more detailed report on these procedures, ulatory) common protection of intellec- adequacy decisions and required further please refer to the online publication of tual property rights. (TW) improvements. (TW) this news item dated 1 July 2021. (TW)
Brexit: EP Criticises Commission’s Brexit: Commission Rejects UK CCBE: Position Papers Draft Adequacy Decisions Application to Join Lugano Convention On 26 March 2021, the Council of Bars In a resolution adopted on 21 May 2021 With Brexit and the end of the United and Law Societies of Europe (CCBE) with a narrow majority of 344 against Kingdom’s EU membership, the 2007 held an online Standing Committee dur- 311 votes, the European Parliament Convention on jurisdiction and the rec- ing which several position papers with found that the European Commission’s ognition and enforcement of judgments relevance to the Area of Freedom, Secu- assessment of the UK data protection in civil and commercial matters (Lu- rity and Justice were adopted: law and practice is incomplete and in- gano Convention) no longer applies to The CCBE adopted its comments on consistent with the CJEU’s require- the United Kingdom of Great Britain the Communication on the Digitalisa- ments for adequacy decisions. In Feb- and Northern Ireland (UK). On 8 April tion of Justice in the EU. The Commu- ruary 2021, the Commission tabled two 2020, the UK applied to accede to the nication was published on 2 December drafts for adequacy decisions (eucrim Lugano Convention. On 4 May 2021, 2020 by the European Commission, 1/2021, 7). They confirm the UK having the Commission rejected ‒ in a commu- with the intent to improve the digitali- an equivalent level of data protection to nication to the European parliament and sation of justice in the EU. With regard that of the EU – a precondition for fu- the council ‒ the entry of the UK to the to the refusal of many national authori- ture transfers of personal data both be- Convention. The Convention had origi- ties to verify electronic signatures from tween private entities and between law nally been concluded between the Euro- other Member States, the CCBE stressed enforcement authorities in accordance pean Union, Denmark, and the European the importance of an effective applica- with the GDPR and Directive 2016/680. Free Trade Association (EFTA) states tion of the eIDAS regulation that had MEPs call on the Commission to address of Switzerland, Norway and Iceland to been adopted on 23 July 2014. Calling the concerns raised in the resolution and regulate international jurisdiction and for reinforcement of EU-wide legal cer- to amend the draft implementing deci- the recognition and enforcement of for- tainty, the CCBE also emphasised the sions. The resolution mainly raises the eign judgments in civil and commercial need for EU-wide minimum standards, following concerns: matters. which would ensure that national e-jus- Lack and often non-existent enforce- In its communication, the Commis- tice systems can guarantee the right to a ment of the GDPR by the UK when it sion justified the rejection of the UK’s fair trial. was an EU Member State; application by stating that the Lugano The CCBE welcomed the European Too broad exceptions from funda- Convention is a flanking measure of the Commission’s e-CODEX proposal for mental data protection rights, in particu- EU’s internal market and embedded in a regulation on a computerised com- lar in immigration law and for purposes the EU-EFTA/EEA context. In relation munication system in cross-border civil of national security; to all other third countries, the EU pro- and criminal proceedings. The CCBE No sufficient reaction by the UK yet motes cooperation within the framework voiced concerns, however, over the lack as regards the use of mass surveillance of the multilateral Hague Conventions. of clear and concrete provisions regard- data; Due to the Brexit, the status of the UK ing the operating conditions of access Insufficient adequacy status as re- has been derogated to that of a third points in the e-CODEX proposal, espe- gards onward transfers, which can lead country without a special link to the in- cially on “how to maintain the integrity to the bypassing of the EU rules on data ternal market. Any future cooperation of the system when entities operating transfers to countries or territories not between the UK and the EU in matters access points are private companies.” deemed adequate under EU law; of civil judicial cooperation will there- The CCBE called the proposal inad- Persistent concerns over UK’s data fore be regulated by the Hague Conven- equate regarding the protection of fun- retention regime. tions. (AP) damental rights, noting that there should
eucrim 2 / 2021 | 75 NEWS – European Union be explicit references to the applicabili- 2015 refugee crisis, persistent terrorist gen Borders Code by the end of 2021 in ty of the Charter of Fundamental Rights threats and terrorist attacks on Europe- order to address the lessons learned from of the EU. an soil, and the COVID-19 pandemic. the COVID-19 crisis (e.g., the reintro- The CCBE adopted its Contribution These new challenges have led some duction of internal border controls) and for the Rule of Law Report 2021. In this Member States to reinstate internal bor- to deal with any future Schengen-wide contribution, the CCBE pointed out that der controls. challenges; lawyers are faced with many challenges In order to successfully face these Codify the guidelines and recom- during the Covid-19 pandemic and its challenges and continue reaping the mendations developed in relation to consequences for access to justice, qual- benefits that the Schengen area provides, COVID-19 in the Practical Handbook ity of justice, and upholding the rule of the strategy aims to achieve the follow- for Border Guards. law. In this regard, the CCBE urged the ing goals: The Commission calls upon the Commission to continue monitoring (1) Improve the EU’s external border Council to take the necessary steps for such developments and to take neces- management Bulgaria, Romania, and Croatia to be- sary actions to prevent any undermining The Commission will present: come part of the Schengen area without of the rule of law. The CCBE also re- A proposal for a Regulation on digi- controls at the internal borders of Mem- affirmed the importance of recognising talisation of the visa procedure; ber States. lawyers as key actors in the justice sys- A proposal for a Regulation on digi- On the same day the new strategy was tem – on the same level as judges and talisation of travel documents and facili- presented, the Commission also pro- prosecutors. tation of travel by 2023; posed a regulation on the establishment The CCBE adopted its comments on A recommendation to Member States and operation of an evaluation and mon- the European Judicial Training Strat- on the exchange of information/on situ- itoring mechanism to verify application egy. It welcomed the Communication ational awareness to be used in bilateral of the Schengen acquis and repealing of the Commission “Ensuring justice in and multilateral agreements with third Regulation (EU) No 1053/2013, in order the EU ‒ a European judicial training countries (model provisions). to foster common trust in implementa- strategy for 2021–2024” and especially (2) Reinforce the Schengen area tion of the Schengen rules. (AP) the European Judicial Training strategy, internally which promotes a common rule-of-law The Commission will: Second Schengen Forum culture upholding fundamental rights. Improve police cooperation with an After the first Schengen Forum meeting The CCBE stressed the importance of EU Police Cooperation Code that will in November 2020 (eucrim 4/2020, the objective to train 15% of lawyers provide a coherent EU legal framework 272–273), the political dialogue on in EU law by 2024 but pointed out that to ensure that law enforcement authori- strengthening the Schengen rules has adequate funding is needed in order to ties have equal access to information continued. The Schengen Forum con- meet such an ambitious goal. (AP) held by other Member States; venes members of parliament and home Reinforce the automated exchange affairs ministers with the aim of foster- of important data categories relating to ing cooperation and political dialogue Schengen Prüm Council Decisions; as well as of building up stronger confi- Expand the use of advance passenger dence in the Schengen rules. Commission Strategy for a Stronger information (API) to also cover intra- The second Schengen Forum was and More Resilient Schengen Area Schengen flights; opened on 17 May 2021 with a keynote On 2 June 2021, the Commission pre- Update the European Arrest Warrant speech by Ylva Johansson, Commission- sented its new strategy for a fully func- (EAW) Handbook. er for Home Affairs. Johansson stressed tioning and resilient Schengen area. (3) Increase preparedness and enhance that, with the COVID-19 pandemic and With this strategy, the Commission is governance the ensuing lockdowns, the EU and the aiming to make the Schengen area – the The Commission will: Schengen area were under a lot of pres- largest visa-free zone in the world – Continue to organise regular Schen- sure and strain. She pointed out, howev- stronger and more resilient, accentuating gen Forums in order to discuss the situ- er, that these challenging times can also that the free flow of people, goods, and ation of Schengen at the political level be seen as an opportunity for the Schen- services is at the heart of the European and to foster continued reflection and gen community to be reminded of how Union. The Commission acknowledged cooperation; important Schengen is for the mobility that the Schengen area has been under Relaunch the adoption of the “State of EU citizens and for the EU economy. a lot of pressure in recent years, fac- of Schengen Report”; The challenges have also shown that ing new challenges stemming from the Propose an amendment to the Schen- there is a need for more cooperation and
76 | eucrim 2 / 2021 Foundations coordination as well as for better use of existing EU law on fundamental rights be tasked with contributing to effective new technology in external border man- and values; cooperation between the national super- agement and by European police forces To ensure legal certainty when fa- visory authorities and the Commission in order to reinforce the Schengen area. cilitating investment in and innovation and with providing advice and expertise According to Johansson, the pandemic into AI; to the Commission. has shown that proportionate and co- To enhance governance and effective In parallel to the first worldwide ini- ordinated border control measures are enforcement of the existing law on fun- tiative to set up a legislative framework usually more effective than unilateral damental rights and safety requirements on AI, the Commission presented the and uncoordinated action taken by in- applicable to AI systems; following documents: dividual Member States. Even if rigid To facilitate the development of a The Communication “Fostering a controls at internal borders can be jus- single market for lawful, safe, and trust- European Approach to Artificial Intelli- tified in acute emergencies, they should worthy AI applications and to prevent gence”, which summarises the EU’s pol- be seen as an exception, as they are market fragmentation. icy on AI and explains the “AI package”; neither proportionate nor effective. In The direct application of the new An updated “Coordinated Plan” on order to build a more secure Schengen rules across all Member States will be AI, which defines joint actions for the area, the Commissioner also stressed based on a future-proof definition of AI European Commission, the Member the importance of the launch of the Eu- that is based on a risk-based approach, States, and private parties in order to ropean Travel Authorisation System going from unacceptable-risk to mini- turn the EU into a global leader of trust- (ETIAS, eucrim 2/2018, 82, 84). She mal-risk AI systems: worthy AI; announced that the Commission intends AI systems that are considered an un- A proposal for a regulation on ma- to present an Annual State of Schengen acceptable risk, i.e., a clear safety threat chinery products, which ensures that the Report, which will serve as a basis for a to people and “contravening Union val- new generation of machinery guarantees better Schengen evaluation. (AP) ues,” will be banned. The Commissions the safety of users and consumers and sees such unacceptable risks in AI sys- encourages innovation. (AP) tems that allow “social scoring” by gov- Legislation ernments. EDPB/EDPS Joint Opinion on AI systems that are identified as high- Commission’s AI Proposal: Call for Commission Proposes Artificial risk, i.e., posing significant risks to the Ban of Biometric AI Surveillance Intelligence Act health and safety or fundamental rights of On 18 June 2021, the European Data
spot On 21 April 2021, the Commis- persons, will be put under strict obliga- Protection Board (EDPB) and Europe- light sion tabled a proposal for a reg- tions before being placed on the Europe- an Data Protection Supervisor (EDPS) ulation laying down harmonised an market. This includes AI systems that adopted a joint opinion on the European rules on artificial intelligence (AI). Fol- are being used, for example, in critical Commission’s Proposal for a regula- lowing the Commission’s White Paper infrastructures, migration, asylum and tion laying down harmonised rules on on AI from 2020 (eucrim 1/2020, 8–9) border control management, or in the artificial intelligence (AI). The EDPB and in a new step aiming to turn Europe administration of justice and democratic and the EDPS welcomed the Commis- into the global hub for trustworthy AI, processes. The Commission stresses that sion’s proposal that had been presented the proposal strives to balance the nu- all remote biometric identification is on 21 April 2021 (news item above). merous risks and benefits the use of AI considered high-risk and will therefore They made clear that it has important can provide. be subject to specific restrictions and data protection implications. In order to implement the second ob- safeguards. The EDPB and the EDPS further jective of the White Paper addressing the Limited-risk systems, i.e., chatbots, welcomed the extension of the proposal risks associated with using AI in certain will be subject to minimum transparency to the provision and use of AI systems contexts, the Commission is proposing obligations. by EU institutions, bodies or agencies a legal framework that will enable the Minimal-risk AI systems that rep- (EUIs). They criticised, however, the ex- benefits the use of AI has to offer to be resent only a minimal or no risk for clusion of international law enforcement reaped, while simultaneously upholding the rights and/or safety of citizens, i.e., cooperation from its scope. the EU’s values and fundamental rights. spam filters, are not subject to the pro- Regarding the risk-based approach The Regulation on AI pursues four ob- posed Regulation. to AI systems, the EDPB and the EDPS jectives: On the governance side, the proposal stressed that the concept of “risk to fun- To ensure that AI systems placed on establishes a European Artificial Intelli- damental rights” should be aligned with the EU market are safe and in line with gence Board at the EU level, which is to the General Data Protection Regulation
eucrim 2 / 2021 | 77 NEWS – European Union
(GDPR). The proposal should explicitly Regarding transparency issues, the at the JHA Council meeting on 7 June address the rights and remedies available opinion recognised that ensuring trans- 2021. The debate mainly focused on the to individuals affected by AI systems. parency in AI systems is a very chal- aspects related to orders to providers The EDPB and the EDPS were also lenging goal. The registration of high- from national authorities to act against critical of the Commission‘s exhaustive risk AI systems in a public database in illegal content or to provide information, list of high-risk AI systems, which might order to provide information about the as well as the obligation of large provid- create a black-and-white effect under- application and the flaws of AI systems ers to notify authorities of suspicions of mining the overall risk-based approach. would be welcomed. (AP) serious criminal offences. Ministers par- They agreed with the proposal in that the ticularly stressed: classification of an AI system as “high- EDPS Comments on Commission’s The freedom of expression must be risk” does not necessarily mean that it is Artificial Intelligence Act Proposal ensured when restrictions are enacted; still lawful per se and can be deployed In a press release dated 23 April 2021, Regarding the orders from national by the user as such. the European Data Protection Super authorities, it must be clarified that the Regarding the prohibition of the use visor (EDPS), Wojciech Wiewiórowski, DSA does not conflict with other JHA of certain AI systems, the EDPB and welcomed the Commission’s proposal instruments; the EDPS recommended that intrusive for a new regulation laying down har- Regarding the notification obliga- forms of AI – such as those AI systems monised rules on artificial intelligence tions for providers, the DSA must clarify intended to be used by law enforcement (Artificial Intelligence Act separate the concepts of “serious criminal offence – be prohibited AI systems under Art. 5 news item above). The EDPS especially involving a threat to life or safety of per- of the proposal, instead of simply being recognised the merit of a risk-based ap- sons” and the “promptness” of reaction. classified as “high-risk” in the annex. proach concerning the future-proof defi- (TW) They particularly anticipate that the use nition of AI that the Commission adopt- of remote biometric identification of in- ed in its proposal. Commission Gives Guidance on dividuals in publicly accessible spaces The EDPS also stressed the impor- Strengthening the Code of Practice may create an especially high-risk of tance of a ban on remote biometric iden- on Disinformation intrusion into individuals’ private lives. tification in the public and expressed his On 26 May 2021, the Commission re- They therefore called for a stricter use regret that the previous calls for a mora- leased a Communication entitled “Guid- of such AIs, e.g. a general ban on any torium on the use of remote biometric ance on Strengthening the Code of use of AI for automated recognition of identification systems in publicly ac- Practice on Disinformation.” The Com- human features in publicly accessible cessible spaces have not been addressed mission stressed that the COVID-19 spaces (e.g., recognition of faces, gait, by the Commission. Wiewiórowski re- pandemic has illustrated the problem fingerprints, DNA, voice, keystrokes and marked that the use of remote biometric posed by disinformation as well as the other biometric or behavioural signals) identifications that results in automatic increasing importance of digital tech- in any context. They also endorsed a ban recognition of human features in public nologies in everyday life. AI systems using biometrics to categorize spaces could present “extremely high With this guidance document, the individuals into clusters based on ethnic- risks of deep and non-democratic intru- Commission wants to strengthen the ity, gender, political or sexual orientation, sion into individuals’ private lives”. For Code of Practice on Disinformation and and any other grounds on which discrimi- the discussion on a ban of AI technology address gaps and shortcomings in digi- nation is prohibited under Art. 21 CFR. enabling biometric mass surveillance tal communication in order to create a Despite welcome the designation (eucrim 1/2021, 10).In order to sup- more transparent, safe, and trustworthy of the EDPS as the competent market port the Commission in strengthening online environment. The Commission surveillance authority for the supervi- the protection of individual rights, the called the Code of Practice on Disinfor- sion of the EUIs, its role and tasks need EDPS will analyse the proposal of the mation – in effect since October 2018 – further clarification. They embraced the new regulation. (AP) a centrepiece of the EU’s efforts in the proposal for the establishment of the fight against disinformation. The Code “European Artificial Intelligence Board” Justice Ministers Debate on DSA is a self-regulatory tool that is employed (EAIB). However, they feel that the fu- Following the Commission proposal on by major online platforms and trade ture AI Regulation should give more au- a Digital Services Act (DSA) – present- associations. It provides a structured tonomy to the EAIB, in order to allow ed in December 2020 (eucrim 4/2020, framework in which the private entities the Board to truly ensure the consistent 273–274) – the ministers of justice of the monitor and improve their policies on application of the Regulation across the EU Member States held a debate on the disinformation (eucrim news item of single market. plans to combat illegal content online 11 January 2020).
78 | eucrim 2 / 2021 Foundations
However, the Communication also Release of regular reports by signa- and key stakeholders to remove obsta- identified the Code’s shortcomings, tories under the reinforced monitoring cles and red tape that have been slowing as revealed by an assessment in 2020. framework using harmonised templates, down investments in and building up of This includes, for instance, inconsist- including sets of standard and auditable a 21st century infrastructure to maxim- ent and incomplete application of the formats providing data against the key ise the benefits of an improved EU law Code across platforms and Member performance indicators (KPIs). for citizens, businesses, and society as a States, limitations intrinsic to the self- The Commission’s Guidance is also whole; regulatory nature of the Code, and gaps designed to develop the existing Code of Introduce a “one in, one out” approach in the coverage of the Code’s objectives Practice into a co-regulatory instrument, adapted to policymaking in the EU. As commitments. In order to address these as foreseen under the Digital Services EU regulations often come with costs, shortcomings, the Commission calls for Act (DSA). (AP) the Commission reiterated that they must the following improvements: remain reasonable and proportionate. In Stronger commitment by signatories Parliament Approves Interinstitutional order to reduce the burdens resulting to ensure a more effective response to Agreement on Mandatory Transparency from EU legislation – for both citizens the spread of disinformation; Register for Lobbyists and businesses (especially for small and Wider participation in the Code by On 27 April 2021, the European Parlia- medium-sized enterprises) –, the princi- established and emerging platforms, ment adopted a decision on the conclu- ple of “one in, one out” is to ensure that online services which disseminate infor- sion of an interinstitutional agreement any newly introduced burdens are bal- mation to the public (e.g., smaller social between the European Parliament, the anced by removing equivalent burdens media and search services), and stake- Council of the European Union, and in the same policy area; holders from the advertising ecosystem the European Commission on a man- Consolidate public consultations into beyond the circle of the Code’s current datory transparency register. The text a single “call for evidence” on the “Have signatories; was adopted with 645 votes in favour, Your Say” web portal, which will con- Tailored commitments that corre- five votes against, and 49 abstentions. It sist of a description of the initiative and spond to the diversity of services provid- shall enhance the transparency of the EU include a link to the public consultation, ed by signatories and the particular roles decision-making process and foster the where relevant; they play in the advertising ecosystem; accountability of the EU institutions. Keep respondents who contributed to Reinforcement of cooperation be- The adopted text brings major chang- public consultations informed by pub- tween the Member States, the signato- es to the already existing Transparency lishing a summary report on each public ries of the Code, and the European Digi- Register, making it mandatory for inter- consultation within eight weeks of its tal Media Observatory (EDMO); est representatives to register themselves closure; Strengthened commitments aimed at before carrying out certain lobbying ac- Increase the transparency of EU law- no longer funding the dissemination of tivities (see Annex A to the Agreement) making by improving portals, such as disinformation in signatories’ own ser- relating to any of the three signatory EU Publications, EUR-Lex, and “Have vices or on third-party websites; institutions (the European Parliament, Your Say”, and by improving the links Strengthened commitments from the the Council of the European Union, and between them; Code’s signatories to enhance the trans- the European Commission). The Parlia- Mainstream the UN’s sustainable de- parency and public disclosure of politi- ment also made clear that the agreement velopment goals (SDGs) in order to take cal ads; covers indirect lobbying activities, espe- better consideration of sustainability; Comprehensive disclosure of current cially since such activities have become Integrate strategic and science-based and emerging forms of manipulative be- more important during the COVID-19 foresight into policymaking, ensuring haviour used to spread disinformation; pandemic. (AP) that decisions taken are grounded in a Extension of cooperation with fact- long-term perspective and are “future- checkers on the part of signatories; Commission Seeks to Improve proof.” Empowerment of users by facilitating EU Law-Making Process The Commission stressed that an im- a better understanding of the functioning On 19 April 2021, the Commission provement of the EU law-making pro- of online services and the use of tools that adopted a Communication on Better cess can only be reached by cooperation foster more responsible behaviour online; Regulation, aiming to improve the EU’s between local, regional, and national A framework for robust access to law-making process by simplifying the authorities, social partners, and between platform data by the research and fact- EU legislation and reducing its burden. EU institutions – the European Parlia- checking community and adequate sup- The Commission will therefore: ment, the Council, and the Commission. port for their activities; Invite the Member States, regions, (AP)
eucrim 2 / 2021 | 79 NEWS – European Union
Institutions Itälä signed a working arrangement that among the most regulated products in sets out the future operational coopera- the world, thus cheaper illegal and sub- tion between the EPPO and OLAF. The standard products promise high profits Council agreement can be considered an impor- but they can heavily damage the envi- tant milestone since both offices are ronment. Programme of the Slovenian Council mandated to fight EU fraud. OLAF con- Operation Silver Axe VI (carried out Presidency (JHA) ducts administrative investigations, between mid-January and end of April On 1 July 2021, Slovenia assumed the while the EPPO conducts criminal in- 2021) led to 12 arrests and the seizure EU Council Presidency for the next six vestigations and prosecutes cases falling of over 1200 tonnes of illegal pesticides months. The motto: “Together. Resilient. under its competence before the national in total. It is estimated that the seized Europe.” In general, priority topics will courts of the participating Member products are worth €80 million. Law en- be post-pandemic economic recovery, States. The EPPO Regulation (Council forcement authorities targeted the sale of the Conference on the Future of Europe Regulation (EU) 2017/1939) stipulated counterfeits, banned products and unregu- and the EU enlargement process in the the relationship between the two bodies lated imports – both online and offline. In- Western Balkans. only rudimentarily. spections on land and sea borders, inland In the area of justice, Slovenia will The Working Arrangement aims to marketplaces, parcel service providers focus on the protection of human rights establish close cooperation between and online marketplaces were carried in light of challenges posed by new tech- OLAF and the EPPO in the exercise of out. Europol reported that the operation nologies and the use of internet. Priori- their respective investigatory and pros- showed a trend towards increased online ties will include combatting hate speech ecutorial mandates, in particular through sales. Asian countries remain the main and hate crime, discussions on ethical the exchange of information and mutual source of illegal pesticides production. aspects and the potential impact of the support. It regulates the modalities on The operation involved 35 countries and use of AI on fundamental freedoms. the following issues: several supranational institutions, such Work will continue on e-evidence, Exchange of information, including as the EU Intellectual Property Office e-CODEX and the EU’s accession to the reciprocal indirect access to each other’s (EUIPO) and the European Crop Protec- European Convention on Human Rights. electronic case management system; tion Association (ECPA). OLAF mainly The Presidency will also prepare a com- Mutual reporting and transmission of provided expertise in identifying and prehensive response to the EU strategy potential cases to each other; tracking suspicious movements. These on rights of children. Mutual support in the course of inves- movements are then reported to national In the area of home affairs, the country tigations; customs and plant protection authorities will strive for ensuring a fully function- Conduct of complementary investi- which are able to intercept the suspicious ing Schengen area and building up more gations by OLAF; transfers of goods. For previous opera- robust Schengen rules. The Presidency Information exchange on trends; tions of Silver Axe, eucrim 2/2020, 81; intends to make progress in the negotia- Joint training exercises and staff ex- eucrim 2/2019, 88; and eucrim 2/2018, tions on key files in the areas of asylum change programmes. 85. (TW) and migration. Another important prior- In addition, the Arrangement sets out ity will be to ensure a high level of secu- the structures for institutional/strate- OLAF Activity Report 2020 rity in the EU through enhanced police gic and operational cooperation, which On 10 June 2021, OLAF published its cooperation between Member States and includes the establishment of contact activity report for 2020. The report neighbouring regions such as the West- points. The parties agreed to continu- highlights that OLAF’s work was much ern Balkans. In this context, the proposal ously monitor the functioning of the ar- marked by the COVID-19 pandemic, to amend the Europol Regulation will be rangement and to periodically evaluate when OLAF had to act against fake and particularly relevant. (TW) its application. (TW) substandard medical products which risked floating the EU market espe- Operation Silver Axe VI against Illegal cially at the beginning of the pandemic. OLAF Pesticides However, OLAF successfully continued On 17 June 2021, OLAF and Europol re- work on other issues affecting the EU’s Working Arrangement between EPPO ported on the results of the annual opera- financial interests, such as collusion and and OLAF Signed tion “Silver Axe”. The operation, which manipulation of public procurement On 5 July 2021, European Chief was coordinated meanwhile for the sixth and illegal tobacco trade. The key fig- spot Prosecutor Laura Kövesi and time, targets the global trade in counter- ures regarding OLAF’s performance in light OLAF Director-General Ville feit and illegal pesticides. Pesticides are 2020 are as follows (for activity reports
