eucrim ISSUE / ÉDITION / AUSGABE 1–2 / 2007 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

SUCCESSOR TO AGON

Focus on the National Implementation of “Third Pillar” Legislation Dossier particulier sur la mise en œuvre de la législation du « troisième pilier » Schwerpunktthema: Nationale Umsetzung der Gesetzgebung der „dritten Säule“

Der Kommissionsbericht über die Umsetzung der Instrumente zum Schutz der Finanzinteressen der Europäischen Gemeinschaften Dr. Bernd-Roland Killmann

The Level of Implementation of the Convention on the Protection of the EC’s Financial Interests and of the Follow-up Protocols in the Czech Republic Prof. Dr. Jaroslav Fenyk

Why Delays the Ratification of the PFI Convention in Hungary? Prof. Dr. Ákos Farkas

The Implementation of the European Arrest Warrant into National Law Isabelle Pérignon

Euroscepticism versus Building a Common System for the Surrender of Fugitives Eugenio Selvaggi 1 –2 / 2007 ISSUE / ÉDITION / AUSGABE

Contents Index / Inhalt

Editorial News* Articles Actualités / Kurzmeldungen Articles / Artikel The National Implementation of “Third Pillar” Legislation Reform of the European Union Cooperation 35 Mutual Administrative Assistance 48 Der Kommissionsbericht über die Foundations 36 Customs Cooperation Umsetzung der Instrumente zum Schutz 7 Community Powers in Criminal 37 Police Cooperation der Finanzinteressen der Europäischen Matters – Environmental Protection 38 European Arrest Warrant Gemeinschaften 9 Community Powers in Criminal 39 European Evidence Warrant Dr. Bernd-Roland Killmann Matters: PNR Data 39 European Supervision Order / 11 The Hague Programme Review Transfer of Sentenced Person 51 The Level of Implementation of the 12 Legislation / Databases 40 E-Justice Convention on the Protection of the EC’s 40 Exchange of Information on Financial Interests and of the Follow-up Institutions Criminal Records Protocols in the Czech Republic 12 Council Prof. Dr. Jaroslav Fenyk 13 OLAF 15 Europol 55 Why Delays the Ratification of the 17 Eurojust Council of Europe PFI Convention in Hungary? 18 European Union Agency Prof. Dr. Ákos Farkas for Fundamental Rights Foundations 57 The Implementation of the European Specific Areas of Crime / 41 Membership Arrest Warrant into National Law. Substantive Criminal Law 41 Relations between the Council of The Second Evaluation Report of the 19 Protection of Financial Interests Europe and the European Union Commission 22 Tax / VAT 42 Reform of the European Court of Isabelle Pérignon 22 Corruption Human Rights 23 Money Laundering 61 versus Building a 24 Money Counterfeiting Specific Areas of Crime Common System for the Surrender 25 Counterfeiting and Piracy 43 Corruption of Fugitives. The Implementation of 28 Organised Crime 44 Money Laundering the European Arrest Warrant in Italy 29 45 Cybercrime Eugenio Selvaggi 29 Illegal Employment 45 Counterfeiting 30 Racism and Xenophobia Procedural Criminal Law Procedural Criminal Law 46 Justice Organisation 30 Procedural Safeguards 31 Data Protection Cooperation 33 Ne bis in idem 34 Victim Protection Legislation Imprint / Impressum

