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ests in case generalized deficiencies as regards the rule of law in Member States occur. „„21 January 2020: The deputy disci- pline officer initiates first disciplinary proceedings against Polish judges having participated in the 1,000 Robes March. European Union „„23 January 2020: Poland’s Supreme Court said rulings made by judges ap- Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) pointed under new government rules (af- fecting several hundred judges) could be challenged, resulting in a number of cas- es being postponed. The Supreme Court Foundations ment, the Disciplinary Chamber contin- followed the lines of argument given by ued its activities. the CJEU. Fundamental Rights „„11 January 2020: Thousands of peo- „„23 January 2020: The Polish justice ple, including judges and lawyers from ministry – controlled by the ruling PIS Threat of Rule of Law in Poland – many EU Member States, assemble for a party – reacts and declares that the Su- Recent Developments march through Warsaw, in order to pro- preme Court’s judgment has no legal ef-

spot New actions and regulations ini- test plans by the Polish government and fects. light tiated by the Polish ruling party ruling majority in parliament to disci- „„23 January 2020: The lower house of to push through reforms in the pline the judiciary in Poland. The event the Polish parliament (the Sejm) passes justice system triggered further contro- was tagged as “1,000 Robes March.” a bill introducing further amendments versies between the country and Euro- „„16 January 2020: The European Par- into the Polish judiciary system, despite pean institutions/civil society organisa- liament adopts a resolution on the Art. 7 rejection by the opposition-controlled tions. An overview of the main recent procedures against Poland and Hungary. Senate and criticism by the CoE Ven- events: It, inter alia, “notes with concern that the ice Commission (opinion of 16 January „„19 November 2019: The CJEU rules reports and statements by the Commis- 2020). The amendments (already initi- on the independence and impartiality sion and international bodies, such as ated in December 2019) included, inter of the new Disciplinary Chamber at the the UN, OSCE and the Council of Eu- alia, the prohibition of political activi- Polish Supreme Court, considering that rope, indicate that the situation in both ties for judges in addition to new disci- the referring court may disapply national Poland and Hungary has deteriorated plinary offences and sanctions for judges legislation if the body to which jurisdic- since the triggering of Article 7(1) of and court presidents. Furthermore, the tion was conferred to hear a case where the TEU.” The resolution also criticizes bill declared that any person appointed the EU law may be applied, does not the fact that the current Art. 7 procedure by the President of the Republic is a law- meet the requirements of independence and the hearing conducted have not re- ful judge, and it is prohibited to question and impartiality (see details in eucrim sulted in any significant progress by the his/her legitimacy. Doing so is a disci- 3/2019, pp. 155–156.) two states. MEPs reiterate the need for a „„5 December 2019: The Labour Cham- new EU mechanism on democracy, the ber of the Supreme Court concludes that rule of law and fundamental rights (see * If not stated otherwise, the news in the the Disciplinary Chamber did not fulfil eucrim 1/2019, p. 3). Support is again following sections cover the period 1 January – 31 March 2020. Have also a look at the eucrim the requirements of an independent and given to the proposed regulation on the homepage (https://eucrim.eu) where all news impartial tribunal. Despite this judg- protection of the Union’s financial inter- have been published beforehand.

2 | eucrim 1 / 2020 Foundations plinary offence, potentially punishable to the muzzle law. The statement calls by Poland, because the enacted muzzle with dismissal. Only the Extraordinary on the Polish authorities not to proceed law does not guarantee the defendant Chamber can decide whether a judge is with the law. a fair trial. Although the German court independent and impartial. The Venice „„ 10 February 2020: 22 retired judges sent a catalogue of questions on the in- Commission stated in this context: “The of the Constitutional Tribunal (includ- dependence of the judiciary in Poland, [amendment bill] seems to be to make it ing eight former presidents and vice- it released the requested person based impossible for any court (…) to question presidents) issue an open letter in which on the “high probability” that extradi- the legitimacy of any court established they note that the Constitutional Tribu- tion would be unlawful at the moment in accordance with the current legisla- nal “has virtually been abolished.” They (for more details on the decision, see the tion.” In the press, the law has been la- regret that the actions of the legislature news in the category “European Arrest belled “gagging bill” and “muzzle law.” and the executive since 2015 and the Warrant”). „„ 28 January 2020: The Constitutional Constitutional Tribunal leadership since „„ 24 February 2020: The President of Tribunal suspends the Supreme Court’s 2017, “have led to a dramatic decline in GRECO, Marin Mrčela, addresses a let- resolution of 23 January 2020. The Con- the significance and the prestige of this ter to the Polish Minister of Justice in stitutional Tribunal declared, inter alia, constitutional body, as well as to the in- which he calls on the Polish government that the Supreme Court could not limit ability to perform its constitutional tasks to revise the muzzle law. Mrčela points the adjudication of judges appointed and duties.” The open letter also deals out that the diminishing independence of to office by the President of the Polish with the pending dispute on the Supreme justice may facilitate corruption. He also Republic. Judgments issued by benches Court resolution of 23 January 2020, fully shares the critical opinion of the which included said judges are binding. particularly the participation of two for- Venice Commission of 16 January 2020 „„ 28 January 2020: The Parliamen- mer MPs in the bench, that compromise on the draft bill of the muzzle law. tary Assembly of the Council of Europe the Constitutional Tribunal’s independ- „„ 29 February 2020: The Association of (PACE) votes to open a monitoring pro- ence. Polish Judges “Iustitia” and association cedure for Poland over the functioning „„ 11 February 2020: Following the EP of prosecutors “Lex Super Omnia” pub- of its democratic institutions and the resolution of 16 January 2020, the ple- lish an extensive report detailing repres- rule of law. The resolution declares that nary of the EP again discusses the situa- sions against Polish judges and prosecu- recent reforms “severely damage the tion on the rule-of-law threat in Poland. tors between 2015 and 2019. The report independence of the judiciary and the At the beginning, Commission Vice- not only presents information on the rule of law.” PACE called on the Polish President Věra Jourová informed MEPs investigations and disciplinary proceed- authorities to “revisit the total reform on the current developments, and Justice ings. It also refers to “soft repressions,” package for the judiciary and amend the Commissioner Didier Reynders stressed consisting, among other things, in the relevant legislation and practice in line that the Commission will apply all tools exercise of powers vested in court presi- with Council of Europe recommenda- at its disposal to maintain the rule-of- dents, which bear features of harassment tions.” The Assembly also called on all law values in Poland. MEPs called on or mobbing. The report is to be complet- CoE Member States to ensure that the the Commission to take strong action ed with further cases in the future. courts under their jurisdiction ascertain against Poland. German MEP Katarina „„ 9 March 2020: Several experts spe- in all relevant criminal and civil cases Barley (S&D) pointed out that Polish cialised in the rule of law address an – including with regard to European Ar- judges are in the unbearable situation of open letter to Commission President rest Warrants – whether fair legal pro- facing disciplinary sanctions if they ap- Ursula von der Leyen. They criticized ceedings in Poland, as defined under ply EU law. She referred to concrete cas- the European Commission for being too Art. 6 ECHR, can be guaranteed for the es of recent repressions against judges. inactive and lenient towards Poland. Re- defendants. Poland is the first EU Mem- „„ 14 February 2020: The “Muzzle Act” garding the recent changes implemented ber State to which the CoE monitoring (see above) enters into force. Polish by the muzzle law, the experts urge the procedure is being applied. The country President Andrzej Duda signed the Act Commission to take immediate action. shares this position with eight other CoE on 4 February 2020 despite continuing This must include expedited infringe- (but non-EU-) Member States, among protests voiced by the European Com- ment action against the muzzle law, and them Russia, Turkey, and Ukraine. mission, the Council of Europe, and requests for additional interim measures „„ 30 January 2020: The CCBE publish- civil society organisations. to prevent the muzzle law from being es a statement on Poland in which the „„ 17 February 2020: In an unprec- enforced by connecting these measures lawyers’ organisation shares the criti- edented decision, the Higher Regional to the already pending infringement ac- cism voiced by independent internation- Court of Karlsruhe suspends the execu- tion with respect to Poland’s new dis- al bodies and organisations in reaction tion of a European Arrest Warrant issued ciplinary regime for judges. The Com-

eucrim 1 / 2020 | 3 NEWS – European Union mission should also tackle the rigging provisions before its final judgment on it requires judges to disclose specific in- of rules as regards the selection of the the substance of the case (C-791/19). formation about their non-professional next president of the Supreme Court, the The final judgment will be delivered at activities. The Polish government now changes at the Constitutional Tribunal, a later date. The judges in Luxembourg has two months to reply to the letter of and the establishment of the National point out that, although the organisation formal notice. Council of the Judiciary. of justice falls within the competence of „„ 25 May 2020: At a meeting of the „„ 26 March 2020: The Grand Chamber the Member States, disciplinary regimes LIBE Committee, MEP Juan Fernando of the CJEU declares references for a applicable to national courts are part of López Aguilar (S&D, ES) presents a preliminary ruling of two Polish district the system of the legal remedies in the draft interim report that serves as a ba- courts inadmissible, expressing doubt fields covered by EU law. Therefore, sis for an EP resolution on the way for- as to the compatibility of the new disci- they must comply with the Union’s re- ward as regards the Article 7 procedure plinary regime introduced in Poland via quirements on the independence of the against Poland that was triggered by judicial reforms in 2017 with Art. 19(1) judiciary. The mere prospect of Supreme the European Commission in Decem- subpara. 2 TEU (Joined Cases C-558/18 Court judges or judges of the ordinary ber 2017. The report (1) takes stock of and C-563/18 – Miasto Łowicz and courts being the subject of disciplinary the developments as regards the rule of Prokurator Generalny). The CJEU fol- proceedings that may be referred to a law, democracy, and fundamental rights lows the opinion of AG Tanchev of 24 body whose independence is not guaran- in Poland since 2015; and (2) urges the September 2019 (see eucrim 3/2019, teed is likely to affect judicial independ- Commission and the Council to widen p. 157). The questions referred are gen- ence. By means of this line of argument, the scope of the Article 7(1) TEU pro- eral in nature, because they did not show the CJEU confirms the condition of ur- cedure to include an assessment of clear a connecting factor between the dispute gency, which is required for granting risks of serious breaches of democracy in the main proceedings and a provi- interim relief. The lack of independence and fundamental rights. During the dis- sion of EU law for which interpretation of the disciplinary chamber may cause cussions, most MEPs shared concerns is sought. In essence, the referring Pol- serious and irreparable harm to the EU over the systematic and continuing at- ish judges sought a statement from the legal order. tacks against judicial independence and CJEU that the disciplinary procedures „„ 29 April 2020: The European Com- democratic institutions in Poland. They are a means of ousting judges if they mission launches a new infringement called on the Council and Commission take decisions that do not suit the legisla- procedure against Poland regarding the to take decisive actions against Poland, tive and executive branches. The CJEU muzzle law that entered into force on including budgetary measures. The clarified that the concept of preliminary 14 February 2020 (see above). The Com- President of the European Association rulings in Art. 267 TEU does not fol- mission concludes in its letter of formal of Judges and a representative of the low this purpose. The Grand Chamber notice that several elements of the new Polish judges association Iustitia report- clearly stated, however, that provisions law infringe Union law. This includes ed on concrete examples of violations of of national law which expose national the established disciplinary regime that judicial independence and disciplinary judges to disciplinary proceedings as a could be used as political control of the proceedings against Polish judges. They result of the fact that they submitted a content of judicial decisions, thus violat- called for a “European Marshall Plan” to reference to the Court for a preliminary ing Arts. 19, 47 CFR, which establish the uphold the EU’s core values in Poland. ruling cannot be permitted. It is a key right to an effective remedy before an The plenary of the EP is to vote on the element of judicial independence that independent and impartial court. In ad- proposed resolution in September 2020. judges not be subjected to disciplinary dition, several elements of the new law (TW) proceedings/measures for having exer- do not comply with the principle of the cised their discretion to bring a matter primacy of EU law. In this context, the Rule-of-Law Developments in Hungary before the CJEU. Commission points out that the law pre- spot Although the executive attacks „„ 8 April 2020: The CJEU grants the vents Polish courts from fulfilling their light on the independence of the judi- Commission’s application for interim obligation to apply EU law or request ciary in Poland dominate head- measures against the powers of the preliminary rulings from the CJEU and lines in the media, European institutions Disciplinary Chamber of the Supreme from assessing the power to adjudicate also have rule-of-law concerns with re- Court with regard to disciplinary cases cases by other judges. Ultimately, the gard to Hungary. Next to Poland, Hun- concerning judges. The powers are new law is incompatible with the right gary is subject to an Article 7 TEU pro- based on a 2017 judicial reform. The to respect for private life and the right to cedure, which may eventually lead to CJEU requests that Poland suspend the protection of personal data as guar- sanctions against an EU Member State if the application of the relevant national anteed by the CFR and the GDPR, since the Council states a clear risk of a seri-

4 | eucrim 1 / 2020 Foundations ous breach of EU values. The procedure a whole.” The Council is called on to de- proposed bill complies with the values against Hungary was triggered by the termine the existence of a clear risk of enshrined in Article 2 of the Treaty on European Parliament in September Hungary’s serious breach of the values European Union. 2018. Concerns mainly address judicial on which the Union is founded. The EP „„ 30 March 2020: The Hungarian Par- independence, freedom of expression, also criticizes the modalities of the pro- liament passes the contentious “state of corruption, rights of minorities, and the cedure and shortcomings in the proper emergency extension” bill. The new law situation of migrants and refugees. As in involvement of the EP in the Article 7 (dubbed the “Enabling Act”) gives the the case of Poland, Hungary faces sev- procedure. national conservative Hungarian gov- eral infringement actions before the „„ 5 March 2020: In other infringement ernment headed by Viktor Orbán the CJEU. The recent developments in brief: proceedings (Case C-66/18), Advocate right to pass special executive decrees „„ 14 January 2020: Advocate General General Juliane Kokott voices her be- in response to the coronavirus outbreak. Campos Sánchez-Bordona proposes that lief that the 2017 amendments of the It also changes the Hungarian criminal the CJEU declares Hungarian legislation Hungarian law on Higher Education do code by introducing jail terms of up to imposing restrictions on the financing of not comply with EU and WTO law. The five years for people who spread “fake civil organisations from abroad to be in- amendment stipulates that higher educa- news” about the virus or measures compatible with EU law. The Hungarian tion institutions from countries outside against it. Severe penalties were also in- legislation imposes several obligations the European Economic Area would troduced if people breach the quarantine of registering, providing certain pieces only be allowed to continue their activi- ordered by authorities. For details, see of information and publication on civil ties in Hungary if an international trea- also the analysis by Renáta Uitz on Ver- organiations if they receive donations ty existed between Hungary and their fassungsblog. The law was heavily criti- above a certain threshold from abroad. home country. In addition, the new rules cized by the opposition, the Council of The case was brought to the CJEU in an require foreign universities to operate Europe, and human rights organisations. infringement action by the Commission in their country of origin if they want to They mainly disagree with the indefi- (Case C-78/18). The AG argues that the offer higher education in Hungary. The nite term of the expanded state of emer- legislation is contrary to the principle law was seen as a move against Hungar- gency and fear inappropriate restrictions of free movement of capital in that it ian-born US businessman George Soros on the freedom of press and freedom includes provisions amounting to unjus- – an opponent of Hungarian Prime Min- of expression. Another fear is that the tified interference with the fundamental ister Viktor Orbán – because his fund- “Enabling Act” cements the erosion of rights of respect for private life, protec- ed Budapest-based Central European the rule of law in Hungary. In a letter of tion of personal data, and freedom of University was the only active foreign 24 March 2020 to Viktor Orbàn, CoE association as protected by the Charter. higher education institution in Hungary Secretary General Marija Pejčinović Objectives, such as the protection of that did not meet the new requirements. Burić stated, inter alia: “An indefinite public policy and the fight against mon- According to AG Kokott, the new rules and uncontrolled state of emergency ey laundering and terrorist financing, are discriminatory and disproportionate; cannot guarantee that the basic princi- cannot justify the Hungarian legislation. they infringe the freedom of establish- ples of democracy will be observed and „„ 16 January 2020: The European Par- ment, the Services Directive, the Charter that the emergency measures restricting liament notes in a resolution on the ongo- of Fundamental Rights, and the national fundamental human rights are strictly ing Article 7 procedures against Poland treatment rule of the General Agreement proportionate to the threat which they and Hungary that reports and statements on Trade in Services (GATS). are supposed to counter.” CoE Human by the Commission, the UN, OSCE, and „„ 24 March 2020: Given the plans of Rights Commissioner Dunja Mijatović the Council of Europe indicate that “the the Hungarian government to expand commented the following on Twitter: situation in both Poland and Hungary “state of danger” measures due to the “#COVID19 bill T/9790 in #Hungary’s has deteriorated since the triggering of COVID-19 pandemic and to rule with Parliament would grant sweeping pow- Article 7(1).” MEPs expressed their dis- executive decrees, the EP’s Civil Liber- ers to the gov to rule by decree w/o a satisfaction on the hearings within the ties Committee (LIBE) issues a reminder clear cut-off date & safeguards. Even in Council; they have not yet resulted in that all Member States have a responsi- an emergency, it is necessary to observe any significant progress. The resolution bility to respect and protect fundamental the Constitution, ensure parliamentary states that “the failure by the Council rights, the rule of law, and democratic & judicial scrutiny & right to informa- to make effective use of Article 7 of the principles, even in difficult times. The tion.” TEU continues to undermine the integri- chair of the committee, Juan Fernando „„ 15 April 2020: Upon the initiative ty of common European values, mutual López Aguilar (S&D, ES), called on of Transparency International EU, 30 trust, and the credibility of the Union as the Commission to assess whether the MEPs and 50 civil society organisations