80 | eucrim 2 / 2021 Institutions of previous years, eucrim 3/2020, 167 tigations in counterfeit or substandard eral of the World Customs Organiza- and 3/2019, 163): medical products. Tracking down fake tion (WCO), Kunio Mikuriya, signed a OLAF concluded 230 investigations, hand sanitisers from Turkey is given as new agreement enhancing cooperation and issued 375 recommendations to the one example where the authorities could between the two bodies. The new “Ad- relevant national and EU authorities; prevent a major threat to the citizens ministrative Cooperation Arrangement” OLAF recommended the recovery of health (eucrim 4/2020, 278). Beyond widens the scope and operational possi- over €293 million to the EU budget; COVID-related products, OLAF was bilities of a previous arrangement from OLAF opened 290 new investiga- able to keep away other counterfeit 2003. Whereas the 2003 arrangement tions, following 1,098 preliminary anal- products from European consumers, e.g. covered only the exchange of informa- yses carried out by OLAF experts. by one operation that succeeded in the tion on tobacco seizures, the new one al- OLAF also reports on several trends seizure of 1.3 million litres of wine and lows the information sharing on a wider that came up during OLAF’s anti-fraud alcoholic beverages. The environment range of fraudulent activities, e.g., coun- investigations in 2020: is an increasing business area for fraud- terfeiting and illicit trade in protected Manipulations or circumvention of sters. OLAF participated in actions for species. public procurement procedures was of- example against illicit pesticides and il- The arrangement will also allow ten used to hide conflict of interest and licit refrigerant gases. closer and more effective cooperation on demonstrated collusion between benefi- Other topics of the report include: joint operations. OLAF will be able to ciaries and contractors; OLAF’s relations with its partners; share information with the WCO mem- Frauds in farming and rural develop- Monitoring the outcome and impact bers (customs administrations world- ment funds of the EU continuous to be of OLAF’s recommendations to the na- wide) on customs fraud cases (exchange one of the major fields of investigations, tional authorities and EU bodies; is, however, limited to non-personal data e.g. frauds through false or inflated in- Communication; only). voices; Data protection and complaints, in- The arrangement follows a last year’s Fraud in relation to EU research fund- cluding relevant case law from the Eu- agreement between OLAF and the WCO ing remains at high risk; ropean Courts. that linked the two main databases of the Smuggling and counterfeiting to- Ultimately, OLAF outlines its con- bodies with regard to tobacco smug- bacco products remains one of the high- tributions to the EU policy to fight and gling, i.e. the WCO’s Customs Enforce- est concerns in the area of EU revenue prevent fraud. In 2020, OLAF continued ment Network (CEN) database and the – trends in 2020 include the illegal pro- to work on the development of the new Customs Information System (CIS+) duction of cigarettes by criminal net- Commission anti-fraud strategy, and managed by OLAF (eucrim 2/2020, works within the EU and the increase in took an active role in the new EU Re- 79–80). (TW) illegal sales of water pipe tobacco; covery and Resilience Facility. Fraud affecting the environment and When presenting the report, OLAF OLAF Involved in Operation against biodiversity is growing. Director-General Ville Itälä said: “(…) Eel Trafficking As in previous years, OLAF informs Indeed, the new opportunities for fraud As indicated in the activity report for on its coordination role in joint customs brought by the virus – in particular the 2020 (news item above), OLAF’s operations with EU and international lucrative market for counterfeit or sub- role in operations involving the envi- partners, such as SILVER AXE V, OP- standard products such as facemasks or ronment and biodiversity, in particular SON IX and DEMETER VI (which hand sanitisers – brought new challeng- the protection of endangered species, have also been reported in eucrim). es for OLAF in 2020. I am extremely has increased in recent years. On 4 June The focus chapter of the 2020 annual proud that my OLAF colleagues proved 2021, OLAF informed the public that it report deals with OLAF’s role in keep- so adept at rising to those challenges, participated, for the first time, in Opera- ing citizens healthy and safe. OLAF showing resilience, creativity and flex- tion Lake. This annual operation, which stresses that tackling counterfeit and ibility to keep on working as normally as started five years ago, targets the smug- dangerous goods has been a priority for possible, keeping European citizens safe gling of the protected European eel. The a long time. However, the COVID-19 despite all the challenges posed by the stocks of this endangered species are es- pandemic suddenly offered new busi- pandemic.” (TW) timated to have fallen by 90% in recent ness opportunities for counterfeiters and years and illicit trade with the eel is a fraudsters which required urgent reac- Cooperation between OLAF and WCO very lucrative business, with profits esti- tion to the risks on the part of OLAF on New Footing mated to be up to €3 billion. and its partners. Right at the very start On 7 June 2021, OLAF Director-Gen- Operation Lake V, which took place of the outbreak, OLAF opened inves- eral Ville Itälä and the Secretary Gen- between November 2020 and June 2021,
eucrim 2 / 2021 | 81 NEWS – European Union involved law enforcement and customs gling remains one of the major threats to ing the law enforcement directive will authorities in 16 EU Member States and the EU budget. In 2020 alone, interna- require coordination between the EDPS 8 non-EU countries. Several EU authori- tional operations involving OLAF led to and the national data protection authori- ties participated as well with Europol the seizure of nearly 370 million illegal ties,” he said. leading the operation. Criminal activi- cigarettes that would have caused losses European Chief Prosecutor Laura ties of networks mainly origin in France, of around €74 million in customs and Kövesi told reporters that the credibility Spain, Portugal and the United Kingdom excise duties and VAT to EU and Mem- of the EU depends on the EPPO. “Our – the four European countries produc- ber State budgets (eucrim 1/2021, 14). decisions will directly affect the fun- ing glass eels. Concealed consignments (TW) damental rights of European citizens. are then shipped to destinations in Asia We’re the first really sharp tool to defend where the eel is considered a delicacy the rule of law in the EU,” according to and high prices are paid. European Public Prosecutor’s Office Kövesi. OLAF’s role consisted primarily in For the views of the European Chief the coordination of the activities of the 1 June 2021: EPPO Assumes its Prosecutor and the European Pros- French customs authorities. The opera- Investigatory and Prosecutorial Tasks ecutors on the future challenges of tion was one of the biggest anti-smug- On 1 June 2021, the European Public the EPPO and their work, as well as gling customs operations in French Prosecutor‘s Office (EPPO) started its on the future perspectives of the fight history involving 20 French customs own investigation procedures. European against fraud, see the special issue of authorities across the country. Chief Prosecutor, Laura Kövesi, had eucrim 1/2021. Europol coordinated the overall op- proposed 1 June 2021 as the official start For other articles on the EPPO, see, erational activities, facilitated the infor- date (eucrim 1/2021, 15). The cor- inter alia, the articles in the special is- mation exchange and provided analyti- responding Commission decision was sues eucrim 2/2018, eucrim 3/2017, and cal support. During several action days, published in the Official Journal of the 2/2012. Europol deployed experts on the field to EU on 28 May 2021 (L 188, 100). Individual articles have been pub- cross-check operational information in On the occasion of its operational lished in eucrim 4/2020, 310; 1/2020, real time against Europol’s databases. start, the EPPO launched a video ex- 36; eucrim 4/2019, 271; 3/2019, 198 and In sum, Operation Lake V led to over plaining what the start means for citi- 205; eucrim 1/2019, 66; eucrim 4/2017, 58,000 inspections, 52 arrests and the zens, how the EPPO will work, and how 193; eucrim 1/2017, 25; eucrim 2/2016, seizure of over 400 kg of eels, valued persons can report a crime to the new 94 and 99; and eucrim 3–4/2008, 177 at approximately €1.2 million. OLAF body. The Commission provided a docu- et seq. and Europol stressed that the operation ment with answers to the most important The mood has been somewhat marred is a vital weapon to fight illegal trade in questions on the EPPO’s activities. by the continued lack of European Del- European wildlife. The authorities also In a joint statement, Vice-President egated Prosecutors (EDPs), as Slovenia detected new modi operandi used by Vera Jourová, Commissioner Johannes and Finland have not made appoint- criminal networks for the eel trafficking. Hahn, and Commissioner Didier Reyn- ments. On 4 June 2021, the EPPO an- (TW) ders stressed that 1 June 2021 “opens nounced that an agreement had been a new chapter in fighting cross-border reached with the Finnish side on how OLAF Helps Greek Authorities crime.” They also emphasised that the to manage timely implementation with Seize Nearly 10 Million Contraband EPPO will play a pivotal role in observ- regard to the Finnish EDPs. On 5 July Cigarettes ing the correct implementation of the 2021, the EPPO College approved the At the end of May 2021, Greek au- NextGenerationEU, the EU’s €750 bil- appointment of one EDP in Finland. thorities succeeded in seizing almost lion funding programme to boost the At the end of May 2021, Slovenia 10 million contraband cigarettes. The economy after the COVID-19 pandemic. decided to stop the procedure for ap- cigarettes were smuggled from China in The European Data Protection Super- pointing two EDPs and to launch a new suitcases. The action prevented the loss visor (EDPS), Wojciech Wiewiórowski, call for tender. This led to the resigna- of around €2 million in excise duties stated that the power to investigate and tion of Slovenian Justice Minister Lili- and VAT. OLAF supported the operation prosecute crimes against the EU’s finan- jana Kozlovič. Slovenia will take over by alerting the Greek authorities when cial interests also presents new challeng- the EU Council Presidency on 1 July it identified the suspicious shipment. es for the EDPS’ supervision activities. 2021. In a statement on 27 May 2021, OLAF also closely cooperated with the “The body‘s multi-layered structure and Laura Kövesi sharply criticised the Slo- Chinese Anti-Smuggling Bureau which the interplay between the EPPO Regula- venian situation. She remarked that “the tipped off the EU body. Cigarette smug- tion and national provisions implement- manifest lack of sincere cooperation of
82 | eucrim 2 / 2021 Institutions the Slovenian authorities with the EPPO fairs (LIBE). and it is currently awaiting the transfer of personal data by Europol seriously undermines the trust in the ef- the Committee vote. On 2 June 2021, to private parties, which should include fective functioning of the management the EP’s Committee on Budgets reacted the ban on transferring data protected by and control systems for EU funds in Slo- to the Commission Proposal and issued professional secrecy or legal profession- venia.” an Opinion revising its budgetary im- al privilege and the guarantee that data Currently, 22 EU Member States pact. Bar associations also reacted to the are adequate, relevant, and up-to-date are applying the EPPO Regulation Commission’s proposal ‒ they took a before any transmission is made; 2017/1939 by way of enhanced coopera- more critical stance towards the planned Refraining from the idea that Europol tion. Sweden has expressed its interest Europol reform (separate news items should take the lead in the development in joining the EPPO in 2022. Only Hun- below). The EDPS raised concerns over of artificial intelligence (AI) solutions gary, Poland, Ireland, and Denmark are the impact of the plan on data protec- for law enforcement purposes, given the not participating or have opted out. tion in his opinion of 8 March 2021 risk of bias and discrimination when us- The first cases referred to the EPPO (eucrim 1/2021, 15–16). (CR) ing AI tools; are from Germany and Italy. The EPPO Defining more clearly the scope of operational guidelines adopted in April CCBE Position on Europol Reform Europol’s new research and innovation 2021 indicate that a high number of so- In a position paper issued on 6 May activities and reconsidering the safe- called backlog cases must be processed 2021, the Council of Bars and Law So- guards and controls on Europol in this at the start of operational activities. As cieties of Europe (CCBE) criticised vari- field. long as investigations are still ongoing ous aspects of the Commission proposal Before any further legislation is en- in the respective Member States, the on a reform of current Europol Regula- acted, the CCBE calls on Europol and possibility to exercise the right of evo- tion 2016/794, which was tabled in De- the competent European institutions to cation according to Art. 27 of the EPPO cember 2020 (eucrim 4/2020, 279). In first tackle the potentially unlawful pro- Regulation should only be used if exer- the paper, the CCBE informs the EU leg- cessing of a vast amount of personal data cise of the EPPO’s competence would islator and policy makers about several (as stated by the EDPS in his inquiry bring added value to the continuation of standards that should be upheld in the decision of autumn 2020 (eucrim the investigation. (TW) Europol Regulation and makes several 3/2020, 169)). Given that the current Eu- recommendations: ropol Regulation 2016/794 earmarked a Ensuring that the technology used to comprehensive evaluation of Europol by Europol collect, process, and exchange personal May 2022 and given the said admonish- data among private companies and/or ment of the EDPS, the CCBE consid- European Parliament Discussion law enforcement authorities/Europol ers the EU legislator’s current plan to on New Europol Regulation does not interfere with the rules on pro- strengthen Europol’s mandate premature Following the Commission’s Proposal fessional secrecy or legal professional and hasty. (TW) of 9 December 2020 for a Regulation privilege; amending Regulation (EU) 2016/794 Laying down clearer and more pre- Position Paper of German Bar (eucrim 4/2020, 279), European Par- cise provisions with regard to the con- Association on Europol Reform liament rapporteur Javier Zarzalejos cepts of “national security/extremism/ In April 2021, the German Bar As- (ES, EPP) published a draft report set- terrorism/crisis” that would justify the sociation (DAV) published a position ting out a possible EP position on the exchange of personal data between Eu- paper on the Commission Proposal for Commission proposal on 10 May 2021. ropol and private parties according to a Regulation amending the Europol The rapporteur generally welcomes the the proposal; Regulation (eucrim 4/2020, 279) that targeted revision of the Europol Regula- Strengthening democratic oversight outlines its concerns over the proposed tion as proposed by the Commission but of Europol’s activities by the Joint Par- enlarged mandate of Europol. The DAV suggests some amendments. The draft liamentary Scrutiny Group (JPSG); is especially concerned about allowing European Parliament legislative resolu- Reinforcing the legal remedies that Europol to directly exchange personal tion focuses on the financial provisions, are conferred on data subjects within data with private parties. For the DAV, governance rules, and provisions relat- Europol itself; such competences risk a circumvention ing to reporting and evaluation to ensure Acknowledging independent judicial of fundamental rights, e.g., prior judicial proper parliamentary scrutiny. supervision at all stages of the procedure authorisation, independent control, and At the end of May 2021, the draft if data relating to lawyer-client commu- effective remedies. Enabling Europol report was discussed in the Committee nication are accessed; to directly exchange data with private on Civil Liberties, Justice and Home Af- Incorporating strong safeguards for parties may also affect information
eucrim 2 / 2021 | 83 NEWS – European Union
Eurojust National Member for Romania Policing in Cyberspace Reappointed Further Cooperation between Eurojust At the beginning of May 2021, Ms On 25 June 2021, Europol published a and FRA spotlight report entitled “The Cyber Daniela Buruiana was reappointed as Blue Line.” It sets out the challenges On 24 June 2021, the President of Eu- National Member for Romania at Eu- and issues involved in a growing area rojust, Ladislav Hamran, and the Ex- rojust. Ms Buruiana served as Senior of police work dedicated to provid- ecutive Director of the EU Agency for Prosecutor at the Romanian Prosecu- ing safety and security online. The Fundamental Rights (FRA), Michael tion Service before joining Eurojust in two authors of the report, Mary Aiken O’Flaherty, met to discuss poten- 2014. During her first term of office, (professor of cyberpsychology) and Dr. Philipp Amann (Head of Expertise tial areas of cooperation and possible she chaired Eurojust’s Cybercrime & Stakeholder Management at Eu- common activities in judicial matters. Team and her National Desk strongly ropol’s European Cybercrime Centre Topics of cooperation ranged from fa- increased cooperation between Roma- – EC3), take a look at the blurring line cial recognition technology and deten- nia and other Member States and third between the real and online worlds tion problems to the access to lawyers countries. (CR) by asking whether policing should be and victims’ rights. FRA presented its redefined to accommodate its role in research findings on criminal deten- Urgent New JIT Funding Possible cyberspace. Parameters of law and order may need new concepts to en- tion, access to legal advice, and im- In April 2021, Eurojust launched a new sure public safety and maintain secu- plementation of the EU Directive on scheme for JIT funding that is applica- rity and to tackle online dangers, anti- combating terrorism. Both agencies ble to urgent and/or unforeseen cross- social behaviour, and criminality. also discussed their cooperation in the border operational activities by Joint The report is part of a discussion on Victims’ Rights Platform. The platform Investigation Teams (JITs). This fund- where law enforcement responsibility was established in 2020 and brings to- ing scheme is being offered in addition lies when it comes to maintaining se- gether actors engaged in victims’ rights to existing funding through annual calls cure and safe societies in cyberspace. at the EU level to discuss horizontal is- for proposals. The “Funding without Europol invites academics and think- tanks interested in the topic to get in sues and to support implementation of Calls for Proposal” scheme aims to touch in order to work together to dis- the EU Strategy on victims’ rights. The provide targeted, short-term grants for cuss, debate, and conceptualise this impact of the COVID-19 pandemic on activities falling outside the scope of “Cyber Blue Line.” (CR) cross-border judicial cooperation and the annual calls for proposals. Applica- the central role of Eurojust in rolling tions for these short-term grants may be out the Digital Justice Project were submitted anytime during the year. All also on the agenda. (CR) relevant information, application forms and budget forms can be found on the protected by the lawyer-client privilege Next Steps to Set Up EuroMed Judicial Eurojust website on JIT funding. (CR) and by data protection provisions. In this Network of Contact Points context, the possibility to conduct big On 27 May 2021, CrimEx members met data analysis is considered incompatible to discuss the next steps in setting up a Frontex with the jurisprudence of the ECtHR and EuroMed Judicial Network of Contact the CJEU, according to which the use of Points (EMJNet). CrimEx is a perma- New Frontex Operation in Serbia personal data is allowed only to the ex- nent working group composed of judi- On 16 June 2021, Frontex launched a tent of what is strictly necessary. cial experts from Euro-Mediterranean new operation in Serbia. 44 standing Lastly, two powers in the proposal are countries. corps officers from 14 countries helped considered incompatible with Art. 88 The planned EMJNet shall be com- detect criminal activities: TFEU: posed of practitioners who can assist Trafficking in human beings; Requesting Member States to initiate with requests for international judicial Document fraud; an investigation without the need of a cooperation in criminal matters. They Smuggling of stolen vehicles, illegal cross-border element. will strengthen contacts and operational drugs, weapons, and excise goods; Entering data on suspected involve- cooperation between criminal justice Potential terrorist threats. ment of third-country nationals into the authorities from the EU Member States “Joint Operation Serbia ‒ Land 2021” Schengen Information System (SIS). and the Southern Partner Countries is taking place at Serbia’s border to Bul- They surpass the Agency’s compe- (SPCs), namely Algeria, Egypt, Israel, garia in order to counter the increasing tence given under EU’s primary law. Jordan, Lebanon, Libya, Morocco, Pal- number of illegal border crossings ob- (CR) estine, and Tunisia. (CR) served in recent years. (CR)
84 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law
ECA Report on Frontex Securing access to other sources of nario, participants discussed what the On 7 June 2021, the European Court of information; future of travel, border checks, and Auditors (ECA) published a special re- Developing the potential of vulner- biometrics might look like. The event port analysing Frontex’s support to ex- ability assessment; was part of the ongoing “Technology ternal border management. For the first Improving Frontex’s operational re- Foresight on Biometrics for the Future time, the audit assessed whether Frontex sponse; of Travel” project, which analyses pos- carried out four out of its six primary Addressing the challenges of Fron- sible future changes in travel and bor- activities effectively to implement Eu- tex’s 2019 mandate. der checks and potential impacts on ropean integrated border management The ECA points out that the last ex- the European Border and Coast Guard and, in this way, support Member States ternal evaluation of Frontex’s operations community. (CR) in preventing, detecting, and responding was carried out in 2015 and did not in- to illegal immigration and cross-border clude Frontex’s mandate as defined in crime. The four primary activities as- the 2016 Regulation. In 2019, the ECA Agency for Fundamental Rights (FRA) sessed by the audit concern information audited Frontex’s return operations in exchange, risk analysis, vulnerability as- special report No 24/2019 on migration Council Approves General Approach to sessment, and operational response. The management in Greece and Italy. Later Fundamental Rights Agency Reform report also examines the preparedness of this year, the ECA will issue audit re- On 5 June 2020, the Commission sub- Frontex to fulfil its new and expanded ports on the EU’s migrant return policy mitted to the Council a proposal for a 2019 mandate. and on combating migrant smuggling. Council regulation amending Regula- Overall, the report finds that Fron- (CR) tion (EC) No 168/2007 establishing the tex’s support for Member States/Schen- European Union Agency for Fundamen- gen-associated countries in fighting Action against Frontex Brought tal Rights (FRA). On 7 June 2021, the illegal immigration and cross-border before the CJEU Council approved a general approach to crime is not sufficiently effective. Is- On 25 May 2021, three NGOs (front- the new legislation, which will enhance sues identified by the report include, Lex, the Progress Lawyers Network, and the Agency’s mandate and improve its for instance, problems with information Helsinki Monitor) submitted an action functioning through more efficient pro- exchange that prevent the agency from against Frontex to the CJEU (General cedures. In order to adapt FRA’s man- providing an accurate, complete, and Court). On behalf of two asylum seek- date to the Lisbon Treaty, the Agency’s up-to-date situational awareness of the ers, the NGOs are accusing Frontex of activities should also cover the particu- EU’s external border. Although migrant complicity in human rights violations al- larly sensitive fundamental rights area information dispatched by Frontex is legedly taking place at Greece’s borders. of police cooperation and judicial coop- timely and relevant, obstacles (such as This is an unprecedented legal action, eration in criminal matters. The area of the lack of information or poor techni- since Frontex is being brought before common foreign and security policy will cal standards for border control equip- the EU court for human rights viola- be excluded from the scope. (AP) ment) undermine the construction of a tions for the first time. The lawsuit will complete situational picture at the EU’s likely scrutinize Frontex’s involvement external borders. Additionally, issues of in “push-back” operations in the Aegean data completeness and quality prevent Sea. (CR) Specific Areas of Crime / the agency from providing precise as- Substantive Criminal Law sessments. Other issues identified in- Tech Foresight on Biometrics volve deploying resources to counter On 14 and 15 April 2021, the first Protection of Financial Interests cross-border crime and to adapt to the Technology Foresight Workshop on new mandate. Scenario Analysis was held to explore, Budget Conditionality: EP Ready The report sets out the following rec- analyse, and discuss four socio-techno- to Take Commission to CJEU ommendations to be implemented in economic scenarios for the year 2040 The dispute between the European 2021 and 2022: and their possible implications on the Parliament (EP) and the Commission Improving the information exchange development of biometric technologies. over the application of Regulation framework and the European situational The four different future scenarios con- 2020/2092 is entering the next round. picture; sisted of fictitious stories ranging from Regulation 2020/2092 sets out the rules Updating and implementing the Com- a possible dynamic EU economy in an for the protection of the EU budget mon Integrated Risk Analysis Model appeased world to a slow EU economy from breaches of the rule of law, the (CIRAM); in a conflictual world. For each sce- so-called budget conditionality mech-
eucrim 2 / 2021 | 85 NEWS – European Union
to address persistent, severe violations New EU Anti-Fraud Programme of democracy and fundamental rights in The European Parliament and the Council established the Union Anti-Fraud Programme the EU, in particular in Poland and Hun- for the duration of the multiannual financial framework 2021–2027. The underlying Regu- gary (eucrim news reports on the re- lation (EU) 2021/785 was published in the Official Journal L 172 of 17 May 2021. The cent rule-of-law developments in Poland Programme succeeds the Hercule III Programme that ran until 2020. and Hungary). The Regulation lays down the objectives of the Anti-Fraud Programme, the budget for The Commission is hesitating to ap- the period 2021–2027, the forms of Union funding and the rules for providing such fund- ply the conditionality mechanism be- ing. The specific objectives are: cause the EU leaders agreed in a politi- Preventing and combating fraud, corruption and any other illegal activities affecting the financial interests of the Union; cal compromise in December 2020 that the guidelines for application of the Giving support to the reporting of irregularities, including fraud, with regard to the shared management funds and pre-accession assistance funds of the Union budget; conditionality mechanism should only be finalised after a ruling of the CJEU Providing tools for information exchange and support for operational activities in the in the event of an action for annulment. field of mutual administrative assistance in customs and agricultural matters. Hungary and Poland had filed such an The financial envelope for the entire period will be €181.207 million. The following action in spring 2021 (Cases C-156/21 actions are considered eligible for funding: and C-157/21, eucrim 1/2021, 19). Providing technical knowledge, specialised and technically advanced equipment and effective IT tools enhancing transnational and multidisciplinary cooperation and co- The majority of MEPs believe that this operation with the Commission; political agreement has no legal effect. (TW) Enhancing staff exchanges for specific projects, ensuring the necessary support and facilitating investigations, in particular the setting up of joint investigation teams and cross-border operations; German Federal Constitutional Court Paves Way for EU’s Recovery Providing technical and operational support to national investigations, in particular to customs and law enforcement authorities to strengthen the fight against fraud and Instrument other illegal activities; In its decision of 15 April 2021 (Ref.: Building IT capacity in the Member States and third countries, increasing data ex- 2 BvR 547/21, a summary is available change and developing and providing IT tools for the investigation and monitoring of in English here) the German Federal intelligence work; Constitutional Court (FCC) rejected Organising specialised training, risk analysis workshops, conferences and studies an application for preliminary injunc- aimed towards improving cooperation and coordination among services concerned tion against the German Act Ratifying with the protection of the financial interests of the Union; the EU Own Resources Decision. The Any other action laid down in Commission work programmes, which is necessary Council Decision of 14 December 2020 for achieving the general and specific objectives of the Anti-Fraud Programme. (TW) on the system of own resources enables the EU to raise funds of up to €750 bil- lion within the framework of the tem- porary reconstruction instrument Next anism (eucrim 3/2020, 174–176). the Regulations as requested in the EP’s Generation EU (eucrim 3/2020, 174). On 23 June 2021, EP President David previous resolution of 25 March 2021 In particular, it has been designed to help Maria Sassoli wrote to Commission (eucrim 1/2021, 19). Sassoli now set alleviate pandemic-related economic President Ursula von der Leyen calling a new deadline: If the Commission does consequences. to fulfil the Commission’s obligations not react within two weeks, the EP will The applicants consider the EU ap- under said Regulation. sue the Commission for failure to act in proach to be a violation of the German The letter comes in response to an EP accordance with Art. 265 TFEU. Parliament’s budgetary rights and of resolution of 10 June 2021, in which the The EP reiterates its standpoint that the overall budgetary responsibility en- MEPs urge the Commission to propose the Rule-of-Law Conditionality Regula- shrined in the constitutional principle of measures under the new rules against tion is directly applicable in its entirety democracy, which may not be touched the background of ongoing severe vio- in all Member States for all funds of the as a constitutional core principle pursu- lations of the principles of the rule of EU budget, including resources allocat- ant to Art. 79(3) of the Basic Law. Al- law in some EU Member States. They ed through the EU Recovery Instrument, though the FCC does not consider the criticised that the Commission has not since its entry into force on 1 January application in the principal proceedings respected the deadline of 1 June 2021 to 2021. MEPs blame the Commission for to be either obviously inadmissible or draw up guidelines on the application of not having used all tools at its disposal clearly unfounded, after a summary ex-
86 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law amination, it found that a violation of broadened, now covering “any other di- The auditors identified a number of the constitutional identity does not seem rect or indirect personal interest.” The weaknesses on the part of the EU institu- very likely. This is justified by the fact guidance pursues the following objec- tions involved in the implementation of that the borrowing of money on capital tives: the EU legal AML/CFT framework, i.e. markets by the EU does not lead to a di- Promoting a uniform interpretation the Commission, the European Banking rect liability for Germany and that such and application of the rules on avoid- Authority (EBA) and the European Cen- loans are limited in amount, duration, ance of conflicts of interest for financial tral Bank (ECB). The weaknesses in- and purpose. actors and staff of the EU institutions in- clude: In the context of balancing the con- volved in implementing, monitoring and Shortcomings in drawing up the EU sequences, the FCC decided, in view controlling the EU budget under direct/ list of high-risk third countries whose of the limited period of validity and the indirect/shared management; legislation and practice are prone to ML/ EU-political relevance of the instru- Raising awareness among Member TF and therefore endanger the internal ment of reconstruction, that waiting for States’ authorities, holders of public of- market – here, the work of the Com- the principal proceedings would weigh fice (including members of government) mission is hindered by a lack of timely more heavily than a later finding of un- and any other person involved in imple- cooperation on the part of the European constitutionality. menting the EU budget under shared External Action Service; additionally, In the main proceedings, it will now management about the applicable provi- the EU has failed to establish an autono- have to be examined, on the basis of sions set out in the FR 2018 and the Pub- mous list that is tailored to the threats an identity control, how far-reaching lic Procurement Directive with regard to posed to the EU; Germany‘s liability and budgetary ob- the avoidance of conflicts of interest; The Commission’s risk assessments ligations as provided for in the Own Raising awareness among external for the internal market do not indicate Resources Decision are and whether partners involved in implementing the changes over time, lack geographical parliamentary influence on the handling EU budget under indirect management focus and do not prioritise risks effec- of the financial resources has been pre- about the applicable provisions set out tively; served. If the FCC were to find in the in the FR 2018 with regard to the avoid- EU AML/CFT legislation is complex, principal proceedings that the 2020 ance of conflicts of interest. transposition uneven and assessment of Own Resources Decision constitutes an An own chapter provides a list of the transpositions by the Commission ultra vires act or encroaches upon con- suggestions and recommendations for too slow (due to poor-quality commu- stitutional identity, it would be incum- measures that could be put in place to nication by Member States and limited bent upon the Federal Government, the avoid and manage conflict of interest resources at the Commission); Bundestag, and the Bundesrat to restore situations. (TW) Although the EBA carried out thor- constitutional order by all means avail- ough investigations of potential breach- able to them. (TW) es of EU law, the auditors experienced Money Laundering lobby attempts which might have influ- Commission Provides Guidance on enced EBA decision-making; Conflicts of Interest ECA: EU Poorly Addresses Money There are no internal guidelines for On 7 April 2021, the European Com- Laundering and Terrorist Financing triggering EBA investigations which mission published a guidance on the The EU’s response to money have carried out to date on an ad hoc spot avoidance and management of con- laundering (ML) and terrorist basis only, and, in most cases, following light flicts of interest under the new 2018 financing (TF) is fragmented at media reports; Financial Regulation (FR). The FR, the institutional level and poorly coordi- The ECB – the direct supervisor of which entered into force on 2 August nated if it came to actions to prevent significant euro area banks – has made 2018, has strengthened the measures ML/TF and to follow-up identified risks. a good start in sharing relevant informa- to protect the EU’s financial interests. The EU oversight framework is insuffi- tion with national supervisors, but the Strengthened rules on conflicts of in- cient to ensure a level playing field. information sharing is not fully efficient terest are now explicitly extended to These are the overall conclusions of the (inter alia because the ECB has neither Member States’ authorities (regardless European Court of Auditors (ECA) in its the responsibility nor the power to in- of the Member States’ internal govern- Special Report 13/2021, which was re- vestigate how such information is used ance arrangements) and any person im- leased on 28 June 2021. It assesses at the national level); plementing any of the EU funds under whether the EU’s actions in the area of National supervisors use different shared management. In addition, the AML/CFT are well implemented, in methodologies, the quality of informa- definition of conflicts of interest was particular as regards the banking sector. tion provided for by the national super-