* News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Editorial

Dear readers,

I am very happy to have been asked to introduce this new the national parliaments will be edition of eucrim. The focus of this issue is the implementa- the guardians of the principles of tion of EU legislation relating to the third pillar into national subsidiarity and proportionality. law. The Commission has recently adopted the 2nd Imple- There will be a “reinforced con- mentation Report on the European Arrest Warrant, a growing trol mechanism of subsidiarity” success story as you will read. These implementation reports so that “if a draft legislative act are very important since they are currently the only possibil- is contested by a simple major- ity for the Commission to highlight difficulties and under- ity of the votes allocated to na- line the importance of implementing third pillar instruments tional parliaments the Commis- (conventions, framework decisions, decisions). Indeed, as sion will re-examine the draft you know, there are currently no infringement proceedings act, which it may decide to against Member States in this area. The only tool we have maintain, amend or withdraw.” is political pressure, by way of these reports. Yet even these The European Court of Justice means have their limits. will have general jurisdiction to interpret and review the validity This exception of the third pillar may, however, soon disap- of the acts adopted in the area of pear. The June 2007 set the mandate for freedom, security and justice. the Intergovernmental Conference (IGC Mandate) that should Franco Frattini give birth to a Reform Treaty to be ratified before the elections The Reform Treaty will also pro- of the in June 2009. The Reform Treaty pose a common set of legal in- will emerge from a combination of the amendments presented struments. Instead of introducing new instruments (European by the IGC Mandate, along with those provisions that will sur- laws, European framework laws, European regulations) as vive from the Treaty Establishing a Constitution for Europe as proposed in the Constitutional Treaty, the Reform Treaty will signed in Rome in October 2004 (“the Constitutional Treaty”). keep the traditional instruments of the EC First Pillar (regula- The abolition of the pillars will have the direct consequence tions, directives, decisions, etc) for the entire legislative ac- that the “Community method” will apply to police and judicial tivity of the Union. The current third pillar instruments will cooperation in criminal matters, with certain exceptions. disappear.

The Reform Treaty will, in principle, improve the way deci- Like the Constitutional Treaty, the Reform Treaty will also sions are made since the standard procedure will be co-deci- provide the legal basis for the possible introduction of a - sion with the exclusive right of initiative of the Commission, pean Public Prosecutor from Eurojust. A Communication from qualified majority voting in the Council, and an enhanced the Commission on the future of Eurojust and the European role for the European Parliament and national parliaments. Judicial Network in criminal matters was adopted recently. Indeed, the IGC mandate states that the “national parliaments shall contribute actively to the good functioning of the Union We are therefore entering a new and enriching era! (…) by taking part within the framework of the area of free- dom, security and justice in the evaluation mechanisms (…) Franco Frattini and through being involved in the political monitoring of Eu- Vice-President of the Commission ropol and the evaluation of Eurojust’s activities”. In addition, Responsible for Justice, Freedom and Security

eucrim 1–2 / 2007 | 1 News Actualités / Kurzmeldungen