eucrim 1 / 2020 | 5 NEWS – European Union send an open letter to the presidents tration of power: “It does not serve the more, EU funding to Hungary should be of the European Commission and the fightagainst Covid-19 or its economic stopped, unless rule of law is respected. Council calling on “swift and decisive consequences; instead, it opens the door The Council is called on to move for- actions” against Hungary. The letter to all types of abuses, with both public ward with the Article 7 procedure initi- eyes the new Hungarian emergency law and private assets now at the mercy of ated by the EP in 2018. (TW) of 30 March 2020. Although exceptional an executive that is largely unaccount- times during the Covid-19 pandemic able,” the letter says. The letter calls on Bar Associations’ Resolution “demand exceptional measures and it all European stakeholders to get aware on Rule of Law may be legitimate for governments to of the situation in Hungary and to take On the occasion of the 48th European temporarily use extraordinary powers to collective action. As guardian of the EU Presidents’ Conference on 21 February manage the situation,” the latest actions Treaties, the Commission is called on to 2020 in Vienna, representatives from by the Hungarian government are a “fla- urgently propose sanctions taking into over 50 bar associations adopted a reso- grant attack on the cornerstones of the account the seriousness of violation of lution on the rule of law and the inde- rule of law and the values of the Union,” European rules and values. The EP and pendence of justice. European Institu- the signatories emphasise. The law of Council should adopt these sanctions tions and national authorities are urged 30 March 2020 has a “chilling effect on without delay. National media are ad- to do the following: free speech and anticipate the potential vised to dedicate news segments to the „„ Make full use of the tools available in to suffocate those remaining elements of Hungarian situation (daily, if necessary) order to safeguard and restore the inde- the checks and balances system in Hun- and to grant Hungarian citizens free ac- pendence of the judiciary and the admin- gary.” cess to their content as a source of plu- istration of justice in Europe; „„ 17 April 2020: In a resolution on EU ralistic and independent information. „„ Maintain the strict autonomy and inde- coordinated action to combat the COV- „„ 7 May 2020: In a hearing before the pendence of bar associations and the legal ID-19 pandemic and its consequences, Committee on Legal Affairs (JURI), professions, including the judiciary, espe- the EP voices deep concern over the Commissioner for Justice and Consumer cially as regards disciplinary proceedings. steps taken by Hungary to prolong the Affairs, Didier Reynders, reiterates that In particular, the resolution recom- state of emergency indefinitely, to au- the Commission closely monitors the mends using expedited infringement thorise the government to rule by decree proportionality of emergency measures procedures and filing applications for without a time limit, and to weaken the taken by the EU Member States during interim measures before the CJEU. emergency oversight of the parliament. the coronavirus crisis. This includes the The resolution also includes a call to These measures are deemed “totally Enabling Act in Hungary with its indefi- a “March of European Robes” between incompatible with European values.” nite term of application and its restric- 24 and 26 June 2020 in Brussels in order The Commission is called on to make tions to the freedom of expression/free- to voice, in the heart of Europe, the law- use of all available EU tools and sanc- dom of press. MEPs are concerned over yers’ commitment to the rule of law, the tions to address this serious and persis- the situation in countries like Poland and separation of powers, an independent tent breach; the sanctions could include Hungary, which they fear used the crisis judiciary, and fundamental rights. (TW) budgetary cuts. The Council is called on to put in place measures that weaken de- to resume the ongoing Article 7 proce- mocracy. EU Action Plan on Promotion of Human dures against Hungary. „„ 14 May 2020: In a plenary debate Rights and Democracy in the World „„ 20 April 2020: 75 European person- with European Commission Vice-Pres- On 25 March 2020, the European Com- alities, including former European Com- ident Vera Jourová and the Croatian mission and the High Representative mission president Jean-Claude Juncker, Presidency of the EU, several MEPs of the Union for Foreign Affairs and former heads of state and government, reiterate their criticism of the emer- Security Policy (HR/VP) presented and major figures from European civil gency measures taken by the Hungar- their plans for the future EU policy on society publish an open letter calling ian government to fight the COVID-19 strengthening human rights and democ- on the EU to swiftly propose and adopt pandemic. Next to the indefinite state racy in the EU’s external actions. The sanctions against the latest “democratic of emergency, MEPs particularly criti- package presented to the public consists backsliding” by the Hungarian govern- cise the criminalization of ostensible of the following: ment. The signatories voice concern over “fake news,” as it is a measure directed „„ Joint Communication EU Action the recent drift of Victor Orban’s gov- against government-critical statements. Plan on Human Rights and Democracy ernment towards autocracy in Hungary. MEPs urge the Commission to promptly 2020–2024; The emergency law of 30 March 2020 is open infringement procedures against „„ EU Action Plan on Human Rights criticized as an unprecedented concen- the Hungarian emergency law. Further- and Democracy 2020–2024;

6 | eucrim 1 / 2020 Foundations

„„ Joint Proposal for a recommendation areas of EU external action (e.g., trade, entered into force and started a transition of the Council to the European Council environment, development). In opera- period that will end on 31 December on the adoption of a decision identify- tional terms, the Action Plan has five 2020. In essence, the United Kingdom ing the strategic objectives of the Union lines of action that will be implemented will continue to apply Union law during to be pursued through the EU Action on the ground in partner countries: the transition period but will no longer Plan on Human Rights and Democracy „„ Protecting and empowering individu- be represented in the European institu- 2020–2024; als; tions. The special position of the United „„ Annex to the Joint Proposal for a „„ Building resilient, inclusive, and Kingdom in respect of measures in the recommendation of the Council to the democratic societies; area of freedom, security and justice European Council. „„ Promoting a global system for human will also continue. The Joint Committee The Joint Communication notes that rights and democracy; may, before 1 July 2020, adopt a single past EU policy achieved significant pro- „„ New technologies: harnessing oppor- decision extending the transition period gress in countries and regions where hu- tunities and addressing challenges; for up to one or two years. man rights were under strain; however „„ Delivering results by working to- Ongoing police and judicial coopera- challenges persist. Among the critical gether. tion in criminal matters is regulated in trends listed by the Communication: The Action Plan 2020–2024 builds Part III, Title V of the Withdrawal Agree- „„ Weakening of the rule of law; on two previous action plans that were ment (Art. 62 et seq.). The framework of „„ Increased violence and intimidation adopted in 2012 and 2015 for a four-year the future relationship between the Eu- of human rights defenders (over 2600 re- period each. It also takes into account ropean Union and the United Kingdom ported attacks over the past three years); the 2012 EU strategic framework on hu- is set out in the Political Declaration of „„ Widespread impunity for human man rights and democracy. 17 October 2019. From the outset, the rights violations and attacks on the role The accompanying Joint Proposal re- Political Declaration emphasises the of the International Criminal Court. fers to Art. 22 TEU and invites the Eu- importance of data protection. The EU In addition, new technologies and ropean Council to adopt the Action Plan and the UK are committed to ensuring global environmental problems, e.g., cli- – by unanimity – as a strategic interest a high level of personal data protection mate change, pose additional threats to of the EU. In the affirmative, decisions to facilitate data flows and exchanges, human rights. Against this background, on actions implementing the Action Plan which are seen as key to the future rela- a renewed focus on human rights and could then be taken by qualified major- tionship. Part 3 of the Political Declara- democracy is necessary to strengthen ity voting in the Council. This procedure tion outlines the policy objectives of the state and societal resilience. The Joint would make the EU more assertive. future security partnership. The partner- Communication proposes the following: The documents are now being trans- ship will comprise law enforcement and „„ Enhancing EU leadership in promot- mitted to the Council and the European judicial cooperation in criminal matters, ing and protecting human rights and de- Parliament. The Council is now called foreign policy, security and defence, and mocracy worldwide; on to adopt the Action Plan and to decide thematic cooperation in areas of com- „„ Setting out EU ambitions, identifying on faster and more efficient decision- mon interest. priorities, and focusing on implemen- making in the area of human rights and On 25 February 2020, the General tation in view of changing geopolitics, democracy. (TW) Affairs Council formally authorised digital transition, environmental chal- the Commission to negotiate a new lenges, and climate change; partnership agreement with the United „„ Maximising the EU’s role on the Area of Freedom, Security Kingdom. The Council also adopted global stage by expanding the human and Justice negotiating directives that specify the rights toolbox, its key instruments, and Commission’s mandate for the nego- its policies; Brexit – The Way Forward tiations. The directives largely fol- „„ Fostering a united and joined-up EU At the end of 31 January 2020, the Unit- low the recommendation presented by by promoting more efficient and coher- ed Kingdom left the European Union. the Commission on 3 February 2020 ent action. The “Agreement on the withdrawal of (COM(2020) 35 final). They mainly The EU Action Plan 2020–2024 de- the United Kingdom of Great Britain build on the aforementioned political fines the priorities of the EU and the and Northern Ireland from the European declaration of October 2019. The EP al- Member States in their relationship with Union and the European Atomic Energy ready endorsed the draft directives in a third countries more concretely. It aims Community” of October 2019 was en- resolution of 12 February 2020. at promoting human rights and democ- dorsed by the Council and the European The negotiating directives reiterate racy consistently and coherently in all Parliament. The Withdrawal Agreement the EU’s wish to set up an ambitious,

eucrim 1 / 2020 | 7 NEWS – European Union wide-ranging, and balanced economic and Europol/Eurojust in accordance The Commission sets out that AI will partnership with the UK. The EU in- with Union standards on third country bring a number of benefits to all of Eu- tends to establish a free trade agreement cooperation; ropean society and economy. Hence, the with the UK to ensure that zero tariffs „„A streamlined extradition scheme EU is set to become a global leader in and quotas apply to trade in goods. This should be built up, which includes the innovation in the data economy and its agreement regulates customs coopera- possibility to waive the double criminal- applications. The Commission, how- tion and regulatory aspects. The mandate ity check for certain offences, to make ever, also points out that the new tech- also contains provisions for future coop- arrangements regarding political offenc- nology entails a lot of potential risks in eration in areas such as digital trade, in- es, to give EU Member States the right relation to fundamental rights and EU tellectual property, public procurement, to not extradite own nationals, and to al- fundamental values, such as non-dis- mobility, transport, and energy. low additional guarantees in particular crimination. Therefore, any trustworthy „„As regards the envisaged security cases; and secure development of AI solutions partnership, the EU reiterates its aim to „„In other areas of cooperation in crim- in the future must respect the values and establish a broad, comprehensive, and inal matters, a future agreement should rights of EU citizens, e.g., the rights to balanced security partnership with the facilitate and supplement the application privacy and data protection. Against this UK. As regards future law enforcement of relevant CoE conventions; arrange- background, the White Paper identifies and judicial cooperation, in particular, the ments may impose time limits, foresee two main building blocks: mandate outlines the following aspects: standard forms, and must take into ac- „„“An ecosystem of excellence” that „„Although the security partnership count the latest technological advance- sets out the policy frameworks needed should provide for close law enforce- ments; to mobilise the necessary economic re- ment and judicial cooperation in rela- „„The envisaged partnership should in- sources, including research and innova- tion to the prevention, investigation, clude commitments to support interna- tion and providing the right incentives detection, and prosecution of criminal tional efforts to prevent and fight against for small and medium-sized enterprises, offences, account must be taken of the money laundering and terrorist financ- in particular; UK’s future status as a non-Schengen ing, which comply with the FATF stand- „„“An ecosystem of trust” that sets out third country, meaning that the UK can- ards or even go beyond these standards the key elements of a future regulatory not enjoy the same rights and benefits as as far as certain aspects are concerned framework for AI in Europe ensuring a Member State; (e.g., beneficial ownership). compliance with EU rules. „„Respect for fundamental rights, in- Ultimately, the mandate foresees that For high-risk cases, e.g., health, po- cluding adequate protection of personal the future partnership should be embed- licing, justice, and transport, the White data, is a necessary condition for the ded in an overall governance framework Paper suggests that AI systems should envisaged cooperation. The EU will au- covering all areas of cooperation. The be transparent, traceable, and guarantee tomatically terminate cooperation if the Commission has a special website that human oversight. Authorities should be UK no longer gives effect to the ECHR; provides regular updates on the Brexit able to test and certify the data involv- „„The security partnership must also negotiations. Negotiations on an agree- ing algorithms used to check cosmetics, provide judicial guarantees for a fair tri- ment for the post-transition phase start- cars, or toys. al, including procedural rights, e.g., ef- ed in early March 2020. The Commis- The Commission wishes to launch a fective access to a lawyer. Cooperation sion published a draft text on the new broad public debate in Europe specifically instruments must lay down appropriate partnership agreement with the UK on on the gathering and use of biometric data grounds for refusal, including a transna- 18 March 2020. (TW) for remote identification purposes, for in- tional ne bis in idem; stance through facial recognition in public „„In the area of data exchange, the se- Commission: White Paper on AI places. The debate should focus on how curity partnership should include PNR spot On 19 February 2020, the Com- their use can be justified as an exception arrangements, an information exchange light mission presented a “White Pa- to the general prohibition of remote bio- (currently foreseen within the Prüm per on Artificial Intelligence: a metric identification. It should also focus framework), and the effective/efficient European approach to excellence and on which common safeguards need to exchange of existing information and in- trust.” The White Paper outlines policy be established in accordance with EU telligence, e.g., on wanted and missing options on how to achieve the dual ob- data protection rules and the Charter of persons/objects; jectives of promoting the uptake of arti- Fundamental Rights. For lower-risk AI „„Within the framework of operational ficial intelligence (AI) and addressing applications, the Commission envisages cooperation, the partnership should pro- the risks associated with certain uses of a voluntary labelling scheme if certain vide for cooperation between the UK this new technology. defined standards are respected.