eucrim 2 / 2021 | 87 NEWS – European Union visors is varying considerably and the odology for identifying high-risk third of shell entities or legal arrangements ECB has no specific guidance on super- countries. The Council adopted con- for tax evasion purposes. The Commis- visory assessments. clusions on the way forward as regards sion points out that the EU has provided In conclusion, the ECA requests that AML/CFT in November 2020 (eucrim powerful instruments to tax administra- the EU’s supervisory role is significantly 3/2020, 177–178). ECA’s conclusions tions in recent years that tackle the use strengthened and EU law is implement- and recommendations will enrich the of abusive (often purely artificial) and ed promptly and coherently. In detail, discussions on the reform. (TW) aggressive tax structures by taxpayers the ECA recommends that the Commis- operating cross-border in order to reduce sion do the following: their tax liability. However, legal entities Prioritise ML/TF risk more clearly Tax Evasion with no or only minimal substance, per- throughout the entire risk assessment forming no or very little economic activ- exercise; ECtHR Ruled in LuxLeaks Case ity continue to pose a risk of being used Liaise with the European External In a judgment of 11 May 2021, the Eu- in aggressive tax planning structures. Action Service for listed third countries ropean Court of Human Rights (ECtHR) The Commission sees a need for action which would ensure that intelligence is found no violation of the freedom of ex- after investigative journalists uncovered integrated in assessments; pression (Art. 10 ECHR) when courts in tax-saving schemes with such legal en- Make use of regulations in preference Luxembourg convicted an insider that tities in Luxembourg (“OpenLux inves- to directives where possible; helped bring to light Luxembourgish tax tigation”). As a consequence, the Euro- Put in place an internal guidance for avoidance schemes (widely known as pean Parliament, journalists and civil making ML/TF breach of Union law re- “LuxLeaks affair”). The affair triggered society organisations requested clear quests; several follow-up actions, including Union rules that tackle situations involv- Propose legislative amendments the establishment of a special commit- ing the lack of substance of legal entities that clarify which information should tee on tax rulings in EU Member States and arrangements with the purpose of be shared with the Commission in the within the European Parliament and minimising tax liability. The civil soci- breach of Union law process. legislative initiatives on tax transpar- ety has the opportunity to comment on The EBA is called on to put in place ency and whistleblower protection by the Commission’s plans until 27 August rules to prevent other Board of Supervi- the European Commission. The ECtHR 2021. (TW) sors members from seeking to influence acknowledged the status of whistle- panel members during their delibera- blower to the applicant. However, the Practice I: VAT Scammers Caught tions. In addition, the EBA should issue conviction is in no disagreement with An action day against massive VAT guidelines that facilitate harmonised in- the criteria on whistleblower protection fraud in mid-May 2021 resulted in the formation exchanges between national set up in ECtHR case law. The judges arrest of 22 suspects. The scam involved and EU-level supervisors. in Strasbourg particularly found that the using a series of so-called front compa- The ECB should put in place more Luxembourgish courts correctly bal- nies in different EU Member States, with efficient internal decision-making pro- anced the public interest in receiving suspects pretending to trade goods that, cedures and make changes to its super- the information on tax rulings against in reality, actually remained in Spain. visory practices once guidance from the the harm caused to the employer (Price- By pretending to engage in EU trade, EBA is in place. waterhouseCoopers) by the disclosures. national VAT payment was avoided, de- Background: The ECA’s Special There was also no violation of the pro- frauding Spanish tax authorities of €26 Report comes during discussions to portionality of the penalty since the million in lost revenue. The operation overhaul the EU’s current AML/CFT applicant was fairly modestly fined to was led by Spanish authorities and sup- framework. In May 2020, the Commis- €1000 (judgment in Halet v Luxem- ported by authorities from the Slovak sion put forward a series of measures to bourg, application no. 21884/18 – full Republic, Belgium, and the Netherlands step up the EU’s AML/CFT framework text of the judgment only available in as well as by Europol and Eurojust. (CR) (eucrim 2/2020, 87–89). Its EU Ac- French). (TW) tion Plan on ML/TF already envisaged, Practice II: Major Hit against Fraud among other things, a single EU rule- Commission Initiates Public Discussion with Fuel Tax book on AML/CFT and the establish- on Tax Avoidance Schemes by Shell At the beginning of April 2021, a large- ment of an EU supervisory office that Companies scale operation against massive fraud would ensure a harmonised application On 4 June 2021, the Commission with fuel taxes resulted in the arrests of the AML/CFT rules. In May 2020, the launched a public consultation on which of 23 suspects and in the seizure of as- Commission also tabled a refined meth- action should be taken to curb the use sets worth €600 million. Investigations
88 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law conducted by Italian authorities in coop- ber States ratified and implemented proportion of mislead consumers differs eration with authorities from Bulgaria, the Council of Europe Convention on among the EU Member States); Germany, Hungary, Malta, and Romania counterfeiting of medical products and Counterfeits represent 6.8% of EU and supported by Eurojust helped dis- similar crimes involving threats to pub- imports, worth €121 billion; mantle two mafia-style organised crime lic health (MEDICRIME Convention The proliferation of counterfeit medi- groups (OCGs) from Naples and the eucrim 2/2016, 84–85). cines (e.g., antibiotics and painkillers) Reggio Calabria. They had been running The Portuguese Council Presidency and other medical products increased in a fraud scheme with fuel tax worth al- is of the opinion that the EU should do 2020; most €1 billion. Judicial authorities were more besides making counterfeiting and It is estimated that over $4 billion able to make use of the new Regulation piracy a political priority. It favours the worth of counterfeit medicines is traded (EU) 2018/1805 on mutual recognition idea of approximation of national leg- worldwide; of freezing orders and confiscation -or islation to tackle counterfeiting and its Digital piracy is becoming a more ders, which entered into force in Decem- links with organised crime at least where and more lucrative market for infringers; ber 2020 (eucrim 4/2020, 288). (CR) related activities endanger the life, health Evidence shows that counterfeiting and safety of individuals. The Commis- and privacy is closely connected with sion is encouraged to further examine profitable activities involving organised Counterfeiting & Piracy the issue of approximation. (TW) crime groups; 1 of 4 SMEs in Europe claimed to Portuguese Council Presidency EUIPO: Consumers Face Risks have suffered from IP infringements. Wishes to Intensify Fight against of Fake Products More than Ever Executive Director of the EUIPO, Counterfeiting The problem of product piracy has wors- Christian Archambeau, said that in par- One of the priorities of the Portuguese ened during the coronavirus pandemic, ticular the rise of counterfeit medicines Council Presidency in the first half of in particular due to the accompanying and medical products requires urgent ro- 2021 was to strengthen the criminal increase in online trade. Counterfeiters bust, coordinated action and has recently law protection of intellectual property have mainly exploited people’s uncer- been reinstated as one of the top ten EU rights. Against the background of grow- tainty in the face of emerging treatments priorities in the fight against organised ing counterfeiting and product piracy ac- and vaccines. This is one of the key mes- crime. (TW) tivities during the COVID-19 pandemic, sages according to a press release issued the focus was laid on the connections by the EU Intellectual Property Office between counterfeiting and organised (EUIPO) on 8 June 2021. Organised Crime crime. At the JHA Council meeting on The statements refer to the 2020 IP 7 June 2021, the Presidency informed perception study, in which the EUIPO Council Sets EU’s Priorities for about the state of play of the discussions. carried out over 25,000 interviews in the the Fight against Organised Crime All EU Member States share the view 27 EU Member States between 1 June (EMPACT 2022–2025) that counterfeiting and its link to organ- and 6 July 2020 in order to assess the On 26 May 2021, based on the Europol ised crime is a topical matter and a major Europeans’ perception, awareness and report “SOCTA 2021” (separate news threat to public health and the economy. behaviour towards intellectual property. item below), the Council adopted con- The opinions differ, however, as re- In addition, reference is made to a joint clusions setting EU priorities for the gards the question of whether approxi- study carried out by the EUIPO and the period 2022–2025 to fight serious and mation of substantive criminal law to OECD, which analyses the scale and organised crime. The conclusions fix fight counterfeiting is necessary. While magnitude of illicit trade in counterfeit clear goals that should be achieved with- some Member States support common pharmaceutical products, and the 2019 in the framework of EMPACT (Euro- rules on criminal definitions and sanc- IP SME Scoreboard that provides in- pean Multidisciplinary Platform against tions on the basis of Art. 83(2) TFEU, sight on how small and medium-sized Criminal Threats). Combating the fol- other Member States are more hesitat- enterprises (SMEs) handle IP-related lowing ten forms of crime is considered ing, arguing that first a thorough analy- problems. Accordingly, the following a priority during the next policy cycle ses on the proportionality and necessity could be observed: (2022–2025): of such measures should be carried out Consumers find it difficult to distin- High-risk criminal networks (with and the implementation of the exist- guish between genuine and fake goods; a particular focus on those using cor- ing framework assessed. A majority of On average, 9% of Europeans ruption; acts of violence; firearms; and the Ministers agreed that more efforts claimed that they were mislead into buy- money laundering through parallel un- should be made to ensure that Mem- ing a counterfeit product (although the derground financial systems);
eucrim 2 / 2021 | 89 NEWS – European Union
Cyber-attacks (particularly targeting preventive and repressive measures as and other forms of fraud, and migrant offenders who offer specialised criminal well as operational and strategic actions. smuggling. services online); EMPACT follows four-year cycles. The The trade in illegal drugs contin- Trafficking in human beings (with last one was adopted in 2018. In March ues to dominate serious and organised special focus on criminal networks 2021, the Council decided to continue crime in the EU in terms of the num- which exploit minors, use or threaten EMPACT as a permanent instrument for ber of criminals and criminal networks with violence against victims and their cooperation to fight organised and seri- involved as well as the vast amounts families, and recruit and advertise vic- ous international crime. (TW) of criminal profits generated. While tims online); cocaine trafficking is generating multi- Sexual exploitation of children; Europol’s SOCTA 2021 billion-euro profits, which are used to Smuggling of migrants (in particular On 12 April 2021, Europol published infiltrate and undermine the EU’s econ- as regards networks which provide fa- its Serious and Organised Crime Threat omy, public institutions, and society, cilitation services); Assessment (SOCTA) for the year 2021. criminal networks are also increasing Drugs trafficking; According to the SOCTA 2021, serious their capacities for the production and Fraud, economic and financial crimes and organised crime remains a key threat distribution of synthetic drugs. Fur- (which will include the fight against to the internal security of the EU, affect- thermore, cyber-dependent crime has online fraud schemes, excise fraud, ing and undermining all levels of society been increasing constantly in terms of missing trader intra community fraud from the daily lives of EU citizens to both number and sophistication of at- (MTIC fraud), intellectual property the economy, state institutions, and the tacks. This is also evident in the area of crime, counterfeiting of goods and cur- rule of law. Criminal networks appear to THB, where recruitment of victims and rencies, criminal finances and money have similar structures to those of busi- advertisement of services have moved laundering); ness environments, including manage- almost entirely to the online domain. Organised property crime (with a rial layers and field operators as well The report reports a steady increase in particular focus on organised burglaries, as a variety of actors providing support activities related to online child sexual thefts and robberies, vehicle crime and services. One of the key characteristics abuse. The market for migrant smug- illegal trade in cultural goods); of criminal networks is their ability to gling services has remained constant. A Environmental crime (targeted here adapt to changes. This became apparent high number of incidents in the field of are organised crime groups with capabil- during the COVID-19 pandemic, with organised property crime and a grow- ity to infiltrate legal business structures criminals quickly adapting their illegal ing number of environmental crimes or set up own companies to facilitate products, modi operandi, and narratives have also been observed. (CR) their crimes); to the unprecedented situation. Trafficking in firearms. Cooperation between criminals is Commission Presents 2021–2025 EU In addition to these priorities, the pro- fluid, systematic, and driven by a profit- Strategy to Tackle Organised Crime duction and provision of fraudulent and oriented focus. Additionally, the use of spot On 14 April 2021, the European false documents will be addressed as a violence is increasing in terms of fre- light Commission presented the new common horizontal strategic objective. quency and severity. Corruption is a EU Strategy to tackle Organised The Council stresses the importance feature of nearly all criminal activities Crime. The new strategy is part of the of the combined efforts from Member in the EU, and money laundering is key EU Security Union Strategy (eucrim States, EU institutions, bodies and agen- to facilitating criminal profits. Further- 2/2020, 71–73), which aims to protect cies, expert groups, and other stakehold- more, criminals control or infiltrate legal European citizens from terrorism and or- ers for the efficient and effective imple- business structures in order to expedite ganised crime. It also significantly draws mentation of the EU’s crime priorities. their criminal activities. The use of mod- upon Europol’s 2021 report Serious and EMPACT is an ad hoc management en- ern technology is another key feature of Organised Crime Threat Assessment vironment to develop activities in order serious and organised crime, as it helps (SOCTA news item above). to achieve pre-set goals. The platform criminals to network amongst them- The strategy addresses the threat enlists the support of several EU Mem- selves, to reach a larger number of vic- that organised crime poses to Euro- ber States, EU institutions and agencies tims, and to gain access to illegal tools pean citizens, state institutions, and the as well as third countries, international and goods. The report finds that over economy as a whole: organised crime organisations, and other public and pri- 80% of the reported criminal networks groups can be found across all Member vate partners aiming to address the main are involved in drug trafficking, organ- States, and the business model of these threats of organised and serious inter- ised property crime, excise fraud, traf- groups – both online and offline – can national crime. EMPACT includes both ficking in human beings (THB), online be quite complex, as shown by the in-
90 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law
vestigation that dismantled EncroChat Establish an EU toolbox against the The report found, inter alia, that the in 2020 (eucrim 1/2021, 22–23) The counterfeiting of medical products. drug market was rather resilient to the situation is exacerbated by the ability Member States are urged to: disruptions caused by the COVID-19 of organised groups to quickly adapt Join and strengthen the @ON Net- pandemic; criminals quickly adapted to the changing socio-economic envi- work, which aims at improving the their trafficking measures and sale ronment. For example, some organised cooperation between law enforcement strategies. Levels of use of most drugs crime groups have been capitalising on authorities, including Europol, on mafia- bounced back to pre-COVID-19 times the COVID-19 pandemic with the sale type organised crime groups. when restrictions on travel, movement of counterfeit vaccines. (3) Eliminating profits generated by and social gatherings were eased in sum- The vice-president in the Von der organised crime and preventing their mer 2020. The report focuses on benzo- Leyen Commission with the portfolio infiltration into the legal economy and diazepines on which specific concerns of European Commissioner for Promot- legal businesses are raised regarding their misuse. The ing the European Way of Life, Margari- The Commission will: report lists several trends and invites tis Schinas, confirmed that the strategy Propose a revision of the 2014 Con- politicians to discuss further reactions will help undermine the business model fiscation Directive and the 2007 Council to new phenomena in drugs abuse and of organised criminal groups, which Decision on Asset Recovery Offices, in smuggling. (AP) thrives on the lack of coordination be- order to expand the scope of criminal of- tween states. The new strategy is built fences covered; Eurojust: Drug Trafficking Report upon the following four pillars: Assess the suitability of the existing On 19 April 2021, Eurojust published its (1) Boosting law enforcement and EU anti-corruption rules countering ex- Report on Drug Trafficking, reviewing judicial cooperation isting criminal practices. experiences and identifying challenges The Commission will: (4) Making law enforcement and in judicial cooperation. The report is Expand and modernise the 2010 the judiciary fit for the digital age based on an analysis of 1838 drug traf- European Multidisciplinary Platform The Commission will: ficking cases that Eurojust was involved Against Criminal Threats (EMPACT) Identify technical and legal solutions in during the period 2017–2020. Drug and establish it as the EU flagship in- to ensure lawful access by law enforce- trafficking remains a highly lucrative strument to fight organised and serious ment authorities to encrypted informa- market worldwide, with an estimated international crime. EMPACT aims to tion within the context of criminal in- value of €30 billion per year in the EU bring together all relevant European and vestigations; alone. national authorities to identify priority Encourage the participation of Mem- Specific issues identified by the report crime threats and address them collec- ber States in the e-Evidence Digital Ex- regarding international judicial coopera- tively; change System (e-EDES); tion in drug trafficking cases concern: Propose strengthening the 2010 Prüm Develop, through its Joint Research New Psychoactive Substances (NPS) framework, which allows law enforce- Centre, a monitoring tool to gather intel- and their precursors; ment authorities to search for DNA, fin- ligence on illegal activities developing Cooperation with third countries; gerprints, and vehicle registration in the in the Darknet. (AP) Controlled deliveries; databases of other Member States during Conflicts of jurisdiction; their investigations; EMCDDA: European Drug Report 2021 Financial investigations, asset tracing Propose the creation of an EU Police On 9 June 2021, the European Monitor- and asset recovery; Cooperation Code; ing Centre for Drugs and Drug Addic- The European Investigation Order Start negotiations for agreements on tion (EMCDDA) launched the European (EIO); cooperation between Eurojust and third Drug Report 2021. The report delivers Drug trafficking in a digital environ- countries and step up negotiations on the most recent overview of the drug ment. cooperation between Europol and third situation in Europe, based on data from Cocaine and cannabis constitute the countries. 29 countries (27 Member States, Turkey, main drug types dealt with in Eurojust’s (2) Supporting more effective inves- and Norway). Among other information, casework. According to the report, cases tigations to disrupt organised crime it recounts the lessons learned from the involving New Psychoactive Substances structures, focusing on specific serious COVID-19 pandemic on how the pan- (NPS) and (pre-)precursors are increas- crimes demic has affected drug use and supply. ingly presenting enormous legal and The Commission will: It also provides a glance at Europe’s operational challenges for judicial au- Revise the Environmental Crime Di- drug phenomena and the latest trends in thorities, due to the constant changes rective; drug production and drug trafficking. in substances that have not (yet) been
eucrim 2 / 2021 | 91 NEWS – European Union criminalised. Regularly updating legis- tively. The Commission made clear that these victims, the Commission would lation is strongly recommended to close the Strategy on Combatting Trafficking like to facilitate the early identification these gaps. in Human Beings is intertwined with the of victims by training professionals, Furthermore, cross-border controlled new 2021 EU Strategy to tackle Organ- such as border guards, police officers, deliveries remain a sensitive issue from ised Crime (presented on the same day), social workers, and inspector services. It operational and legal points of view. as trafficking in human beings is often would also like to improve the victims’ Hence, the report recommends striving perpetrated by organised crime groups. referral to further assistance and protec- for greater harmonisation of and specific Regarding the new THB strategy, tion, especially in the cross-border con- regulations on controlled deliveries at the Commission emphasised that it will text; the EU level. build up on the EU Anti-trafficking Di- Promoting closer cooperation be- With regard to associated crimes, rective of 5 April 2011, which is the tween EU Member States, countries of it appears that money laundering goes backbone of the EU’s legislation on origin/transit of victims and internation- hand in hand with drug trafficking. combatting trafficking in human beings. al/regional partners, including interna- Hence, embedded financial investiga- In so doing, the Commission intends to tional organisations. (AP) tions are deemed crucial in the fight further support Member States in imple- against drug trafficking, including meas- menting the Anti-trafficking Directive. ures for the freezing, confiscation, and Further aims of the strategy are: Cybercrime recovery of assets. Reducing the demand that fosters Ultimately, drug trafficking in a digi- trafficking: The Commission wishes to Commission Recommends tal environment appears to be a rapidly assess the possibility of having mini- Joint Cyber Unit growing phenomenon, with more and mum EU rules to criminalise the exploit- On 23 June 20201, the Commission pre- more drug trafficking cases having links ive use of services of trafficking victims. sented a recommendation on building a to digital marketplaces, darknet plat- As part of its aim to prevent human traf- Joint Cyber Unit. Acccording to the Com- forms, encrypted devices, etc. There- ficking, the Commission hopes to organ- mission, the pandemic has increased the fore, judicial authorities are encouraged ise awareness-raising campaigns with importance of connectivity and shown to seek special knowledge, for instance Member States and civil society; how important reliable and secure net- through the National Contact Points of Disrupting the business model of traf- works/information systems are, especial- the European Judicial Cybercrime Net- fickers: In an effort to disrupt the busi- ly for entities in the frontline of the fight work (EJCN). ness model of traffickers, the Commis- against the pandemic (e.g., hospitals and Further recommendations include sion plans to enhance the coordination vaccine manufacturers). In order to face making full use of existing agencies and of law enforcement services in cross- these challenges and prevent the loss of networks such as Eurojust itself, its co- border and international cases. This lives, the Commission voiced the need ordination centres, the EJN, Asset Re- reinforcement of cooperation will be for a coordinated EU effort to prevent, covery Offices (AROs), Financial Intel- achieved by means of joint investigation detect, and respond to the most impactful ligence Units (FIU), and other networks. teams and joint action days. In response cyber-attacks. Improved coordination be- Setting up Joint Investigation Teams to the relative low numbers of prosecu- tween relevant cybersecurity institutions (JITs) should also be considered when tions and convictions of traffickers and and relevant actors in the EU should also fighting drug trafficking. (CR) in order to break the trafficking chain, help address the cross-border nature of the Commission stresses the importance cybersecurity threats and the steady surge of a “robust criminal justice response” of more complex, pervasive, and targeted Trafficking in Human Beings based on the specific training of law attacks. enforcement and justice practitioners. Despite major progress in achieving Commission to Strengthen EU Strategy With trafficking operations being in- cybersecurity – i.e., through cooperation on Combatting Trafficking in Human creasingly conducted over the Internet, between Member States and relevant EU Beings the Commission will push dialogue with institutions, bodies, and agencies (EUIs) On 14 April 2021, the Commission the private sector and digital industries and by means of the existing legislative published a Communication on the EU forward; framework – there is still no common EU Strategy on Combatting Trafficking in Improving the protection of victims: platform where information gathered in Human Beings. By identifying key pri- This strategy seeks to protect especially different cybersecurity communities can orities and proposing concrete actions, women and children, as they comprise be exchanged. In addition, a mechanism the Commissions aims to combat traf- the vulnerable majority (72%) of all vic- does not yet exist for harnessing existing ficking in human beings more effec- tims of trafficking in the EU. To protect resources, providing mutual assistance
92 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law
across the cyber communities, combat- Step 4: Expanding cooperation with- the EU’s cyber resilience – the so-called ing cybercrime, and conducting cyber- in the Joint Cyber Unit to private enti- “cybersecurity package” (eucrim diplomacy. ties and reporting on progress made. 3/2017, 110–111) (AP) In order to fill this gap and coordi- Step four should be fully completed by nate the EU effort against cyber-threats, 30 June 2023. (AP) Europol Warning over incidents, and crises, the Commission Fake Correspondence has developed a concept for a Joint Supporting Victims of Cybercrime On 8 April 2021, Europol published a Cyber Unit that will offer coordinated On 17 and 18 June 2021, the 10th Ple- warning concerning scams with emails assistance to Member States and EUIs nary Meeting of the European Judicial and messages on social media using the in times of crisis. The platform (which Cybercrime Network (EJCN) took place name of Europol’s Executive Director, will exist in both a virtual and a physi- to discuss the latest trends in cyber- Catherine de Bolle. Europol emphasized cal format) will involve the expertise of crime and to lend support to victims of that such correspondence is fake, espe- civilian, law enforcement, diplomatic, malware. The online meeting, which cially given that its Executive Director and cyber defence communities. The was hosted by Eurojust, focused on ap- would never directly contact members Joint Cyber Unit will identify technical proaches to support victims of cyber- of the public requesting any immediate and operational capabilities, experts, crime, e.g., victim remediation. Experts action or threatening to open a criminal and equipment ready to be deployed also discussed how to improve inves- investigation. Recipients of such scams to Member States. It is designed to tigations into large-scale online fraud are asked to inform Europol using a spe- provide a new impulse to European schemes, which increased significantly cial contact form. (CR) cybersecurity crisis management by en- during the COVID-19 pandemic. suring a coordinated EU response. Par- The EJCN is a forum that brings to- ticipants in the Joint Cyber Unit should gether judicial practitioners specialised Terrorism be able to engage with a wider range of in countering the challenges of cyber- stakeholders and simultaneously ben- crime, cyber-enabled crime, and investi- Europol TE-SAT 2021 efit from enhanced preparedness and gations in cyberspace. It was established On 22 June 2021, Europol published greater situational awareness, cover- in 2016 and is hosted by Eurojust. (CR) its EU Terrorism Situation and Trend ing all aspects of cybersecurity threats. Report (TE-SAT) 2021, which gives Through the Unit, participants should EU Gets Cybersecurity Competence an overview of terrorist attacks and also be able to integrate private sector Centre terrorism-related arrests in the EU in stakeholders, including both providers On 20 May 2021, the Parliament adopt- 2020. For the TE-SAT reports for previ- and users of cybersecurity solutions ed plans to reinforce Europe’s prepared- ous years, eucrim 2/2020, 95; eucrim and services. ness and resilience against cyberattacks 2/2019, 99; and eucrim 2/2018, 97. In For the purpose of establishing the by creating a pool for innovation and three main chapters, the report analyses Joint Cyber Unit, the Commission pro- expertise. In order to pool expertise in the situation regarding Jihadist, right- posed a gradual and transparent process cybersecurity research and bring the Eu- wing/left-wing, and anarchist terrorism. to be completed over the next two years. ropean cybersecurity community of ex- The year 2020 saw a total of 57 com- In the Annex to its Recommendation, the perts together, a new cybersecurity com- pleted, failed, and foiled terrorist attacks Commission further proposed that the petence centre will open in Bucharest in six EU Member States, with 21 people objectives set out in the Recommenda- (Romania). The new legislation aims dead and 54 people injured. In addition, tion be achieved in a four-step process: to stimulate the European cybersecurity 62 terrorist incidents were reported by the Step 1: Assessment of the Joint Cyber in order to coordinate and pool relevant UK. EU Member States reported 449 in- Unit’s organisational aspects and identi- resources in the EU. MEP Rasmus An- dividuals arrested on suspicion of terror- fication of available EU operational ca- dresen sees in this new legislation a way ism-related offences in the EU in 2020. pabilities. Step one should be fully com- to “ensure that all the valuable expertise 185 arrests were reported by the UK. pleted by 31 December 2021. that exists all across Europe ‒ be it in According to the report, more Jihad- Step 2: Preparing Incident and Crisis research institutions, small businesses, ist terrorist attacks were completed than Response Plans and rolling out joint pre- start-ups, NGOs and the open-source thwarted in 2020. All 15 of the terror- paredness activities. Step two should be community ‒ are all included in the ist attacks ‒ in the EU (10), Switzerland fully completed by 30 June 2022. process of deciding European research (2 probable terrorist attacks), and the Step 3: Operationalising the Joint Cy- priorities.” The cybersecurity centre UK (3) ‒ were carried out by lone actors ber Unit. Step three should be fully com- forms part of plans presented by the Eu- from diverse backgrounds, most of them pleted by 31 December 2022. ropean Commission in 2017 to improve using unsophisticated attack methods.