on European Union, was also quite re- luctant. The Portuguese Presidency af- firmed its ambition to stipulate quick proceedings. Immediately after the IGC mandate, the , the European Parliament, and the were consulted as required European Union by Art. 48 TEU. They gave green light to Reported by Thomas Wahl* the IGC in July 2007. In its Communica- tion to the Council entitled “Reforming Europe for the 21st Century”, the Com- Reform of the European Union It ends a six-year long period of trying mission outlines the benefits that a Re- By Thomas Wahl, Christine Löhr, to institutionally reform the EU which form Treaty will bring to the European Sarah Kiesel began with the “Laeken Summit” in Union and its citizens. 2001 and ended with the IGC mandate eucrim ID=0701003 at the summit led by the German Coun- The European Parliament, in its resolu- Fresh Elan in the Debate on the Future of cil Presidency in June 2007. The agreed tion on the convening of the IGC, wel- the European Union text is expected to go down in history as comed the fact that the new Reform At the summit in Brussels in June 2007, the “Lisbon Treaty”. Treaty would incorporate the bulk of the the Heads of State or Government of the eucrim ID=0701001 Constitutional Treaty. However, MEPs EU Member States agreed on a mandate also pointed out the shortcomings by for an Intergovernmental Conference July/June 2007: Mandate for Intergov- criticising the IGC mandate as not ad- (IGC). A new “Reform Treaty” is to be ernmental Conference equately addressing the challenges that negotiated to replace the Constitutional On 23/24 July 2007, the Portuguese the Union faces today. They also regret Treaty that had failed as a result of the Presidency opened the Intergovernmen- the increased number of exemptions no-votes in France and the Netherlands tal Conference (IGC) on the new EU granted to Member States in important in 2005. The IGC 2007 is significantly Treaty, having previously achieved a re- areas which could undermine the cohe- different from past inter-governmental spective mandate during the summit in sion of the EU. In particular, they disap- conferences designed to alter the found- Brussels on 22/23 June 2007 under the proved any derogation granted to Mem- ing treaties since almost no margin for German Presidency. At the European ber States on the Charter of Fundamental negotiations is left in the mandate and Summit, the 27 Member States agreed − Rights as damaging to the EU’s identity. which is why it should be finalised by the after a 36-hour marathon round of talks eucrim ID=0701004 end of 2007. The following news items − on a detailed mandate for an Intergov- will provide an introduction to the recent ernmental Conference. The term “IGC” Main Changes in General developments concerning the struggle of is used to describe a special negotiation In order to satisfy all the Member States’ the European Union to achieve a new in- process between the Member States’ concerns, not all of the Constitution’s in- stitutional structure. In the following, an governments with the intent to amend novations were taken up in the Reform overview will outline the main changes the existing Treaties; its procedure is set Treaty, but the main institutional reforms relating to European Criminal Law. It is out in Art. 48 TEU. will remain. Much of the substance of followed by a historical review of the re- eucrim ID=0701002 the Constitutional Treaty was able to be form debate. This agreement was reached despite maintained, including, for example, the heavy resistance from some Member appointment of a President of the Coun- 19 October 2007: EU Leaders Reach States. Poland especially vowed to fight cil for a two and a half-year term, and Accord on Reform Treaty against the proposed concept of a double a High Representative for Foreign Af- At an informal meeting in Lisbon, Portu- majority, population-oriented system. fairs and Security Policy. Furthermore, gal, the Heads of State or Government of The UK, which fought against a legal- the 27 EU Member States agreed on the ly binding inclusion of the EU Charter * All news on the European Union have been reported precise text of the new “Reform Treaty”. of Fundamental Rights into the Treaty by Thomas Wahl if not stated otherwise.