8 | eucrim 1 / 2020 Foundations

Another challenge is whether current first 100 days in office, she kick-started items), the European Parliament adopted EU and national legislation on liability the debate on human and ethical Artifi- a resolution on 12 February 2020: the is sufficient to compensate persons who cial Intelligence and the use of big data resolution focuses on consumer pro- suffered harm from the application of AI to create wealth for societies and busi- tection as regards AI technology and technology. According to the Commis- nesses. The Commission plans further automated decision making (ADM). It sion, there is currently no need to com- actions as regards the implementation of sets out that an examination of the cur- pletely rewrite liability rules. It would ideas on the digital world. (TW) rent EU legal framework, including the like to garner opinions on how best to consumer law acquis, product safety, ensure that safety continues to meet a EP LIBE: AI in Criminal Law and market surveillance legislation, is high standard and that potential victims On 20 February 2020, MEPs in the LIBE needed to check whether it is able to do not face more difficulties in getting Committee heard experts on the benefits properly respond to AI and ADM and compensation compared to victims of and risks of artificial intelligence in the provide a high level of consumer protec- traditional products and services. The li- criminal law framework. In the hearing tion. MEPs mainly state the following: ability challenges are identified in more “Artificial Intelligence in Criminal Law „„ADM has huge potential to deliver detail in a “report on the safety and li- and Its Use by the Police and Judicial innovative and improved services, but ability implications of Artificial Intelli- Authorities in Criminal Matters,” dis- consumers should “be properly in- gence, the Internet of Things and Robot- cussion focused on facial recognition, formed about how the system functions, ics.” The report accompanies the White risk assessment, and predictive policing about how to reach a human with deci- Paper. (see also the hearing agenda). Panelists sion-making powers, and about how the Together with the launch of the White observed that the use of AI for voice pro- system’s decisions can be checked and Paper, the Commission opened a pub- cessing is already commonplace. In the corrected”; lic consultation. All European citizens, future, AI should be increasingly applied „„ADM systems should use “explain- Member States, and relevant stakehold- in the field of terrorist financing. able and unbiased algorithms”; ers (including civil society, industry, and As regards the use of AI for biometric­ „„Review structures must be set up to academia) are invited to provide their facial identification, participants voiced remedy possible mistakes; feedback on the White Paper and on the concerns over the risks to fundamental „„While automated decision-making EU approach to AI by 31 May 2020. rights. Data quality poses one of the processes can improve the efficiency It should also be noted that the White major challenges in this area. Another and accuracy of services, “humans must Paper is accompanied by the European problem related to the use of AI for always be ultimately responsible for, data strategy that was presented on the facial identification is the so-called al- and able to overrule, decisions that are same day. Both documents are the first gorithmic bias, which may lead to dis- taken in the context of professional ser- pillars of the new digital strategy. The crimination of ethnic groups. Against vices,” e.g., legal professions; new strategy comes in response to the this background, participants discussed „„Supervision or independent oversight digital transformation that affects all how the EU can ensure transparency, by qualified professionals is important European citizens and businesses. Un- explainability, and accountability. The where legitimate public interests are at der the heading “putting people first existing regulatory framework therefore stake; and opening new opportunities for busi- needs to be adjusted, as proposed by the „„Legislation must follow a risk-based ness,” the EU has the following digital European Commission in its White Pa- approach. strategy aims: per on Artificial Intelligence, which was MEPs favour adjusting the EU’s „„Developing technology that works made public on 19 February 2020 (see safety and liability rules to the new tech- for the people; also separate news item). (TW) nology. The Commission is called on to „„Ensuring a fair and competitive digi- take respective legislative action. tal economy; EP: Resolution on Artificial Intelligence The resolution will be transmitted to „„Establishing an open, democratic, and Automated Decision Making the Council and the Commission, so that and sustainable society. EU institutions are dealing with the they can take the EP’s views on AI into These three pillars were further out- question of how the EU should react to account. Digital transformation is one of lined in the political guidelines of Com- the rapid development of artificial intel- the priorities of the Commission under mission President Ursula von der Leyen, ligence (AI). Alongside the Commis- President Ursula von der Leyen. (TW) who emphasises that digital transforma- sion White Paper on AI of 19 February tion must go hand-in-hand with the sec- 2020, which was followed by the LIBE CCBE Position Paper on AI ond main future challenge: the European committee hearing on the use of AI in In March 2020, the Council of Bars & Green Deal. In this context, during her the criminal law field (see separate news Law Societies in Europe (CCBE) pub-

eucrim 1 / 2020 | 9 NEWS – European Union lished a position paper in which it sets justice. Here, several challenges come implementation of the temporary restric- out its considerations on the legal as- to light. Therefore, AI systems should tion on non-essential travel to the EU. pects of artificial intelligence (AI). The be introduced only when there are suffi- The ban pursuant to the Schengen Bor- CCBE voices several concerns over the cient safeguards against any form of bias ders Code was outlined in a Commission use of AI in the following areas that di- or discrimination. All measures of in- Communication of 16 March 2020. The rectly concern the legal profession: creased surveillance should be carefully guidance paper issued now aims to as- „„AI and human rights; balanced against the impact they may sist border guards and visa authorities. „„The use of AI by courts; have on an open and pluralistic society. It gives advice on implementation of the „„The use of AI in criminal justice sys- AI, however, can also support law- temporary restriction at the border, on tems; yers and law firms in coping with the in- facilitating transit arrangements for the „„Liability issues; creasing amount of data generated. The repatriation of EU citizens, and on visa „„The impact of AI on legal practice. use of AI by lawyers is more or less lim- issues. It addresses issues that Mem- The CCBE notes that lawyers should ited to research tools, simplification of ber States raised in the bi-weekly vide- be further involved in future develop- data analytics and, in some jurisdictions, oconferences of Home Affairs Ministers ments of AI, e.g., further studies and predicting possible court decisions. and in technical meetings with Member reflections at the EU and Council of Eu- Nonetheless, AI will change the work States. rope level, because both access to justice of legal professionals and the way how Frontex, Europol, and the European and due process are at stake. legal advice is provided. In this context, Centre for Disease Prevention and Con- Regarding human rights concerns, challenges arise as to the competence trol (ECDC) assisted in the preparation the CCBE paper calls on AI developers of lawyers; they must, for instance, be of the guidance. It also follows up on the to act responsibly. This could be framed able to ask meaningful questions about joint statement of the Members of the by ethics codes or new codifications set- the decisions made by AI, and to point European Council of 26 March 2020, ting out the principles and requirements out the limits of applicability and utility which emphasised the need to step up ef- for the use of AI. In addition, the follow- of AI systems, which cannot remain in forts to ensure that EU citizens stranded ing is recommended: a purely technical domain. This neces- in third countries who wish to go home „„Putting AI systems under independ- sitates appropriate training of lawyers. can do so. (TW) ent and expert scrutiny; In the overall conclusions, the CCBE „„Duly informing persons impacted by emphasises that with the great oppor- the use of an AI system; tunities and benefits offered by AI also „„Ensuring the availability of remedies comes a great responsibility to ensure Institutions for these persons. that AI remains ethical and respects hu- Regarding the use of AI by courts, the man rights. The use of AI does, in cer- Council CCBE underlines that AI tools must be tain aspects, pose significant threats to properly adapted to the justice environ- the quality of our justice systems, the Coronavirus Dominates JHA Council ment given the risk that access to justice protection of fundamental rights and Meeting of March 2020 may be undermined by AI tools. There- the rule of law. The development of AI The first formal JHA Council meet- fore, the following parameters should be tools must take into account the role and ing under the Croatian Presidency on taken into account: interests of all actors in the justice sys- 13 March 2020 was dominated by the „„Possibility for all parties involved to tem. Against this background, one of the coronavirus crisis. Ministers discussed identify the use of AI in a case; main messages of the position paper is civil protection items, in particular: „„Non-delegation of the judge’s deci- that there is a clear need for the CCBE „„Lessons learnt so far in the tackling of sion-making power; and its membership to continue moni- the COVID-19 outbreak; „„Possibility to verify the data input and toring the impact of the use of AI in the „„Possible additional preparedness and reasoning of the AI tool; legal and justice area. (TW) response measures for the EU Civil Pro- „„Possibility to discuss and contest AI tection Mechanism; outcomes; „„Ways to step up information-sharing, „„Compliance with GDPR principles; Schengen making full use of the integrated politi- „„The neutrality and objectivity of AI cal crisis response (IPCR) toolbox; tools used by the judicial system should COVID-19 Travel Restrictions – „„Additional support from Member be guaranteed and verifiable. Guidance by Commission States. The CCBE highlights the sensitivity On 30 March 2020, the European Com- Other topics in relation to the coro- of the use of AI in the area of criminal mission issued practical guidance on navirus included the EU guidelines

10 | eucrim 1 / 2020 Institutions for health screening at borders and the order to reinforce operational police co- effect in their pleas or written observa- working methods of the Council during operation. tions to an order − made by the referring the crisis. Further priorities in the field of crimi- court or by the Court of Justice − that Ministers also dealt with the strategic nal law under the Work Programme in- data must be anonymous in prelimi- guidelines for justice and home affairs, clude plans for an EU Strategy enabling nary ruling proceedings. The same goes which will further implement the com- a more effective fight against child sexu- for orders made by the General Court mon EU objectives set out in the strate- al abuse and a new Action Plan on anti- in cases of appeals. With regard to ap- gic agenda 2019–2024, as adopted by the money laundering. (CR) peals at the General Court, the Practice EU leaders in June 2019. The Council Directions recall that such appeals are Presidency observed that despite broad limited to questions of law and should support for the strategic JHA guidelines, European Court of Justice (ECJ) not, in principle, reveal secret or confi- agreement could not be reached since dential information. Another reminder two Member States are still opposing. Information on Working Arrangements addresses the need to lodge a special Further consultations will have to take during the COVID-19 Pandemic request along with the appeal to allow place. (TW) On 30 March 2020, the Court of Justice it to proceed in cases of Article 58a of published an important message for par- the Protocol on the Statute of the Court ties to the proceedings with regard to its of Justice of the EU. Lastly, the Practice European Commission judicial activities during the coronavi- Directions draw attention to the impor- rus COVID-19 pandemic. According to tance of complying with formal require- Commission Work Programme the information, judicial activity at the ments relating to procedural acts. Published Court of Justice continues, with prior- As regards the oral stage of proce- On 20 January 2020, the Commission ity being given to urgent cases. While dure, the Directions reiterate the cri- published its Work Programme for the procedural time limits for instituting teria governing the organisation of an year 2020. The first annual Work Pro- proceedings and for lodging appeals oral hearing. Specific guidance is given gramme is entitled “A Union that strives continue to run, time limits in ongoing on arrangements to be made before the for more” and sets out the most impor- non-urgent proceedings have been ex- hearing, e.g., regarding language re- tant Commission initiatives in the pro- tended by one month. Time limits that quirements, disability, or reduced mo- gramme’s first year, including commit- are to be fixed by the registry shall also bility. (CR) ments for the first 100 days. The Work be extended by one month. Hearings that Programme is based on the headline am- were scheduled up until 30 April 2020 New Advocate General Appointed bitions presented in the Political Guide- have been adjourned until a later date Jean Richard de la Tour has been ap- lines issued by Commission President can be arranged. pointed Advocate General at the Court von der Leyen. It reflects the main pri- The General Court of the EU has ad- of Justice for the period from 23 March orities for the European Parliament and journed all hearings until 3 April 2020, 2020 to 6 October 2024. Before joining those in the European Council’s Strate- dealing only with particularly urgent the Court, Mr de la Tour served as First gic Agenda for 2019–2024. cases. When possible, however, it is also Advocate General of the Commercial, In the security context, the Work endeavouring to continue dealing with Financial and Economic Chamber of the Programme outlines the Commission’s other cases. The Courts recommend French Court of Cassation. He replaces intention to put forward a new Security consulting the website of the Court of former Advocate General Yves Bot, who Union Strategy. This strategy shall de- Justice of the EU for regular updates. passed away on 9 June 2019. (CR) fine the areas in which the EU can offer (CR) added value to support Member States in their efforts to ensure security. Security New Version of Practice Directions OLAF areas include: Adopted „„Combatting terrorism and organised In February 2020, the Court of Justice OLAF’s Work in Times of Crisis crime; adopted a new version of its Practice On 7 April 2020, OLAF informed the „„Preventing and detecting hybrid Directions, containing information on public that it is still fully operational threats; developments regarding the protection and committed to fighting fraud de- „„Cybersecurity; of personal data and the handling of ap- spite the restrictions set up by the Bel- „„Increasing the resilience of critical peals. gian authorities during the coronavirus infrastructure; Data protection rules, for instance, crisis. The press release provides some „„Strengthening Europol’s mandate in require party representatives to give full statistical data on OLAF’s case work

eucrim 1 / 2020 | 11 NEWS – European Union since 16 March 2020. OLAF has also Task Force comprised of experts spe- EU/Member State budgets would have developed specific rules on conducting cialised in cyber criminality that trawl been €50 million. interviews in times when travelling is the internet with the objective of iden- „„ In close cooperation with OLAF, the not recommended. It points out that the tifying and taking down illicit websites Italian Customs Agency seized 12.5 COVID-19 pandemic offers new oppor- offering fake products; tonnes of fluorinated greenhouse gases, tunities for fraudsters to take advantage „„ Increased identification of ineffective so-called hydrofluorocarbons (HFCs), of the increased demand for medical medicine products (e.g., pills); on 5–6 February 2020. HFCs replace supplies, personal protection, and hy- „„ Collection of intelligence in order to ozone-depleting substances and are of- giene products. In this context, OLAF determine the true origin of face masks, ten used in refrigerated units. Although refers to its successful investigation medical devices, disinfectants, sanitis- they do not deplete the ozone layer, they against fake COVID-19 related products ers, medicines, and test kits, which is have a high global warming potential. (see separate news item). OLAF investi- currently the most pressing challenge in The illicit import of such gases became gators and analysts have quickly adapted dealing effectively with the fraudulent one of OLAF’s operational priorities, in to the extraordinary situation thanks to schemes. line with the top priority on the agenda secure remote access to OLAF’s IT sys- OLAF stressed that close coopera- of the new Commission under Ursula tems and other working tools. (TW) tion with all customs and enforcement von der Leyen, who announced plans authorities in the EU and many other to make Europe the first climate neu- OLAF Investigation into Fake COVID-19 countries as well as with international tral continent by 2050: “The European Related Products organisations, e.g., Europol, Interpol, Green Deal.” After the outbreak of the coronavirus the WCO, and EUIPO, has been estab- „„ On 12 February 2020, OLAF re- in Europe, fraudsters started to benefit lished. This proved essential to target ported a successful strike against the from the distress and needs of the popu- shipments and identify the fraudulent smuggling of fake spirits. Shortly before lation. In March 2019, OLAF opened companies. OLAF also warned that Christmas 2019, Dutch customs authori- an investigation into the import of fake small shipments with fake or substand- ties seized 47,000 bottles of counterfeit products to be used against the COV- ard products due to direct sales online rum, an equivalent of 10 containers. ID-19 infection: masks, medical devic- to European customers by companies The final destination of the seized bot- es, disinfectants, sanitisers, and test kits. based in non-EU countries are posing a tles was Spain. OLAF investigators These products proved to be ineffective, major challenge. (TW) uncovered the modus operandi of the non-compliant with EU standards, and rum smugglers and located a suspicious even detrimental to health. Successful OLAF Operations warehouse in the Netherlands. OLAF OLAF has been collecting intelli- Against Smuggling also coordinated the action between the gence and information on this type of In February 2020, OLAF informed the Dutch and Spanish customs authorities. illicit trafficking since the beginning of public about several successful actions The value of the counterfeit rum is esti- the pandemic. It provides customs au- against illicit trade and trafficking: mated to be €2 million. (TW) thorities in the EU Member States and „„ With the support of OLAF, Belgian third countries with relevant informa- and Malaysian customs authorities were Humanitarian Crisis in Syria: OLAF tion in real time. The products entered able to seize a record sum of nearly 200 Detects Fraud and Misuse of EU Funds the EU by means of misdeclarations or million smuggled cigarettes. After the On 24 March 2020, OLAF reported that fake certificates, black market sales, and Belgian authorities successfully seized it closed investigations in January 2020 smuggling. around 135 million cigarettes in Ant- that revealed fraud by beneficiaries of On 13 May 2020, OLAF informed of werp, OLAF launched an investigation a rule-of-law project in Syria. The EU the progress made as regards its inquiry against the smugglers and the routeing. had funded a UK-based company and its into the fake COVID-19 products. The Over 62,6 million cigarettes had been partner in the Netherlands and the Unit- interim results include: falsely declared and were waiting for ed Arab Emirates with a total of nearly „„ Identification of over 340 companies export from a free trade zone in Malay- € 2 million, in support of a project to deal acting as intermediaries or traders of sia. After having been alerted by OLAF, with possible prosecutions for violations counterfeit or substandard products; the Malaysian authorities seized the con- of international criminal and humanitar- „„ Seizure of millions of substandard tainers on 3 February 2020, preventing ian law in Syria. OLAF investigators medical products with fake EU con- the cigarettes from being shipped to the discovered that the claim to support the formity certificates in several Member EU. If the cigarettes had been success- rule of law in Syria was false; in fact, States; fully brought to the markets in the EU, the partners were committing wide- „„ Establishment of an OLAF Cyber OLAF estimates that financial loss to the spread violations themselves, including