eucrim 2 / 2021 | 93 NEWS – European Union
A considerable number of these perpe- Council as regards the consequences the opportunities resulting from new trators were released convicts or prison- of COVID-19 on criminality. Looking technologies for terrorist and extremist ers, which reveals the effects of Jihadist at the current situation, the conclusions activities can be detected and curbed; radicalisation and recruitment in prison state: Enhance the development of secure as well as the threat stemming from re- The impact of the COVID-19 pan- channels for the exchange of classified leased prisoners. The return of foreign demic on authorities responsible for information. terrorist fighters to Europe in 2020 was countering terrorism and violent extrem- The conclusions are connected affected by COVID-19 travel restric- ism has varied; security intelligence ser- with the conclusions on the impact of tions with hundreds of Europeans re- vices and most law enforcement agen- COVID-19 on internal security which maining in detention camps in Northeast cies were confronted with constraints on were also adopted at the JHA Council Syria. Furthermore, the take-down of the some of their activities; meeting in June 2021 (separate news messenger service Telegram in 2019 had The role of the online dimension has item under “Security Union”). (TW) large effect to decrease Jihadist network- increased since the beginning of the ing and operating online. pandemic both as regards terrorists/ex- Regarding right-wing terrorism, one tremists who shifted their activities to Environmental Crime attack was completed by a lone actor in the Internet and authorities where online Germany. Three more right-wing terror- working increasingly became part of EP Demands Extension of EPPO ist attacks failed or were foiled in Bel- their daily life (resulting in several chal- Mandate to Environmental Offences gium, France, and Germany. As stated in lenges, e.g. as to the exchange of classi- On 20 May 2021, the plenary of the Eu- the report, suspects arrested for planning fied information); ropean Parliament (EP) adopted, by a right-wing terrorist or extremist attacks Although the COVID-19 pandem- large majority, a resolution calling for are increasingly young and some are ic has not resulted in a clear increase the revision of the EU rules on the li- minors. in terrorist attacks, in the medium to ability of companies for environmental In the field of left-wing terrorism, long term, the pandemic and its socio- damage. On the one hand, the Environ- Italy reported 24 left-wing and anar- economic consequences might have a mental Liability Directive (Directive chist terrorist attacks and one attack was negative impact on terrorist and extrem- 2004/35/EC) is to be transformed into a foiled in France. The number of arrests ist threats, contributing to a growth of fully harmonising regulation applicable of left-wing extremists dropped in 2020 breeding grounds for radicalisation; to all companies operating in the EU. by more than a half compared to 2019. “Coronavirus denier movements” On the other hand, the Directive on the Europol found that left-wing and anar- could contribute to the potential of vio- protection of the environment through chists extremists addressed new topics lence, since they attracted extremists criminal law (Directive 2008/99/EC) in 2020, such as scepticism about tech- from various ideological backgrounds. is to be updated. Following a thorough nological and scientific developments, Considering this scenario, the conclu- impact assessment new types of envi- COVID-19 containment measures and sions identified the following needs for ronmental crimes should be taken into environmental issues. action: account. Lastly, the report lists no fundamen- Continuously update information that MEPs also wished to ensure effective tal changes to the core terrorist modi contributes to the understanding and as- enforcement of the legislation. Prosecu- operandi due to COVID-19 as terrorist sessment of the online dimension of the tor and judges should be trained accord- groups and individuals tried to integrate terrorist and extremist threats, particu- ingly. This is especially necessary since the pandemic into their behaviors. (CR) larly by providing information to the environmental crimes are estimated to relevant EU bodies (i.e. INTCEN and be the fourth biggest type of criminal ac- Council Conclusions: COVID-19 Impact Europol); tivity in the world. MEPs called on the on Terrorism and Violent Extremism Swiftly implement the new Regula- Commission to set up an EU task force On 8 June 2021, the JHA Council tion on the dissemination of terrorist on environmental liability to help with adopted conclusions on the impact of content online; implementation in the Member States the COVID-19 pandemic on terrorism Continue efforts to prevent all types and to provide support to victims of en- and violent extremism. The conclusions of illegal extremist and terrorist propa- vironmental damage. follow the initiative of Portugal to as- ganda, the incitement of violence and Furthermore, MEPs called on the sess the prevention and countering of the illegal financing of hate speech and Commission to consider adding envi- radicalisation in the EU Member States violent extremism; ronmental offences as a category to the during its Council presidency. They also Develop standard technical solutions EU list of criminal offences (Art. 83(1) contribute to the general debate in the through the EU Innovation Hub, so that TFEU), so that the EP and Council can
94 | eucrim 2 / 2021 Specific Areas of Crime / Substantive Criminal Law adopt common criminal definitions and world and with the support of Europol, The Regulation lays down uniform sanctions in the area of environmental Frontex, and Interpol. It achieved the rules to address the misuse of hosting protection. following results: services for the dissemination to the MEPs deplored the low detection, Detection of 1600 marine pollution public of terrorist content online. Par- investigation and conviction rates for offences; ticularly, it regulates the duties of care environmental crimes. The mandate of 500 illegal acts of pollution commit- to be applied by hosting service provid- the European Public Prosecutor‘s Office ted at sea, including oil discharges, ille- ers (HSPs) as well as the measures to be (EPPO), which started its operational gal shipbreaking, and sulphur emissions in place on the part of Member States’ activities on 1 June 2021, should be ex- from vessels; authorities in order to identify and en- tended to cover environmental offences 1000 pollution offences in coastal ar- sure the quick removal of terrorist con- (for respective demands in literature eas and in rivers, including illegal dis- tent online and to facilitate cooperation Francesco de Angelis, eucrim 4/2019, charges of contaminants; with each other and Europol. The key 272–276). 130 cases of waste trafficking through elements of the new legislation are as Ultimately, MEPs strongly con- ports; follows: demned any forms of violence, har- 34,000 inspections at sea and inland hhMaterial scope (“terrorist content”) assment or intimidation against envi- waterways, coastal areas, and ports. The Regulation takes up the defi- ronmental human rights defenders and Next to typical forms of marine pol- nitions of terrorist offences set out in called on Member States to effectively lution crime, e.g., vessel discharges for Directive 2017/541 on combating ter- investigate and prosecute such acts. the purpose of waste trafficking by sea, rorism and makes use of them for pre- They adopted another report urging for the operation also revealed the growth ventive purposes. The definition of ter- strong EU support and protection of en- of new criminal trends throughout the rorist content online applies to material vironmental rights defenders and a rec- COVID-19 pandemic, e.g., disposal of that: ognition of “ecocide” as an international medical waste. (CR) yySolicits someone to commit or to crime under the Rome Statute. (TW) contribute to terrorist offences or to participate in activities of a terrorist EU Agencies and Experts Discuss Racism and Xenophobia group; More Effectively Fighting yyIncites or advocates terrorist offenc- Environmental Crime Regulation Addressing the es, such as by glorification of terrorist On 6 June 2021, European Justice and Dissemination of Terrorist Content acts; Home Affairs (JHA) agencies, Euro- Passed yyProvides instruction on how to con- pean Commission services, and several After approval by the European duct attacks. spot international organisations and expert Parliament and the Council Such material includes text, images, light bodies met to discuss how to fight en- (eucrim 1/2021, 25), Regula- sound recordings, videos, and live trans- vironmental crime more effectively. The tion (EU) 2021/784 on addressing the missions of terrorist offences, which participation of different agencies and dissemination of terrorist content online cause a danger of further such offences bodies enabled different perspectives to was published in the Official Journal L being committed. be taken on judicial aspects, the role of 172 of 17 May 2021. Eucrim has in- Exception: Material disseminated for customs officers, maritime safety, and formed of the negotiations of this con- educational, journalistic, artistic or re- the links between drug trafficking and troversial piece of legislation (last search purposes or for awareness-raising environmental crime. As part of the EU eucrim 1/2021, 25–26; eucrim 4/2020, purposes will not be considered “terror- Green Deal, the seminar was one of sev- 284–285 with further references). The ist content”. eral actions in support of the protection Commission tabled the proposal on hhPersonal scope of the environment and the fight against 12 September 2018 (eucrim 3/2018, The Regulation applies to all hosting environmental crime. (CR) 97–98). The dossier sparked fierce criti- service providers offering services in cism by civil stakeholders (see also the the EU. HSPs in this sense are provid- Global Action against Marine Pollution analysis of the Commission proposal by ers of information services which store On 29 April 2021, Europol released in- G. Robinsion, eucrim 4/2018, 234–240). and disseminate to the public informa- formation about the results of Operation The Regulation aims to curb the dissem- tion and material provided by users of “30 Days At Sea 3.0” ‒ a joint effort ination of contents by terrorists who in- the service on request, irrespective of against marine pollution. The operation tend to spread their messages, radicalise whether the storing and dissemination was conducted in March 2021 with 300 and recruit followers, and facilitate and to the public of such material is of a agencies across 67 countries all over the direct terrorist activities. mere technical, automatic and passive
eucrim 2 / 2021 | 95 NEWS – European Union
nature. Such platforms can be social fringes the Regulation or the fundamen- Transparency: Both Member States media, video image and audio-sharing tal rights enshrined in the CFR; and HSPs will be obliged to issue annual services; Both the content provider (user) and transparency reports on the measures Interpersonal communication servic- the HSP have the right to request such taken and on any erroneous removals of es, such as emails or private messaging scrutiny by the competent authority in legitimate speech online; services as well as services providing the Member State where the HSP has Notification duty: If content is re- cloud infrastructures do, in principle, not its main establishment or where its legal moved, the user will be informed and fall under the Regulation. representative resides; provided with information to contest the hhTemporal scope The scrutiny must be carried out swiftly removal; The obligations set out in the Regula- and a decision of whether an infringement Complaints: HSPs must establish tion will apply as of 7 June 2022. is found must be taken within 72 hours user-friendly complaint mechanisms and hhOne-hour rule of receiving the copy of the removal or- ensure that complaints are dealt with The Regulation considers that terror- der/the request, so that it is ensured that expeditiously towards the content pro- ist content is most harmful in the first erroneously removed or disabled con- vider. The mechanisms must ensure that hours after its appearance. Hence, HSPs tent is reinstated as soon as possible; erroneously removed content can be re- will be obliged to stop the dissemination Where the decision finds an infringe- instated as soon as possible; of such content as early as possible and ment, the removal order will cease to Legal remedies: Content providers in any event within one hour. have legal effects. and HSPs must not only have the rights hhEU-wide removal orders hhProactive measures rights to review of the removal orders by The competent authority of each EU The Regulation sets out several spe- the relevant authorities but can also seek Member State has the power to issue a cific measures that HSPs exposed to ter- judicial redress in courts in the respec- removal order directly requiring HSPs rorist content online must implement to tive Member States. to remove or disable access to terrorist address the misuse of its services; hhSanctions content in all Member States; It is for the HSPs to determine which Member States must adopt rules on HSPs must designate or establish a specific measures should be put in place. penalties for non-compliance of the contact point for the receipt of removal Such measures may include: Regulation on the part of HSPs; orders by electronic means and ensure yyAppropriate technical or operational Penalties can be of an administrative their expeditious processing. measures or capacities, such as staff- or criminal nature and can take different Form and contents: The Regulation ing or technical means to identify and forms (e.g. formal warnings or fines); established templates in which the au- expeditiously remove or disable ac- Member States must ensure that pen- thorities must fill in all the necessary cess to terrorist content; alties imposed for the infringement of information for HSPs; yyMechanisms for users to report or flag this Regulation do not encourage the re- Removal orders must contain justifi- alleged terrorist content; moval of material which is not terrorist cations as to why the material is consid- yyAny other measures the HSP con- content; ered to be terrorist content, including de- siders appropriate and effective to In order to ensure legal certainty, the tailed information on how to challenge address the availability of terrorist Regulation sets out which circumstances the removal order. content on its services or to increase are relevant for assessing the type and hhCross-border removal orders awareness of terrorist content; level of penalties. When determining Where the HSP’s main establishment HSPs are obliged to apply specific whether to impose financial penalties, is or its legal representative resides in a measures with effective safeguards to due account should be taken, for in- Member State other than that of the is- protect fundamental rights, in particular stance, of the financial resources as well suing authority, a copy of the removal freedom of speech; as the nature and size of the HSP; order must be submitted simultaneously There is no obligation for HSPs to use Member States must provide that a to the competent authority of that Mem- automated tools to identify or remove systematic or persistent failure to com- ber State; content. If they choose to use such tools, ply with the “one-hour rule” following a The competent authority of the Mem- they need to ensure human oversight and removal order is subject to financial pen- ber State where the HSP has its main es- publicly report on their functioning. alties of up to 4 % of the HSP’s global tablishment or where its legal represent- hhSafeguards turnover of the preceding business year. ative resides can scrutinise the removal The Regulation installs several safe- The Regulation also lays down the order issued by competent authorities guards that are to solve conflicts with modalities how the new rules are moni- of another Member State to determine fundamental rights, in particular the tored by the Member States and evaluat- whether it seriously or manifestly in- freedom of speech. ed by the Commission. The Commission
96 | eucrim 2 / 2021 Procedural Criminal Law
is requested to submit an implementa- such a short deadline for removing con- To use available funding opportuni- tion report by 7 June 2023. By 7 June tents would encourage them to use al- ties from the EU budget to develop ac- 2024, the Commission shall carry out an gorithms for their moderation, which is tions related to the protection and pro- evaluation of the Regulation and submit problematic. motion of the rights of vulnerable adults, a report to the European Parliament and It remains to be seen whether the including on digital literacy and skills to the Council on its application. new EU Regulation addressing the dis- (as regards both civil and criminal law hhStatements: semination of terrorist content online matters); Commission Vice-President Mar- can withstand a possible judicial review. To ensure the full implementation garitis Schinas told journalists: “With (TW) of the existing legislative Union frame- these landmark new rules, we are crack- work with regard to vulnerable per- ing down on the proliferation of terror- Prevention of Radicalisation sons, e.g., the Victims’ Rights Directive ist content online and making the EU‘s in the Western Balkans 2012/29, and share best practices on the Security Union a reality. From now on, In April 2021, the European Commis- implementation; online platforms will have one hour to sion agreed to continue to fund the In- To enhance the use of cross-border get terrorist content off the web, ensur- strument for Pre-Accession (IPA II) with victims protection mechanisms within ing attacks like the one in Christchurch a €1.55 million project. The decision the EU, including the European protec- cannot be used to pollute screens and was taken to further support the Western tion order (Directive 2011/99); minds. This is a huge milestone in Eu- Balkans in the prevention and counter- To ensure prompt identification of rope‘s counter-terrorism and anti-radi- ing of all forms of radicalisation. The vulnerable persons and assess their vul- calization response.” project will enhance implementation of nerability adequately in criminal pro- MEP Patryk Jaki (ECL, PL) who was the Joint Action Plan on Counter-Terror- ceedings (in line with the 2006 UN Con- the main rapporteur on the Regulation ism for the Western Balkans and provide vention on the Rights of Persons with for the EP said: “I strongly believe that support to the Radicalisation Awareness Disabilities); what we achieved is a good outcome, Network (RAN), e.g., trainings, work- The Commission is invited to exam- which balances security and freedom of shops, and study visits in order to im- ine whether procedural safeguards for speech and expression on the internet, prove the Western Balkans’ capacity to vulnerable adults need to be strength- protects legal content and access to in- prevent radicalisation ‒ in line with EU ened through EU law. (TW) formation for every citizen in the EU, policy. The project will be implemented while fighting terrorism through coop- over a period of 30 months. (CR) eration and trust between states.” Data Protection Other MEPs commented more criti- cally. EP Vice-President Marcel Kolaja, CJEU Ruled on the Powers of National who was rapporteur in the IMCO com- Procedural Criminal Law Data Protection Authorities mittee, criticised: “This regulation can In its ruling of 15 June 2021 in Case indeed strengthen the position of author- Procedural Safeguards C-645/19, the CJEU (Grand Chamber) itarians. European Pirates as well as doz- explained the conditions for the exercise ens of NGOs were pointing out the issue Council Conclusions on Vulnerable of the powers of national supervisory for a long time, but most political groups Persons authorities in cross-border processing ignored our warnings. We are likely to On 7 June 2021, the Justice and Home of data. The judgment was based on the see Europe undermine its fundamental Affairs Council approved conclusions question of whether the Belgian data values.” on the protection of vulnerable persons, protection authority could take action Several non-governmental organisa- with regard to civil and criminal law against Facebook Belgium, although, tions continue to see the new Regulation matters. The conclusions point out that since the entry into force of the GDPR, as a significant threat to freedom of ex- further action is needed with regard to Facebook Ireland was the data process- pression, which has not been remedied vulnerable adults whether they are sus- ing entity and therefore only the Irish by the compromise text between the EP pects or accused in criminal proceedings data protection commissioner would be and the Council. In particular, the broad or victims of crime. Vulnerable adults authorised to bring injunctions under the understanding of “terrorist content” experience a number of difficulties, es- control of the Irish courts. The CJEU poses the risk that orders for political pecially in cross-border situations, that held, that, under certain conditions, a purposes will be abusively issued under may impair the full exercise of their pro- national supervisory authority may exer- the guise of combating terrorism. In ad- cedural rights. The Council calls on the cise its power to bring alleged infringe- dition, critics predict that giving HSPs Member States: ments of the GDPR before a court of that
eucrim 2 / 2021 | 97 NEWS – European Union
Member State (here: Belgium) even if it the Australian and US law enforcement The SCCs provide companies with an is not the lead authority in relation to authorities. It also underlined that the easy-to-implement template, simplify- that processing. agreements’ objectives are in line with ing how companies verify and control Conditions for the exercise of pow- international obligations to collect, pro- their compliance with the data protec- ers by a national supervisory authority cess and exchange PNR data, e.g. UN tion requirements. The two SCCs offer which does not have the status of lead Security Council resolutions and the a toolbox with an overview of the differ- supervisory authority in relation to an recent amendment to the Convention on ent steps companies must take to comply instance of cross-border processing: The International Civil Aviation (“Chicago with the Schrems II judgment and fea- GDPR must confer on that supervisory Convention”). The Council, however, turing additional examples of measures authority a competence to adopt a de- acknowledges that the agreements with required to close existing security gaps cision finding that the data processing Australia and US do not fully comply (e.g., encryption or pseudonymisation). in question infringes the GDPR and, in with the CJEU’s Opinion 1/15 that top- In order to cater to various transfer sce- addition, this power must be exercised pled the envisaged EU-Canada PNR narios and the complexity of modern in compliance with the cooperation and deal because it was not in line with the processing chains, the SCCs combine consistency procedures provided for by EU’s Charter of Fundamental Rights and general clauses with a modular approach the GDPR. Union data protection law (eucrim and offer the possibility for more than The exercise of the power to bring an 3/2017, 114–115). two parties to adhere to the standard action does not require the data control- The conclusions reiterate that ad- contractual clauses. (AP) ler to have a main establishment or any equate retention is key and call on the other establishment in the territory of the Commission “to pursue a consistent and EDPS Launched Two Investigations Member State. effective approach regarding the transfer Following the “Schrems II” Judgement The power of a national supervisory of PNR data to third countries for the On 27 May 2021, the European Data authority, other than the lead superviso- purpose of combating terrorism and seri- Protection Supervisor (EDPS) launched ry authority, to initiate legal proceedings ous crime, building on the ICAO SARPs two investigations following the Court may be exercised both in relation to the [Standards and Recommended Practices of Justice ruling in Case C-311/18 Data main establishment and in relation to an- on PNR of the International Civil Avia- Protection Commissioner v Facebook other establishment. tion Organization], and in line with the Ireland Ltd and Maximilian Schrems Ultimately, the CJEU recognises that relevant requirements established under (“Schrems II”) of 16 July 2020 (eucrim the national supervisory authority can Union law.” (TW) 2/2020, 98–99). The two investigations, directly rely on the GDPR in order to pertaining to the use of cloud services bring or continue a legal action against Commission Adopts Sets of Standard provided by Amazon Web Services and private parties, even though the underly- Contractual Clauses for Safe Data Microsoft (under Cloud II contracts by ing obligation in the GDPR to provide Transfers European Union institutions, bodies, this power has not been specifically im- On 4 June 2021, the Commission and agencies (EUIs)) and the use of plemented in the legislation of the Mem- adopted two standard contractual Microsoft Office 365 by the European ber State concerned. (TW) clauses (SCCs): one on controllers and Commission, are part of the EDPS’ strat- processors in the EU/EEA and one on egy for EU institutions to comply with Council Conclusions on PNR Transfers international transfers. With these two the “Schrems II” judgement. to Third Countries SCCs, the Commission is aiming to Following the EDPS’ order to EUIs in At its meeting on 7–8 June 2021, the ensure safer personal data transfer by October 2020 to report on their transfers JHA Council adopted conclusions on offering businesses a useful tool to en- of personal data to non-EU countries, it the transfer of passenger name record sure their compliance with the General had been shown that individuals’ per- (PNR) data to third countries, in particu- Data Protection Regulation (GDPR) sonal data is being transferred outside lar Australia and the United States, for and to offer greater legal predictabil- EU and to the United States (USA), in the purpose of combatting terrorism and ity to European businesses in general. particular. Against this background, serious crime. The Council emphasised These two tools take into account the the EDPS strongly encouraged EUIs that joint evaluations demonstrated the CJEU’s judgment Schrems II, in which to avoid transfers of personal data to added value and operational effective- the CJEU backed the SCC model of en- third countries. The EDPS’ analysis also ness of the Agreements between the suring legal transfers of personal data showed that EUIs increasingly rely on EU and both Australia and the United to non-EU countries while clarifying the use of cloud computing services or States with regard to the processing and the conditions for their use (eucrim platform services from large information transfer of PNR data by air carriers to 2/2020, 98–99). and communications technology (ICT)
98 | eucrim 2 / 2021 Procedural Criminal Law providers. Some of the ICT providers and South Korea that entered into force CJEU judgments in Schrems I and II, are based in the USA and therefore sub- in 2011. After Japan, the Republic of e.g. transfers under the Terrorist Financ- ject to legislation that, according to the Korea would be the second Asian coun- ing Tracking Program, the EU-US PNR “Schrems II” judgement, allows dispro- try for which the adequate protection of Agreement and agreements implement- portionate surveillance activities to be personal data is recognised. (TW) ing the US Foreign Tax Compliance Act carried out by the US authorities. (FATCA); With its first investigation, the EDPS EP: Commission Must Halt Adequacy The Commission must analyse the wishes to assess the EUIs’ compliance Decisions that Do Not Comply with impact of the judgments in Schrems on with the “Schrems II” judgement when CJEU’s Standards the EU-US Umbrella Agreement and using cloud services provided by Ama- On 20 May 2021, the European Parlia- consider consequences; zon Web Services and Microsoft. With a ment (EP) adopted a resolution on the The Union must reach digital auton- second investigation, into the use of Mi- future of data transfers to the USA omy, e.g., by investing in European data crosoft Office 365, the EDPS would like following the CJEU’s judgment in storage tools; to verify the European Commission’s Schrems II. In this judgment (eucrim The conclusion of “no-spy agree- compliance with the recommendations 2/2020, 98), the CJEU found that the ments” can be an option if the US side issued by the EDPS, on 2 July 2020, on current legal framework allowing data does not modify its surveillance laws the use of Microsoft’s products and ser- transfers between the EU and the US and practice. vices by EUIs. (AP) on the basis of the “Privacy Shield” is In general, the resolution criticises invalid. However, it accepted the use of national authorities in the EU for failing Commission Endorses Adequacy standard contractual clauses (“SCCs”) to enforce the GDPR properly, as MEPs Decision for South Korea to facilitate transfers, as long as EU- consider them to have overlooked inter- On 16 June 2021, the Commission initi- based entities verify the recipient coun- national data transfers and failed to take ated the procedure for adopting the ad- try’s level of data protection before the meaningful corrective decisions. (TW) equacy decision for personal data trans- transfer. Suspension of data transfers fers to the Republic of Korea. It will may be required if the data transferred Data Protection Scrutiny of Proposed cover transfers of personal data to the are subject to mass surveillance by US Digital Green Certificate Republic of Korea’s commercial opera- intelligence authorities. On 21 March 2021, the European Com- tors and public authorities. After having As a reaction to the ruling in mission published a proposal for a Reg- examined the legislation in the Republic Schrems II, the EP requests, inter alia: ulation introducing a framework for the of Korea, in particular the Personal In- The Commission should not conclude issuance, verification, and acceptance formation Protection Act (PIPA) and the new adequacy decisions with third coun- of interoperable certificates to citizens investigatory and enforcement powers tries without taking into account the im- on vaccination, testing, and recovery of the Personal Information Protection plications of EU court rulings and ensur- to facilitate free movement during the Commission (PIPC), the Commission ing full GDPR compliance; COVID-19 pandemic. In addition, on concluded that the Republic of Korea The EDPB should give further guid- 17 March 2021, the European Commis- ensures a level of data protection equiv- ance on international data transfers for sion published a second proposal for a alent to that guaranteed by the GDPR. companies, especially SMEs; Regulation on a framework for the is- The draft adequacy decision has now Companies must continuously assess suance, verification and acceptance of been sent to the European Data Protec- the best measures to transfer data law- interoperable certificates on vaccination, tion Board (EDPB) for its opinion. As fully; testing and recovery to third-country na- a further step, a committee composed The Commission must proactively tionals legally staying or residing in the of representatives of the EU Member monitor the use of mass surveillance territories of Member States during the States must approve the draft before the technologies in the US and in other third COVID-19 pandemic. Commission can adopt the final adequa- countries that are or could be the subject On 6 April 2021, the European Data cy decision. Once adopted, data can be of an adequacy finding and it must not Protection Board (EDPB) and the Euro- transmitted from the EU to South Korea adopt adequacy decisions concerning pean Data Protection Supervisor (EDPS) without any further safeguard being nec- countries where mass surveillance laws adopted a joint opinion on these Pro- essary. In others words, transfers to the and programmes do not meet the criteria posals for a Digital Green Certificate, country will be assimilated to intra-EU of the CJEU, either in letter or spirit; looking at the aspects of the proposals transmissions of data. The possibility of The Commission must bring in line relating to the protection of personal a free flow of data would supplement the current practices of exchanges of per- data. The EDPB and EDPS underline Free Trade Agreement between the EU sonal data with the standards set in the the importance of being consistent with
eucrim 2 / 2021 | 99 NEWS – European Union the General Data Protection Regulation He claimed that he is subject to a red the prosecutor (cf. judgment of 11 Feb- (GDPR) and complying with the prin- notice from the USA which was distrib- ruary 2003, Joined Cases C-187/01 and ciples of necessity and proportionality. uted via the Interpol system and seeks C-385/01 (Gözütok and Brügge)). While the EDPB and EDPS acknowl- his provisional arrest for extradition for In the second place, the CJEU clari- edge the need for a comprehensive legal the same offences as treated in Germany. fies the meaning of “being prosecuted” framework to remove restrictions on the He brought an action against the Federal in the sense of Art. 54 CISA, as a result right to free movement, which was ad- Republic of Germany requesting that all of which the person concerned may not opted to fight the COVID-19 pandemic, necessary measures are taken in order be provisionally arrested. In this context, they underline the need to mitigate the to arrange the withdrawal of the red no- the CJEU reiterates the objectives pur- (unintended) risks that may result from tice. He argued in particular that the red sued by Art. 54 CISA, inter alia: use of the framework, e.g., any use of notice in the Interpol system infringes Ensuring exercise of the freedom of personal data exceeding the intended his right not to be prosecuted twice for movement; purpose of facilitating free movement the same offence as enshrined in Art. 54 Ensuring legal certainty; between the EU Member States. CISA and Art. 50 CFR as well as his Reflecting mutual trust in the respec- The EDPB and EDPS recommend right to free movement, as guaranteed tive criminal justice systems of the Con- better defining the purpose of the Green under Art. 21 TFEU. In this context, tracting States. Digital Certificate and providing a the Administrative Court of Wiesbaden However, the judges in Luxembourg mechanism to monitor the use of the cer- referred several questions to the CJEU. stress that the European ne bis in idem tificate by Member States. Furthermore, A first set of questions concerned the principle does not bar per se the risk the proposed Regulation should express- applicability of the European ne bis in of impunity and does not preclude the ly stipulate that access and subsequent idem principle and its implications for maintenance of measures that prevent a use of the data by Member States is not criminal prosecution in third countries. person from evading justice. permitted once the pandemic is over and A second set of questions related to the In conclusion, Art. 54 CISA and define the end of the pandemic. Its scope consequences for the processing of per- Art. 21(1) TFEU preclude the provision- should be limited to the current COV- sonal data contained in such red notices al arrest of a person who is the subject of ID-19 pandemic as well as to the pur- in line with the provisions of Directive an Interpol red notice only if it is estab- pose of facilitating the free movement of (EU) 2016/680 – the EU’s data protec- lished by a final judicial decision that the persons in the current situation. (CR) tion rules for police and criminal justice person’s trial has been finally disposed authorities. of by a State that is party to the Schengen For more background information Agreement or by an EU Member State Ne bis in idem on the case, the questions referred and in respect of the same acts as those form- the opinion of AG Bobek, see eucrim ing the basis of the red notice. As soon CJEU Judgment on Compatibility 4/2020, 287–288 and eucrim 2/2019, as it is ascertained that the conditions of of Interpol Searches and Arrests 106–107. the ne bis in idem rule are satisfied, the with Ne bis in idem Principle hhThe CJEU’s findings regarding the authorities of the Schengen States must
spot States that are party to the scope of the ne bis in idem principle refrain from making a provisional arrest light Schengen Agreement can refuse The CJEU points out that the first set or keeping a person in custody following to follow an Interpol red notice of questions seek guidance of whether an Interpol red notice. Also these meas- seeking extradition of an individual to a Art. 54 CISA and Art. 21(1) TFEU, read ures that are preliminary to an extradi- third country if he/she has already been in the light of Art. 50 CFR, preclude the tion constitute “prosecution” within the finally tried in one of the Schengen provisional arrest by the authorities of a meaning of Art. 54 CISA. States. The CJEU delivered this ground- Schengen State if the person is subject The CJEU stresses that the Member breaking judgment on 12 May 2021 in to an Interpol red notice at the request States must ensure the availability of le- Case C-505/19 (WS v Germany). of a third State (here: USA). In the first gal remedies enabling the persons con- hhBackground of the case place, the CJEU confirms its case law cerned to obtain such final judicial deci- The case concerns a German citi- that Art. 54 CISA applies to procedures sion that ascertains the applicability of zen (WS) whose criminal proceedings by which the public prosecutor of a the prohibition to be prosecuted twice as for bribery acts were discontinued by a Member State discontinues, without the laid down in Art. 54 CISA. decision of the German prosecution of- involvement of a court, a prosecution hhThe CJEU’s findings regarding data fice in Munich after he paid a sum of brought in that State once the accused processing money in accordance with Sec. 153a of has fulfilled certain obligations, such as Regarding the second set of questions, the German Criminal Procedure Code. the payment of a sum of money set by the Administrative Court of Wiesbaden
100 | eucrim 2 / 2021 Procedural Criminal Law seeks to ascertain whether the authori- preferentially to extradition requests EDPS Annual Report 2020 ties of the Schengen States can record from third countries (eucrim 3/2016, and retain personal data appearing in 131 and eucrim 4/2020, 288–289). Thus, On 19 April 2021, Wojciech Wiewió- an Interpol red notice in circumstances similarities between the CJEU case law rowski, the European Data Protec- where the ne bis in idem principle ap- in Petruhhin and WS are evident, which tion Supervisor (EDPS), presented his Annual Report 2020. It focuses on plies. The CJEU first notes that any op- the CJEU also refers to in its judgment. the functioning of the EDPS and the eration performed on those data, such With regard to the scope of the ne bis challenges if is facing during the pan- as registering them in a Member State’s in idem principle, the judges in Luxem- demic. In the latter context, the EDPS list of wanted persons, constitutes “pro- bourg fully follow the Advocate Gen- established an internal COVID-19 task cessing” which falls under Directive eral‘s opinion of 19 November 2020 force to actively monitor and assess governmental and private sector re- 2016/680. Such processing, however, (eucrim 4/2020, 287–288). sponses to the COVID-19 pandemic. pursues a legitimate purpose and is not The CJEU strengthens the individual The report stressed that, despite the unlawful solely on the ground that the rights of citizens who have been subject pandemic and even though all core ac- ne bis in idem principle may apply to the to a final conviction or acquittal by the tivities were performed remotely, the acts that are described in the red notice. authorities of the Schengen States/EU EDPS was able to maintain a strong That processing by the authorities of the Member States. Nevertheless, the de- oversight of the EU institutions, agen- cies, and bodies (EUIs) as regards the Schengen States may indeed be indis- cision is only a partial success for the processing of individuals’ personal pensable precisely in order to determine prosecuted person. He must enforce a data (e.g., EDPS investigation into whether the ne bis in idem principle ap- court decision in the Schengen States/ EUIs’ use of Microsoft products and plies. However, the prerequisites of the EU Member States confirming the appli- services and EDPS investigation on data protection Directive are no longer cation of the transnational European ne the European Parliament’s Wi-Fi). fulfilled, i.e. record and retention of per- bis in idem rule. For the time being, he In order to ensure that ongoing inter- national transfers are carried out in ac- sonal data are no longer necessary, if it is not immune from provisional arrest or cordance with EU data protection law, is established that the person concerned other measures restricting his freedom the EDPS published its Strategy for can no longer be the subject of criminal of movement on the basis of an Interpol EUIs to comply with the “Schrems II” proceedings and, consequently, cannot Red Notice. The system thus also entails ruling following the CJEU judgment of be arrested for the acts covered by the that persons have to provide information 16 July 2020 (eucrim 2/2020, 98–99). red notice. In this case, the data subject on their offences in order to convince In 2020, the EDPS also issued a consid- erable number of opinions, e.g.: must be able to require erasure of his/ the national courts that the concluded her data. In any rate, the authorities must criminal proceedings and the Red No- Opinion on a proposal for tempo- rary derogations from the ePrivacy flag that the person concerned can no tice cover the “same acts”. This comes directive for the purpose of combat- longer prosecuted in a Schengen State especially true if one considers that the ting child sexual abuse online; for the same acts by reason of the ne bis description of facts and offences in red Opinion on the New Pact on Migra- in idem principle. notices is regularly very brief. This bur- tion and Asylum. hhPut in focus: den of proof is difficult to reconcile with The EDPS stressed that it continued The CJEU’s judgment in WS is of the principle of the presumption of in- its effort to monitor technologies (such extraordinary importance insofar as it nocence. In addition, in many cases, the as artificial intelligence and facial grants extraterritorial effect to the Euro- prosecuted person will probably only recognition) in 2020 and to promote understanding about the impact of pean ne bis in idem principle. This guar- successful if he organises a double de- the design, deployment, and evolu- antee as established in Art. 50 CFR and fence in the countries concerned. tion of digital technology upon the Art. 54 CISA has been thought by many Ultimately, the CJEU’s ruling pos- fundamental rights to privacy and data scholars to have intra-Community ef- es major challenges especially for the protection. To strengthen cooperation fects only. Its scope now extends to third legislators of the Member States. They between the EDPS and the EDPB, the EDPS proposed the establishment of countries although they are not bound by must now create effective mechanisms, a Support Pool of Experts (SPE) within Union law. The CJEU stresses that this if they do not already exist, that guaran- the EDPB. The pandemic and the approach is not surprising since similar tee judicial decisions on the existence acceleration of digitalisation in indi- effects are implied in extradition law. In of the conditions of the trans-European viduals’ daily lives has demonstrated accordance with the Petruhhin doctrine, ne bis in idem principle. It remains to the importance of an EDPS presence also here EU Member States must en- be seen whether these court decisions online in order to fully connect with the relevant target groups and stake- sure the right to move and reside freely will resolve all individual cases without holders. (AP) within the territory of the EU Member renewed involvement of the judges in States by applying the EAW system Luxembourg. (TW)