2 | eucrim 1–2 / 2007 NEWS a general co-decision procedure in the mit proposals for repealing a legislative the co-decision procedure (i.e., joint legislative area, leading to an increase in act. The UK defended its “red lines” and decision-making powers between the powers of the European Parliament, was upheld wide-ranging opt-outs in matters Council and European Parliament, qual- introduced, as well as a closer participa- of Justice and Home Affairs which were ified majority voting in the Council, and tion of the national parliaments in the negotiated in the run-up to the Lisbon the right of the Commission to submit decision-making process. summit (see below). initiatives), thus retaining Art. III-396 of Smaller changes were, however, neces- The following link leads to the draft Re- the Constitutional Treaty. sary due to the Polish and British objec- form Treaty which has been made avail- • National Parliaments will participate tions: the double majority system for de- able in all 23 official EU languages on in the decision-making process by be- cisions taken by the Council of Ministers the Council’s website. The website also ing given the competence to scrutinize as of 2014 will nonetheless be retained, contains the latest declarations approved the conformity of proposals or legisla- albeit with a transition phase until 2017. at the summit in Lisbon on 18 and 19 Oc- tive initiatives in the area of freedom, In addition, the obligatory nature of the tober 2007 as well as other background security and justice with the principles Char-ter of Fundamental Rights in all documents relating to the IGC 2007. of subsidiarity and proportionality. Member States is kept, with an exception eucrim ID=0701005 • The European Court of Justice is granted to Poland and the UK. In order to about to be granted general jurisdiction take into account many citizen’s fears of Relevant Changes Relating to European within all fields of JHA due to the new a European Super-State, the term “Con- Criminal Law institutional structure. Thus, the Com- stitution” will no longer be used; instead, As to European criminal law, the Reform mission will have the power to instigate the Reform Treaty process will follow the Treaty will retain the most relevant change infringement proceedings. The special traditional method of Treaty change, in- of the Constitutional Treaty, i.e., the abol- conditions on the preliminary ruling volving amendment of both the EC and ishment of the differentiation between the procedure in JHA as set out in Art. 35 EU Treaties. As a result, there will neither “first pillar” and “third pillar”. The provi- TEU and 68 TEC will be repealed. Like- be state-oriented symbols in the form of a sions of the “third pillar”, which currently wise maintained is the provision that flag nor an an-them. deal with police and judicial cooperation the Court must, by means of an expe- At the above-mentioned summit in Lis- in criminal matters in Art. 29 ff. TEU, will dited procedure, judge if questions are bon, EU leaders came to a compromise be put under the regime of the EC Treaty referred to the Court by national courts on some further last-minute objections (which will be renamed as the “Treaty in pending trials with regard to persons which were brought forward by several on the Functioning of the European Un- in custody (see below on the discussion Member States on the eve of the summit. ion” (TFEU)). All JHA provisions will be to alter the current system already). The Poland demanded introducing into the moved to Title IV (Articles 61 ff.) which Reform Treaty also retains the exception Treaty a mechanism which would allow a will change its name to “Area of freedom, of Art. 35 para. 5 TEU and Art. III-377 minority of States to delay key decisions security and justice” The Reform Treaty of the Constitutional Treaty that the ECJ taken by the Council by qualified major- will take over most of the amendments of may not judge the validity of measures ity – the so-called “Ioannina clause”. The the Constitutional Treaty, the most impor- carried out by the police or other law EU leaders agreed that the mechanism is tant of which are: enforcement authorities of the Member not set out in the Treaty but in an addi- • Although the text of the Charter of States, or those measures related to the tional declaration, meaning that the cum- Fundamental Rights will not be incorpo- maintenance of law and order or the bersome procedure of Treaty change does rated into the EU Treaty, the Charter will safeguarding of internal security. not apply to altering the provision; Poland be given a legally binding value for EU • The possible establishment of a Euro- was successful, however, since the provi- institutions and bodies as well as for the pean Public Prosecutor’s Office is main- sion may only be altered by unanimity. It- Member States (with special exceptions tained by the Reform Treaty (Art. 69i aly obtained an extra seat in the European for Poland and the UK). Thus, the new TFEU). As in the Constitutional Trea- Parliament and now has an equal number status of the Charter makes it possible to ty, it provides that the Council, acting of seats as the UK (both 73); the agreed check the conformity of legislation and unanimously and having obtained the maximum of 750 MEPs was preserved practice in the area of freedom, security consent of the European Parliament, has because the President of the EP will no and justice with the fundamental rights the power to institute a European Public longer be counted as a lawmaker. The and freedoms enshrined in the Charter. Prosecutor’s Office “from Eurojust”. Its concerns of the Czech Republic on the • The Reform Treaty also maintains the task could first be limited to combating division of competences between the EU single legal personality of the European crimes affecting the financial interests and Member States were met by a “Dec- Union, which paves the way for the EU’s of the European Union. The powers of laration in relation to the delimitation of accession to the European Convention the European Public Prosecutor’s Of- competences”. The declaration includes on Human Rights. The aim of accession fice will include investigating, prosecut- the possibility for the Council, upon the is explicitly envisaged in the revised Ar- ing, and bringing to judgment offences initiative of one or several of its members ticle 6 TEU. against the Union’s financial interests. and in accordance with Art. 208 of the EC • The Reform Treaty introduces as Moreover, the Reform Treaty retains Treaty, to request the Commission to sub- standard procedure in the field of JHA the Constitutional Treaty’s provision