12 | eucrim 1 / 2020 Institutions submission of false documents, irregular the investigations, OLAF recommended components, ammunition, and explo- invoicing, and profiteering. OLAF rec- the recovery of over €3 million and the sives. ommended that the competent national prosecution of the fraudsters. In addi- To better support the EU Member authorities in the UK, the Netherlands, tion, OLAF recommended flagging the States in preventing and combatting and Belgium recover almost the entire Dutch company in the Commission’s transnational organised crime, Europol’s contractual sum and consider flagging Early Detection and Exclusion System Management Board had recently includ- the partners in the Commission’s Early (EDES), which would exclude the com- ed Mexico to the list of priority partners Detection and Exclusion System data- pany from possible access to European to conclude cooperation agreements base. taxpayers’ money. (TW) with. (CR) On 7 February 2020, OLAF informed the public that it had closed an investiga- EDPS Opinion on Europol Agreement tion into the misuse of EU funds provid- European Public Prosecutor’s Office with New Zealand Published ed to a well-known NGO for emergency On 31 January 2020, the European Data assistance in Syria. The OLAF investi- EPPO: Nomination of College Delayed, Protection Supervisor (EDPS) published gation detected a fraud and corruption Budget Increase its Opinion on the negotiating mandate scheme being carried out by two staff The compilation of the College of the to conclude an international agree- members of the NGO who siphoned tax- European Public Prosecutor’s Office has ment on the exchange of personal data payers’ money away from the humani- been delayed. Due to the COVID-19 between Europol and New Zealand. The tarian crisis in Syria and into their own pandemic, the selection panel could not Agreement shall provide the legal basis pockets and those of their collaborators. meet in March 2020; therefore, the ap- for the transfer of personal data between OLAF also revealed significant short- pointment of recently nominated Euro- Europol and the New Zealand authori- comings in the way in which the NGO pean Prosecutors had to be postponed. ties that are responsible for fighting had administered EU money. OLAF rec- Initially, it was envisaged that the EPPO serious crime and terrorism. Their ac- ommended the recovery of nearly €1,5 start its operational work in November tions and mutual cooperation in prevent- million from the NGO. (TW) 2020. ing these crimes will be supported and On 27 March 2020, the European strengthened. OLAF Unveils Humanitarian Aid Fraud Commission proposed €3.3 million in In its opinion, the EDPS recom- in Mauretania additional funding for the EPPO. The mends, for instance, that the Agreement In January 2020, OLAF concluded in- money is to be used for staff employ- should explicitly lay down a list of crim- vestigations against a Dutch company ment and IT equipment. In total, funding inal offences regulating which personal which revealed a fraud scheme against for the EPPO in 2020 has almost dou- data can and cannot be exchanged. It EU money for development and hu- bled (48%). By means of this increase should also include clear and detailed manitarian aid as well as corruption. A in funding, the Commission has met the rules regarding the information that Dutch company had won a large EU- demands made by the European Chief should be provided to the data subjects. funded contract managed by the Mauri- Prosecutor, Laura Kövesi. The budget Furthermore, it should specifically pro- tanian authorities for the removal of 57 amendments have yet to be approved by vide for periodic review of the need for shipwrecks from a bay in Mauritania. the European Parliament and the Coun- storage of transferred personal data. The OLAF and the Dutch authorities found cil. (TW) European Commission adopted a Rec- that public procurement procedures had ommendation for a Council Decision been breached, subcontract rules violat- authorising the opening of negotiations ed, and two Mauritanian officials bribed. Europol for this agreement on 30 October 2019 According to OLAF Director-Gen- (see also eucrim 3/2019, p. 165). (CR) eral Ville Itälä, the case showed that Stronger Collaboration with Mexico OLAF also ensures the protection of In February 2020, Europol started ne- Operation Against Counterfeit EU money in non-EU countries, that gotiations for a collaboration with the Medicine OLAF fights for EU assistance to be Mexican Ministry of Security and Citi- At the beginning of March, Opera- received by those who need it, and that zen Protection (SSPC) and the Mexican tion ‘Pangea’, a global operation tar- OLAF investigations know no borders. Ministry of Foreign Affairs. The aim is geted against trafficking in counterfeit Detection of the fraud scheme was pos- to sign a Working Agreement to expand medicines, resulted in the arrest of 121 sible through on-the-spot checks, wit- and intensify their collaboration in pre- persons and the dismantling of 31 or- ness interviews, and analyses of large venting and combating serious crime ganised criminal groups. The operation amounts of technical data. As a result of such as the illicit flow of arms, arms also indicated a significant increase in

eucrim 1 / 2020 | 13 NEWS – European Union the production of illicit pharmaceuticals the observatory function of encryption. made on the most effective strategies to and other medical products driven by The report analyses the following: prosecute suspects. The total number of the COVID-19 outbreak. As an example „„ The progress of the encryption de- cases increased from 3401 cases in 2014 nearly 34,000 counterfeit surgical masks bate; to 7804 cases in 2019. 21,323 victims of were seized and more than 2000 links „„ The current legal landscape in which crime were affected. (CR) related to bogus COVID-19 products to address encryption in criminal inves- were taken down. Operation ‘Pangea’ tigations; Action Against Large-Scale Bitcoin involved 90 countries worldwide, was „„ Existing challenges. and Crypto-Currency Fraud coordinated by Interpol, and supported The challenges include the following In January 2020, a Joint Investigation by Europol (CR) issues: Team set up between authorities in Bel- „„ Increasing use of encrypted commu- gium and France and supported by Eu- Hit Against Fuel Fraud nication devices by Organised Crime rojust and Europol led to the arrest of At the beginning of February 2020, law Groups (OCG); ten suspects allegedly involved in an Or- enforcement authorities from 23 EU „„ Policies and decisions by technology ganised Crime Group (OCG). The group Member States conducted a major op- companies that influence the ability to had been committing international fraud eration against Organised Crime Groups access user data for the purpose of crim- with the sale of bitcoins and other cryp- (OCGs) involved in fuel fraud. The op- inal investigations; to-currencies. eration led to 59 arrests, the seizure of „„ The industry’s shift towards devel- Victims were contacted by phone 5.2 million litres of designer fuel worth opments using End-to-End-Encryption and offered large profits on investments approximately €6.8 million, and the sei- (E2EE); in bitcoins. Having made some initial zure of €331,000 and other assets. It was „„ The introduction of user-controlled gains, victims felt encouraged to make led by the Hungarian National Tax and encryption allowing users to have ulti- further investments, which the OCG Customs Administration and the Slovak mate control over the encryption and de- then transferred to fake companies. The Financial Administration. Fuel fraud is a cryption of their data; OCG later transferred the profits to bank growing phenomenon used by OCGs to „„ Homomorphic encryption allowing accounts in various Asian countries and avoid excise duties. It typically involves for data to be computed without com- Turkey. The investigations unveiled fur- base-oil fraud, also called designer fuel promising the privacy of that data; ther plans to commit fraud, which were fraud, and fuel laundering. (CR) „„ Information-hiding technologies, not able to be realised. (CR) e.g., steganography; Staff Exchange „„ Quantum computing and 5G. The second staff exchange initiative „„ In its conclusions, the report pin- European Judicial Network (EJN) took place between the European De- points the overarching problem of con- fence Agency (EDA), the permanent ducting criminal investigations in con- Compilation on Judicial Cooperation Computer Emergency Response Team temporary society when sources of data under CODVID-19 Available (CERT-EU), the EU Cybersecurity by which to gather evidence are cut off. The EJN is currently collecting and Agency (ENISA), and Europol’s Euro- For the first joint report on encryption, compiling information on the meas- pean Cybercrime Centre (EC3). see eucrim 1/2019, p. 12. (CR) ures taken by the EU Member States in From 17 to 20 February 2020, experts the area of international cooperation in from the different agencies met in Brus- Anti-Drug Trafficking Results 2019 criminal matters under the COVID-19 sels to learn about each other’s priorities In 2019, Eurojust and the EU Member restrictions. The information is accessi- and practices, focusing on strategic de- States tackled illicit drug trafficking ble for the EJN Contact Points under the velopments in cyber defence. In addi- worth over € 2.8 billion. Through action Restricted Area for Contact Points. (CR) tion, they met with industry representa- days, coordination meetings, and other tives and were trained in threat hunting. judicial support, a total of 2686 suspects Updated Publication of European (CR) were able to be arrested or surrendered Criminal Law Texts Available to other Member States. Approximately The compendium “European Union in- €2 billion in criminal assets were frozen struments in the field of criminal law Eurojust and over a thousand weapons, mobile and related texts” (see eucrim 4/2019, phones, laptops, and cars seized. p. 227) is now available for download Second Report on Encryption Published In numbers: Eurojust organised 27 from the EJN website. The publication In February 2020, Eurojust and Europol coordination centres, 430 coordination contains a selection of 106 texts that are published their second joint report on meetings were held, and 800 agreements relevant in the field of European crimi-

14 | eucrim 1 / 2020 Institutions

nal law. Hard copies can be ordered as well as technical equipment will be „„ Migration; from the Documentation Centre of the deployed and provided by the Rapid Re- „„ Child rights; Council of the European Union. (CR) action and Rapid Reaction Equipment „„ Disability; Pools. Consequently, on 12 March 2020, „„ Roma; 100 additional border guards from 22 „„ Ageing; Frontex EU Member States were deployed at the „„ Integration; Greek land borders. Furthermore, Mem- „„ Artificial intelligence, etc. Cooperation with DG Migration ber States are providing technical equip- One of FRA’s priorities for the year and Home Affairs ment, including vessels, maritime sur- 2020 will be the national application of On 5 February 2020, Frontex and the veillance aircraft, and Thermal-Vision the EU’s Fundamental Rights Charter. European Commission’s Directorate- Vehicles. Two additional Frontex border Furthermore, the situation of Roma in General for Migration and Home Affairs surveillance planes are in action. Prior different EU Member States will form a signed Terms of Reference (ToR) to en- to this rapid border intervention, Fron- prominent part of FRA’s work. hance their collaboration in the develop- tex already had more than 500 officers To complete its 2020 survey of les- ment of state-of-the-art technology for deployed in Greece, along with 11 ves- bian, gay, trans, bisexual, and intersex the border and coast guard community. sels and various other equipment. (CR) people, FRA will take a closer look at Under the ToR, Frontex has been asked the experiences of intersex people with to identify research activities addressing the aim to further contribute to the Euro- capability gaps in the following areas: Agency for Fundamental Rights (FRA) pean Commission’s list of actions to ad- surveillance, situational awareness, bio­ vance the rights of LGBTI people across metrics, cybersecurity, and information New FRA Website the EU. (CR) availability and exchange. These gaps Since February 2020, FRA has a re-de- are to be translated into requirements for signed website based on an enhanced, research solutions. theme-based structure. Main themes in- Furthermore, Frontex shall contrib- clude hate crime, asylum, and data pro- Specific Areas of Crime / ute to the development of solutions by tection. The new website highlights use- Substantive Criminal Law facilitating their operational testing ful tools such as FRA’s EU Fundamental and validation within the framework of Rights Information System (EFRIS) and Protection of Financial Interests Frontex Joint Operations and in cooper- provides country-specific information. It ation with national authorities. In order is also fully responsive across all mobile Budgetary Control Committee: EU Must to better address national as well as its devices. (CR) Strengthen Fight Against Fraud own operational needs, the Agency shall On 19 February 2020, the EP’s Budget- also monitor the outcomes of research Volume on FRA Published ary Control Committee (CONT) voted and assess their operational relevance. A new book written by 24 human rights on the discharge report prepared by Successful results shall be disseminated experts and published at the end of Janu- MEP Monika Hohlmeier (EPP, DE). By and exploited in order to facilitate their ary 2020 looks at FRA’s impact during a 20 to 4 vote, the committee members market uptake and use. Lastly, with the its 13-year existence. The book, entitled voted in favour of granting discharge results and knowledge obtained from “Human Rights Law and Evidence-Based of the Commission’s accounts for 2018 the Border Security research and inno- Policy – The impact of the EU Funda- (corresponding to 97% of the entire EU vation projects, Frontex will contribute mental Rights Agency,” reflects on FRA’s budget). However, MEPs recommend a to national capability development plan- experience throughout its first decade. number of measures to fight fraud and ning and the generation of the European It also examines the Agency’s position avoid conflicts of interest: Border and Coast Guard capability road- in the policy environment, its role in re- „„ The Commission should introduce maps. (CR) searching applied rights, and its response subsidy ceilings, so that EU financial to challenges and constraints. The book is support is distributed more fairly; it Rapid Border Intervention and the available from Routledge. (CR) should be made impossible to receive Greek-Turkish Border subsidies amounting to hundreds of mil- On 2 March 2020, Frontex launched a FRA’s Workplan in 2020 lions of Euros in one MFF-period; rapid border intervention to assist Greece At the beginning of 2020, FRA pub- „„ The Commission should create rules in dealing with the large numbers of mi- lished a calendar with scheduled prod- that allow disclosure of the end benefi- grants at its external borders to Turkey. ucts for 2020. The calendar covers is- ciaries of agricultural funds; Border guards and other relevant staff sues such as: „„ The EU must establish a complaint

eucrim 1 / 2020 | 15 NEWS – European Union mechanism enabling farmers to inform The EBA report acknowledges that in coordinating, leading, and monitoring the Commission of organised crime or all authorities in the sample have tak- the fight against money laundering and other malpractices (e.g., land-grabbing, en significant steps to strengthen their terrorist financing in more detail. (TW) forced labour, etc.); approach to AML/CFT supervision. „„Future guidelines must tackle con- Supervisory staff is well-trained and flicts of interest with regard to high-pro- committed to fighting financial crime. Commission Roadmap on Future AML/ file politicians; Several authorities have also made the CFT Actions „„The newly created European Public fight against ML/TF one of their key pri- On 12 February 2020, the Commission Prosecutor’s Office is underfinanced and orities and significantly expanded their published the roadmap “towards a new not fully operational in conjunction with AML/CFT supervisory teams in a num- comprehensive approach to prevent- current budget planning; based on an es- ber of cases. The report also observes, ing and combating money laundering timated caseload of 3000 cases per year, however, that most authorities faced and terrorism financing.” The roadmap the EPPO needs at least 76 additional challenges in operationalising the risk- launched a public consultation on pos- posts and €8 million in funding; based approach to AML/CFT. A number sible ways to overhaul current EU AML/ „„MEPs insist on the adoption of the of challenges are common to all peer- CFT legislation. It follows the AML regulation enabling the EU to restrict reviewed authorities and may therefore package presented by the Commission EU money for rule-of-law violations in hold true for other supervisory authori- in July 2019 (see eucrim 2/2018, pp. 94– a Member State (this regulation is cur- ties in all EU Member States. The major 97). In this package, the Commission rently blocked in the Council). challenges are as follows: highlighted a number of deficiencies in The CONT report comes in prepara- „„Translating theoretical knowledge of implementation of the EU anti-money tion for the EP’s discharge decision. The ML/TF risks into supervisory practice laundering framework and the need to discharge is one of the most important and risk-based supervisory strategies; develop a new comprehensive approach rights of the EP. „„Moving away from a focus on tick at the EU level. The debate is fuelled box compliance towards assessing the by recent money laundering scandals, effectiveness of banks’ AML/CFT sys- which, according to the Commission, Money Laundering tems and controls; show the full implementation of the „„Taking sufficiently dissuasive correc- most recent provisions introduced by EBA Report on Performance of AML/ tive measures if banks’ AML/CFT con- the 5th AML Directive. The 2018 Coun- CFT Banking Supervision trol systems are not effective; cil AML/CFT action plan cannot remedy