eucrim 2 / 2021 | 101 NEWS – European Union
Victim Protection tive, the authors of the study recommend agreements between Member States on a recast of the Brussels Ia Regulation police cooperation in this consolidated Study Recommends anti-SLAPP and a reform of the Rome II Regulation. legal act. This could include, for exam- Directive Since 2018, the EP has repeatedly and ple, covert investigative measures on In a study commissioned by the Euro- unsuccessfully called on the Commis- the territory of the neighbouring state, pean Parliament’s Policy Department sion in various initiatives to tackle a Eu- cross-border surveillance without a ju- for Citizens’ Rights and Constitutional ropean regulatory proposal on SLAPP. dicial order in urgent cases or even cus- Affairs at the request of the JURI Com- In June 2020, civil society organisations todial measures on the territory of the mittee, researchers from the University called on the EU in a joint statement to neighbouring state. The Commission’s of Aberdeen recommended that the EU stop gag lawsuits against public interest concrete proposal for a regulation has takes a legislative initiative with a view defenders (eucrim 2/2020, 106–107). been announced for the fourth quarter of to stemming the flow of litigation which MEPs are making another attempt and 2021. (TW) is intended to suppress public participa- recently submitted a draft motion for a tion in matters of public interest. Eu- resolution “on the strengthening democ- rope is facing a growing phenomenon racy and media freedom and pluralism in Judicial Cooperation of retaliatory lawsuits that are typically the EU: the undue use of actions under brought forward by powerful actors civil and criminal law to silence jour- Ministers Discuss Key Challenges (e.g., companies, public officials in their nalists, NGOs and civil society”. At the for Public Prosecutors private capacity, high-profile persons) beginning of 2021, the EU Commission At the JHA Council meeting on 7 June against persons with a watchdog func- set up an expert group against SLAPP 2021, the Ministers for Justice discussed tion (e.g., journalists, activists, academ- which will assist the Commission in the the key challenges to a well-functioning ics, trade unions, civil society organisa- preparation of respective legislative pro- public prosecution service and how the tions, etc.) in order to censor, intimidate, posals and policy initiatives. (TW) JHA Council could engage in a more and silence critics – so-called “Strategic specific discussion on the topic. Discus- Lawsuits Against Public Participation” sions referred to a paper of the Portu- (SLAPPs). guese Council Presidency on the “key The study analysed legal definitions Cooperation elements for the public prosecution of SLAPP and assessed the compatibil- services including as regards judicial ity of anti-SLAPP legislation with EU Police Cooperation cooperation in criminal matters.” The law. It also looked at models of anti- paper stresses the particular importance SLAPP legislation in other jurisdictions Commission Consults Public on New of public prosecution services for the (e.g. United States, Canada, Australia) EU Police Cooperation Code proper functioning of the criminal jus- and recommends that the EU should The European Commission‘s work on a tice system, effective prosecutions, and follow a distinctive approach, although European code for cross-border police judicial cooperation in criminal mat- good practices can be drawn from these cooperation is gaining momentum. The ters between Member States. Ministers jurisdictions. Furthermore, legislative idea was presented for the first time in discussed the necessity of independ- intervention must be formulated in a the framework of the EU Security Strat- ence of prosecution services. They also manner which empowers national courts egy, which was presented in July 2020 stressed that the digitalisation of justice, to attain the intended outcome of expe- (eucrim 2/2020, 71–72). As part of adequate human and financial resources ditious dismissal of cases without harm- the roadmap to develop a correspond- for prosecution services, and (generally) ing potential claimants’ legitimate rights ing legislative proposal, citizens and the strengthening of the resilience of jus- to access courts. Properly framed anti- stakeholders now have the opportunity tice systems are further key challenges SLAPP legislation affords the claimant to comment on the project until 14 June for well-functioning public prosecution the opportunity to present legitimate 2021. The aim of the initiative is to services in the EU. claims to the court and therefore satis- simplify and modernise cooperation be- The discussion on this topic was held fies the requirements of Art. 6 ECHR, tween competent national authorities in against the background of the structured the study says. It is submitted, therefore, the area of law enforcement. The code is dialogue on justice-specific aspects of that the relationship between the rights to merge the various existing legislative the rule-of-law debate. The independ- of pursuers and defendants in defama- instruments and guidelines on police co- ence and performance of public prosecu- tion cases should be revisited to remedy operation into a common regulation. In tion services are part of the EU’s Judicial existing imbalance. In addition to the addition, it is considered to include se- Scoreboard (eucrim 2/2020, 74–75) adoption of an anti-SLAPP EU Direc- lected elements from existing bilateral and the recently introduced regular rule
102 | eucrim 2 / 2021 Cooperation of law reports from the European Com- sent to Eurojust between April and June for the exchange of the most frequently mission (eucrim 3/2020, 158–159). 2020 ‒ when lockdowns in many coun- applied instruments of judicial coopera- (TW) tries created sudden and unexpected tion, with access for Eurojust. practical problems. The report looks at For a detailed summary of the impact Mutual Legal Assistance Agreement the following issues: of the COVID-19 pandemic on judicial between EU and Japan to Be Revised The European Arrest Warrant (EAW) cooperation and on Eurojust’s role in On 1 June 2021, the Commission sub- and extradition in relation to COVID-19; these challenging times, see the contri- mitted a recommendation to the Coun- The impact of COVID-19 on the ex- bution by Ernest and Radu in this issue. cil in which it seeks authorisation to change of evidence and other investiga- (CR) open negotiations with Japan in order tive measures; to amend the EU-Japan Agreement on COVID-19 as a criminal opportunity mutual legal assistance in criminal mat- and corresponding asset recovery meas- European Arrest Warrant ters. The Agreement entered into force ures; on 2 January 2011. It is the EU’s first The role of Eurojust in combating CJEU Clarifies the Scope of the “self-standing” MLA agreement with a COVID-19-related crimes. Ne Bis in Idem Principle Involving third country and includes modern coop- According to the report, the EAW Sentences by Third Countries eration tools, e.g. videoconferencing and mechanisms remained functional. How- On 29 April 2021, the CJEU, for the the exchange of bank information. ever, pandemic measures had a signifi- first time, delivered a judgment on the The aim of the Commission’s ini- cant effect on the final stage of EAW interpretation of Art. 4(5) of the Frame- tiative is to align the MLA Agreement proceedings, i.e., the physical surrender work Decision on the European Arrest with the data protection rules in Direc- of the requested person. Involving Eu- Warrant (FD EAW) and decided that tive 2016/680. It follows the Commis- rojust seemed to have facilitated timely also convictions combined with leni- sion Communication of 24 June 2020, responses, which helped move the pro- ency measures in third countries can be in which ten legal acts from the former ceedings forward. a ground for refusing the execution of an third pillar are identified that should be Member States continued to use in- EAW. The case is referred as C-665/20 aligned with the EU’s new legal frame- struments related to the exchange of PPU (X). work on the protection of personal data evidence and to implement investiga- hhFacts of the case and questions with regard to the processing by law en- tive measures. Sometimes requests were referred forcement authorities (eucrim 2/2020, only handled in special cases, however, In the case at issue, X was sought by 100). The Commission proposes that the which led to delays in the execution of German authorities for several crimi- following issues should be subject to ne- European Investigation Orders (EIOs) nal offences because he allegedly com- gotiations with Japan: and requests for mutual legal assistance. mitted acts of exceptional violence to Provisions on data quality and secu- Eurojust was frequently contacted to his partner and daughter in Berlin. X rity; support the transmission of such orders was detained in the Netherlands on the Rules on data retention and record and requests. basis of the German EAW but he op- keeping; Understandably, pandemic meas- posed his surrender by arguing that he Safeguards applicable to the process- ures had a strong impact on the work of has already been tried for the same acts ing of special categories of personal Joint Investigation Teams (JITs), what in Iran. More specifically, he had been data; with travel limitations, postponed ac- acquitted in respect of some of the acts Restrictions on onward transfers; tion days, and delayed negotiations on and sentenced in respect of the other Rules on oversight and legal rem- new JITs. Eurojust quickly reacted to acts to a term of imprisonment of seven edies available to individuals. the situation, amending its JITs funding years and six months. X claimed that he The revision of the MLA Agreement programme and providing JIT members served the sentence almost in full but with Japan will follow the procedure of with a secure communication platform the remainder was remitted as part of a Art. 218(3) and (4) TFEU. (TW) on which to hold their meetings online. general amnesty measure proclaimed by In conclusion, the report calls for the the Supreme Leader of the Revolution to Report on the Impact of COVID-19 establishment of reliable transmission mark the 40th anniversary of the Iranian on Judicial Cooperation and communication channels that prac- revolution. On 17 May 2021, Eurojust published a titioners can use in situations in which X invokes Art. 4(5) FD EAW, which report on the impact of COVID-19 on standard postal services are unavailable was also transposed into Dutch law. judicial cooperation in criminal matters. or unreliable. Hence, the report suggests Art. 4(5) FD EAW stipulates: “The ex- It was based on 128 concrete requests establishing a single electronic platform ecuting judicial authority may refuse to
eucrim 2 / 2021 | 103 NEWS – European Union execute the EAW if the requested person acts, the nature of the authority granting AG Kokott examined the question of has been finally judged by a third State remission, and the matter of whether the whether the discontinuance of criminal in respect of the same acts provided that, measures are based on policy considera- proceedings due to an amnesty is, de- where there has been sentence, the sen- tions, have no impact. spite the subsequent revocation of the tence has been served or is currently be- However, the executing court must amnesty, to be regarded as a final acquit- ing served or may no longer be executed strike a balance when exercising its dis- tal within the meaning of Art. 50 CFR. under the law of the sentencing coun- cretion on the refusal ground. Therefore, In this context, she noted that such a fi- try.” This optional ground for refusal the national courts must reconcile the nal decision must fulfil two conditions: is similar to the mandatory ground for prevention of impunity and combating It must definitively bar further pros- refusal in Art. 3(2) FD EAW, with the crime with ensuring legal certainty to- ecution; exception that the latter refers to a judg- wards the person concerned, including It must be based on a determination ment handed down by an EU Member the respect of final decisions from - for as to the merits of the case. State, not “by a third State.” eign public bodies. AG Kokott concluded that the second The referring Rechtbank Amsterdam hhPut in focus condition is not fulfilled if criminal pro- has doubts whether it has a margin of In the first two points, the CJEU fol- ceedings are discontinued on account discretion (although the Dutch law does lows the opinion of Advocate General of amnesty. In such situations, criminal not provide for one), and how it must (AG) Hogan, which was released on responsibility is generally not assessed. interpret the concept of “same acts”. 15 April 2021. The AG concluded, how- Accordingly, the ne bis in idem prin- Furthermore, the court is uncertain as re- ever, for the third question that the Ira- ciple under Art. 50 CFR does not pre- gards the scope of the “enforcement con- nian leniency measure is not covered by clude the issuance of an EAW where the dition” (i.e. “sentence has been served Art. 4(5) FD EAW. (TW) criminal proceedings have been discon- … or may no longer be executed…”). tinued on account of an amnesty without hhFindings of the CJEU AG: Amnesty Does Not Trigger an examination of the criminal respon- The CJEU ruled first that – contrary ne bis in idem Protection sibility of the persons concerned, but to Art. 3(2) – the executing court must In the framework of a reference for a where the decision to discontinue ceased have a margin of discretion if it applies preliminary ruling by a Slovak court, to have effect when the amnesty was re- the refusal ground based on Art. 4(5) FD the CJEU has to deal with the question voked. (TW) EAW. Otherwise an optional ground for whether the EU-wide ne bis in idem refusal would turn to a genuine obliga- principle precludes the issuance of a tion to refuse EAWs when the person European Arrest Warrant (EAW) when European Investigation Order had already been tried in a third country. an amnesty had been granted. Advocate Second, the CJEU clarified that the General (AG) Juliane Kokott delivered AG: Bulgaria Not Allowed to Issue EIOs concepts in Art. 4(5), such as “same her opinion in this case (C-203/20, AB Advocate General (AG) Michal Bobek acts”, must be interpreted in the same and Others) on 17 June 2021. recommends that the CJEU decide that way as those in Art. 3(2) FD EAW. In the case at issue, the defendants are Bulgarian authorities cannot issue Euro- Therefore, the concept of “same acts” accused of having kidnapped the son of pean Investigation Orders (EIOs) unless refers to the nature of the acts, encom- the then Slovak President in 1995 and Bulgaria introduces remedies against in- passing a set of concrete circumstances of having committed other offences in vestigative measures. which are inextricably linked together, this context. In 1998, the Slovak Prime In the case at issue (C-852/19 – Ivan irrespective of the legal classification Minister at the time issued an amnesty Gavanozov II), the referring Special- given to them or the legal interest pro- in this regard, which is why the criminal ised Criminal Court, Bulgaria, requests tected. proceedings that had been initiated were clarification on whether it can request Third, the judges in Luxembourg stat- initially discontinued. In 2017, however, searches and seizures and a witness ed that the enforcement condition is met the amnesty and thus also the legally hearing from Czechia on the basis of an in the present case. Emphasising that the binding discontinuation order were re- EIO, since Bulgarian law lacks any legal wording of Art. 4(5) FD EAW refers to voked by the National Council of Slo- remedy both against the issuance of the the “law of the sentencing country”, all vakia. On the occasion of considering EIO and the lawfulness of searches and leniency measures provided for in the the issuance of an EAW against one of seizures. The case concerns the interpre- sentencing third country should be rec- the accused, the question arised whether tation of Art. 14(1) of Directive 2014/41 ognised if they have the effect of ceasing such an EAW is compatible with the Un- regarding the European Investigation the imposition of the sanction. Circum- ion law prohibition of double prosecu- Order (EIO Directive), which requires stances such as the seriousness of the tion under Art. 50 CFR (ne bis in idem). “Member States to ensure that legal
104 | eucrim 2 / 2021 Cooperation remedies equivalent to those available in der which they were issued was itself of equivalence as stipulated in Art. 6(1) a similar domestic case, are applicable to incompatible. He refers to the ECtHR, lit. b) EIO Directive prohibits the issu- the investigative measures indicated in the which repeatedly found that the absence ance of an EIO by the public prosecutor EIO.” The question is how EIOs should of remedies against investigative meas- if national law requires a court order for be handled if the national law of the is- ures in Bulgaria, such as searches and the investigative measure that is subject suing State does not foresee any legal seizures, is in breach of the minimum of the EIO. The principle of equivalence remedy against (coercive) investigative standards of Art. 13 ECHR (the right to also impacts the question of competence measures during the investigative phase. an effective remedy). As long as the Bul- within the meaning of Art. 2 lit. c) EIO This question had basically already garian legislature does not remedy this Directive. It follows from the synopsis of been the subject of a first preliminary situation, Bulgaria is in constant breach both provisions that the judicial author- ruling procedure in the given crimi- of fundamental rights and can therefore ity (judge or public prosecutor) which, nal proceedings against Ivan Gavano- not take part in the mutual recognition within the meaning of Art. 2 lit. c) (i) zov who was prosecuted in Bulgaria for scheme. (TW) EIO Directive, “is competent in the case large-scale VAT fraud (Case C-324/17). concerned” is the one empowered under In contrast to the AG (eucrim 1/2019, AG: Prosecutor Has Limited national law to order, in a purely domes- 36–37), the CJEU did not analyse the Competence to Issue EIOs tic matter, the same measure that is the exact implications of Art. 14 of the Advocate General (AG) Manuel Cam- subject of the EIO whose adoption is at EIO Directive in this case but instead pos Sánchez-Bordona concluded that a issue. The AG argues in this context that confined itself to deciding on the man- public prosecutor is not entitled to issue the EIO – like the European Arrest War- ner in which the issuing Bulgarian au- a European Investigation Order (EIO) rant – does not allow the prosecution thority should complete the EIO form if the underlying investigative measure service to do something in cross-border (eucrim 3/2019, 179). (here: collection of traffic and location cases that it is prevented from doing at The AG has now concluded the fol- data associated with telecommunica- the domestic level. lowing: tions) can only be ordered by a court in The case will give the CJEU the op- In accordance with the wording, con- purely domestic cases. portunity to further refine its case law text, and overarching purpose of the EIO The case (C-724/19 – Spetsializirana on the competences of judicial authori- Directive, its Art. 14(1) is applicable to prokuratura v HP) concerns four identi- ties to issue EIOs. Recently, the CJEU legal remedies - not only in the execut- cal EIOs that were issued by a Bulgar- decided that the German public prosecu- ing but also in the issuing Member State; ian public prosecutor in the course of tor’s office is to be considered “issuing “Equivalence” within the meaning of criminal investigations against HP and judicial authority” in the EIO context Art. 14(1) is logically only acceptable if others for terrorist financing. The EIOs (eucrim 4/2020, 294). the situation in the issuing State is itself requested the collection of traffic and It is also noteworthy that AG Sánchez compatible with the minimum standards location data from electronic telecom- Bordona’s opinion comes shortly after the for protection of fundamental rights, as munications in Germany, Austria, Bel- opinion of his colleague Michal Bobek required by the CFR and the ECHR; gium and Sweden. After execution of who recommended in Case C-852/19 In accordance with ECtHR case law, the EIOs, the Bulgarian criminal court, (Ivan Gavanozov II) that the CJEU de- the issuing State must at least provide which had to examine the evidence, cast cide that Bulgarian authorities cannot for (1) the possibility to challenge the le- doubts on the lawfulness of the collec- issue EIOs unless Bulgaria introduces gality of the search and seizure at some tion because traffic and location data can remedies against investigative measures stage in the criminal proceedings, (2) the only be obtained on the basis of a court (previous news item). (TW) review and its initiation being confined order in domestic cases. However, the to the person concerned, and (3) the re- Bulgarian law implementing Directive view covering both the lawfulness of the 2014/41 regarding the European Inves- Law Enforcement Cooperation measure and the manner in which it was tigation Order (EIO Directive) simply carried out; provides that the prosecutor is the com- Organisations Reiterate their Demand If this minimum level of protection petent authority to issue EIOs in the pre- for a Fundamental Rights-Based cannot be ensured by national law, the trial phase whereas the court is the com- Approach to Future E-Evidence Law issuing Member State is not allowed to petent authority in the trial phase. Thus, European media and journalists, civil issue EIOs. frictions exist with the protection of fun- society groups, legal professional organ- In the latter context, AG Bobek ar- damental rights by the provisions in the isations and technology companies reit- gues that all issued acts will, by default, Bulgarian Criminal Procedure Code. erated their demand that the forthcoming be tainted because the legislation un- According to the AG, the principle EU legislation on “e-evidence”, which
eucrim 2 / 2021 | 105 NEWS – European Union will ease the cross-border gathering Investigation (FBI), the Dutch National and transfer of data for use in criminal Police, and the Swedish Police Author- Study Assesses Europol Reform proceedings, must include strong fun- ity, in cooperation with the US Drug Proposal In a study for the EP’s LIBE Commit- damental rights safeguards. In a letter Enforcement Administration (DEA) and tee, Niovi Vavoula and Valsamis Mit- dated 18 May 2021, they regret that the 16 other countries. Europol provided silegas from Queen Mary University negotiators in the trilogue have not ful- support by coordinating law enforce- of London assessed the Commission’s ly taken into account the concerns that ment authorities, sharing information, proposal on strengthening Europol’s were previously voiced by the organi- and bringing intelligence into ongoing mandate (eucrim 4/2020, 279). The study (published in May 2021) provides sations (eucrim 3/2020, 194; for the operations. By means of an encrypted the EP with background information on trilogue negotiations, eucrim 4/2020, device company called ANOM, run by Europol’s legal framework and a legal 295–296). They criticize, inter alia, the the FBI together with its partners, mes- analysis of the reform proposal, thus current provisions on direct cooperation sages discussing the criminal activities supporting the preparation of a forth- coming legislative report of the LIBE between law enforcement authorities of over 300 criminal syndicates oper- Committee on the revision of Euro and private companies holding data that ating in more than 100 countries could pol’s mandate. The study assesses the those authorities are seeking. This direct be obtained, leading to a series of large- nine thematic blocks that the proposal cooperation “poses serious risks of vio- scale law enforcement actions being deals with and makes several policy recommendations. lating human rights law by undermining executed across 16 countries. The authors stress that the reform pro- key fundamental rights principles, in- In 2020, law enforcement authorities, posal would transform the nature of cluding media freedom”. Key demands with the support of Europol, dismantled the agency and its relationship to the made by the stakeholders are: the EncroChat network that largely of- Member States, but a proper evalua- Greater and systematic involvement fered encrypted communication tools for tion is lacking. They submit, inter alia, that the planned enhanced coopera- of the judicial authorities in the state criminals. At the beginning of 2021, Eu- tion between Europol and private par- where the requested data is located; rojust and Europol helped infiltrate Sky ties will be a paradigm shift, which Notification to and active confirma- ECC – another service that offered en- requires detailed rules on the duties of tion by the judicial authorities in the ex- crypted communications among criminals the actors. Likewise, clear definitions ecuting state, whereby this should apply (eucrim 1/2021, 22–23). These police are necessary if Europol is enabled to process “large datasets” and carry out to the production of all data categories; activities triggered however discussion “digital forensics”. (TW) Including the protection of the im- whether the information gathered can be munities and privileges of professionals, used as evidence in trial. On 2 July 2021, e.g., doctors, lawyers and journalists; it was reported that the Regional Court cue activities, and improved cooperation Ensuring that production and preser- of Berlin did not accept data, which was with third countries. vation orders are subject to a prior ju- hacked in the EncroChat operation. This To better secure information ex- dicial authorization or validation by a decision deviates from previous Ger- change, the Regulation sets up an inde- court or an independent administrative man Higher Regional Court decisions in pendent Security Accreditation Board authority; other, similar cases. The difference to the composed of experts from Member Informing the affected person as soon ANOM operation is, however, that the States and from the Commission. It will as possible that the interference oc- police did not infiltrate a private network, assess the security of the relevant sys- curred. but operated it itself, thus entrapping tems and networks in which EUROSUR It is also recommended that a secure criminals who wanted to communicate data are exchanged. Furthermore, infor- data exchange system be set up to ensure undisturbed. (CR/TW) mation that needs to be included in the data protection and security. (TW) situation reports and in the various re- EUROSUR Upgrade ports has now been standardised. Trojan-Encrypted Device Reveals On 9 April 2021, the European Commis- In addition, the Regulation introduces Criminal Activities sion adopted Implementing Regulation monthly reports and case-to-case alerts As a result of one of the largest opera- (EU) 2021/581, laying down additional on any situation having an impact on tions against encrypted criminal activi- rules for the information exchange and the EU’s external borders. It also imple- ties at the beginning of June 2021, 800 cooperation between EU Member States ments additional reporting obligations suspects were arrested and over $48 within the European Border Surveil- on incidents and operations related to million in various worldwide curren- lance System (EUROSUR). New ele- search and rescue. Lastly, the Regulation cies and cryptocurrencies seized. Opera- ments include easier and more secure contains rules for establishing and shar- tion “TF Greenlight/Trojan Shield” was information exchange, more effective ing specific situational reports with third conducted by the US Federal Bureau of reporting, reporting on search and res- countries and third parties. (CR)
106 | eucrim 2 / 2021 Specific Areas of Crime
paid particular attention to freedom of expression during COVID-19 and to so-called SLAPPs (Strategic Lawsuits against Public Participation), which aim to intimidate and silence critics. The protection and promotion of children‘s rights remained high on the Commissioner‘s agenda. The report Council of Europe voices serious concerns about the po- Reported by Dr. András Csúri (AC) tential long-term adverse effects of the pandemic on children‘s health, safety, education, living conditions, and on the widening of existing inequalities. Foundations violence against women and the nega- Mijatović therefore calls on Member tive impact of ultra-conservative move- States to ensure that the best interests of ments on gender equality and on wom- the child are paramount in all measures Human Rights Issues en‘s access to sexual and reproductive taken related to COVID-19. health care. The Commissioner there- The report also covers the Commis- Human Rights Commissioner: fore calls on the Member States to ratify sioner‘s additional activities in areas Annual Activity Report and implement the Council of Europe such as artificial intelligence, the inde- On 21 April 2021, the Council of Eu- Convention on preventing and combat- pendence of the judiciary and the rule of rope Commissioner for Human Rights, ing violence against women and domes- law, data protection, and the protection Dunja Mijatović, published her 2020 tic violence (“the Istanbul Convention”). of the environment. annual activity report, which covers the They also need to address growing on- main problems, challenges, and oppor- line violence against women, including tunities European countries are facing sexist online hate speech, which has be- in the field of human rights. In the cur- come increasingly prevalent during the Specific Areas of Crime rent global context, the Commissioner COVID-19 pandemic. especially cautions that the COVID-19 The Commissioner also voiced con- Corruption pandemic is exacerbating long-standing cern over increasing pressure on hu- problems. The activity report addresses man rights defenders, in particular those GRECO: 2020 General Activity Report issues that are illustrative of the nega- working to combat Afrophobia, to pro- On 3 June 2021, GRECO published its tive trends currently being experienced tect the environment or to defend the 21st general activity report for the year in Europe, in particular. These issues rights of LGBTI persons. The activity 2020. The report finds that governments concern public health systems, mental report specifically highlights the serious must rigorously manage the corruption health care, women‘s rights, and the forms of racism and racial discrimina- risks that have arisen from the extraor- increasing pressure on human rights de- tion experienced by people of African dinary measures needed to combat the fenders. descent. COVID-19 epidemic, including the The report stresses that the health Disregard for the human rights of large influx of money into the economy crisis has aggravated long-neglected migrants and refugees, particularly in to mitigate the economic and social im- problems and inequalities in the pub- Italy, Greece, and the Western Balkans, pact of the epidemic. The report also lic health system. The Commissioner is another issue of concern – one which features an article by the EU Commis- therefore recommends building more in- causes thousands of avoidable deaths sioner for Justice Didier Reynders. clusive and resilient health systems and every year. Mijatović emphasised that GRECO stresses that governments making vaccines, testing, and treatment the crisis should not justify the cessation have had to introduce emergency mea- accessible to all. Mental health care also of rescue activities and pointed to Por- sures for more than a year; they have urgently needs to be reformed by accel- tugal as a positive example of a country led to concentration of powers and dero- erating the shift from institutional and that has taken steps to ensure that all mi- gations from fundamental rights. This coercive systems to community-based grants have access to social, health, and also entail certain risks of corruption, and recovery-oriented models. other rights during an epidemic. particularly in public procurement sys- In terms of women‘s rights, the pan- As regards media freedom and the tems, in terms of conflicts of interest and demic has highlighted the persistence of safety of journalists, the Commissioner lobbying, which should not be under
eucrim 2 / 2021 | 107 NEWS – Council of Europe estimated. In his introduction to the re- Money Laundering typology of ML/TF on the part of re- port, GRECO President Marin Mrčela porting entities; stresses that the creation of special in- PACE Resolution on Regarding FIUs: lack of autonomy and stitutions or the adoption of new laws Financial Intelligence Units independence of some FIUs; insufficient alone will not improve the fight against The Parliamentary Assembly of the Coun- staff and material resources (IT equipment corruption, but their effective imple- cil of Europe (PACE) adopted Resolution and tools, archiving systems); insufficient mentation will. He also calls on states 2365 (2021) and the accompanying Rec- technical capacity due to new challenges to follow closely the guidelines issued ommendation 2195 (2021), which car- (these challenges include the increas- by GRECO in 2020 (eucrim 2/2020, ries the title “Urgent need to strengthen ing demand for online services, Internet 116–117) to prevent corruption risks in financial intelligence units – Sharper tools payment systems, and financial technol- the context of the pandemic. The fight needed to improve confiscation of illegal ogy (“fintech”)); the complex nature of against corruption and the independ- assets.” The documents aim to promote criminal schemes; ML channels (includ- ence of the judiciary are interlinked and confiscation and AML/CFT measures ing cybercrime); equally important, underlining that in and, in particular, the development of Regarding law enforcement: inability some CoE Member States there are at- Financial Intelligence Units (FIUs). of law enforcement authorities to take tempts by other branches of power to The resolution notes that a number of prompt action when following up infor- attack, intimidate or subjugate the judi- different scandals, including recent leaks mation provided by FIUs in the course ciary. from the US Treasury Department’s Fi- of an investigation to ensure the freez- The pandemic has undeniably had nancial Crimes Enforcement Network ing and/or seizure of assets; inability of an impact on GRECO‘s work, as it (FinCEN), reveal that national and in- authorities to provide timely feedback to was not possible to carry out any on- ternational efforts to combat ML and TF FIUs on the quality of information dis- site visits in 2020. Nevertheless, the have fallen far short of their intended seminated and any actions taken. body adopted six evaluation reports. goals. According to the World Bank, Although FATF standards allow dif- The annual report reviews the meas- proceeds from organised crime and ferent organisational models for FIUs ures taken to prevent corruption in high-level corruption amount to trillions (administrative, law enforcement, and GRECO Member States in 2020 in the of US dollars annually worldwide. Only hybrid models), they must be given the 4th evaluation round, which covers a small percentage of law enforcement independence, powers, and human and parliamentarians, judges and prosecu- agencies succeed in seizing the proceeds. financial resources necessary to carry tors, and in the 5th evaluation round, The remaining amount ‒ which accumu- out their role effectively. The Assembly which focuses on central governments, lates in the hands of organised criminals, therefore calls on all CoE member states including the highest executive func- corrupt public officials, and terrorists ‒ and those states having observer or co- tions, and law enforcement agencies. poses a huge threat to democracy, the operative status with the organisation to Regarding GRECO Member States’ rule of law, and national security in all do the following: implementation efforts, the report stat- Member States. At the same time, the Strengthen their FIUs in accordance ed that, by the end of 2020, States had successful confiscation of illicit assets with the recommendations of FATF and fully implemented almost 40% of its offers a significant opportunity for states MONEYVAL, in particular by provid- recommendations to prevent corrup- to generate the resources needed to tack- ing them with sufficient powers, human tion in respect of MPs, judges and pros- le the social problems caused by organ- resources, IT tools, and training facili- ecutors. The recommendations with the ised crime, corruption, and terrorism. ties to enable them cope with new chal- lowest compliance were those issued in Urgent measures are therefore necessary lenges and the increasing complexity of respect of MPs (only 30% fully imple- to step up the tracing and confiscation of ML channels; mented), followed by judges (41%) and the proceeds of crime. Respect the autonomy of their coun- prosecutors (47%). Regarding the 5th FIUs face the following main prob- tries’ FIUs and refrain from political in- evaluation round specifically, GRECO lems, as identified in regular national terference in their work; importantly agreed to apply a slightly evaluations, in particular by FATF and Allow FIUs to suspend suspicious different compliance procedure, which MONEYVAL: transactions, both domestically and will give Member States time for in- Regarding reporting: uneven quality upon request of their foreign counter- depth reforms. The report also calls to and a high volume of reports submit- parts (in line with Art. 14 of the 2005 mind that, in 2020, Kazakhstan became ted by reporting entities (banks, etc.); Convention on Laundering, Search, Sei- the 50th member state to join GRECO, the release of instruments by reporting zure and Confiscation of the Proceeds with the EU now participating as an ob- entities before receiving feedback from from Crime and on the Financing of Ter- server. the FIUs; lack of knowledge about the rorism (the “Warsaw Convention”));
108 | eucrim 2 / 2021 Cooperation
Strengthen the capacity of their law of the 2005 CoE Convention on Laun- pean Commission’s proposals on a enforcement agencies (police, prosecu- dering, Search, Seizure and Confiscation more efficient cooperation to secure tors, and courts) by establishing special- of the Proceeds from Crime and on the and obtain e-evidence within the Euro- ised, well-trained, and adequately re- Financing of Terrorism (the “Warsaw pean Union (eucrim 1/2018, 35 and sourced working groups who cooperate Convention”), in particular the possi- previous eucrim issues for the discus- closely with FIUs, so that timely actions bility for FIUs to monitor and postpone sions and trilogue negotiations). The on financial intelligence information suspicious transactions. The Commit- negotiations at the CoE level have also transmitted by FIUs is taken; tee of Ministers also adopted important influenced the legislative dossier in Strengthen international cooperation amendments to MONEYVAL’s statute, the EU. between FIUs by making relevant legis- which extend its mandate to the fight The Second Additional Protocol will, lation and institutional structures inter- against proliferation financing of weap- inter alia, lay down the conditions by operable; ons of mass destruction, thereby align- means of which authorities of a State Reverse the burden of proof on the le- ing it with FATF recommendations and Party can directly cooperate with private gitimacy of assets by requiring relevant priorities. entities to receive domain registration persons to prove the legitimate origin of On average, MONEYVAL Mem- information or subscriber data. Further- suspected assets in their possession; ber States and jurisdictions continued more, the following enhanced coopera- Eliminate the “citizenship for invest- to show moderate effectiveness in their tion tools are provided: ment” schemes still being offered in efforts to combat AML/CFT in 2020. Expedited forms of cooperation be- some countries. Their average level of compliance is be- tween Parties for the disclosure of sub- low the satisfactory threshold. Best re- scriber information and traffic data; MONEYVAL: Annual Report for 2020 sults were achieved in risk assessment, Expedited cooperation and disclosure On 4 June 2021, MONEYVAL published international cooperation, and the use of in emergency situations; its annual report for 2020. Although the financial information. The areas involv- Additional tools for mutual assis- pandemic has had an impact on MON- ing financial sector supervision, private tance, such as videoconferencing of ex- EYVAL’s work, the body sought to en- sector compliance, transparency of legal perts and witnesses, and joint investiga- sure continuity in the evaluation process. entities, and ML convictions and con- tion teams. Last year, MONEYVAL played a pio- fiscations remain particularly weak. At The draft provides for several data neering role in carrying out evaluations the end of 2020, 16 of the 19 jurisdic- protection and other rule of law safe- by using virtual and hybrid tools. For tions evaluated by MONEYVAL in the guards. Parties to the Protocol may make the first time in the area of international 5th round of mutual evaluations became use of reservations and declarations if AML/CFT monitoring bodies, mutual subject to its enhanced follow-up proce- required under their domestic law. For evaluation reports were adopted by vir- dure since they had insufficiently com- example, they may require simultaneous tual means (Georgia and Slovakia), and plied with AML/TF standards. notification when an order is sent direct- on-site visits were carried out in a hybrid ly to a service provider in their territory format (to the Holy See and San Marino). to obtain subscriber information. MONEYVAL also held its first hybrid The project for drafting a second Ad- plenary meeting, with participants able to Cooperation ditional Protocol to the CoE 2001 Cy- attend either physically or virtually. bercrime Convention to enhance coop- The report highlights that criminals Law Enforcement Cooperation eration in the field of e-evidence looks around the world have taken advantage back on a long period of preparation. of the pandemic situation and found new CoE Committee Adopts Draft The first solution models have already ways to abuse financial systems by com- on E-Evidence Protocol been discussed in the CoE‘s working mitting cybercrimes, participating in On 28 May 2021, the CoE Cy- groups since 2012. In June 2017, the spot fraudulent investment schemes, and sell- light bercrime Convention Commit- T-CY agreed on the Terms of Reference ing counterfeit medicines. As reported tee (T-CY), which represents for the preparation of the Protocol and in previous eucrim issues, MONEYVAL the State Parties to the Budapest Con- negotiations started in September 2017. published a paper on the new threats and vention on Cybercrime, approved the Several rounds of consultations involv- vulnerabilities arising from COVID-19 draft for the Second Protocol to the ing civil stakeholders were held during related crimes and their impact on ML/ Convention. It will enhance coopera- the negotiations. A documentation of TF risks. tion and disclosure of electronic evi- the protocol negotiations is provided Throughout 2020, MONEYVAL was dence. In parallel, the EU is discussing for at the T-CY Committee website. also involved in promoting the benefits similar regulations following the Euro- (Thomas Wahl).