eucrim 1–2 / 2007 | 3 NEWS concerning a possible extension of pow- UK, Ireland, and as to JHA are Public Prosecutor’s Office by means of ers of the European Public Prosecutor’s laid down in separate protocols. if neither a unani- Office to include serious crime with a • The UK also pushed through a five-year mous vote in the Council nor a consensus cross-border dimension. transitional period within which existing can be reached in the European Council. • Concerning the Union’s fight against measures of policing and criminal law Interestingly, the Reform Treaty is likely fraud, the wording of Article III-415 of that were adopted under the current trea- to only allow a group of Member States the Constitution is transferred to Article ties may not be subject to the powers of to use the mechanism of enhanced coop- 280 of the EC Treaty. In essence, the the Commission under Article 226 TFEU eration for the establishment of the EPP last sentence of paragraph 4, which pro- (infringement proceedings) and the full to protect the EC’s financial interests, but vides that “the measures in the fields of jurisdiction of the European Court of Jus- not for the extension of its mandate to the prevention of and fight against fraud tice. Under certain circumstances, in fact, other serious cross-border crime (cf. Art. affecting the financial interests of the the UK has reserved the right to opt out 69i TFEU vs. Art. III-274 of the Constitu- Community shall not concern the appli- from these measures for a longer period tional Treaty). cation of national criminal law or the na- (cf. Article 10 of Protocol No. 10). • The model of enhanced cooperation tional administration of justice”, will be • The Reform Treaty also modifies the will also apply to measures on opera- deleted. Thus, the European Union will way to apply the so-called emergency tional police cooperation, which, in prin- be enabled to protect its financial inter- brake and opens the way for a group of ciple, must be agreed upon unanimously ests by adopting legislative provisions Member States to go forward in the area (cf. Art. 69j TFEU vs. Art. III-275 of the on criminal law – if necessary, even by of policing and criminal law by enhanced Constitutional Treaty). means of regulations. cooperation, while allowing other Mem- eucrim ID=0701006 • The Reform Treaty will contain in ber States not to participate. The “emer- Art. 67a a clear legal basis for financial gency brake” clause – as negotiated in the Next Steps sanctions against persons suspected of Constitutional Treaty – applies to legal After the Portuguese Presidency obtained being linked with terrorism. However, acts on the mutual recognition of judicial an agreement on the Reform Treaty dur- this provision, as already known from decisions and on police and judicial co- ing the in-formal European Council in the Constitutional Treaty in Art. III-260, operation in criminal matters, as well as Lisbon on 18/19 October 2007, Euro- will be moved from the chapter on “cap- on the approximation of the criminal law pean heads of state and governments will ital and payment” to the general provi- of the Member States; it is considered a formally sign the Reform Treaty at the sions of JHA, therefore being subject to compensation for the Member States for European Council on 13/14 December opt-out measures. giving up their current right to veto in 2007. The French Presidency is supposed The IGC mandate of 2007 also contains the third pillar. The “emergency brake” to determine modalities in 2008. It is an- some divergences in comparison to the would lead to a suspension of the ordi- ticipated that the ratification process in Constitutional Treaty, the most essential nary legislative procedure (in particular, all 27 Member States will be completed of which are: qualified majority voting in the Council) before the European Parliament elections • Newly introduced in the Reform Trea- if a Member State considers a legislative in June 2009. ty is the possibility for the UK and Ire- proposal affecting fundamental aspects However, the ratification process at the land to opt out of EU decisions on closer of its legal system. As a consequence, it national level is likely to experience fur- cooperation in judicial and police mat- may request that the proposal is referred ther hurdles: a new round of ratification ters. The opt-out clause means that the to the European Council. In contrast to is necessary. Most Member States are countries are not required to participate the Constitutional Treaty, the Reform expected to attempt a ratification of the in the measures relating to the area of Treaty now modifies the procedure, i.e., Reform Treaty via their national parlia- freedom, security and justice. Whereas by abandoning the possibility for the Eu- ments only, so as to avoid new referen- the UK and Ireland are currently granted ropean Council to request from the Com- dums. Most of the States will need only an opt-out in the areas of visa, asylum mission or the initiating group of Mem- a simple or absolute majority to ratify and immigration, the extension of the ber States the submittal of a new draft the Reform Treaty, while others have to opt-out to the entire area of JHA, in- of the proposal. The Reform Treaty also pass a threshold of a two-thirds or even cluding policing and criminal law, was accelerates the possibility of a group of a three-fifth majority in their respective agreed upon at the summit in June 2007 Member States (at least nine) to adopt the parliaments. Ireland is legally bound to and differs from the Constitutional Trea- proposal by means of enhanced coopera- initiate a referendum. Other national ty. The UK and Ireland even secured the tion if a deadlock persists in the Council governments, such as those of the UK, right to opt out of amendments to Jus- (cf. Art. 69e para. 3 and Art. 69f para. 3 Denmark, and the Netherlands, face tice and Home Affairs legislation from TFEU versus Art. III-270 para. 3+4 and strong pressure to hold a referendum on which they have already opted in. Den- Art. III-271 para. 3+4 of the Constitu- the Reform Treaty. In case one of these mark has an opt-out to the Title on JHA tional Treaty). countries relents, this could be the be- too; however, this was already agreed • In a similar way, the Reform Treaty ginning of a “domino effect” as was the upon as part of the Constitutional Treaty. introduces the possibility for at least nine case in 2004/2005. The detailed rules on the positions of the Member States to establish the European eucrim ID=0701007