spot Authorities still face challenges „„Cooperating effectively with domes- the current weaknesses. light in the AML/CFT supervision of tic and international stakeholders to The Commission’s initiative now banks. Measures to correct defi- draw on synergies aims at sounding out the areas in which ciencies in banks’ anti-money launder- „„Positioning AML/CFT in the wider further action is needed at the EU level ing and countering the financing of ter- national and international supervisory in order to achieve a comprehensive and rorism (AML/CFT) systems and controls frameworks. effective framework to prevent -crimi should be more dissuasive. These are These challenges can result in inef- nals from laundering the proceeds of one of the main conclusions of the Euro- fective banking supervision. The EBA’s their illicit activities and to prevent the pean Banking Authority’s (EBA) first peer review will be continued in 2020. financing of terrorism. It prepares- fur report on competent authorities’ ap- The EBA will also continue to provide ther work which might result in concrete proaches to the AML/CFT supervision support and training to all competent EU legislative proposals. of banks. It is part of the EBA’s new du- AML/CFT authorities in order to help The Commission will also respond ties to ensure consistent and effective them tackle the key challenges identi- to demands from the EP to carry out a application of the EU’s AML/CFT law. fied in the present report. The EBA is more fundamental reform of the cur- The report is based on a peer review also working on a review of its AML/ rent EU AML/CFT legal framework, of seven supervisory authorities in five CFT guidelines in order to provide fur- in particular replacing the current AML EU Member States that was carried out ther guidance in areas where weaknesses directives with a directly applicable EU in 2019. It describes how these compe- persist. It has launched a public consul- regulation. In light of the recent Luanda tent authorities apply the risk-based ap- tation on the revised draft guidelines. Leaks, MEPs reiterated their position proach according to international stand- Stakeholders are invited to comment by when they discussed the state of play of ards, Directive (EU) 2015/849 (the 4th 6 July 2020. the EU fight against money laundering AMLD), and the European Supervisory The EBA has also published a in the plenary session on 12 February Authorities’ joint AML/CFT guidelines. factsheet explaining its new functions 2020. (TW)

16 | eucrim 1 / 2020 Specific Areas of Crime / Substantive Criminal Law

Infringement Procedures for Non- mitted by Member States in relation to of the Union’s GDP in 2018. The work- Transposition of 5th AML Directive individual payees. CESOP will enable a ing paper analysed data over a large pe- On 12 February 2020, the Commis- full overview of payments received by riod of time. Apparently, the EU’s trade sion started infringement proceedings payees from payers located in the Mem- self-surplus has become persistent over against eight Member States for not ber States and make the results of spe- time: the EU has had a self-surplus since having transposed the 5th Anti-Money cific analyses of information available 1993, when the single market was estab- Laundering Directive (Directive (EU) to Eurofisc liaison officials. The data in lished. This surplus has increased con- 2018/843; see also eucrim 2/2018, CESOP can also be cross-checked with siderably with the 2004 enlargement of pp. 93–94). The Commission sent letters other European databases. the EU and grown to a total of €2.9 tril- of formal notice to Cyprus, Hungary, The new rules shall apply from 1 Jan- lion over the past twelve years. the Netherlands, Portugal, Romania, uary 2024. They consist of two legal acts The researchers argue that the figure Slovakia, Slovenia, and Spain, because amending existing EU legislation in the should be zero if all transactions were the countries have not notified any im- field of VAT: properly reported and recorded. The plementation measure for the 5th AML „„ Council Regulation (EU) 2020/283 of phenomenon cannot be explained by Directive. The Commission stressed 18 February 2020 amending Regulation measurement errors or incidental inac- the importance of the Directive’s rules (EU) No 904/2010 as regards measures curacies only, but rather the large frac- for the EU’s collective interest. EU to strengthen administrative cooperation tion of the EU’s self-surplus seems to Member States were to have transposed in order to combat VAT fraud (O.J. L 62, be related to fraud in value added tax. the Directive by 10 January 2020. The 2.3.2020, 1); It is estimated that EU-wide VAT rev- Member States concerned now have two „„ Council Directive (EU) 2020/284 of enue shortfalls could range from €27 to months to deliver a satisfying response; 18 February 2020 amending Directive 35 billion per year in a realistic scenario. otherwise, the Commission will send 2006/112/EC as regards introducing cer- At worst, revenue shortfalls would even them reasoned opinions. (TW) tain requirements for payment service amount to €64 billion. providers (O.J. L 62, 2.3.2020, 7). The researchers also point out that Against the background of this new data quality varies among the Mem- Tax Evasion legislation, on 18 March 2020, the Eu- ber States. The differences were most ropean Commission published a survey pronounced between EU neighbour- New Legislation to Fight VAT Fraud for actors in the payment industry. The ing countries and also between Mem- in Cross-Border E-Commerce survey aims to gather input from the ber States with the more divergent VAT In February 2020, the Council adopted different actors in the payment industry rates. As a result of the study, the follow- new legislative measures to combat regarding the new reporting obligations ing recommendations were made: cross-border VAT fraud caused by the introduced by Directive (EU) 2020/284. „„ Institutions in charge should substan- fraudulent behaviour of some business- It gathers their views on implementation tially improve the quality and reliability es in the area of cross-border e-com­ of the legislative package on the trans- of intra-EU data on the balance of pay- merce. The reform will introduce obli- mission and exchange of payment data ment; gations for payment service providers, in order to fight VAT fraud. The results „„ An electronic clearing procedure e.g., banks, to keep sufficiently detailed will feed the work of the expert group should be established to make tax fraud records and to report certain cross-bor- established to implement the new VAT and data misreporting very difficult; der payments, thus enabling the loca- regulations. (TW) „„ The non-disclosure or non-collection tion of the payer and the payee to be of certain balance-of-payment items more easily identified. It will help fa- Kiel Study: EU’s Trade Self-Surplus (e.g., primary income) should be dealt cilitate controls of the supplies of goods Goes Back to VAT Fraud with urgently. and services by the competent Member In a working paper published in Janu- The study shows that tackling VAT State authorities. ary 2020, the Kiel Institute for the World fraud in the EU should be a top prior- In addition, a new central elec- Economy (IfW) and the ifo Institute in ity, because the large trade self-surplus tronic system of payment information Munich, Germany elucidate that the is fuelling international disputes. (TW) (“CESOP”) will be set up for storage of main reason for the EU’s large trade the payment information and for further surplus with itself is apparently large- Commission Announces New processing of this information by nation- scale VAT fraud. By applying forensic Initiatives to Tackle Tax Evasion al anti-fraud officials. CESOP will store, accounting methods, the researchers ob- The European Commission announced aggregate, and analyse all VAT-relevant served that the EU runs a trade surplus that it will adopt a new action plan to information regarding payments trans- with itself of €307 billion or 1.9 percent fight tax evasion in the second quarter of

eucrim 1 / 2020 | 17 NEWS – European Union

2020. The Commission opened a public British Overseas Territories (Bahamas, overview of recent taxation trends, the consultation for this purpose. The Action Bermudas, and British Virgin Islands) survey outlines how national taxation Plan will not only include key initiatives were removed from the list, as the Coun- systems perform against the five bench- to tackle tax evasion and tax fraud but cil considered these jurisdictions to be in marks. The aim is to help Member States also to simplify the tax system in order line with the international tax standards find the best way to address their own to make compliance easier. It will also in the meantime. This move was criti- specific tax challenges. The survey then launch the External Strategy on tax good cised by tax transparency organisations. reviews Member States’ most recent tax governance 2020. The Council also removed 13 additional reforms and describes some general re- The Commission points out that bil- jurisdictions from the “black list.” form options. Lastly, it presents the ma- lions of euros are lost due to tax eva- Thirteen countries remain on a “grey jor recent actions on tax matters at EU sion every year in the EU (see also the list” (including, e.g., Turkey, Bosnia- level (2014–2020). New elements of the news item on the recent Kiel study on Herzegovina, Morocco, and Australia). present edition of the survey include, in- VAT fraud). On the one hand, efforts by This list (Annex II of the Council conclu- ter alia, discussions on: national tax authorities to tackle tax eva- sions) covers jurisdictions that showed „„Tax competition; sion are increasingly being hampered by cooperation and are set to deliver on „„Design and distribution of the overall new business models, especially those their reform commitment, although they tax mix; based on digital technology. On the have not yet met the international tax „„Sustainability of tax systems in a other hand, companies that do business standards. The Council partly granted changing world; in the single market need a simpler and deadline extensions to these countries. „„Measurement of effective tax rates on more up-to-date tax system. The Council will continue to regu- corporate income. Against this background, the new Ac- larly review and update the list in the The survey provides evidence that tion Plan is to implement Ursula von der coming years, taking into consideration multinational enterprises continue to en- Leyen’s vision that Europe will be “an the evolving deadlines for jurisdictions gage in aggressive tax planning in order economy that works for people.” This to deliver on their commitments and the to decrease their tax burden. In addition, includes fair taxation, so that everybody development of the listing criteria that billions of euros in tax revenue are lost pays their fair share, and the creation of the EU uses to establish the list. (TW) in the EU each year, because individu- a tax environment in which the economy als evade taxes. According to the survey, can grow. The Action Plan is also to take Tax Policies in the European Union − taxation is more than just about raising advantage of the latest developments in 2020 Survey revenue but also plays a central role in technology and digitalisation. (TW) On 31 January 2020, the European Com- shaping a fairer society. Right and fair mission (DG TAXUD) published the tax policies can eventually contribute Council Revises List of Non- fourth edition of its survey on “tax poli- to achieving the goals of the European Cooperative Tax Jurisdictions cies in the EU.” The survey examines Green Deal. On 18 February 2020, the Economic and how Member States’ tax systems per- One of the main conclusions is that Financial Affairs Council revised the form in respect of the following bench- there is scope for Member States’ tax EU list of non-cooperative jurisdictions marks: systems to be fairer and more efficient. for tax purposes. By blacklisting cer- „„Stimulating investment and address- This can be accomplished by various tain countries, the EU aims to promote ing positive and negative externalities; means, including tax incentives, reduced good tax governance at the global level. „„Improving tax administration and tax tax burdens on low-income earners, tax The list includes jurisdictions that either certainty; policies to foster social mobility, and have not engaged in a constructive dia- „„Developing a more employment- the creation of effective tools to fight logue with the EU on tax governance or friendly environment; tax avoidance. The Commission admits, failed to deliver on their commitments to „„Correcting inequalities and promot- however, that there is no “one size does implement reforms complying with the ing social mobility; fit all” rule, but instead tax policies must EU’s criteria on time. „„Fighting tax fraud, evasion, and take account of the national specificities Next to the eight countries already avoidance. and circumstances. on the blacklist (American Samoa, Fiji, These benchmarks in mind, the report The survey on tax policies in the EU Guam, Oman, Samoa, Trinidad and identifies possible improvements to tax is an important tool in the context of the Tobago, US Virgin Islands, Vanuatu), systems in terms of tax design, imple- European Semester and substantiates the the Council added Palau, Panama, Sey- mentation, and compliance. tax policy priorities of the Commission’s chelles, and – as the first British Over- After defining what makes a fair and Annual Sustainable Growth Strategy. seas Territory – Cayman Islands. Other efficient tax system and providing an (TW)

18 | eucrim 1 / 2020 Specific Areas of Crime / Substantive Criminal Law

Evaluation of the Tobacco Taxation slightly over the years, this area remains that investment are being adapted to Directive a substantial challenge. It is estimated elicit speculative investments in stocks On 10 February 2020, the European that the EU potentially loses € 7.5 bil- related to COVID-19. One special form Commission published the results of lion in excise revenues, which calls for involves supply scams attacking busi- its evaluation of Directive 2011/64/ strengthening enforcement policies and nesses providing supplies to prevent EU, which provides for the structure designing tax regimes with enforcement CODIVD-19, e.g., protective masks. and rates of excise duties on manufac- safeguard measures; With regard to counterfeit and substand- tured tobacco (i.e., cigarettes, cigars and „„ There has been an increase in the il- ard goods, the report notes a booming cigarillos, fine-cut tobacco for rolling licit manufacturing of cigarettes within market in the pandemic economy, espe- cigarettes, and other smoking tobacco). the EU, requiring a harmonised ap- cially with regard to medical products. The Directive identifies which tobacco proach to monitoring the flow of raw As far as organised property crime products are subject to the harmonised tobacco within and into the EU. is concerned, the report finds criminals’ rules for excise duties and sets minimum Ultimately, the evaluation report calls modi operandi being adapted to already levels of taxation. It aims at ensuring for a more comprehensive and holistic existing schemes involving theft, e.g., the proper functioning of the internal approach, because Directive 2011/64 is the impersonation of relatives or author- market, at a high level of health protec- not much coherent with other EU poli- ities (faking and entering) in ‘Corona’ tion, and at bolstering the fight against cies. This approach should take into ac- situations. tax fraud, tax evasion, and illegal cross- count all aspects of tobacco control, in- Lastly, looking at other criminal border shopping. cluding public health, taxation, the fight activities, the report finds it difficult The evaluation assesses to which ex- against illicit trade, and environmental to assess the short-term impact of the tent implementation of the Directive’s concerns. (TW) COVID-19 crisis on the drug trafficking provisions has contributed to achieving market, but anticipates that supply short- the objectives. In line with the EU’s Bet- ages will translate into increased drug- ter Regulation Guidelines, it was carried Organised Crime related violence between rival suppliers out according to the basic evaluation and distributors. criteria of effectiveness, efficiency, rel- Impact of COVID-19 on Serious The demand for migrant smuggling evance, coherence, and EU added value. and Organised Crime services may increase, with new move- The main findings are as follows: On 27 March 2020, Europol ments being undertaken to circumvent spot „„ The current legislation has been light published a report on exploita- the enhanced border control measures. working well in terms of the predictabil- tion of the COVID-19 pandemic Sexual exploitation may increase due to ity and stability of fiscal revenues for by criminals. The report, which aims to the closure of establishments offering le- Member States; support EU Member States’ law en- gal sex work. „„ The Directive allows Member States forcement, looks at the impact of meas- The report is based on information enough flexibility to implement their ures taken by governments against the received by the EU Member States on a national fiscal policies for traditional COVID-19 crisis on serious and organ- 24/7 basis. (CR) tobacco products (with €82.3 billion ex- ised crime. The report analyses the im- cise tax revenue in the EU in 2017); pact of the crisis in four key areas: cy- „„ New products, such as e-cigarettes or bercrime, fraud, trafficking in counterfeit Cybercrime heated tobacco products, illustrate the and substandard goods, and organised limits of the current legal framework, property crime. Furthermore, it takes a EU’s 5G Cybersecurity Toolbox which is unable to cope with these in- brief look at other criminal activities. On 29 January 2020, the Commis- creasingly developing markets; In the area of cybercrime, the report sion tabled an EU toolbox of mitigat- „„ The impact of the tobacco taxation sees a further increase in the number ing measures with the consensus of EU Directive on public health has been of cyberattacks involving various mal- Member States in order to address se- moderate; ware and ransomware packages themed curity risks related to the rollout of 5G, „„ Significant differences in taxes (hence around the COVID-19 pandemic. The the fifth generation of mobile networks. prices) between Member States also threat of cyberattacks against critical Ensuring protection of 5G from cyber- limit the objective of achieving public health infrastructure is seen as a major security threats is one of the EU’s top health, particularly where there is a high risk. strategic priorities. The concrete propos- level of cross-border shopping; According to the report, a large num- als in the toolbox follow the European „„ Although illicit trade in cigarettes ber of new or adapted fraud and scam Council conclusions, which called for a and fine-cut tobacco have decreased schemes is expected to emerge. It seems concerted approach to the 5G security,