eucrim 2 / 2021 | 109 Articles Articles / Aufsätze
Fil Rouge This issue examines a series of legal issues related to the eration measures, such as European Investigation Orders, handling of COVID-19, in particular how authorities have leading to the conclusion that cooperation instruments and adapted laws and procedures to the challenges a pandemic Eurojust itself will need to adapt to the new situation by poses. The solutions found were neither easy to implement means of digitalisation and remote but secure communica- nor always legal, as described by our various authors. The tion – heralding in a new digital age for judicial cooperation. unprecedented crisis caused by the pandemic also trig- Fourth, Fortson describes the impact of COVID-19 on the gered a wave of robust public investment by the Member British legal system, reiterating that several hundred piec- States and the Union to save the economy, which lent itself es of legislation in which the word “coronavirus” appears to the accompanying risk of misuse and corruption. New in the title have been enacted since 2020. There is hardly measures are needed to mitigate this risk. any aspect of UK life that has not been subject to, or im- First, Tartaglia Polcini’s guest editorial calls to mind that pacted by, coronavirus legislation, which has been largely corruption is extremely flexible and easily adaptable to enforced by coercive criminal sanctions. He discusses this new scenarios, such as the COVID-19 pandemic. In times of legislation and its impact on the rule of law, on UK constitu- emergency and crisis, the risk of corruption increases and tional doctrines, on institutions, on the criminal courts, and has an even more debilitating effect. He stresses that the (above all) on individuals. G20 played a significant role in global anti-corruption efforts Fifth, Vavoula critically examines the recent limitations to and that its member countries committed to leading the in- data protection in Greece by exploring three instances ternational community by example and making a qualified in which the authorities adapted rules and practices to contribution to international anti-corruption objectives and COVID-19 but, in doing so, put significant pressure on pro- instruments. tection of personal data: (1) the processing of information Second, Salazar and I likewise address the heightened risk on individuals who obtain movement permits via SMS; of corruption and other criminal phenomena that accompa- (2) the tracking of COVID-19 patients; and (3) the guidelines ny the financial stimulus and economic recovery measures on management of the COVID-19 crisis by the Hellenic Data taken by governments in the wake of COVID-19. Interna- Protection Authority (DPA). She argues that the Greek re- tional organisations (United Nations, OECD) and European sponse to COVID-19 has been fraught with over-restrictive organisations (Council of Europe, European Union) have measures that go beyond what is necessary and propor- identified these risks, including the possible involvement of tionate in a democratic society. organised crime. We recommend taking timely and appro- Sixth, Kappler analyses how Germany developed legal re- priate countermeasures ranging from prevention to pros- sponses to the problems of uncertainty that the new virus ecution. We also draw attention to the EU’s new rule-of-law engendered. By giving examples, she analyses the mech- conditionality mechanism and argue that these measures anisms provided in German law to deal with these uncer- may ultimately have a positive long-term effect on transpar- tainties and how the COVID-19 pandemic has posed major ency and good governance. challenges to the law itself and to its application. Decision- Third, Radu and Ernest show that the global COVID-19 pan- making pressure was great in the face of uncertainty. She demic has had a far-reaching impact on the administration concludes, inter alia, that, while German law provides of public matters worldwide and generally on cooperation mechanisms enabling the legislature to act, judicial control among states. Based on the extensive experience of Euro- nevertheless remains necessary. just, they note that the crisis has seriously affected judicial cooperation in criminal matters. They outline, for instance, Peter-Jozsef Csonka, Deputy Director, DG JUST the pandemic’s effect on the execution of European Arrest of the European Commission, Member of the Warrants. There are similar impacts on other judicial coop- eucrim Editorial Board
110 | eucrim 2 / 2021 Corruption and Bribery in the Wake of the COVID-19 Pandemic Responses at the International and EU Levels
Peter Csonka and Lorenzo Salazar
This article describes the heightened risk of corruption and other criminal phenomena that accompany the financial stimulus and economic recovery measures taken by governments in the wake of the COVID-19 pandemic. International organisations (United Nations, OECD) and European organisations (Council of Europe, European Union) have identified these risks – including the possible involvement of organised crime – and recommended taking timely and appropriate countermeasures ranging from prevention to prosecution. The European Union has established a new conditionality mechanism for funding post-COVID-19 recovery: if a Member State does not respect the rule of law, this could undermine the principle of sound financial manage- ment, which may ultimately lead to the denial of Union funds. These measures should ideally have a positive long-term effect on transparency and good governance.
With the end to the lockdowns nearing in most Member States, lines. This is why identifying and addressing corruption risks we seem to be slowly overcoming the most critical period of will become increasingly important in order to protect trust the COVID-19 pandemic in the European Union. However, in public institutions and businesses, and to preserve public we are probably still far from having fully assessed its me- confidence in the ability of governments to mobilise an effec- dium- and long-term consequences, not only in terms of hu- tive crisis response in the future. Since March 2020, all major man suffering ‒ which matters most ‒ but also in terms of legal uncertainty and economic disruption on a global scale. multilateral fora have aimed to draw attention to the issue of corruption risks in the health sector, both in relation to malfea- This unprecedented and prolonged situation of emergency, sance, in general, and to vaccines, in particular. With different with its destabilising effect on our social fabric and govern- emphases, these activities have attempted to identify the spe- mental structures, has created a favorable environment for cific risks of corruption in the health sector and to indicate the criminal activities and, specifically, for corruption and bribery. tools and strategies to counter or at least mitigate them. Therefore, responses to this crisis from international organisa- tions, states, and private entities should also include mecha- In particular, in October 2020, Ghada Fathi Waly, Director- nisms for preventing, detecting, and prosecuting corruption General/Executive Director of the United Nations Office on and bribery. This is all the more urgent since governments Drugs and Crime (UNODC) – the world’s largest agency for across the world keep injecting hundreds of billions of euros combating drugs trafficking, organised crime and corruption to counter the negative effects of the pandemic and support – sounded the alarm already. At the meeting of the UN coun- investment. Recent information from media and open sources tries who are party to the Palermo Convention against Trans- confirm the concrete risk of corrupt behaviours related to the national Organised Crime (UNTOC) in Vienna, the UN high pandemic,1 often in relation to public procurement contracts.2 official remarked:6 “The placing of fake COVID vaccines on the online market is the most serious criminal threat today. […] Falsified COVID vaccines I. Preventing and Combating COVID-19-Related will soon be a lethal reality and governments need to be prepared to counter this threat.” Corruption – Actions at the International Level The Secretary-General of the United Nations, António Gu- The international community and international and multilater- terres, made similar comments at the same event.7 UNODC al organisations/bodies engaged in the prevention of and fight also presented a policy guidance document for the States Par- against corruption, as well as leading international law en- ties to the UN Convention Against Corruption (UNCAC) that forcement institutions (e.g., Europol3 and Interpol), civil soci- aims at preventing corruption “in the allocation and distribu- ety organisations (e.g., Transparency International4), and sec- tion of emergency economic rescue packages in the context toral studies,5 have clearly depicted the situation along these and aftermath of the Covid-19 pandemic.”8
eucrim 2 / 2021 | 111 Legal effects of COVID-19
Within the Organisation for Economic Cooperation and De- At the European level, the Council of Europe’s Group of velopment (OECD), the Working Group on Bribery in Interna- States against Corruption (GRECO) adopted guidelines on tional Business Transactions (WGB), the monitoring body of how to prevent corruption in the context of the health emer- the 1997 OECD anti-bribery convention, underlined in Spring gency caused by the COVID-19 pandemic.15 The guidelines 2020 that some corruption risks may already be present, due to underline that the COVID-19 outbreak increases corruption the actions put in place to mitigate the health and economic cri- risks, with the health sector being specifically exposed, in par- sis generated by the pandemic.9 Other major risks may emerge ticular because of surges in the immediate need for medical in the medium and long terms, in parallel with the full imple- supplies and the simplification of procurement rules, - over mentation of robust policies that aim to remedy the economic crowded medical facilities, and overburdened medical staff. consequences of COVID-19. Against this background, the While acknowledging that corrupt practices may indifferently related risks for citizens’ trust in public institutions and busi- affect the public or the private sectors, including but not lim- ness are readily apparent. Another closely-related field is the ited to the procurement system, the guidelines identify brib- counterfeiting of medical products. Noteworthy in this context ery in medical-related services, corruption in new product re- is a special joint publication by the OECD and the EU Intel- search and development (including conflicts of interest and the lectual Property Office (EUIPO) that is devoted entirely to the role of lobbying), and COVID-19-specific fraud related to the counterfeiting of medicines.10 In a similar vein, the Council of marketing of counterfeit medical products as the main typolo- the European Union recently called on Member States to in- gies of corruption in the health sector. GRECO stresses that tensify their efforts against COVID-19-related counterfeiting transparency in the public sector is the key means of prevent- and piracy, particularly given the connection of these crimes ing corruption, whatever form it takes. with international economic and financial crime and the in- volvement of organised criminal groups.11 This stocktaking exercise may help identify existing legal differences between II. Protecting the EU Budget from Corruption – The EU’s the Member States’ criminal law frameworks, possible crimi- Conditionality Mechanism and the Role of the EPPO nal law and prosecution gaps, and legal and practical obstacles to cross-border cooperation within the EU. The Financial Ac- As governments seek to boost post-pandemic economic re- tion Task Force (FATF) – the global money laundering and covery by investing public funds, including loans obtained terrorist financing watchdog active in the OECD Headquarters through the financial markets, the need to ensure transpar- – also produced a statement and a paper on the impact of the ency and to protect these funds from corruption commensu- COVID-19 crisis as regards the monitoring of illicit financial rately increases. It was in this spirit that the European Union flows and the combating of money laundering and terrorist adopted a new mechanism of conditionality16 for the protec- financing.12 tion of its next multi-annual budget (2021–2027)17 and its re- covery funding (also known under the heading “NextGenera- In light of the growing international attention paid to health tionEU”),18 which together represent a massive €1,8 trillion sector-related corruption in the course of the pandemic, the public funding source. This new mechanism, much disputed G20 Anti-Corruption Working Group (ACWG) decided to col- by some governments,19 ties Union funding to respect for the lect national experiences in response to this threat and drew rule of law, including, inter alia, the requirement of effective up a Compendium of Good Practices13 offering, among other and independent judicial authorities. Regulation 2020/2092 things, an overview of corruption risk hypotheses specifically specifically demands that Member States have a well-working related to vaccines.14 The adoption of High Level Principles preventive and enforcement system against fraud and corrup- (HLP) by the ACWG is expected by the end of the Italian tion. Recital 7 of said Regulation establishes a ground-break- Presidency. The current draft provides that countries’ efforts ing new principle: to tackle corruption in emergencies should be designed and “Whenever Member States implement the Union budget, including implemented along three building blocks: resources allocated through the European Union Recovery Instru- “Preparedness”, focusing on the planning and training for ment established pursuant to Council Regulation (EU) 2020/2094, and through loans and other instruments guaranteed by the Union future events; budget, and whatever method of implementation they use, respect for “Mitigation”, including measures to prevent or reduce the the rule of law is an essential precondition for compliance with the impact and consequences of corruption and related crimes principles of sound financial management enshrined in Article 317 of the Treaty on the Functioning of the European Union (TFEU).”20 when a crisis or emergency occurs; “Response and recovery”, including anti-corruption meas- The Regulation further clarifies in Recital 8: ures to ensure a prompt and smooth cooperation among “Sound financial management can only be ensured by Member authorities, and a clear set of recovery rules and practices States if public authorities act in accordance with the law, if cases of for effective restoration. fraud, including tax fraud, tax evasion, corruption, conflict of inter-
112 | eucrim 2 / 2021 Corruption and Bribery in the Wake of the COVID-19 Pandemic
est or other breaches of the law are effectively pursued by investiga- protect EU funds from criminals in the common interest of EU tive and prosecution services […]” citizens. Its launch on 1 June 2021 not only clearly represents a major step forward in the system of judicial protection of Art. 4 of Regulation 2020/2092 confirms that a breach of the Union funds but also opens up a new phase in the history of rule of law may, inter alia, concern the lack of “prevention and European integration. sanctioning of fraud, including tax fraud, corruption or other breaches of Union law relating to the implementation of the Union budget or to the protection of the financial interests of III. Concluding Remarks the Union, and the imposition of effective and dissuasive pen- alties on recipients by national courts or by administrative au- In conclusion, two points appear to emerge from this brief thorities.” In addition, the breach may be triggered by the lack analysis: of “effective and timely cooperation with OLAF and, subject The pandemic has laid bare a series of new phenomena that to the participation of the Member State concerned, with the profoundly destabilised our economies and affected human European Public Prosecutor’s Office (EPPO) in their investi- behavior, including the ways in which people commit crime. gations or prosecutions pursuant to the applicable Union acts While the urgency of stimulating the economy convinced in accordance with the principle of sincere cooperation.” governments to take decisive action and invest public funds in sectors that have suffered, e.g., transport, tourism, or the This new “conditionality” mechanism highlights the impor- service industry, the availability of public funding simulta- tance of the EPPO21 in the overall system of protection of the neously increased the risk of misuse, including fraud and Union’s financial interests, which is required by the Lisbon corruption, particularly in public procurement procedures. Treaty22 itself. It acknowledges the EPPO as the ultimate – and To counter such risks, governments and international bod- much needed – prosecution body at the EU level, responsible ies have committed to enhancing control and enforcement for overseeing and enhancing the chain of national authorities procedures, ranging from measures ensuring transparency and Union agencies (i.e., OLAF, Europol, and Eurojust) active to better law enforcement. Examples abound that show in this area. As the Union’s independent prosecution body, the how a crisis usually leads to long-term societal changes, EPPO will undertake to investigate, prosecute, and bring to and sometimes the long-term benefits may even outweigh judgment cases of fraud, corruption, and other illegal activities the initial economic costs. that affect the Union’s financial interests in accordance with A crisis is always an opportunity for governments to review the EPPO Regulation,23 tackling criminal offences that are de- their policies and adapt them to the new reality. It remains fined by national laws implementing the provisions of the “PIF to be seen whether COVID-19 has provided such an op- Directive.”24 The core mission of this new European body is to portunity.
1 See, inter alia: eucrim 2 / 2021 | 113 Legal effects of COVID-19 15 GRECO, “Corruption Risks and Useful Legal References in the context of COVID-19,” 15 April 2020 The Impact of COVID-19 on Judicial Cooperation in Criminal Matters The Eurojust Experience Mariana Radu and Mário Ernest The global COVID-19 pandemic has had a far-reaching impact on the administration of public matters worldwide and on cooperation among states in general. It has also seriously impacted judicial cooperation in criminal matters. In this note, we briefly outline the direct effect the pandemic has had on judicial cooperation in criminal matters as experienced in Eurojust casework. From the early stages of the COVID-19 pandemic, Euro- issues were repercussions of the measures implemented by just casework revealed that practitioners from the Member the Member States to combat the spread of COVID-19, and States faced a number of difficulties when dealing with cases they affected all instruments commonly applied in the field involving judicial cooperation in criminal matters. These of judicial cooperation. The following provides a summary 114 | eucrim 2 / 2021 The Impact of COVID-19 on Judicial Cooperation in Criminal Matters of an analysis of cases registered at Eurojust since the be- remained functional and, in the majority of cases, the surren- ginning of the pandemic.1 der of the requested person was carried out after a new date was agreed upon. Within the framework of the European Arrest Warrant (EAW), Eurojust cases can be divided into three main groups, depend- Abrupt changes in the everyday work of judicial authorities ing on which provision of the EAW Framework Decision is ap- throughout the Member States due to COVID-19 measures, plied. More specifically, these cases concerned the application of including the termination of public services and limited office Arts. 15(2), 17, and 23 of the EAW Framework Decision: hours, triggered doubts regarding the feasibility of the Europe- an Investigation Order/Mutual Legal Assistance requests (EIO/ Pandemic-related measures and overall uncertainty over the MLA) execution. In the majority of these cases, the requests functioning of judicial systems in the Member States resulted from practitioners concerned clarifications as to whether and in executing authorities needing to more frequently contact how it would be possible for the executing authority to con- issuing authorities in order to request supplementary infor- duct witness hearings (including hearings by videoconference) mation (Art. 15(2)). The requests made by the executing au- or house searches. Although the execution of EIOs/MLAs was thorities most often concerned details relating to the pandemic still possible, in some instances the Member States were only situation in the issuing state and its impact on the surrender willing to do so in urgent and extraordinary cases. procedure, as well as measures applied in the issuing state re- garding possible quarantine and health care available to the Transmission of an EIO/MLA/freezing order and its follow- requested person following his/her surrender. up were the most frequent requests for assistance addressed to Eurojust during the pandemic. The practitioners needed a The cases registered with Eurojust demonstrated that the exe- reliable communication channel for a situation in which stand- cuting authorities were already aware of the obstacles existing ard means or channels of communication were not available due to the pandemic and that they sought to inform the issu- or were unreliable. From this perspective, one way forward ing authorities about the fact that deadlines stipulated by the could be the establishment of a single electronic platform to EAW Framework Decision would not be able to be observed exchange the most frequently applied instruments of judicial (Art. 17). In several cases, the executing authorities explained cooperation, including access for Eurojust. This would be in that the workload of judicial authorities, in combination with line with preparations for the implementation of the e-Evi- the extraordinary situation, would result in failure to make a dence Digital Exchange System (e-EDES), which is part of final decision on an EAW on time. the Digital Criminal Justice project launched by the European Commission.2 The analysed cases so far have demonstrated The relevant casework showed that the pandemic, particularly that practitioners can only benefit from Eurojust’s access to in its initial stages, had a serious impact on the final stage of this electronic system and thus facilitate its ability to properly the EAW procedure – the physical transfer of the requested fulfil its tasks. person to the issuing Member State. Against the background of transfers not being possible, the issuing and executing au- Over the last decade, Joint Investigation Teams (JITs) became thorities commenced negotiations, with the aim of finding a a frequently used judicial cooperation tool among the states. new surrender date, following the rules laid down in Art. 23 of Efficient cooperation of the JIT parties requires frequent com- the EAW Framework Decision. However, these negotiations munication and regular meetings in order for them to agree on were often cumbersome and exposed a lack of common EU a common investigation strategy and to plan joint action days. interpretation on the applicability of Art. 23(3) – postponed The measures related to COVID-19 heavily affected this part surrender due to force majeure – and Art. 23(4) – postponed of JIT cooperation and resulted in delays in planning and ex- surrender on humanitarian grounds; another problematic is- ecuting common JIT activities. The meetings of JIT members sue was that a common understanding is lacking of what the that had been scheduled in the early stages of the pandemic relationship is between these two paragraphs of Art. 23. were cancelled or postponed for the same reason. Uncertainties regarding pandemic-related measures led to The pandemic also impacted the work of Eurojust itself. Re- additional questions as to whether Art. 23 provides an ap- quests to organise coordination meetings were addressed to propriate legal framework for keeping the requested person Eurojust from the outset of the pandemic, as the national au- in detention during these conditions and as to the application thorities needed to proceed with their investigations, discover of Art. 23(5), which foresees that the requested person be re- the status of linked investigations in other states, and plan co- leased from custody within 10 days of the postponed surrender ordinated investigative actions. Despite the COVID-19 pan- date. Despite the preliminary struggles, the EAW mechanism demic restrictions and the variety of measures implemented, eucrim 2 / 2021 | 115 Legal effects of COVID-19 Eurojust remained fully operational. Immediately after the In addition to these activities and analyses of pandemic-related outbreak of the pandemic, Eurojust rapidly transitioned to re- casework, Eurojust has been contributing to the Joint Euro- mote working in order to ensure the continuation of its core just–EJN compilation on the impact of COVID-19 on judicial business. As a result, Eurojust services, such as coordination cooperation in criminal matters.4 This compilation combines meetings and coordination centres, were successfully held information from the Member States in response to question- using a secure online communication platform when neces- naires launched by the Council of the European Union, Euro- sary. Specifically, in 2020, Eurojust organised 371 coordina- just, and the European Judicial Network on pandemic-related tion meetings (242 by videoconference), 19 coordinated action measures having an impact on judicial cooperation. It is regu- days, and provided support to 74 newly established JITs.3 larly updated and circulated among practitioners.5 1 For further details, see the Eurojust Casework Report “The Impact Mariana Radu of COVID-19 on Judicial Cooperation in Criminal Matters, May 2021, available at: Adjusting to COVID-19 under the English Criminal Justice System A Practitioner’s Perspective Rudi Fortson QC From early 2020, the four nations of the United Kingdom (England, Wales, Scotland and Northern Ireland) enacted (at the time of writing) some 920 pieces of legislation in which the word “coronavirus” appears in the title. Nearly all of it is secondary legis- lation and much of it amends earlier versions to reflect changing conditions. There is scarcely any aspect of UK life that has not been subject to, or impacted by, coronavirus legislation that has been enforced, in large part, by coercive criminal sanctions albeit tempered by a significant degree of administrative, policing and prosecutorial discretion. This article discusses that legislation, its impact on the rule of law, on UK constitutional doctrines, on institutions, on the criminal courts, and (above all) on persons whose daily life was severely impacted by COVID-19 legislation. 116 | eucrim 2 / 2021 Adjusting to COVID-19 under the English Criminal Justice System I. COVID-19 and the Notion of “Law” (Control of Disease) Act (“PHA”). The latter was significantly amended by the Health and Social Care Act 2008, which in- The general public in the UK have been on a steep learning serted into the PHA wide-ranging “Public Health Protection” curve as they had to assimilate legislation (that mandates com- measures (sections 45A to 45T). The Government’s aim was pliance) together with accompanying Government ‘Guidance’ to take an ‘all hazards’ approach to health as reflected in the (that does not have the force of law unless a legislative meas- World Health Organization’s International Health Regulations ure states otherwise). Unsurprisingly, the tendency has been to 2005 (which came into effect in 2007) and to address threats conflate those sources, resulting in widespread confusion over such as SARS6.7 actual legal requirements.1 Section 45C(1) of the PHA provides that “[t]he appropriate UK coronavirus legislation has served to demonstrate that Minister may by regulations make provision for the purpose “criminalisation” is a nuanced concept, and that the notion of of preventing, protecting against, controlling or providing a “lawfulness” may say as much about conduct that is permitted public health response to the incidence or spread of infection as it may about conduct that is prohibited. European lawyers or contamination in England and Wales (whether from risks may think the latter statement to be self-evident (applying the originating there or elsewhere)”. The Minister may impose or notion that actions are “legal” if they are expressly authorised enable the imposition of “restrictions or requirements on or in in law). By contrast, a view, once widely held by English ju- relation to persons, things or premises in the event of, or in re- rists, was that “England…is not a country where everything is sponse to, a threat to public health” (s. 45C(3)). Section 45F(2) forbidden except what is expressly permitted: it is a country stipulates that regulations may (among other things), (a) con- where everything is permitted except what is expressly for- fer functions on local authorities and other persons; (b) create bidden” (Sir Robert Megarry V-C).2 This statement was cited offences; (c) enable a court to order a person convicted of any by Lord Sales JSC3 (Justice of the UK Supreme Court) who such offence to take or pay for remedial action in appropriate opined in Regina v Copeland that “[t]here is no other sensible circumstances; and (d) enact statutory measures for the execu- criterion of lawfulness to be applied:”4 tion and enforcement of restrictions and requirements imposed …the general requirement that the criminal law should be clear and by or under the regulations. give fair notice to an individual of the boundaries of what he may do without attracting criminal liability supports this interpretation: “a Such regulations must be laid before Parliament but this is sub- person should not be penalised except under clear law”, sometimes called the “principle against doubtful penalisation.”5 ject to an “emergency procedure” by which an instrument con- taining health protection measures may be made provided that The traditional English notion of ‘lawfulness’ was arguably it declares that “the person making it is of the opinion that, by outdated before the pandemic, but coronavirus legislation that reason of urgency, it is necessary to make the order without a enacted prohibitions, restrictions and permissions to regulate draft being [laid before Parliament] and approved” (s.45R(2)). the actions of millions of people in the UK has challenged that A number of COVID-19 regulations have been made in this notion to the limit. way and brought into force. Shortly thereafter, they were laid before Parliament (and presumably approved).8 Measures that are introduced on the basis of a state of emergency chal- II. COVID-19 Legislation and Penalising Conduct lenge fundamental legal and constitutional principles.9 Certain COVID-19 regulations required (among other things) speci- 1. Enacting COVID-19 laws fied premises and business to close or to provide a restricted service; and/or mandated that “no person may leave the place On 25 March 2020, the Coronavirus Act 2020 received Royal where they are living without reasonable excuse”10 (subject to Assent. It enacted (among many other provisions) a power to certain exceptions); and/or that “no person may participate in require information relating to food supply chains (section 25); a gathering in a public place of more than [x] people” (save in a power to suspend port operations (section 50); powers relating specified circumstances).11 to potentially infectious persons (section 51); powers to issue di- rections relating to events, gatherings and premises (section 52); and the use of video and audio technology in criminal and civil 2. Criminalisation and penalisation proceedings (sections 53–57; and schedules 23–25). By section 45F(5) PHA, “health protection regulations” may However, the majority of coronavirus regulations, which have not create an offence triable on indictment (that is to say, tri- impacted on the movement and actions of persons, were not able in a Crown Court) or punishable with imprisonment. made under the 2020 Act, but under the 1984 Public Health However, the regulations could – and did – create ‘summary eucrim 2 / 2021 | 117 Legal effects of COVID-19 offences’ (that is to say, triable in a Magistrates’ Court) pun- have offensive weapons with them in public places and thus, ishable by way of a fine or a “fixed penalty notice”. The aim making a judgment on the merits of a given case, is relatively of the latter was clearly intended to avoid giving offenders a straightforward. By contrast, the COVID-19 legislation im- criminal record for one or more breaches of the regulations, posed obligations on millions of people to desist from doing but this required police officers to correctly identify an actual much that they would normally do (or even be expected to breach – and this they could only do if the law was clear and if do).22 Accordingly, those who construed the ‘rules’ restric- penalisation was not doubtful. tively were often ready to accuse others of ‘breaking’ them when, in fact, the legal position was unclear. Sometimes public In practice, penalisation often occupied grey areas of the coro- reaction to a perceived breach, ‘boiled over’. At a time when navirus regulations. Thus, when regulations specified that per- national travelling restrictions were in place, it was reported sons (and groups of persons) were not permitted to “mingle”,12 that the Prime Minister’s then Chief Adviser (Dominic Cum- it was left to individuals and to the police to work out in their mings) travelled from London to Durham having gone to work minds what this expression meant.13 Insofar as the regulations at Downing Street (after his wife became ill with COVID-19 prohibited certain conduct in the absence of a “reasonable ex- symptoms) rather than isolating at home for 14 days. It was re- cuse” (e.g., leaving home or travelling outside the UK, or fail- ported further that, whilst staying away from his home in Lon- ing to comply with a restriction14) the limits of that defence don, the Adviser made a journey to Barnard Castle. The Direc- were illustrated (to some extent) by situations, particularised tor of Public Prosecutions (DPP) decided not to refer the case