4 | eucrim 1–2 / 2007 NEWS

Historical Review

For a short timetable with links to the most important documents, 13 October 2005: Commission’s Plan D see: http://europa.eu/roadtoconstitution/chronology/index_en.htm The Commission contributes to the reflection period by the Com- munication on “Plan D for Democracy, Dialogue and Debate”. February 2002 – July 2003: European Convention Plan D aims to involve European citizens in a wide-ranging dis- The Convention on the Future of Europe, known in short as the cussion on the European Union. It essentially sets out a common European Convention, is working on a draft constitution of the framework (models and structures) to stimulate public debate on European Union. The European Convention was mandated by the the future of the European Union in all 25 EU Member States. The Laeken Declaration of 2001. It is presided by the former President Commission also intends to structure the feedback process and of France, Mr. Valéry Giscard d’Estaing, and convenes “the main proposes specific initiatives at the European level “to stimulate a parties involved in the debate on the future of the Union”, i.e., rep- wider public debate, to promote citizen’s participation and to gen- resentatives from national governments and national parliaments erate a real dialogue on European policies”. Plan D is part of the (of EU Member States and candidate countries) as well as from Commission’s new communication strategy which aims to act as the main European Institutions and bodies. The Convention has to a counterbalance to the European citizen’s general disapproval consider the key issues arising for the Union’s future development, of European Union’s policies. Plan D is complemented by the fol- among them the following four objectives: (1) a better division and lowing two initiatives: (1) The “Action Plan to Improve Communi- definition of competence in the European Union; (2) simplification cating Europe”, launched in July 2005, includes 50 actions which of the Union’s instruments; (3) more democracy, transparency, and focus on improving the Commission’s own capacities and skills to efficiency in the European Union; and (4) reflection on the adoption better communicate European policies. (2) The White Paper on of a European Constitution, integrating the Charter on Fundamental European Communication Policy of February 2006 triggers a pub- Rights adopted in Nice. On 20 July 2003, the draft Treaty establishing lic consultation on the best way to bring into play the key “stake- a Constitution for Europe is presented. Government representatives holders” – EU institutions and bodies; the national, regional, and check and adapt the draft between October 2003 and July 2004 in local authorities in the Member States; European political parties; the framework of an intergovernmental conference (IGC 2004). civil society – regarding the new communication strategy. eucrim ID=0701008 eucrim ID=0701011