eucrim 1 / 2020 | 19 NEWS – European Union as well as the ensuing Commission Rec- as the most frequent concerns about be- The Commission still has reservations, ommendation for Member States to take coming a victim of cybercrime; however, insisting that cross-border re- concrete actions to assess cybersecurity „„ A large majority (77%) are unaware moval orders be directly enforced by risks of 5G networks and to strengthen of the means to report a crime; hosting service providers and voicing risk mitigation measures (both adopted/ „„ A large majority (70%) did not report concern over the deployment of automat- issued in March 2019). a cybercrime. ed detection tools. By contrast, MEPs The toolbox lays out a range of se- The survey also informs on the per- stressed that the freedom of expression curity measures, allowing the effective centage which measures are taken by the must also be safeguarded in the Internet; mitigation of risks and ensuring that se- internet users in reaction of cybercrime they are against the obligation to use ex- cure 5G networks are deployed across threats. (TW) ante control measures or “upload filters” Europe. It sets out detailed mitigation (see also the report on the proposal by plans for each of the identified risks Cyber Information and Intelligence LIBE member Daniel Dalton of 9 April and recommends a set of key strategic Sharing Initiative Launched 2019; see also in this context the EP and technical measures to be taken by Europol launched the “Cyber Informa- resolution of 17 April 2019 and eucrim all Member States and/or by the Com- tion and Intelligence Sharing Initiative 1/2019, p. 21). Civil stakeholders identi- mission. Member States should take (CIISI-EU)” together with the European fied additional critical issues and oppose first concrete, measurable steps to im- Central Bank and a group of Europe’s the EU’s approach (see eucrim 1/2019, plement the key measures by 30 April largest and most important financial in- p. 22). In his formal comments of Febru- 2020 (see also the Commission Com- frastructures. The aim is to protect the ary 2019, the European Data Protection munication “Secure 5G deployment in European financial system from cyber- Supervisor encouraged the EU legislator the EU − Implementing the EU tool- attacks. to respect fundamental rights, in par- box,” COM(2020) 50 final). They are The initiative of 27 February 2020 ticular data protection, and to take into also invited to prepare a joint report on brings together central banks, clearing account the principles of quality of law implementation in each Member State houses, stock exchanges, and payment and economic certainty (see details at by 30 June 2020. By October 2020, the system providers as well as Europol and eucrim 1/2019, p. 21). (TW) Commission plans a review of its March the European Union Agency for Cyber- 2019 Recommendation. (TW) security (ENISA) in order to share vital cybersecurity threat information. Key is- Eurobarometer: Europeans Attitudes sues concern: Procedural Criminal Law Towards Cyber Security „„ The ability to understand the threat; Alongside the presentation of the EU „„ The ability to provide for a collective Procedural Safeguards toolbox on joint security measures for response; 5G networks in January 2020, a special „„ Awareness raising concerning pro- CJEU: Prosecutor Can Balance Eurobarometer survey was published tective measures needed to achieve a Defence Rights Against Effective that aimed at identifying EU citizens’ change in behaviour amongst financial Fraud Prosecution (Kolev II) awareness, experience, and perception institutions. (CR) In Case C-612/15 (criminal proceedings of cyber security. The fieldwork was car- against Nikoley Kolev, Stefan Kosta- ried out in October 2019. The main find- dinov, judgment of 5 June 2018, see ings of the survey are as follows: Racism and Xenophobia eucrim 2/2018, pp. 99/101), the CJEU „„ The majority of respondents (52%) ruled that Union law, i.e., the obligation feel that they are not able to protect Terrorist Content Online Regulation – to protect the EU’s financial interests themselves sufficiently against cyber- Controversies in Trilogue in accordance with Art. 325(1) TFEU, crime (while the figure was much higher On 21 January 2020, the LIBE Commit- precludes national legislation that es- (71%) in 2017); tee discussed the Commission proposal tablishes a procedure for the termination „„ Awareness of cybercrime is rising, for a regulation on preventing the dis- of criminal proceedings, such as that with 52% of respondents stating that semination of terrorist content online provided for in Arts. 368 and 369 of the they are fairly well or very well in- (for the proposal, see eucrim 2/2018, Bulgarian Code of Criminal Procedure, formed about cybercrime (up from 46% 97–98 and the article by G. Robinson, in so far as that legislation is applicable in 2017); eucrim 4/2018, p. 234). Rapporteur Pa- in proceedings initiated with respect to „„ Bank card or online banking fraud, tryk Jaki (ECR, PL) outlined that agree- cases of serious fraud or other serious infection of devices with malicious soft- ments with the trilogue partners were illegal activities affecting the financial ware, and identity theft were reported reached on broad parts of the proposal. interests of the European Union in cus-

20 | eucrim 1 / 2020 Procedural Criminal Law toms matters. The CJEU added that it is CJEU: Accused Person Can Waive and the right to be present at the trial. In up to the national court to give full effect Right to Be Present at Trial light of the minimal degree of harmoni- to Art. 325(1) TFEU by disapplying that The CJEU ruled on the conditions un- sation, the Directive therefore cannot be legislation, where necessary, while also der which the non-appearance of ac- understood as a complete and exhaustive ensuring respect for the fundamental cused persons at certain trial hearings instrument. (TW) rights of the persons accused. for reasons either within or beyond their Following this judgment, the referring control is compatible with Union law. German Bar Association Calls for court wished to remedy itself the pro- The concrete case deals with the pro- Further Strengthening of Procedural cedural irregularities that had occurred visions of the Bulgarian Criminal Code Safeguards in EU during the pre-trial phase of the criminal of Procedure on “trials in absentia” and The German Bar Association (Deutscher proceedings against the defendants. The which was brought to the CJEU by the Anwalt Verein − DAV) called on the irregularities concerned their right to be Spetsializiran nakazatelen sad (Special establishment of additional minimum informed about the charges and to ac- Court for Criminal Cases, Bulgaria): guarantees for procedural rights within cess the case material, although the trial the CJEU interpreted the right to be the EU. In its statement No 5/20 of Jan- phase had already been terminated and present at trial guaranteed by Art. 8 of uary 2020, the association assesses the the case referred back to the prosecutor. Directive 2016/343 (for the Directive, state of play of procedural safeguards The appeal court criticised this action on see eucrim 1/2016, p. 13 and the article in the EU on the basis of the six Di- the part of the referring court, because it by S. Cras/A. Erbežnik, eucrim 1/2016, rectives implemented since the 2009 was contradictory to national procedural pp. 25–36). In its judgment of 13 Feb- Roadmap. According to the statement, law. The appeal court requested that the ruary 2020 (Case C-688/18, criminal without effective control mechanisms referring court refer the case back to the proceedings against TX and UW), the to implement these directives, the in- prosecutor. CJEU did not object to the Bulgarian troduction of new instruments will only The referring court again referred rules. lead to limited improvement in proce- the case to the CJEU, seeking clarifica- The CJEU refers to recital 35 of Di- dural rights in the EU. The right to ac- tion on whether Union law precludes rective 2016/343, which states that the cess case materials, enshrined in Art. 7 the interpretation made by the appeal right of suspects and accused persons to of Directive 2012/13, for instance, re- court (Case C-704/18, Kolev II). The be present at the trial is not absolute. In quires further concretisation. Given that referring court argued that the injunc- fact, under certain conditions, suspects the existing directives only cover part tion of the appeal court would make it and accused person should be able to, of the (minimum) harmonisation, the impossible to comply with the opera- expressly or tacitly, but unequivocally, German Bar Association advocates new tive part of the CJEU judgment accord- waive that right. The judges in Lux- initiatives. In this context, the statement ing to which the defendants’ rights in embourg took up the case law of the expressly welcomes the proposals for a Arts. 6 and 7 of Directive 2012/13 must ECtHR, according to which such waiver new Roadmap 2020 by the ECBA (see be implemented. of the right to take part in the hearing Matt, guest editorial, eucrim 1/2017, In its judgment of 12 February 2020, must be established unequivocally and p. 1). Among the measures proposed, the CJEU clarified that the choice on be attended by minimum safeguards the German Bar Association considers how the defendants’ rights are ensured commensurate with its seriousness. Fur- the following three areas important for falls within the procedural autonomy thermore, it must not run counter to any new EU initiatives: of the Member States. In applying the important public interest. „„ Minimum standards for pre-trial de- principles of equivalence and effective- In situations where the accused did tention; ness, the CJEU concludes that, as it is not appear in hearings for reasons which „„ Conflicts of jurisdiction and ne bis in with the criminal court, the prosecutor is are beyond his control, a waiver must be idem; also able to guarantee the rights of the flanked with guarantees that procedural „„ Admissibility and exclusion of evi- defence in the pre-trial phase. Hence, steps, which were taken during his non- dence. there is nothing wrong with the injunc- appearance (e.g., questioning of a wit- The German Bar Association also tion of the higher court (imposed on the ness), can be repeated. This is the case calls for revision of the Framework De- referring court to refer the case back to under Bulgarian law. cision on the European Arrest Warrant, the prosecutor), after termination of the The CJEU stressed, however, that ideally to take into account the CJEU’s trial phase of the criminal proceedings, Directive 2016/343 lays down only case law in this area, correct the exist- for procedural irregularities committed common minimum rules applicable to ing deficits, and introduce effective rem- during the pre-trial phase of those pro- criminal proceedings concerning certain edies against the issuance of a EAW in ceedings to be remedied. (TW) aspects of the presumption of innocence the issuing State. (TW)

eucrim 1 / 2020 | 21 NEWS – European Union

Data Protection came from the Conseil d’État (France) in State security (…) and the activities of the cases La Quadrature du Net, French the State in areas of criminal law,” the AG: Data Retention Should Be Strictly Data Network, Fédération des fournis- AG concludes that this exemption only Limited seurs d’accès à Internet associatifs, Ig- refers to specific activities by the State

spot Advocate General (AG) Manuel wan.net v Premier ministre, Garde des authorities on their own account. In light Campos Sánchez-Bordona ad- Sceaux, Ministre de la Justice, Ministre data retention situations, however, obli- vocates that the CJEU’s rather de l’Intérieur, Ministre des Armées. The gations are imposed on private parties, restrictive case law on the retention of Conseil d’État essentially seeks clari- whose cooperation is required. Even if personal data and access to these data by fication as to whether two obligations this cooperation is required for national law enforcement or intelligence authori- imposed on telecommunication service security interests, these activities are ties should be upheld. Following the providers under French legislation are governed by the Directive, i.e., the pro- judgment in the Joined Cases C-203/15, compatible with EU law: i.e., a) the (real- tection of privacy, which is enforceable Tele2 Sverige, and C-698/15, Tom Wat- time) collection of specific data; b) the against private actors. Accordingly, Di- son and Others (see eucrim 4/2016, retention of location and traffic data in -or rective 2002/58 is applicable in the data p. 164), the CJEU now has to deal with der to facilitate identification of any per- retention scenarios. further references for preliminary rul- son who is civilly and criminally liable. Second, the AG deals with the possi- ings. The AG’s opinion is linked to ref- „„ Case C-520/18: Request for a pre- bility under Art. 15 para. 1 of Directive erences initiated by national courts in liminary ruling from the Cour constitu- 2002/58. Under certain conditions, it France, Belgium, and the UK. All seek tionnelle (Belgium) in the case: Ordre allows Member States to adopt legisla- clarification as to whether their national des barreaux francophones et germano- tive measures providing for the reten- legislation on data retention is in line phones, Académie Fiscale ASBL, UA, tion of data if these measures follow with EU law. The courts criticised the Liga voor Mensenrechten ASBL, Ligue objectives of safeguarding national se- CJEU for having established hurdles des Droits de l’Homme ASBL, VZ, WY, curity, defence, public security, and the that are too high; the requirements set XX v Conseil des ministres. The Belgian prevention, investigation, detection, out in Tele2 Sverige/Watson deprive the court wonders whether the Belgian rules and prosecution of criminal offences or EU Member States of an instrument that on the retention of data which follow of unauthorised use of the electronic is absolutely necessary in order to com- multiple objectives (e.g., including the communication system. Limitations to bat terrorism and safeguard national se- investigation, detection and prosecution the privacy rights enshrined in the Di- curity, thus putting corresponding na- of offences other than serious crime and rective (in particular, the guarantee of tional security measures at risk. The the attainment of the defence of the ter- confidentiality of communications and references are as follows: ritory and of public security) are com- related traffic data) must be interpreted „„ Case C-623/17: Request for a pre- patible with EU law. In addition, the strictly and with regard to the fundamen- liminary ruling from the Investigatory referring court asks whether it might tal rights enshrined in the CFR. The AG Powers Tribunal (UK) in the case Pri- maintain the effects of the national law proposes upholding the case law of the vacy International v Secretary of State on a temporary basis if a failure with EU judgment Tele2 Sverige /Watson. From for Foreign and Commonwealth Affairs, law is concluded. the Union law perspective, it is dispro- Secretary of State for the Home Depart- Although the AG issued three sepa- portionate and unlawful if national laws ment, Government Communications rate opinions, he clarifies that all cases establish a general and indiscriminate Headquarters, Security Service, Secret before the CJEU raise common prob- retention of all traffic and location data Intelligence Service. The main proceed- lems. In essence, the yardstick for all of all subscribers and registered users. ings at the referring court concern the cases is Directive 2002/58/EC concern- By contrast, a Member State can follow acquisition and use of bulk communica- ing the processing of personal data and the approach of limited and discriminate tions data by the United Kingdom Se- the protection of privacy in the electron- retention flanked with limited access to curity and Intelligence Agencies (SIAs) ic communications sector (Directive on said data. This would entail the follow- via the operators of public electronic privacy and electronic communications) ing aspects: communications networks for the pur- and the fundamental rights enshrined in „„ Retention of specific categories of pose of protecting national security, the CFR. data that are absolutely essential for e.g., in the fields of counter-terrorism, First, the AG examines the appli- the effective prevention and control of counter-espionage, and counter-nuclear cability of Directive 2002/58/EC. Al- crime and the safeguarding of national proliferation. though Art. 1 para. 3 of the Directive security; „„ Joined Cases C-511/18 and 512/18: excludes from its scope “activities „„ Retention for a determinate period both requests for a preliminary ruling concerning public security, defence, adapted to each particular category;