in the regulations, each of which constituted a “reasonable ex- to the police for investigation of a potential breach the regula- cuse”. However, much was left to personal judgment.15 tions23 and/or a potential offence of public nuisance, contrary to common law. A member of the public unsuccessfully sought Although a statutory defence of “reasonable excuse” might be the permission of the Administrative Court to challenge that thought to offend the ‘principle against doubtful penalisation’, decision by way of judicial review (R (on the application of) it is available under English law in respect of many statutory Redston v DPP24). The judgment focused on the question of offences.16 In some contexts (such as restricting the right of whether or not the DPP had power to refer (or even to ‘nudge’) persons to gather to protest) the defence of “reasonable ex- a case to the police for investigation. The Court concluded that cuse” may be the means by which the legislation in question the DPP had no such power because “such power or discre- satisfies Arts. 10 and 11 of the ECHR (and Arts. 10 and 11 of tion would run counter to the distinction between investiga- the UK Human Rights Act 1998) – the rights to freedom of tive responsibility and prosecutorial responsibility which is so expression and to freedom of assembly/association.17 clearly expressed in the [Prosecution of Offences Act 1985]”. The Court considered that even a ‘nudge’ would represent Occasionally, one open-textured expression in a regulation “an impermissible trespass over the investigation/prosecution was linked with another, thereby compounding problems of boundary” (per Lady Justice Carr DBE). interpretation and comprehension. For example, there had been a statutory requirement on persons (in specified areas of England) not to “leave or be outside of the place where they 4. Miscarriages of justice are living without reasonable excuse”18 save when “reason- ably necessary…to take exercise outside”.19 Although Gov- In May 2021, the Crown Prosecution Service published its ernment guidance stated that “exercise” “should be limited ‘review findings’ for prosecutions under the Coronavirus Act to once per day, and you should not travel outside your local 2020 and the Health Protection Regulations between 26 March area”, this was not incorporated within the regulations (and 2020 and 31 March 2021.25 Of 1,821 finalised cases, 549 cas- thus the guidance lacked the force of law) and there was no es were identified by prosecutors as having been incorrectly legal definition of “local area”.20 Two women, who were fined charged and these were either withdrawn or set aside. Most £200 each when they drove five miles for a walk, had their cases (1,551) were brought under the Regulations. The major- fixed penalties withdrawn.21 In those circumstances, and given ity of those cases (82%: 1,272) had been correctly charged. Of the actual law that applied, the final outcome was inevitable. the 270 cases charged under the Coronavirus Act 2020, all had been incorrectly charged and thus failed. The UK Parliamen- tary Joint Committee on Human Rights remarked that: 3. Public confidence in the law and law enforcement It is astonishing that the Coronavirus Act is still being misunder- stood and wrongly applied by police to such an extent that every A defence of “reasonable excuse” usually gives rise to few single criminal charge brought under the Act has been brought incorrectly. While the coronavirus Regulations have changed fre- problems in practice (e.g. legislation relating to offensive quently, the Act has not, and there is no reason for such mistakes weapons and firearms). This may be because few persons to continue.26 118 | eucrim 2 / 2021 Adjusting to COVID-19 under the English Criminal Justice System III. The Impact of COVID-19 on Traditional UK Doctrines in the proceedings in that way and the parties to the proceed- and Processes – the Example of Open Justice ings had been given the opportunity to make representations.38 Where the defendant was under 18 years of age (or the court Some COVID-19 restrictions threatened to compromise cer- decided to continue to deal with the case as if the defendant tain well-established doctrines, practices and processes that had not attained that age) the “youth offending team” had to be are the essence of the UK constitution. Many aspects of UK given the opportunity to make representations before proceed- democracy are enshrined in law and they may also be support- ing by way of a live link.39 ed or circumscribed by the criminal law. Quite apart from legal rules pertaining to freedom of expression27 and the right to A live-link direction could only be given once the court had protest, there are (for example) rules that oblige certain meet- considered “all the circumstances of the case”40 including (but ings to be held (for example, certain company meetings).28 not limited to) the factors set out in modified s. 51(7), CJA 2003.41 Section 51(4B) and schd. 3A, CJA 2003, placed some The criminal courts operate under the principle of ‘open jus- limitations and prohibitions on the use of live links.42 When tice’. Except in rare situations, criminal proceedings are con- evidence was given by live link, it was open to the judge to ducted in open court. Typically, all the participants will be give the jury (if there was one) “such direction as he thinks physically present in the courtroom. Members of the public necessary to ensure that the jury gives the same weight to the and the press may occupy a dedicated part of the courtroom to evidence as if it had been given by the witness in the court- observe the proceedings. Ensuring that proceedings are com- room or other place where the proceedings are held.”43 pliant with the ECHR/the Human Rights Act 199829 is of para- mount importance. Accordingly, the Coronavirus Act 2020 Powers under the Crime and Disorder Act 1998 were also made extensive provision for conducting criminal proceedings modified by the Coronavirus Act 202044 to encompass prelimi- in ways that would respect public health whilst maintaining nary hearings, sentencing and enforcement hearings45 so that the traditional concepts of open justice and due process. As a such hearings could be conducted by way of an audio or video recent report stressed: live link if it was in the interests of justice to do so.46 [Fairness] in criminal proceedings can be undermined if new tech- nologies are deployed in ways that do not take into account the spe- 30 cific needs of the defence in the digital era. 2. Conducting and managing remote hearings Some statutory COVID-19 measures (see, for example, 1 and 2 below) have extended or modified pre-existing procedures As a result of the statutory modifications mentioned above, for conducting criminal proceedings whilst ‘achieving best remote court hearings emerged in two forms. The first was an evidence’31 in those proceedings. all-virtual hearing, and the second was a hybrid hearing. Dif- ferent judges adopted slightly different practices. Some judges were located away from a court centre when conducting (for 1. Live audio and live video links example) a preliminary hearing, but other judges attended the centre in person. As for the former, it must be remembered Provisions enacted under the Criminal Justice Act (CJA) 2003 that some judges were especially vulnerable to contracting (for example, the provision of “live links”32 in criminal pro- COVID-19 and thus they required a degree of ‘shielding’. ceedings: section 51) were modified so that a person (other The hybrid version involved key participants attending court than a member of a jury33) “may, if the court so directs, take premises (typically, defendants, advocates, judges, and jurors part in eligible criminal proceedings through (a) a live audio (if any)) but evidence might be given by live link. In some cas- link, or (b) a live video link”.34 Such proceedings included es, the advocates were required to ‘self-isolate’ (having tested a summary trial or a trial on indictment, and an appeal to the positive for COVID-19) but they were able to participate via Court of Appeal (Criminal Division).35 A “live audio link” a live link. meant a “live telephone link or other arrangement” which ena- bled a participant to hear and to be heard by every other person Conducting contested trials on indictment (with a jury) under “taking part in the proceedings who are not in the same loca- strict COVID-19 conditions (‘lockdown’) was often a chal- tion”.36 Similarly, a “live video link” meant “a live television lenging experience, especially in cases involving two or more link or other arrangement” which enabled a participant and defendants charged jointly. Courts (and their equipment) were “all other persons taking part in the proceedings” to see and not designed with a pandemic in mind. Participants had to be hear that person.37 The court could not give an audio/video kept ‘socially distanced’ from each other, and this included the live-link direction unless the court was satisfied that it was “in lawyers, jurors, and defendants. Some court ‘docks’ were not the interests of justice” for the person concerned to take part of sufficient size to seat two or more defendants in a ‘socially eucrim 2 / 2021 | 119 Legal effects of COVID-19 distanced’ way (e.g. 2 metres apart) and thus a trial might re- 51. In normal circumstances a judge can see and hear everything quire two courts to conduct it. Each court had to be equipped that is going on in court. The judge can see who is present, and whether a witness who is giving live evidence has been present in with audio and video live links to ensure that each participant court observing and listening to the evidence of other witnesses. was in sight and hearing of each other (except where a witness The judge can see whether someone is attempting to influence, had been granted ‘special measures’ that entitled him or her coach or intimidate a witness whilst they are giving evidence. The judge can immediately see…that a person sitting in court who is not to give evidence out of sight of one or more persons or class a journalist appears to be tweeting on their mobile phone without of persons). The two courts had to be in communication with first obtaining permission. That a judge can see and hear everything each other and be in a position to receive and to transmit video that happens in court enables the judge to maintain order, discipline and control over what is done in court, and thus to maintain the and audio data to other locations (e.g. where a witness was dignity and the integrity of the proceedings as a whole. This control located). extends to the recording of images and sounds of what goes on in court and what is then used outside court. Static cameras in a courtroom, which were designed to focus 52. Once live streaming or any other form of live transmission takes place, however, the Court’s ability to maintain control is substan- on (e.g. the judge), might not capture a ‘head-and-shoulders’ tially diminished, in particular where information is disseminated image of a witness or to stream an image of the dock in the outside the jurisdiction, as happened in this case. The opportunity neighbouring court. In an English criminal trial, the demean- for misuse (via social media for example) is correspondingly en- hanced, with the risk that public trust and confidence in the judici- our of persons (especially witnesses) is regarded – mistakenly ary and in the justice system will be undermined. In these circum- 47 or otherwise – as a matter of considerable importance. stances, it is critical that those who have the conduct of proceedings should understand the legal framework within which those proceed- The use of live-link technology in court proceedings requires ings are conducted, and that the Court is able to trust legal repre- sentatives to take the necessary steps to ensure that the orders made a stable and reliable connection that may be required to stream by the Courts are obeyed. data for many hours. Sound and video quality is obviously im- portant. But the live streaming and broadcasting of data must also be secure and free from interception or other misuse. IV. The Future Even before the pandemic, data ‘platforms’ (approved by the Ministry of Justice) were in existence (and updated) to achieve There is no doubt that much has been learned by policy makers and to maintain data protection standards as well as traditional and by legal practitioners from the COVID-19 experience in procedural requirements (for example, the unauthorised pho- the conduct of criminal proceedings. Case management hear- tographing or audio recording of criminal proceedings). ings and uncontentious matters are ideally suited to virtual/ remote hearings. However, receiving and giving evidence re- It has been pointed out (fairly) by Sorabji and Vaughan that motely has significant drawbacks – especially if the technol- “the senior judiciary relied predominately on soft law in the ogy does not replicate (as close as possible) the experience of form of judicial guidance and protocols to manage the sys- giving evidence in the normal way. Interrupted transmission, tem”48 (that is to say, the criminal justice system) with the aim poor sound quality, or delays in transmission (between ques- of maintaining individual and public health whilst endeavour- tion and answer) and poor video quality, are not conducive ing to proceed with court business in accordance with substan- (it is submitted) to receiving the best evidence. Gestures and tive and procedural law).49 Similarly, local court centres took facial expressions made by a witness over a video link (espe- steps to manage their premises and caseload, and they adjusted cially in close-up) may or may not be distracting, and those certain in-court practices to promote the health and wellbeing expressions may or may not be meaningful of the reliability of court users. and credibility of that witness’ testimony. Further research into evidence that is given by live link is arguably warranted. However, slip-ups (hopefully exceedingly rare) did occur. In The COVID-19 experience also reinforces the correctness of the civil case of Gubarev and Anor v Orbis Business Intel- Sir Robert Megarry’s statement that the criminal law “should ligence Ltd and Anor,50 a ‘Zoom’ link to the live streaming of be clear and give fair notice to an individual of the bounda- court proceedings had mistakenly been provided to (among ries of what he may do without attracting criminal liability”. others) certain persons connected with the claimants. The ob- servations of Dame Victoria Sharp P (giving the judgment of the court) powerfully illustrate some of the difficulties con- fronting judges and practitioners when a hybrid hearing is be- 1 For example, when ‘lockdown’ eased on the 17th May 2021 (under ing conducted: “step 3” of the UK Government’s “roadmap”), politicians and com- mentators opined whether it would be permissible for persons to “hug” 50. …whether a court hearing is a remote hearing or a hybrid hear- each other and perhaps to “shake hands”. In fact, the regulations never ing…or a conventional face to face hearing, it must be conducted in expressly forbade the shaking of hands or even hugging within permitted a way that is as close as possible to the pre-pandemic norm. groups of persons. 120 | eucrim 2 / 2021 Adjusting to COVID-19 under the English Criminal Justice System 2 Malone v Metropolitan Police Comr [1979] Ch 344, at 357. 3 In support of a majority decision of the UK Supreme Court in R v Cope- land [2020] UKSC 8. Rudi Fortson QC 4 R v Copeland [2020] UKSC 8, at [28]. Barrister, 25 Bedford Row, London; Visiting 5 Citing Bennion, Statutory Interpretation, 7th ed. 2017, section 27.1. 6 Severe Acute Respiratory Syndrome. Professor of Law, Queen Mary University 7 See the Explanatory Notes to the Health and Social Care Act 2008. of London 8 See on the application of Dolan and others [2020] EWCA Civ 1605, at [86]. 9 For invaluable discussions on this topic, see V. Mitsilegas, ‘Respond- ing to Covid-19: Surveillance, Trust and the Rule of Law’, Responding to Covid-19 blog (Queen Mary University of London – Criminal Justice Centre), 26 May 2020, eucrim 2 / 2021 | 121 Legal effects of COVID-19 proceedings effectively if he or she takes part in accordance with the witnesses’, [1994] Crim.L.R., 628–644; S. Phillimore, ‘Credibility versus direction.” demeanour – the impact of remote court hearings’, (2020) 50 Fam. Law, 42 See s. 51(4B) and schedule 3A of the CJA 2003 (as modified by the CA 971–972; Q. Amna, ‘Relying on Demeanour Evidence to Assess Credibility 2020). during Trial – A Critical Examination’ (January 1, 2014), SSRN: The COVID-19 Pandemic as a Stress Test on the Right to Protection of Personal Data The Case of Greece Niovi Vavoula This article aims to critically examine the limitations to the fundamental right of personal data protection in Greece by exploring three instances in which the rules and practices have put the protection of personal data under significant pres- sure: (1) the processing of information on individuals who obtain movement permits via SMS; (2) the tracking of COVID-19 patients; and (3) the guidelines on the management of the COVID-19 crisis by the Hellenic Data Protection Authority (DPA). The article argues that the Greek response to COVID-19 has been fraught with over-restrictive measures that go beyond what is necessary and proportionate in a democratic society. In particular, the requirement of obtaining movement permits via SMS, which has been inserted through soft law, thus without parliamentary scrutiny, has relativized data protection and has lowered individuals’ resistance to future surveillance practices marking everyday movement as a matter of interest to the state. In relation to contact tracing the article demonstrates that an excessive retention period of patients’ data is fore- seen. As for the DPA’s guidelines on the processing of personal data within the framework of COVID-19 it is concluded that they have provided an unclear and overly permissible interpretation of the GDPR rules in favour of the state. I. Introduction have conceded that, in the context of the temporariness of the limitations and the public health interest at stake, the extreme The current COVID-19 pandemic is affecting our lives in an limitations to these rights did not affect Greek democracy and unprecedented manner and constitutes an intense crash test of the rule of law.2 a series of fundamental rights.1 During the first few months of the pandemic, Greece emerged as the EU’s poster child in This article aims to critically examine in depth the limitations tackling the spread of COVID-19. The Greek response en- to the fundamental right of personal data protection, especially tailed significant limitations on the exercise of fundamental as enshrined in Art. 8 of the Charter and in Art. 9A of the Greek rights, aiming in particular at the freedom of movement and Constitution.3 Personal data protection has received relatively assembly, economic freedom, and the exercise of freedom of modest attention in comparison to other fundamental rights.4 religion. Concerns were voiced, particularly when the freedom To this end, the article explores three instances in which the of assembly and religion were in question. Although trust in Greek rules and practice put the protection of personal data political institutions may have been shaken, legal scholars under significant pressure: 122 | eucrim 2 / 2021 The COVID-19 Pandemic as a Stress Test on the Right to Protection of Personal Data The processing of information on individuals who obtain Member State has used this anti-COVID strategy, with the movement permits via SMS; exception of Cyprus, where the rules were similar.6 In Janu- The tracking of COVID-19 patients; ary 2021, a cautious easing of the second lockdown was at- The guidelines on the management of the COVID-19 crisis tempted and retail stores reopened, whereby consumers could by the Hellenic Data Protection Authority (DPA). only shop for two hours per day by making an appointment via SMS and showing a written confirmation of the electronic pur- chase, if applicable. In April 2021, stores reopened once again II. Movement Permits via SMS: The Relativisation following the same rules, but by 15 May 2021 all requirements of the Right to Personal Data Protection regarding movement permits were lifted. Throughout the pandemic, Greece has reacted swiftly by im- Notably, although an abundant amount of ministerial decisions posing restrictions on freedom of movement and other meas- has been adopted in the context of the pandemic, the rules on ures of social distancing. In particular, the Greek government the processing of personal data in the context of movement first issued a ban on all unnecessary traffic from23 March permits have not been laid down in law. Instead, the General 2020, which lasted until 4 May 2020. Similar restrictions on Secretariat for Civil Protection merely released a “data protec- movement of varying degrees and intensity were further im- tion policy” online, in the form of “soft law,”7 without prior posed during the second and third waves of the pandemic on scrutiny, consultation, or transparency. The government opted 1 November 2020 and continue to apply with less intensity to for this approach, despite the possible implications it posed for date. Restrictions on freedom of movement have gone hand- the legality of data processing and the impact for individuals in-hand with efforts to monitor those on the move, as well as whose information is processed. The policy is written in Greek their personal associations if they have become infected. In a only, which does not enable foreigners living in the country to unique approach to handling the pandemic, during periods of obtain information as to how their personal data are processed. lockdown and until 15 May 2021, anyone on the move fall- The policy explicitly proscribes centralised storage and thus ing within one of the six expressly listed exceptions has been data must be deleted immediately. However, data can be an- required to carry an identification document and a movement onymised for statistical use. Therefore, after an individual permit. They could be obtained by filling out an online form, would receive an SMS message with a movement permit, his/ or – certainly the most popular option ‒ by sending a mobile her data are either deleted or anonymised. message to a dedicated number operated by the General Sec- retariat of Civil Protection (Γενική Γραμματεία Πολιτικής One could argue that, because of the limited timeframe dur- Προστασίας), a public law body that belongs to the Ministry ing which the measure applied and the deletion of data af- of Citizen Protection. To obtain permission via SMS, the in- ter issuance of the movement permit, there was no need for dividual was required to provide his/her name and surname, further formalisation of the rules. Perhaps this explains why residence address, and a code number corresponding to the the data protection policy in relation to the movement per- purpose of movement. In the event of a random check by the mits was suspended between the end of the first lockdown police, individuals were required to show their movement per- and the beginning of the second one and was located online mit; otherwise a fine could be imposed. Possible exceptions only throughout the duration of the measures. This policy were the following: visits to pharmacy or doctor following an has raised significant concerns, however, due to the use of appointment (code number 1); supermarket/minimarket (code legal language that may not understandable and accessible number 2); bank (code number 3); to help someone at home to the layperson, the lack of reference that sensitive data are (code number 4); attending a funeral (code number 5); and collected (as one of the exceptions permitting movement is a physical exercise outdoors (code number 6).5 doctor’s appointment), the confusion as to whether the infor- mation submitted by individuals could be submitted to third After sending the initial SMS, individuals immediately re- parties and, in general, as to who the recipients of the infor- ceived an SMS with their movement permit. This did not ap- mation contained in an SMS are.8 Furthermore, Art. 13 of ply to employees or self-employed persons who had to carry Regulation (EU) 2016/679 (General Data Protection Regu- specific paperwork with them. During periods when Greece lation ‒ GDPR) requires that persons whose personal data imposed restrictions on movement after a specific hour in the are processed must be informed about the purposes of the evening, all code numbers, except 1 and 6 (only in relation to data processing and the details of the data protection officer, taking out a pet), did not permit movement. Otherwise, there which are missing from the Greek policy.9 were no other restrictions as to how many movement permits a person may request per day, as long as the general lockdown More worryingly, in November 2020, it was made known that rules were followed. This is a novelty of Greece; no other EU an automatic decision refusing a movement permit is possible eucrim 2 / 2021 | 123 Legal effects of COVID-19 in cases of an increased number of messages coming from cer- ent application models that have been proposed over the past tain geographical areas. This automated individual decision- several months, and a contact tracing app is still in the devel- making significantly affects the legal position of individuals. opment phase.12 According to Art. 22(2)(b) of the GDPR, such automated decision-making may take place inter alia if authorised by In the meantime, contact tracing takes place through tradi- a Member State. However, safeguards must be laid down in tional means of collection of patient data. Such collection has such cases, at least “the right to obtain human intervention on been mandated by acts of legislative content. In particular, the part of the controller, to express his or her point of view Art. 5 of the Αct of Legislative Content (Πράξη Νομοθετικού and to contest the decision.” This has not been the case here. Περιεχομένου) of 14 March 202013 mandated the collection of personal data of potentially or actually infected persons by Lastly, doubts as to whether SMS data are anonymised or re- the Hellenic National Public Health Organisation (Εθνικός main personalised have also been voiced; whereas it may be Οργανισμός Δημόσιας Υγείας, Ε.Ο.Δ.Υ), a private law entity, useful for the administration to know how many people send with the aim of sharing it with the General Secretariat for Civil an SMS invoking a particular exception as a reason for move- Protection.14 According to Art. 5(1) of the Act, the data shared ment, it is worrying that, in the case of protest that took place include the person’s name, gender, age, contact number, full in front of the American Embassy in November 2020, it be- address, information on whether he/she has been hospitalised came known to the authorities which reason of movement the and, if so, in which hospital, and, where relevant, the place of demonstration participants had used to obtain their movement self-isolation. The data are pseudo-anonymised and its trans- permit.10 This is particularly worrying if one considers the fact mission encrypted; processing of the data is limited to the pur- that, even if data are anonymised for statistical purposes, it is poses of coordination between the Hellenic National Public still unclear how it was possible to isolate that data by proxim- Health Organisation and the General Secretariat for Civil Pro- ity to a specific location. tection for the effective fight of COVID-19. In terms of the data retention period, Art. 5(2) of the Act foresees the storage Overall, this lack of transparency and clarity in the elabora- of collected data for the duration of the urgent measures. tion of the data protection policy raises significant issues of unlawfulness and circumvention of the legislative process, In addition, Art. 29 of the Act of Legislative Content of even though criticism against the content of the data protec- 30 March 2020 established a National Registry of COVID-19 tion policy was raised during the first wave of the pandemic. patients, which regulates the processing of personal data and By elaborating the data protection policy through soft law, the individual rights.15 The Ministry of Health issued a Ministe- importance of the rights to the protection of personal data has rial Decision on 14 April 2020 for the implementation of said been significantly downgraded, the right has essentially been registry. According to Decision No. 2650 of 10 April 2020 of relativized, and a negative precedent for normalised, unlawful the Ministers of Health and Digital Governance that was is- processing of personal data en masse was thus created. Look- sued later, the data are to be kept almost indefinitely, as they ing at the bigger picture, the use of movement permits may can be retained for 20 years after the individual’s death.16 The signify a detrimental mind shift that citizens’ legitimate, eve- lack of proportionality of this provision, which is in line with ryday activities are also of interest to the state, thus increas- the overall restrictive nature of measures adopted by the Greek ing the social acceptance of other, more intrusive surveillance government in handling the pandemic, is striking.17 It may be practices in the future. recalled that, in a series of judgments, both the Court of Jus- tice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) clarified that the temporal character III. Proportionality Concerns through the Tracking of data retention is an important element for the proportional- of COVID-19 Patients ity test. In S and Marper v. the United Kingdom, the ECtHR emphasised that the indefinite retention of sensitive personal The analysis above showcases how technological means have data, irrespective of their further use, may have a direct impact been a crucial component in efforts to contain the spread of on the applicants’ private life interests, including their stigma- the virus and protect public health, raising significant privacy tisation.18 Furthermore, in Digital Rights Ireland, the CJEU and data protection concerns. Nowhere has the evolution of opined that the retention period must be based on objective technology been more relevant in responding to COVID-19 criteria in order to ensure that it is limited to what is strictly than in so-called “exit strategies,” particularly apps and other necessary.19 tools to trace and track the contacts of persons suspected of or diagnosed with COVID-19.11 At the time of writing, the Greek In the present case, the long retention period is equated with government was still in the process of evaluating the differ- indefinite retention, which, in keeping with the relevant case 124 | eucrim 2 / 2021 The COVID-19 Pandemic as a Stress Test on the Right to Protection of Personal Data law, is disproportionate, particularly when the COVID-19 pan- In addition, the DPA states a series of applicable legal bases demic ends. Importantly, the retained data include information for the processing of personal data for COVID-19 related pur- on the health of individuals, which qualifies as a special cat- poses,25 provided that basic principles are met and that rele- egory of personal data according to Art. 9 of the GDPR. It is vant substantive and procedural safeguards and conditions for true that Art. 9 of the GDPR enables the processing of health lawful processing are ensured.26 The DPA further emphasises data for various reasons, including reasons of public interest, the processing of personal data by the private sector within but the end of the pandemic and thus the state of emergency the framework of employment relationships. It opined that, in- will not justify the extensive retention period in any way. As sofar as the GDPR applies, employers are entitled to process for the contact tracing of individuals, this process is carried personal data in order to protect the health of employees. As out by a designated centre situated in police headquarters. The a result, the following practices are explicitly allowed: meas- process involves asking questions regarding the recent con- uring the body temperature of incoming individuals; submit- tacts of persons infected or suspected of being infected with ting questionnaires regarding the health status of employees or the coronavirus. In order for public bodies (especially hospi- their relatives; requesting travel history; informing other em- tals and clinics) to assess who constitutes a close contact and ployees of the fact that a fellow employee has been infected; therefore must be subjected to a specific set of instructions due exposing the employee’s identity. to the high risk of contracting COVID-19, the Hellenic Na- tional Public Health Organisation (EODY) circulated detailed It is noteworthy that, in view of the “critical and unprecedent- guidelines specifying the relevant criteria about close famil- ed time,” the DPA stressed that no policy choice could be ex- ial and personal relations and associations.20 These guidelines cluded from scrutiny outright. However, the key data protec- have also been made publicly available on the dedicated web- tion principles, as enshrined in Arts. 5 and 6 of the GDPR, are site of EODY, without elaboration in an administrative act. applicable. Thus, the DPA rightly noted that extensive collec- tion of personal data resulting in profiling of employees does not comply with the principle of proportionality.27 As has been IV. Hellenic Data Protection Authority to the Rescue? pointed out, the guidelines are not particularly clear, and, in comparison to guidelines provided by national DPAs in other A third example of how the right to the protection of personal EU Member States, the Greek approach is somewhat overly data has taken a significant hit during the management of permissive.28 Another example of the ambivalent language COVID-19 derives from the Hellenic Data Protection Au- used by the Greek DPA is a guideline according to which the thority (DPA). On 18 March 2020, the DPA issued guidelines transfer of information relating to the health status of individu- on the processing of personal data within the framework of als is prohibited “where it is creating a climate of prejudice COVID-19, particularly as regards the applicability of the and stigma, while it is also likely to have a preventative effect GDPR.21 The DPA is an independent authority entrusted with with regard to complying