22 | eucrim 1 / 2020 Procedural Criminal Law

„„Data access subject to a prior review AG Campos Sánchez-Bordona, the cas- electronic communications, read in the carried out either by a court or by an in- es at issue may have an impact on other light of Arts. 7, 8, 11, and 52(1) CFR, dependent administrative authority; jurisdictions. This includes the request must be interpreted as meaning that the „„Notification of data subjects (provid- for a preliminary ruling by the Federal categories of data concerned and the ed that ongoing investigations are not Administrative Court of Germany ask- duration of the period for which access jeapordised); ing for verification of the lawfulness of is sought are among the criteria for as- „„Adoption of rules to avoid misuse of, the 2015 German law on data retention sessing the seriousness of the interfer- and unlawful access to, retained data. (see eucrim 3/2019, p. 176). On 21 Janu- ence with fundamental rights that is as- The AG stressed, however, that it is ary 2020, AG Pitruzzella also published sociated with the access by competent not the task of the CJEU to develop a his opinion on interpretation of the Esto- national authorities to the personal data lawful data retention model. This must nian data retention legislation (see sepa- that providers of electronic communica- be done by the legislator. rate news item). (TW) tions services are obliged to retain under Further developing the previous case national legislation. law, the AG suggests that imposing a AG: Conditions of Access to Retained AG Pitruzzella confirmed this view. more extensive and general data reten- Telecommunications Data for Law Examining the lessons learned from tion regime is possible for “exceptional Enforcement the judgments in Tele2 Sverige/Watson situations characterised by an imminent Advocate General Giovanni Pitruzzella (Joined Cases C-203/15 and C-698/15, threat or an extraordinary risk warrant- presented his opinion on the Estonian see eucrim 4/2016, p. 164) and Ministe- ing the official declaration of a state of data retention law, advising on how rio Fiscal (Case C-207/16, see eucrim emergency.” However, such a regime Member States may arrange the conten- 3/2018, pp. 155–157), the AG concludes can also only be lawful for a limited pe- tious retention of personal data for law that both the categories of data con- riod and it must be proportionate. enforcement purposes while keeping in cerned and the duration of the period for As regards the concrete cases at is- line with Union law (opinion of 21 Janu- which access to these data is sought are sue, the AG concludes that Union law ary 2020, Case C-746/18, H.K. v Proku- relevant. He further states that, depend- precludes the established national data ratuur). ing on the seriousness of the interfer- retention legislations in France, Bel- The case is related to criminal pro- ence, it was up to the referring court to gium, and the UK, because they are gen- ceedings against H.K. for several rob- assess whether this access was strictly eral and indiscriminate. There is, how- beries, fraud, and violence against par- necessary to achieve the objective of ever, no preclusion for the specific part ties to court proceedings. The criminal preventing, investigating, detecting, and of French law that permits the real-time court of first instance based H.K.’s con- prosecuting criminal offences. collection of traffic and location data of viction on, inter alia, reports drawn up In addition, the Estonian Supreme individuals, “provided that those activi- using data relating to electronic com- Court posed the question of whether ties are carried out in accordance with munications in accordance with the es- the public prosecutor who granted ac- established procedures for accessing le- tablished Estonian data retention law. cess – also in view of the various duties gitimately retained personal data and are The investigating authority had obtained assigned to it under Estonian law – can subject to the same safeguards.” the data from a telecommunications ser- be considered an “independent” admin- As regards the specific question vice provider in the pre-trial procedure, istrative authority. This question refers posed by the Belgian court, the AG pro- after having been granted authorisation to the CJEU requirement set out in its poses that “a national court may, if its from an assistant public prosecutor. The Tele2 Sverige/Watson judgment in that domestic law so permits, maintain the data provided insight into the location, access to retained data “should, as a gen- effects of legislation such as the Belgian length, partners, etc. of the accused’s eral rule, … be subject to a prior review legislation, on an exceptional and tem- communication within a given period of carried out either by a court or by an in- porary basis, even where that legislation time. H.K. argued that the reports are in- dependent administrative body, and that is incompatible with EU law, if main- admissible evidence and his conviction the decision of that court or body should taining those effects is justified by over- therefore unfounded. be made following a reasoned request by riding considerations relating to threats The Estonian Supreme Court, indeed, those authorities submitted, inter alia, to public security or national security had doubts on the compatibility with EU within the framework of procedures for that cannot be addressed by other means law of the circumstances in which inves- the prevention, detection or prosecution or other alternatives, but only for as long tigating authorities had access to that in- of crime.” The AG maintains that this re- as is strictly necessary to correct the in- formation. The Estonian Supreme Court quirement is not met by the public pros- compatibility with EU law.” raised the question of whether Art. 15(1) ecutor’s office, because it is responsible If the CJEU follows the opinion of of Directive 2002/58/EC on privacy and for directing the pre-trial procedure, on

eucrim 1 / 2020 | 23 NEWS – European Union the one hand, while also being likely to digital-agile economy must be boosted. how consistent application of the GDPR represent the public prosecution in judi- The European Data Strategy aims at cre- can be ensured in this regard. The exam- cial proceedings, on the other. ating a single market for data with the ples are not exhaustive, but the general The AG’s opinion on the Estonian following features: reasoning can be applied to all potential data retention law comes shortly after „„ Data flow within the EU and across areas of use. They cover both traditional the opinion of his colleague Manuel sectors, for the benefit of all; video devices and smart video devices. Campos Sánchez-Bordona, who exam- „„ Full respect for European rules, in The EDPB highlights that the inten- ined the general lawfulness of data re- particular on privacy and data protection sive use of video devices has massive tention regimes in France, Belgium, and as well as on competition law; implications for data protection. It also the UK. The topic of data retention will „„ Fair, practical, and clear rules for ac- affects citizens’ behaviour. In particu- continue to keep the CJEU busy. (TW) cess and use of data. lar, the technologies can limit the pos- In its Communication on a European sibilities of anonymous movement and Council Endorses Start of Negotiations data strategy, the Commission first sets anonymous use of services. While indi- on EU-Japan PNR Deal out what is at stake, what its vision is, viduals might be comfortable with video On 18 February 2020, the Council gave and what the problems are. Future ac- surveillance set up for a certain security green light to the Commission to start tions will be based on four pillars: purpose, for example, guarantees must negotiations with Japan on an agreement „„ A cross-sectoral governance frame- be taken to avoid misuse for totally dif- on the transfer and use of passenger work for data access and use; ferent and – for the data subject – un- name record (PNR) data. The Council „„ Investments in data and strengthening expected purposes (e.g., marketing endorsed the respective negotiating di- of Europe’s capabilities and infrastruc- purpose, employee performance moni- rectives recommended by the Commis- tures for hosting, processing, and using toring, etc.). The huge amount of video sion in September 2019 (see eucrim data, interoperability; data generated, combined with new tech- 3/2019, p. 175). The Agreement will set „„ Empowerment of individuals, invest- nical tools to exploit images, increase out the framework and conditions for ing in skills and in SMEs; the risk of secondary use. Furthermore, the exchange of PNR data, so that they „„ Common European data spaces in video surveillance systems in many can be used to prevent and fight terror- strategic sectors and domains of public ways change the way professionals from ism and serious crime. PNR data is per- interest. both the private and public sector inter- sonal information provided by passen- The strategy sets out key actions in act. The growing implementation of in- gers, which is collected and held by air each pillar. For this year, the Commis- telligent video analysis has contributed carriers (e.g., name of passenger, travel sion announced, inter alia, proposals on to high-performance video surveillance. dates, itineraries, seats, baggage, contact a Digital Services Act and a European These analysis techniques can be either details, and means of payment). Democracy Action Plan, a review of more intrusive (e.g., complex biomet- The data transfer to Japan will be in the eIDAS regulation, and measures to ric technologies) or less intrusive (e.g., line with the EU General Data Protec- strengthen cybersecurity by developing simple counting algorithms). The data tion Regulation as the Commission at- a Joint Cyber Unit. protection issues raised in each situa- tested Japan to guarantee an adequate The Commission has invited the pub- tion may differ, as will the legal analysis level of protection of personal data in lic to give feedback on its data strategy. when one or the other of these technolo- January 2019. (TW) The public consultation is open until gies has been used. 31 May 2020. (TW) In addition to privacy issues, there Commission Presents European Data are also risks related to the possible mal- Strategy EDPB: Data Protection Guidelines functioning of these devices and the bi- On 19 February 2020, the Commis- on Video Surveillance ases they may produce. According to the sion unveiled its plans and actions for a At its 17th plenary meeting on 28/29 Jan- guidelines report, research studies found European data strategy. The new Com- uary 2020, the European Data Protection that software used for facial identifica- mission under President Ursula von der Board (EDPB) adopted guidelines on tion, recognition, and analysis performs Leyen set the ambitious goal that the the processing of personal data through differently based on the age, gender, and EU become the leading role model for video devices. The guidelines take into ethnicity of the person, and algorithms a society empowered by data to make account a prior public consultation on are based on different demographics. better decisions – in business and in the topic (see eucrim 2/2019, p. 105). Thus, bias is one of the major problems the public sector. All European citizens These guidelines examine how the of video surveillance; data controllers and businesses should benefit from new GDPR applies in relation to the process- must regularly assess the relevance of technologies and the use of data. The ing of personal data by video devices and such identification methods and su-

24 | eucrim 1 / 2020 Procedural Criminal Law pervise the necessary guarantees. The in this emergency situation; however, Commission strategy for victims’ rights EDPB ultimately stresses that “video these measures must be proportionate (2020–2024) by summer 2020. Accord- surveillance is not by default a necessity and limited to the emergency period. ing to the Commissioners, 75 million when there are other means to achieve Under certain circumstances, the GDPR people fall victim to crime every year the underlying purpose.” allows the processing of personal data in across Europe. Although the EU has ro- The guidelines address the lawfulness the interest of public health without the bust victims’ rights legislation in place, of processing, including the processing individual’s consent. The EDPS state- there are still too many victims whose of special categories of data, the appli- ment also serves as a reminder of the rights are not equally guaranteed when cability of the household exemption, and core principles relating to the processing a crime is committed in an EU coun- the disclosure of footage to third parties. of personal data. try other than their own. The EU must Other analysed items include: For the processing of electronic com- therefore aim to guarantee equal rights, „„ Processing of special categories of munication data, such as mobile location regardless of where in the EU a person data; data, the e-Privacy Directive additional- falls victim to a crime. „„ Rights of the data subject; ly applies. In this context, public author- The new victims’ rights strategy will: „„ Transparency and information obli- ities should first aim to process location „„ Empower victims; gations; data in anonymously (i.e., processing „„ Strengthen cooperation and coordina- „„ Storage periods and erasure obliga- data should be aggregated in a way that tion between national authorities; tions; individuals cannot be re-identified). This „„ Improve protection and support to „„ Technical and organisational meas- could enable the generation of reports on victims; ures; the concentration of mobile devices at a „„ Facilitate access to compensation. „„ Data protection impact assessment. certain location (“cartography”). If it is Support and protection of victims is The EDPB – an assembly of the not possible to only process anonymous currently ensured by the EU through the EEA data protection authorities and the data, Art. 15 of the ePrivacy Directive Victims’ Rights Directive (2012/29/EU), European Data Protection Supervisor – enables the Member States to introduce sector-specific regulations (e.g., protec- works on consistent application of data legislative measures pursuing national tion of victims of human trafficking, protection rules throughout the Europe- security and public security. Such emer- child sexual abuse/child pornography, an Union and promotes cooperation be- gency legislation is possible under the and terrorism), and a legal scheme that tween the EU’s data protection authori- condition that it constitutes a necessary, facilitates access to compensation in sit- ties. (TW) appropriate, and proportionate measure uations where the crime was committed within a democratic society. If these in an EU country other than the victim’s Corona Outbreak and Data Protection measures are introduced, a Member country of residence. (TW) The outbreak of COVID-19 and subse- State is obliged to put in place adequate quent initiatives and policy measures safeguards, such as granting individuals have triggered many crucial privacy and using electronic communication servic- Freezing of Assets data protection law issues. The VUB es the right to judicial remedy. The pro- Law, Science and Technology Society portionality principle also applies. The CJEU: Confiscation of Illegal Assets Research Group has provided a collec- least intrusive solutions should always via Civil Proceedings Possible tion of statements and materials on be preferred, taking into account the spe- EU law does not preclude national leg- tracking initiatives and on European/in- cific purpose to be achieved. (TW) islation, which provides that a court ternational resources on the pandemic at may order the confiscation of illegally its website. obtained assets following proceedings In a statement of 19 March 2020, Victim Protection that were not subject either to a find- the European Data Protection Board ing of a criminal offence or, a fortiori, (EDPB) provides an answer to several Commission Announces New Victims’ the conviction of the persons accused of questions on data protection in the con- Rights Strategy committing such an offence. The CJEU text of the fight against the COVID-19 On the occasion of the European Day for drew this conclusion in Case C-234/18 pandemic. The statement focuses on the Victims of Crime on 22 February 2020 (ARGO IN 2001), following a reference processing of personal data by both pub- and following the xenophobic/racist at- for preliminary ruling by the Sofia City lic health authorities and employers. The tacks in Hanau/Germany on 19 February Court, Bulgaria. The Bulgarian court is EDPB refers to EU data protection rules 2020, Commission Vice-President Věra conducting civil proceedings against BP and stresses that the GDPR does not, in Jourová and Commissioner for Jus- and others for the confiscation of illegal- general, hinder restrictions of freedom tice Didier Reynders announced a new ly obtained assets. BP, the chair of the

eucrim 1 / 2020 | 25 NEWS – European Union supervisory board of a Bulgarian bank, Cooperation (in 2012/2013); however, the maximum allegedly incited others to misappropri- term of imprisonment was changed to ate funds belonging to that bank in the three years in 2015. The question now sum of approximately €105 million. The European Arrest Warrant was which point in time is decisive in criminal proceedings against him have order to determine the “minimum maxi- not been finally concluded and are still CJEU Ruling in Spanish Rapper Case: mum threshold” in Art. 2(2) FD EAW. pending. Independent of these criminal Legislation at Time of Offence Is Art. 2(2) FD EAW does away with the proceedings, the Bulgarian Commis- Decisive verification of double criminality, inter sion responsible for combatting corrup- On 3 March 2020, the Grand Chamber alia for “terrorism,” under the condition tion and for confiscating assets brought of the CJEU decided the legal question that the offence is punishable in the is- civil proceedings before said civil court referred to by the Court of Appeal of suing State for a maximum period of at in Sofia. The Bulgarian Commission re- Ghent, Belgium in the extradition case least three years. For the background of quested ordering the confiscation of as- against rapper Valtònyc (Case C-717/18). the case and the opinion of the Advocate sets from BP and members of his family, Spain had issued a European Arrest General, see eucrim 4/2019, pp. 245– because it found that they had acquired Warrant against Josep Miquel Arenas 246. assets of considerable value whose ori- (who performs as rapper under the name Contrary to the opinions of the Bel- gin could not be established. The Bul- Valtònyc) for the purpose of executing gian and Spanish governments and the garian court asked the CJEU whether a 2017 sentence of imprisonment. He Belgian Procureur-generaal, the CJEU such legislation is in line with Council was, inter alia, sentenced to the maxi- ruled that the executing authority must Framework Decision 2005/212/JHA of mum prison sentence of two years for take into account the law of the issuing 24 February 2005 on Confiscation of “glorification of terrorism and the hu- State in the version applicable to the Crime-Related Proceeds, Instrumentali- miliation of the victims of terrorism.” facts giving rise to the case in which the ties and Property, i.e., whether civil con- The sentence followed the law in force EAW was issued. The purpose of the fiscation procedures can be concluded at the time the offences were committed FD EAW, which is to facilitate and ac- without first establishing the commis- sion of a criminal offence. In its judgment of 19 March 2020, the EPRS Study on European Arrest Warrant CJEU confirmed the Bulgarian legisla- tion. The CJEU pointed out the purpose In February 2020, the European Parliamentary Research Service (EPRS) published an in- of the Framework Decision. It aims at depth analysis on implementation of the European Arrest Warrant (authors: Wouter van Ballegooij and Ivana Kiendl Krišto). The analysis is designed to support an own-initiative obliging Member States to establish implementation report by the EP’s LIBE committee (rapporteur: Javier Zarzalejos, EPP, common minimum rules for the confis- Spain) and to feed discussions on possible revision of the 2002 Framework Decision on cation of crime-related instrumentalities the European Arrest Warrant that may be triggered in 2020. The February report will be and proceeds in order to facilitate the followed by a study (planned for April 2020) that will present conclusions on implemen- mutual recognition of judicial confisca- tation of the framework decision and tentative recommendations on how to address any tion decisions adopted in criminal pro- shortcomings identified. ceedings. This does not preclude Mem- The analysis observes that the FD EAW is generally recognised as a successful instru- ment; however, its application has triggered a number of problems: ber States from providing other means of confiscation, such as the ones in the „„Definition of “issuing judicial authorities” and their independence from government; case at issue, which are civil in nature. „„The proportionality of EAWs issued for “minor offences” and before the case was “trial ready”; Coexistence with a confiscation regime „„Verification of double criminality, its compatibility with the principle of mutual recog- under criminal law is possible. nition, and the need for further approximation of laws; The CJEU concludes that EU law „„Interplay of the FD EAW with the FD on the transfer of prisoners in the cases of does not preclude national legislation surrender of nationals/residents; which provides that a court may order „„Application of the “trials in absentia” exception; the confiscation of illegally obtained „„The role of the executing authority in safeguarding the fundamental rights of the assets following proceedings which are requested person. not subject either to a finding of a crimi- The analysis also deals with the difficulties experienced by requested persons in ef- nal offence or, a fortiori, the conviction fectively exercising their procedural rights in accordance with the EU directives setting of the persons accused of committing out the approximation of criminal procedure in EAW cases. (TW) such an offence. (TW)

26 | eucrim 1 / 2020 Cooperation celerate judicial cooperation, as well as EU Member States, mutual trust among stances on the grounds that the right to the context of the provision justify this Member States, and interpretation of a fair trial will not be respected in the interpretation. The CJEU further argues the 2002 Framework Decision as such. issuing EU Member State (see details in that making reference to the version of MEPs pointed out that, after 18 years of eucrim 2/2018, pp. 104–105). the law at the time of the issuance of the existence, the FD EAW still triggers a hhDecision of the HRC EAW means that the executing author- number of CJEU judgments interpreting The court in Karlsruhe extensively ity has to look into possible amendments its provisions in a more or less funda- dealt with the recent reforms in Poland, of the laws in the issuing State, which mental way. They are not eager to revise which further restrict the independence would run counter to the principle of le- the FD, however, because this would of judges by introducing, inter alia, gal certainty. open “Pandora’s box” and the achieve- new rules on the disciplinary regime to Lastly, the CJEU clarifies the rela- ments would (again) be at stake. the Polish judiciary. This “muzzle law” tionship between Art. 2(2) and Art. 2(4) Notwithstanding, the representa- came into force on 14 February 2020 FD EAW: the fact that the offence at is- tive from the European Commission (for details, consult the recent news on sue cannot give rise to surrender without announced readiness to revise the FD the rule-of-law situation in Poland in the verification of the double criminality of EAW. Problems are mainly seen in the category “Foundations > Fundamental the act, pursuant to Art. 2(2), does not implementation of the FD and its incor- Rights”). The court also took into ac- necessarily mean that execution of the rect application. count recent developments against the EAW has to be refused. The executing The FD EAW will be at the centre of Polish reform at the EU level. It paid judicial authority is responsible for ex- further policy discussions in 2020. The particular attention to the CJEU’s judg- amining the double criminality criterion EPRS will present another study on the ment of 19 November 2019, in which of the act set out in Art. 2(4) in the light EAW in April 2020. This will serve as doubts were raised as to the independ- of the offence at issue. the basis for drafting an own-initiative ence and impartiality of the new Disci- The judgment means that the Bel- report by the EP on the EAW imple- plinary Chamber at the Polish Supreme gian extradition court must now verify mentation. The Commission envisages Court (see details in eucrim 3/2019, whether the facts giving rise to the EAW presenting an in-depth assessment on pp. 155–156). It also took into consid- against the rap artist would also be pun- the EAW by summer. And the upcoming eration other (pending) infringement ishable under Belgian law. However, the German Council Presidency will put the actions against the reform that had been first instance court already denied the issue of revision of the EAW on its JHA referred to the CJEU by the European double criminality of the act at issue, agenda. (TW) Commission. so it is likely that Valtònyc will not be Since the defendant put forward ma- surrendered to Spain. Another solution Fair Trial Concerns: German Court terial supporting the assertion that there would be that Spain withdraws the EAW Suspends Execution of Polish EAW are systemic deficiencies in the rule of because it was apparently issued on false spot With its decision of 17 February law in Poland, the HRC examined the legal assumptions. (TW) light 2020, the Higher Regional real risk of breach of the fundamental Court (HRC) of Karlsruhe, Ger- right to a fair trial – the second step MEPs: Revision of EAW Would Open many set aside an extradition arrest war- required by the CJEU in the Celmer Pandora’s Box rant against a Polish national who was to judgment. As this real risk could not On 20 February 2020, MEPs discussed be surrendered to Poland via an EAW be excluded, the HRC sent a catalogue policy options for the European Arrest issued for the purpose of criminal pros- with comprehensive questions to the Warrant in a meeting of the LIBE com- ecution. The court argued that a fair trial Polish Ministry of Justice asking for mittee. Legal experts reported on imple- for the requested person is not guaran- further clarifications on the new muz- mentation of the Framework Decision on teed in Poland following recent reforms zle law and its impact on the concrete the European Arrest Warrant (FD EAW). that had an impact on the disciplinary criminal proceedings, including pos- Politicians could also draw on a study by regime of the judiciary in Poland. sible disciplinary measures against the the European Parliamentary Research hhBackground deciding judges. At the same time, the Service (EPRS) that provided a first in- The court in Karlsruhe refers to the HRC set aside the extradition arrest depth analysis on implementation of the CJEU’s judgment of 25 July 2018 in warrant in Germany – following the EU’s surrender scheme (see separate Celmer (Case C-216/18 PPU – also current developments in Poland in re- news item). The EAW instrument was dubbed “LM”), in which the judges in spect of the judicial reform – because considered a generally successful tool; Luxembourg concluded that the execut- a “high probability” exists that extradi- however, challenges remain. These in- ing authority can refrain from giving tion would be inadmissible (at least) at volve the detention conditions in some effect to an EAW under certain circum- the moment.

eucrim 1 / 2020 | 27 NEWS – European Union hhPut in Focus the rule of law are therefore not to be the most recent CJEU judgments taken The HRC of Karlsruhe rendered a considered as internal issues for Poland. on this issue in 2019 (see also eucrim landmark decision. It is the first time The Assembly calls upon all Council of 3/2019, p. 178, and eucrim 4/2019, that a court in an EU Member State de- Europe member states to ensure that the pp. 242, 244–245), Eurojust’s update nied extradition because of possible fair courts under their jurisdiction ascertain now also offers information on the UK trial infringements in another EU coun- in all relevant criminal cases – includ- and Norway as well as information on try. Until now, courts in Europe consist- ing with regard to European Arrest War- judicial protection and the possibility to ently refused to accept non-extradition, rants – as well as in relevant civil cases, contest a prosecutor’s decision to issue following the judicial reforms in Poland whether fair legal proceedings in Po- an EAW. (CR) that started in 2015, because the hurdles land, as meant by Art. 6 of the European set by the CJEU in Celmer could not be Convention for Human Rights, can be overcome. Nearly all cases failed be- guaranteed for the defendants” (No. 11 Financial Penalties cause the courts were not convinced that of the adopted resolution of 28 January the requested person would run a real risk 2020). CJEU Rules on Union-wide of fair trial infringement in Poland. The The reference number of the HRC’s Enforcement of Fines against Legal HRC of Karlsruhe justifies its change in decision (Beschluss) of 17 February 2020 Persons view because the recent muzzle law has is: Ausl 301 AR 156/19. See also the spot After its judgment on the inter- shown that the person concerned could press release by the Oberlandesgericht­ light pretation of the Framework De- run this real risk. It is no longer an ab- Karlsruhe and the summary by Anna cision on the application of the stract danger, because the new discipli- Oehmichen in “beck-aktuell” (both in principle of mutual recognition to finan- nary regime has repercussions on the German). A first analysis in English has cial penalties (FD 2005/214/JHA) of entire judiciary, including on judges at been provided by Maximilian Steinbeis 5 December 2019 (see eucrim 4/2019, the competent criminal courts of first in- on Verfassungsblog.de. (TW) pp. 246–247), the CJEU delivered an- stance. However, the HRC of Karlsruhe other important judgment on the cross- stresses that the extradition procedure in Updated Overview on Position of Public border enforcement of fines on 4 March Germany is not yet finished; a final de- Prosecutors in Relation to the EAW 2020 (Case C-183/18, Bank BGŻ BNP cision on the case rests on the reply to On 30 March 2020, Eurojust published Paribas). The reference for preliminary the catalogue of questions by the Polish a new version of its country-by-coun- ruling was brought up by a Polish court. authorities. try overview on the position of public In the case at issue, the District Court of The decision of the HRC also dem- prosecutors in relation to the European Gdańsk, Poland, has to deal with a re- onstrates that the judiciary in other EU Arrest Warrant (EAW) (for the previ- quest from the central judicial recovery Member States cannot assess fair trial ous version, see eucrim 2/2019, p. 110). office of the Netherlands (CJIB) to rec- issues at the level of the European Ar- The overview was compiled following ognise and enforce a fine of €36 imposed rest Warrant without looking at other the CJEU’s judgment of May 2019, on the Bank BGŽ BNP Paribas Gdańsk, developments in judicial reform, in par- in which it declared that the German because the driver of a vehicle belong- ticular concrete CJEU case law follow- public prosecutors’ offices do not fall ing to the bank had exceeded the author- ing infringement proceedings against within the concept of “issuing judicial ised speed limit in Utrecht (Nether- the reform. The question is also whether authority” in the sense of Art. 6(1) FD lands). the CJEU’s case law on the EAW, on the EAW due to lack of independence (cf. hhLegal Problems one hand, and on the judicial reform in eucrim 1/2019, pp. 31–33). In another The referring court first observed that Poland, on the other, is consistent. judgment of May 2019 as regards the the Bank BGŽ BNP Paribas Gdańsk has In the present context, the following Lithuanian Prosecutor General, the no legal personality under Polish law statement of the Parliamentary Assem- CJEU set out requirements of objectiv- and does not have the capacity to act bly of the Council of Europe is worth ity and independence and the need for as a party in judicial proceedings. It is reading: effective judicial protection that must a separate entity of the parent company “The Assembly notes that the con- be afforded to the requested persons Bank BGŽ BNP Paribas S.A., which has cerns about the independence of the if an EAW is issued by a public pros- its seat in Warsaw. By contrast, Dutch Polish judiciary and justice system, as ecutor’s office. The judgments raised law covers organisational units like the well as Poland’s adherence to the rule of uncertainties amongst practitioners bank in Gdańsk under the concept of law, directly affect Europe as a whole. regarding the legal position of public “legal persons” who can be liable for The questions about the independence prosecutors in the Member States. misdemeanours. of the justice system and the respect for Alongside an updated summary of Second, the Polish court argues that

28 | eucrim 1 / 2020 Cooperation there is no legal basis for recognising and hhDecision as to the Second Question Law Enforcement Cooperation enforcing the imposed fine, because the As regards the conflict between the provisions of the Polish Code of Crimi- national law and the obligations under EDPB: CoE E-Evidence Legislation nal Procedure transposing FD 2005/214 Art. 9 para. 3 FD 2005/214, the CJEU Must Ensure Strong Data Protection do not include legal persons. Although first reiterates its established case law on Safeguards Art. 9 para. 3 of the FD imposes the ob- the effects of Union acts and the princi- In view of the negotiations on a Second ligation to enforce financial penalties ple of uniform interpretation. Referring Additional Protocol to the CoE Cyber- against legal persons, even if the execut- to the Poplawski judgment (see eucrim crime Convention (Budapest Conven- ing State does not recognise the princi- 2/2019, pp. 110–111), the CJEU reca- tion), which will include a framework ple of criminal liability of legal persons, pitulates that, although the framework for law enforcement authorities to di- in the view of the court, an interpretation decisions cannot have direct effect, their rectly receive data from service provid- of the Polish law in conformity with the binding character nevertheless places ers, the European Data Protection Board provision of Art. 9 para. 3 FD would be an obligation on national authorities addressed a letter to the responsible CoE contra legem. to interpret national law in conform- committee calling for the integration of hhQuestions Referred ity with EU law as from the date of ex- strong data protection safeguards. The As a consequence, the District Court piry of the period for the transposition EDPB points out that the contents of the of Gdańsk asked the CJEU the following of these framework decisions. While additional protocol deal with sensitive questions: the premise has its limits, e.g., no in- issues of data protection; it will involve „„Must the concept of “legal person” terpretation contra legem, the referring the collection of personal data, including in the FD 2005/214 be interpreted in court must exhaust all possibilities to not only subscriber but also traffic data, accordance with the law of the issuing consider an interpretation of the Polish on the basis of orders from another juris- State or the executing State or as an au- law in conformity with Union law (here, diction. The new legal framework must tonomous concept of EU law, and which the obligation under Art. 9 para. 3 FD be consistent with the CoE data protec- consequences does this answer have for 2005/214). Contrary to the opinion of tion convention (CETS no. 108) and the concrete liability of the banking en- the referring court, the CJEU believes should also be compliant with the EU’s tity in Gdańsk? that the concepts of the Polish Code of primary and secondary law. The EDPB „„Must the financial penalty imposed Criminal Procedure can be interpreted as also called on the CoE committee to en- on a legal person in the Netherlands be referring to the entity on which a final sure transparency of the ongoing discus- enforced in a Member State that has no financial penalty has been imposed, re- sions. The concerns of the data protec- national provisions on the execution of gardless of whether this entity is a legal tion authorities must be taken seriously. financial penalties imposed on legal per- or natural person. Alongside the CoE, the EU is also sons? hhPut in Focus working on a new regime for simplified hhDecision as to the First Question Although it is up to the national court and expedited access to e-evidence fol- Drawing on the context and the pur- alone to determine whether national lowing a Commission proposal of April pose of FD 2005/214, the CJEU con- law can be interpreted in conformity 2018. For the discussion, see eucrim cluded that the concept of “legal person” with EU law, the CJEU stressed that na- 3/2019, p. 181 with further references. cannot be interpreted as an autonomous tional courts are empowered to pull out For the state of play of the proposal, concept but must be interpreted in light all the stops in order to ensure compat- see the EP’s Legislative Observatory of the law of the issuing State. The CJEU ibility with the wording and purpose of website. In parallel, the EU is also ne- does not consider the legislation itself EU law (here the framework decision). gotiating an e-evidence agreement with problematic but rather the implementa- The CJEU has thus applied the lessons the USA (see eucrim 4/2019, p. 248 tion of the FD in practice. It advises the learned in the context of the Europe- with further references). The USA has Polish court to consider whether, under an Arrest Warrant (judgment in Case already established an e-evidence legal the given circumstances, the infringe- C-573/17, Poplawski II) to another in- framework via its CLOUD Act. Andrea ment committed by the bank in Gdańsk strument of mutual recognition in crimi- Jelinek, the Chair of the EDPB, stressed can be attributed to the parent company nal matters, i.e., the mutual recognition that the establishment of a modernised Paribas with its seat in Warsaw. The of financial penalties. Against this back- instrument for the exchange of personal sanction can be regarded as having been ground, the present judgment in Bank data with third countries for fighting cy- imposed on the entity with a legal per- BGŽ BNP Paribas is of general signifi- bercrime is not only consistent with the sonality. As a result, the fine could be cance, because the CJEU applies basic Council of Europe acquis, but also fully enforced against Bank BGŽ BNP Pari- principles of its established case law on compatible with the EU Treaties and the bas S.A. the primacy of Union law. (TW) Charter of Fundamental Rights. (TW)

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