with the measures announced by the various tasks in accordance with Arts. 51–59 of the GDPR, competent public authorities undermining eventually their ef- including the issuance of opinions on its own initiative or fectiveness.”29 As a result, the DPA’s view seems to have been upon request on any issue related to the protection of per- influenced by the state of emergency and may have a consid- sonal data.22 From time to time, the DPA issues soft law in erable impact on the rights to respect for private life and the the form of guidelines suggesting solutions to various prob- protection of personal data. lems arising from the advancement of new technologies. In this context, the DPA COVID-19 guidelines focus on the use of personal data including health data by both public and pri- V. Concluding Remarks vate bodies, especially in the employment field and in rela- tion to media reporting and coverage. The DPA has provided The current COVID-19 pandemic is not only a health, eco- a definition of health-related data, which includes naming nomic, and social challenge but also a major challenge for or identifying a data subject as a patient, staying at home national constitutions, international law, and the EU legal or- due to illness, and finding signs of illness based on clinical der. This article aimed to highlight how management of the symptoms (cough, nasal discharge, body temperature higher pandemic has put the right to the protection of personal data than normal, etc.).23 According to the DPA, such informa- to the test, even though Greece remains one of the few EU tion falls within the realm of the GDPR only when processed Member States in which a contact tracing app has not become wholly or partly by automated means and not when provided operational yet. Although the debate about the constitutional- orally.24 Therefore, the DPA guidelines are far from techni- ity of harsh restrictions of rights due to the priority of public cal in nature and provide an interpretation of the GDPR in health interests and the exceptional character of the measures numerous respects. holds merit,30 the present analysis has highlighted the sharp eucrim 2 / 2021 | 125 Legal effects of COVID-19 contrast between the constitutional protection of the right to Perspective on Contact Tracing” (2020) 41(3) Contemporary Security data protection and the elaboration of rules that affect indi- Policy, 478. For a comparative study, see EU Agency for Fundamental Rights, “Coronavirus Pandemic in the EU – Fundamental Rights Implica- viduals on a daily basis outside the legislative procedure. Fur- tions: With a Focus on Contact-Tracing Apps” (April 2020). thermore, despite the exceptional character of the limitations, 12 See European Commission, “Mobile contact tracing apps in EU Mem- certain (disproportionate) rules or the restrictive interpretation ber States” 126 | eucrim 2 / 2021 Dealing with Uncertainties in the Pandemic Dealing with Uncertainties in the Pandemic A German Perspective Katrin Kappler The uncertainties experienced throughout the COVID-19 pandemic have posed major challenges both to the law itself and to its application. Prognostic uncertainties and gaps in knowledge about the new virus, on the one hand, and the need to act quickly, on the other, confronted the legislator and administrative courts with a challenge that could not be fully met by applying the hitherto existing Infection Protection Act. This contribution examines the legal responses to dealing with such uncertainties and illustrates them with examples of how the pandemic was handled in Germany. The focus is on aspects of legislation, followed by an analysis of the possibilities for judicial review of legislative decisions taken under uncertainty. I. Introductory Remarks may require the incorporation of expert knowledge.5 This is evident, for example, in the case of new technologies. More than a year ago, the global pandemic caused by the in- fectious coronavirus disease (COVID-19) also made its way to Germany. Since the first case became known on 27 January 1. Uncertainties in infectious disease law 2020, we have been struggling with the permissible legal re- sponses to the pandemic, even though we were well prepared Infectious disease law is another example of a legal area in from a legal point of view: Germany had a legal framework for which decisions have to be made under uncertainty.6 Dur- infectious diseases even before the outbreak of the COVID-19 ing a pandemic, science, politics, the media, and the law are pandemic, with the Infection Protection Act (Infektionss- confronted with a high degree of non-knowledge.7 Moreo- chutzgesetz) at its heart. This law enables the health authorities ver, experiential knowledge from previous pandemics is only to adopt measures to combat the spread of a disease. It formed of limited use in addressing these knowledge gaps, because the legal basis by which to authorise the measures taken dur- each virus can be unique and therefore raises a specific set of ing the pandemic. It turned out, however, that this initial legal questions.8 The COVID-19 pandemic has confirmed this once basis was effective for a transitional period only. As the pan- again because additional and new knowledge gaps emerged. demic continued to last longer, changes were needed to put Some of the questions could only be answered in the course of the measures, which deeply interfere with fundamental rights, the pandemic; others are still open or at least controversial.9 At on a sound, longer-term legal basis. In the process, prognostic the beginning of the pandemic, for example, it was not clear decisions had to be made that were influenced by scientific un- beyond reasonable doubt whether wearing masks mandatorily certainties concerning this new type of virus. This article aims would help contain the pandemic. In the meantime, compul- to examine the mechanisms that German law provides to deal sory mask wearing has been recognised as a central means of with these uncertainties. combating the pandemic. Unanswered questions still remain, however, about transmission of the virus, protection against the virus, and duration of the disease, for which there is not yet II. Knowledge Deficits as a Key Challenge – Legal sufficient scientifically validated data due to the novelty of the Responses virus.10 At the same time, there is enormous pressure to act, be- cause important legal interests can be affected by a pandemic and In the state apparatus, knowledge1 has the function of guiding the overload of the health system is a persistent concern.11 state action.2 Especially in many areas of administrative law, decisions must be made under uncertainty.3 At least two dif- ferent dimensions of uncertainty must be differentiated here: 2. The role of the Robert Koch Institute as an authority First, prognostic legal decisions are always subject to episte- for knowledge processing and knowledge bundling mological uncertainties.4 This is true even for a police danger prognosis in a simple case, since a certain degree of uncer- Knowledge infrastructures have been created in response to tainty always remains. Second, legal decisions on legal facts knowledge gaps and the complexity of processing knowl- eucrim 2 / 2021 | 127 Legal effects of COVID-19 edge.12 One example is the Robert Koch Institute (RKI). The This has also been clearly demonstrated throughout the pan- Institute acts as a federal authority of the German Federal demic. From the very beginning, the political and legal debate Ministry of Health at the intersection of science and politics. was supplemented with findings from the sciences, especially Thus, the Institute has the task of developing and conducting the knowledge and findings of epidemiologists. epidemiological and laboratory-based analyses as well as re- search on the cause, diagnosis, and prevention of infectious Due to the novelty of the virus, however, the scientific com- diseases.13 The Institute usually acts informatively and does munity was also confronted with great uncertainties, as men- not itself impose any rules. For example, the RKI issues re- tioned above. This is reflected in legislation. The law has an ports on national infection statistics and the epidemiological answer to such uncertainties: the legislature’s prerogative of situation on a daily basis. In addition, advice is published, e.g., assessment.19 German law generally confers on the legislator a treatment options or hygiene instructions.14 However, it is pos- broad prerogative of assessment but, at the same time, requires sible that other decision-makers link legal consequences to the that this prerogative of assessment is supported by knowl- Institute’s assessments, a classic example being the coronavi- edge.20 In other words, the extent of the prerogative depends rus risk areas. Classification as a risk area is made after joint on the existing state of knowledge. If there is little knowledge analysis and decision by the Federal Ministry of Health, the of an issue or if the findings are controversial, the prerogative Federal Foreign Office, and the Federal Ministry of the Inte- of assessment is broad. This has also been emphasised by the rior. The classification of risk areas has an impact on persons courts during the pandemic. They regularly clarified that leg- entering Germany: if they have stayed in such a risk area at islative decisions can only be reviewed to a limited extent.21 any time within the last 10 days prior to entry, they are obliged According to the case law of the Federal Constitutional Court, to isolate themselves in accordance with the respective quar- the creative leeway is only exceeded if a consideration is so antine regulations of the responsible Länder. obviously flawed that it cannot reasonably form a basis for the measures taken.22 It turned out that the expertise of the RKI has been of crucial im- portance for the legislator as well as for the courts. It is regularly consulted as a source. The preparation of the state of knowledge III. Uncertainties in Pandemic Legislation and assessment of the risk situation facilitates the work in legis- lation and judicial proceedings. This is illustrated, for instance, Against this background, the following section analyses to by §§28a and 28b, which were inserted into the Infection Pro- what extent these principles have been adhered to in the cur- tection Act (further details below) and which link the adoption rent situation and whether they have served their purpose. Af- of protective measures against the spread of the coronavirus ter a brief introduction to the relevant provisions of the Infec- disease to the published infection figures of the RKI. tion Protection Act, two examples will illustrate how difficult it is to deal with knowledge in the legislative process and how far the legislature’s prerogative of assessment extends. As a 3. Suitability (Geeignetheit) and prerogative result, I will show that the prerogative of assessment is the of assessment (Einschätzungsprärogative) central instrument for responding to the issue of uncertainty. A central aspect of the constitutionality of a law is the ques- tion of proportionality,15 namely whether the law pursues a 1. Legal bases of infectious disease law legitimate purpose and whether it is suitable, necessary, and appropriate to achieve its purpose. During the pandemic, the The infectious disease law includes all regulations that govern suitability of measures has been an ongoing issue. An objec- the state’s handling of infectious diseases. As mentioned in tive standard applies when assessing suitability.16 It is there- the introduction, the core of this legal area in Germany is the fore not a question of whether a public authority considers a Infection Protection Act (Infektionsschutzgesetz). The Infec- measure to be suitable but rather whether a measure is actually tion Protection Act regulates measures to prevent and control suitable.17 This is the case if it promotes the legitimate purpose infectious diseases, including COVID-19. It is applicable ir- at which the measure is aimed. It is not necessary that the goal respective of whether an epidemic or pandemic is involved. is achieved.18 Throughout the COVID-19 pandemic, the provisions in the section on the control of an infectious disease have been key. The suitability test is also the gateway for non-law expertise. This section operates with a general clause (Generalklausel) Thus, the necessity requirement is always a gateway for in- and standard powers (Standardermächtigungen). General terdisciplinary cooperation between lawyers and experts from clauses determine general requirements for a large number of other disciplines, e.g., from the fields of economics or science. measures that have not yet been specified in detail.23 Standard 128 | eucrim 2 / 2021 Dealing with Uncertainties in the Pandemic powers set conditions for a specific measure, such as the iso- 3. First example: link to incidence rates in the Infection lation (Absonderung) of sick persons in §30 of the Infection Protection Act Protection Act. The general clause of §28 was particularly rel- evant. It stipulates that, if an infectious disease is detected, the With the incorporation of §28a and §28b into the Infection competent authority “may take all necessary protective meas- Protection Act, incidence thresholds have also been added to ures,” i.e., it is granted discretionary powers. On the basis of the law. They are linked to the R-values published by the RKI. this provision, various measures were taken in practice, e.g., This once again demonstrates the importance of a special- bans on leaving or contact restrictions. ised scientific institute when drafting legislation. The link to incidence rates (Inzidenzwerte) has been criticised in many re- spects.33 I argue that the link to incidence rates is not generally 2. Amendments to the Infection Protection Act impermissible, but the current regulations are poorly designed and unclear and therefore unconstitutional. The general clause can be used by the authorities if no fur- 24 ther specific regulations are available to the legislature. Due a) Content of the regulations and link to different to the gaps in knowledge already described, it was necessary incidence rates to base many – even far-reaching – measures on the general clause at the beginning of the pandemic. As the pandemic pro- §28a (3) of the Infection Protection Act states that if a threshold gressed, legal scholars increasingly criticised that the fact that of more than 35 new infections per 100,000 inhabitants within the general clause was no longer sufficient for the profound in- seven days is exceeded, “broadly based protective measures” terference with fundamental rights.25 Courts have also shared (breit angelegte Schutzmaßnahmen) are to be taken in order to these arguments.26 rapidly reduce the incidence of infection. If a threshold rate of more than 50 new infections per 100,000 inhabitants within Therefore, the general clause in §28 of the Infection Protection seven days is exceeded throughout the country, nationally co- Act has already been amended twice during the COVID-19 ordinated “comprehensive protective measures” (umfassende pandemic: In March 2020, it was supplemented by very ex- Schutzmaßnahmen) must be taken that can be expected to ef- tensive fundamental rights interventions, such as the curfew.27 fectively contain the incidence of infection. With the reform in With the amendment in November 2020, the legislator has mid-April 2021, §28b was inserted into the Infection Protec- largely included the measures previously taken in the context tion Act, which also refers to the incidence rate as a measure of the COVID-19 pandemic in §28a of the Infection Protec- of frequency. However, two things are noteworthy here: First, tion Act. In so doing, it identified them as mere examples of the standard in §28b is exclusively linked to incidence rate, measures that could be enacted under the general clause of unlike §28a, which also includes the functionality of the health §28(1) of the Infection Protection Act. As a result, the In- care system and the protection of life and health as substan- fection Protection Act continues to deviate from the regula- tial requirements. Secondly, the norm is self-executing. This tory technique that is customary in security law, i.e., defin- means that the measure comes into force without any inter- ing standard measures as independent authorising elements.28 vening state act, e.g., without the enactment of a law or a legal Some legal scholars argue that this exemplary enumeration is ordinance. insufficient because the measures are still not linked to further- 29 reaching elements. These considerations probably stem from b) Suitability of the link to incidence rates security law doctrine, which establishes that more restrictive prerequisites are needed for intervention-intensive measures; Legal scholars are in debate over whether it makes sense to one example is that, instead of a danger, an immediate dan- use incidence rate in law at all. With regard to the legitimate ger is required in general police law for flat searches.30 In this purpose of including them, it was pointed out that relieving context, however, it should be called to mind that even the the burden on hospitals and intensive care units must be con- standard powers in the Infection Protection Act are not al- sidered. Scientific findings indicate that COVID patients are ways subject to stricter criteria. Furthermore, the legislature getting younger and need to be treated there longer.34 Even if has a prerogative to assess the regulatory system, which has the inclusion of incidence rates in the law is considered rea- not been exceeded here.31 The new provision in §28a of the sonable, this raises the question of which incidence thresholds Infection Protection Act only creates examples and not sepa- should be meaningfully inserted into the law. In this context, rate standards powers; the legislature clarified which measures Kießling points out that the link to an incidence rate of 100 is it considers permissible and under which conditions they are insufficient to effectively reduce the incidence of infection.35 permissible.32 Thus, as with standards powers, recourse to the This may be scientifically correct, but it does not answer the general clause is no longer possible without further ado. question of whether the legislature’s prerogative of assessment eucrim 2 / 2021 | 129 Legal effects of COVID-19 has been exceeded. In my view, it is constitutionally unobjec- stance, points out that the legislator does not have to prove tionable to create a legal link to incidence rate. It is undisputed the necessity of measures in detail. He argues, however, that that the purpose of the regulations is to protect hospitals from the burden of proof increases when an obviously less severe overload, so the incidence rate alone cannot be decisive for measure comes into question, namely contact bans.38 Kingreen this issue because, for example, the capacity of the intensive contends that the studies, by means of which the legislator in- care beds is also a decisive factor. Nevertheless, the incidence tends to prove suitability, have been chosen selectively and rates reflect a trend in the pandemic’s development, meaning that they are controversial.39 He additionally asserts that even that they provide at least an indication of which measures are the selected studies indicate that curfews have a moderate ef- necessary. Here, we should again recall the legislature’s pre- fect at best, possibly even no effect at all, on the incidence of rogative of assessment: it is necessary, but also sufficient, to infection.40 promote the purpose of the legislation. This is the case here. It is indeed doubtful whether a night-time curfew is actually c) Link to published incidence rates of the RKI ‒ influence suitable for combating the pandemic and relieving the burden on clarity and certainty of the law on the health system. However, it is precisely this uncertainty that justifies the broad prerogative of assessment on the part Notwithstanding, friction regarding the clarity and certainty of of the legislature. The only decisive factor is whether it is at a norm can arise when findings from other scientific fields are all plausible that a night-time curfew leads to lower infection incorporated into well thought-out legislation . One example is rates. In my view, this is not the case because the night-time §28b of the Infection Protection Act, which raises considerable curfew at least has an additional effect on private meetings and concerns over specificity and clarity. In general, it is necessary thus also on the infection rates. that norm addressees can find out what the law requires from them without excessive effort.36 The requirements for certainty This conclusion does not imply that the curfew is constitution- and clarity are particularly high if the norm extensively inter- al because examination of the proportionality requirement for feres with fundamental rights. The link to incidence rate itself suitability is followed by examination of the requirements for is unobjectionable from a constitutional point of view. This necessity and appropriateness (see above). A measure is con- applies at the minimum if the state is authorised to adopt con- sidered necessary if no means is available which is milder but crete measures on the basis of incidences. However, the limit equally suitable. Legal scholars often refer to contact bans as of definiteness and clarity has been reached with §28b: No of- a less intensive measure. Although contact bans are probably a ficial announcement is made on the individual measures that milder necessary measure, effective enforcement mechanisms ensue once certain thresholds are exceeded. Instead §28b of are also needed to make them an equally appropriate measure. the Infection Protection Act is directly linked to the incidence It should be taken into account that, in the case of contact bans, thresholds published by the RKI. The legislator thus assumes the authorities can no longer check people in public and ques- that all citizens will visit the Institute’s website every day to tion them about their reasons to be outside. Instead, enforce- look at the figures relevant to them and to check whether the ment shifts into the private sphere, since the authorities have to measures listed there apply to them. The measures only apply carry out the checks in private rooms – a considerable invasion on the day after the next ‒ citizens also need to keep that in of privacy. This line of argument was also emphasised in a mind to find out whether the measures came into force. This recent decision of the Federal Constitutional Court.41 Another inevitably leads to great uncertainty as to which measures ap- argument in favour of necessity is that the legislature has the ply where and when – an untenable legal situation. prerogative to make an assessment in the context of necessity. As regards the requirement of appropriateness, there are many indications that a night-time curfew is unconstitutional.42 The 4. Second example: night-time curfews answer to this question would necessitate a longer analysis which is not possible within the scope of this article. It should The biggest dispute in Germany with regard to the propor- be pointed out here, however, that “knowledge” is not the de- tionality of measures against the coronavirus disease occurred cisive factor but rather the weighing up of individual funda- over night-time curfews. In the explanatory memorandum to mental rights with public interests. the law, the German legislator pointed out that the curfew re- strictions were necessary to prevent private gatherings with too many people and the resulting emergence of new infection IV. Judicial Review in the Pandemic hotspots. The legislator made reference to studies that under- pin this assessment.37 Legal scholars differ as to the question Knowledge and knowledge deficits are not only relevant for of whether the suitability test has been met. Möllers, for in- legislation, but also for jurisprudence. According to German 130 | eucrim 2 / 2021 Dealing with Uncertainties in the Pandemic legal doctrine, it is not necessary for judges to have the same ter of factual knowledge but also of weighing up fundamental level of knowledge as the legislator does when making a deci- rights. Although uncertainties can be considered here, the core sion requiring a review of proportionality.43 The courts are not aim is to strike a careful balance between conflicting fundamen- supposed to put themselves in the place of the legislature but tal rights. Case law has made extensive use of this approach. It rather to check whether it has respected the limits of the law, has been pointed out, for instance, that the freedom of assembly in particular whether it is proportionate.44 The courts must de- is one of the highest goods within the German constitution and cide, however, whether a measure is suitable. This means that therefore bans without exception are unconstitutional.48 The the courts are faced with the same knowledge deficits that the authorities picked up on this and took other measures, which legislator had to cope with. In the COVID-19 pandemic, this then proved to be – at least partially – lawful.49 became a crucial issue before German courts. Case law shows that, in particular, the necessity of the protective measures has been subject to critical judicial examination.45 This is not V. Conclusion surprising, as the authorities were extremely challenged dur- ing the first few months of the pandemic and, when in doubt, The COVID-19 pandemic has posed major challenges to the opted for more far-reaching and blanket measures rather than law itself and to the application of the law in Germany. The finely tuned and differentiated measures.46 With increasing Infection Protection Act is the central piece of legislation upon experience and a growing knowledge of the mechanisms of which measures against the spread of the pandemic could the spread of the virus, some measures have proven to be too be based. Since this Act had been legally and practically ir- excessive and have been corrected by the courts.47 Notwith- relevant for many years, it had to be (rapidly) adapted to the standing, the courts very often referred to the legislature’s pre- emerging new health challenges. From a legal point of view, rogative of assessment and upheld measures even when their both decision-making pressure and uncertainties have been the effectiveness was disputed. Conversely, case law has shown major aspects in the legislative process. German law provides that judicial review can also be effective in the case of uncer- mechanisms to ensure that the legislature remains capable of tainties and prerogatives of assessment, because the judicial acting, on the one hand, but, on the other, that judicial control control of reasonableness remains even in the case of knowl- nevertheless remains possible. This has proven its value in our edge deficits. Here, the judicial examination is not only a mat- recent challenging times. 1 On the concept of knowledge, see L. Münkler, “Wissen – ein blinder Fleck des Rechts? Aspekte eines Spannungsverhältnisses”, in: L. Münkler (ed.), Dimensionen des Wissens im Recht, 2019, p. 3, 5–10; B. J. Shapiro, Dr. Katrin Kappler A culture of fact, 2000, p. 12; P.-T. Stoll, “Wissensarbeit als staatliche Post-doctoral researcher at the Max Planck Aufgabe – Wissen als Leitbegriff für Reformüberlegungen“, in: I. Spiecker Institute for the Study of Crime, Security and gen. Döhmann and P. Collin (eds.), Generierung und Transfer staatlichen Wissens im System des Verwaltungsrechts, 2008, p. 34, 35–38. Law, Freiburg i.Br., Germany 2 B. Fassbender, “Wissen als Grundlage staatlichen Handelns”, in: J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts, Band IV, 3rd ed. 2006, pp. 244–259. 3 C. Kremer, “Ungewissheit im Sicherheitsverwaltungsrecht“, in: I. Augs- berg (ed.), Extrajuridisches Wissen im Verwaltungsrecht, 2013, p. 195, 198. 4 See M. Goldhammer, “Zwischen Prophetie und Prognose – zur Eigen- InfAZ/N/Neuartiges_Coronavirus/nCoV.html> accessed 12 May 2021. logik der hoheitlichen Vorhersage”, in. L. Münkler (eds.), Dimensionen des 15 G. Lübbe-Wolff, “The Principle of Proportionality in the Case-Law of Wissens im Recht, 2019, p. 217, 228–231. the German Federal Constitutional Court”, (2014) 34 Human Rights Law 5 L. Münkler, op. cit. (n. 1), p. 14. Journal, 12–17. 6 A. Klafki, Risiko und Recht, 2017, pp. 13–15. 16 See, generally, G. Warg, “Prognosegrundlage bei der Gefahrenabwehr 7 H-H. Trute, “Ungewissheit in der Pandemie als Herausforderung“, nach dem IfSG”, (2021) Neue Juristische Online-Zeitschrift (NJOZ), (2020) Zeitschrift für das Gesamte Sicherheitsrecht (GSZ), 93. 257–260. 8 H-H. Trute, op. cit. (n. 7), 93–95; A. Klafki, op. cit. (n. 6), p. 13. 17 BVerfG, Official Case Reports, E 115, 276, 308; E 117, 163, 188. 9 H-H. Trute, op. cit. (n. 7), 95. 18 H. Jarass, in: H. Jarass/B. Pieroth, Grundgesetz für die Bundesrepublik 10 See eucrim 2 / 2021 | 131 Legal effects of COVID-19 24 R. Poscher, “Das Infektionsschutzgesetz als Gefahrenabwehrrecht“, 34 T. Kingreen, “Stellungnahme zum Entwurf eines Vierten Gesetzes in: S. Huster and T. Kingreen (eds.), Handbuch Infektionsschutzrecht, 2021, zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler pp. 117, 133. Tragweite”, Ausschuss-Drs. 19(14)323(19), p. 9. 25 See, for example, K.F. Gärditz and M.K. Abdulsalam, “Rechtsverord- 35 A. Kießling, op. cit. (n. 33), p. 4. nungen als Instrument der Epidemie-Bekämpfung“, (2020) Zeitschrift für 36 E. Denninger, “Die Polizei im Verfassungsgefüge“, in: H. Lisken/E. Den- das Gesamte Sicherheitsrecht (GSZ), 108, 109–110. ninger, Handbuch des Polizeirechts, 6th ed., 2018, Chapter B, paras. 61–64. 26 See, e.g., VGH München, Beschluss vom 29.10.2020, Az. 20 NE 20.2360, 37 BT-Drs. 19/28444, p. 12. mn. 20. 38 C. Möllers, “Stellungnahme zum Entwurf eines Vierten Gesetzes 27 A. Sangs, “Das Dritte Gesetz zum Schutz der Bevölkerung bei einer zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler epidemischen Lage von nationaler Tragweite und Gesetzgebung während Tragweite”, Ausschuss-Drs. 19(14)323(2), p. 6. der Pandemie”, (2020) Neue Zeitschrift für Verwaltungsrecht (NVwZ), 39 T. Kingreen, op. cit. (n. 34), pp. 7–8. 1780-1785. 40 T. Kingreen, op. cit. (n. 34), p. 8. 28 R. Poscher, op. cit. (n. 24), p. 144. 41 BVerfG, Decision of the First Senate of 5 May 2021, 1 BvR 781/21, 29 H. Eibenstein, “Die (vertane) Chance des § 28a IfSG”, (2020) COVuR, para. 38. 856, 858–859. 42 See, e.g., F. Schmitt, “Die Verfassungswidrigkeit der landesweiten 30 See, e.g., § 36 of the Police Code Baden-Württemberg and § 45 of the Ausgangsverbote”, (2020) Neue Juristische Wochenschrift (NJW), 1626, Federal Police Act. 1627–1631. 31 See H. Greve, “Infektionsschutzrecht in der Pandemielage – Der neue 43 B. Fassbender, op. cit. (n. 2), p. 254. § 28 a IfSG”, (2020) NVwZ, 1786, 1788. 44 Ibid. 32 R. Poscher, op. cit. (n. 24), p. 144. 45 See, e.g., BVerfG, NVwZ 2020, 783. 33 See, e.g., A. Kießling, “Stellungnahme zum Entwurf eines Vierten 46 R. Poscher, op. cit. (n. 24), p. 160. Gesetzes zum Schutz der Bevölkerung bei einer epidemischen Lage von 47 Ibid. nationaler Tragweite”, BT-Drs. 19(14)323(6), pp. 3–5; H. Eibenstein, (2020) 48 BVerfG, NVwZ 2020, 711, 712. COVuR, op. cit. (n. 30), 858. 49 R. Poscher, op. cit. (n. 24), p. 161. 132 | eucrim 2 / 2021 Imprint Impressum Published by: Max Planck Society for the Advancement of Science The publication is co-financed by the c/o Max Planck Institute for the Study of Crime, Security and Law European Commission, European (formerly Max Planck Institute for Foreign and International Criminal Anti-Fraud Office (OLAF), Brussels Law) represented by Director Prof. Dr. Ralf Poscher Guenterstalstrasse 73, © Max Planck Institute for the Study of Crime, Security and Law, 79100 Freiburg i.Br./Germany 2021. All rights reserved: no part of this publication may be repro- duced, stored in a retrieval system, or transmitted in any form or by Tel: +49 (0)761 7081-0 any means, electronic, mechanical photocopying, recording, or oth- Fax: +49 (0)761 7081-294 E-mail: [email protected] erwise without the prior written permission of the publishers. Internet: https://csl.mpg.de The views expressed in the material contained in eucrim are not necessarily those of the editors, the editorial board, the publisher, Official Registration Number: the Commission or other contributors. Sole responsibility lies with the VR 13378 Nz (Amtsgericht author of the contribution. The publisher and the Commission are not Berlin Charlottenburg) responsible for any use that may be made of the information con- VAT Number: DE 129517720 tained therein. ISSN: 1862-6947 Editor in Chief: Prof. Dr. Dr. h.c. mult. Ulrich Sieber Managing Editor: Thomas Wahl, Max Planck Institute for the Study Subscription: of Crime, Security and Law, Freiburg eucrim is published four times per year and distributed electroni- Editors: Dr. András Csúri, University of Vienna; Anna Pingen, Max cally for free. Planck Institute for the Study of Crime, Security and Law, Freiburg; In order to receive issues of the periodical on a regular basis, Cornelia Riehle, ERA, Trier please write an e-mail to: Editorial Board: Peter Csonka, Head of Unit, DG Justice and Con- [email protected]. sumers, European Commission Belgium; Francesco De Angelis, For cancellations of the subscription, please write an e-mail to: Lawyer, Brussels Belgium; Prof. Dr. Katalin Ligeti, Université du [email protected]. Luxembourg; Prof. Dr. Ralf Poscher, Max Planck Institute for the Study of Crime, Security and Law, Freiburg; Lorenzo Salazar, Sos- tituto Procuratore Generale, Napoli, Italia; Prof. Rosaria Sicurella, Università degli Studi di Catania, Italia For further information visit our website: https://eucrim.eu Language Consultant: Indira Tie, Certified Translator, Max Planck or contact: Institute for the Study of Crime, Security and Law, Freiburg Thomas Wahl Typeset: Ines Hofmann, Max Planck Institute for the Study of Crime, Max Planck Institute for the Study of Crime, Security and Law Security and Law, Freiburg Guenterstalstrasse 73, Produced in Cooperation with: Vereinigung für Europäisches 79100 Freiburg i.Br./Germany Strafrecht e.V. (represented by Prof. Dr. Dr. h.c. mult. Ulrich Sieber) Tel: +49(0)761-7081-256 or +49(0)761-7081-0 (central unit) Layout: JUSTMEDIA DESIGN, Cologne Fax: +49(0)761-7081-294 Printed by: Stückle Druck und Verlag, Ettenheim/Germany E-mail: [email protected] MAX PLANCK INSTITUTE FOR THE STUDY OF CRIME, SECURITY AND LAW