29 October 2004: Signature of Constitutional Treaty 19 January 2006: European Parliament Calls In Rome, the Heads of State or Government and Ministers of For- for a Constitution by 2009 eign Affairs of the 25 Member States of the European Union sign The EP, in a resolution, calls for a constitution to be in place by 2009. the Treaty establishing a Constitution for Europe. The ceremony The resolution responds to the decision of the European Council takes place at Campidoglio in the Sala Degli Orazi and Curiazi, to put in train a period of reflection. The EP favours a broad public the same room in which the 6 original Member States signed the dialogue on the future of with clear political Treaty establishing the European Community in 1957. To enter into goals. MEPs resist proposals that a core group of Member States force, the Constitutional Treaty must be ratified by all Member begin implementing reforms while the constitutional process is still States, which are originally given time until October 2006 to do so. under way. They also oppose the strategy based on selective im- Declaration 30 states that if, by 1 November 2006, only four fifths plementation of the constitution. The resolution suggests, inter alia, of the Member States (meaning at least 20) have ratified the con- that, among the reforms which could be introduced at this stage, stitutional text and the others encountered ratification difficulties, full use of “passerelle” clauses (cf. Art. 42 TEU) in the field of justice the matter would be referred to the European Council. and home affairs could be made. Furthermore, the EP stresses that, eucrim ID=0701009 after the accession of Bulgaria and Romania, no further enlarge- ment will be possible without a new constitutional settlement. 29 May/1 June 2005: Negative Referenda in France eucrim ID=0701012 and the Netherlands The Constitutional Treaty is rejected by French and Dutch citizens. 10 May 2006: Commission Push for Citizens’ Agenda The result of the “no-votes” is a ratification crisis. Various other While taking stock of the debate on the future of Europe during countries put the ratification process on hold. the reflection period, European Commission chief Jose Manuel Barroso issues a reminder to put off a decision on the moribund 16/17 June 2005: European Council Decision to Start constitution until at least 2008. Meanwhile, EU leaders are to draw a “Reflection Period” up a “solemn” declaration committing to the EU’s goals and val- In the aftermath of the negative referenda in France and the Neth- ues as a first step towards a later institutional settlement. The tar- erlands, the European Council agrees that the ratification process get date for this declaration is the 50th anniversary of the Treaty should continue, but at a pace suited to the needs of the Member of Rome in March 2007. States. The delay occasioned by the “no-votes” is seen as an op- The Commission considers the text of the Treaty as a basis for fu- portunity for reflection, afterwards often called the “reflection ture decisions, but continues to endorse its principles and values; phase” or “reflection period”. Member States are encouraged to it emphasises improvements to the Constitution that would bring use the time to engage in intensive debate on the issue of Euro- about the effectiveness, openness, and accountability of the EU. pean integration, in which citizens, civil society, social partners, For the time being, the Commission proposes a new policy agenda national parliaments, and political parties are called on to par- as well as a continued dialogue intended to rebuild the citizens’ ticipate. confidence in the EU, including the implementation of Plan D (for eucrim ID=0701010 democracy, dialogue, and debate). The Commission’s thinking is

eucrim 1–2 / 2007 | 5 NEWS

based on a Eurobarometer opinion poll which showed that most Meanwhile, collateral projects are to be continued in order to EU citizens have a strong wish for more EU action in many areas, show the citizens in all Member States the advantages and ben- such as security and unemployment. efits of the EU. Apart from agreeing that more time is needed, eucrim ID=0701013 there is no real clarification. According to Austrian Chancellor Wolfgang Schüssel, there is no consensus that the substance 27/28 May 2006: Klosterneuburg Meeting of the constitutional treaty should be kept alive. Indeed, the EU The Foreign Ministers of the EU Member States meet in Stift Kloster­ leaders prolong the reflection period until 2008, resulting in a neuburg near Vienna to talk about the future of Europe. Austria’s negative echo in the press. Foreign Minister Ursula Plassnik, President of the Council of the EU, eucrim ID=0701018 declares that, by 2009 at the latest, the legal basis must be clear and that the incoming presidencies will work on this matter. In the 26 July 2006: UK’s House of Commons Asks to Abandon meantime, the common goals are more efficiency in the EU, better Constitutional Treaty information for the people of Europe about their advantages thanks The Foreign Affairs Committee of the UK’s House of Commons to the EU, and a continued dialogue with the citizens. The Ministers sees only a very slim chance for the Constitutional Treaty ever reach an agreement that the plan for the EU constitution is to be pur- to come into force. The British MPs want their government to sued without any “cherry-picking” from the Constitutional Treaty. officially “abandon the Treaty as a package”. They also oppose eucrim ID=0701014 the idea of implementing only parts of the Constitutional Treaty (known as “cherry-picking”). They reject “passerelle” or bridg- 6 June 2006: Franco-German Impulse ing” clauses as proposed by the European Commission to remove The German Chancellor, Angela Merkel, and the President of national vetoes in justice and police cooperation. France, Jacques Chirac, reaffirm their commitment to the Con- eucrim ID=0701019 stitutional Treaty at an informal meeting in Rheinsberg, Germany. With a view to Germany’s presidency of the EU in the first half of January 2007: End of the Reflection Period 2007, the German government will collect Member States’ sug- In January 2007, the German Presidency declares that the reflec- gestions concerning a future constitution. Merkel and Chirac tion phase is over. The favoured approach is to set up an Intergov- even consider a new opportunity for the Treaty during the French ernmental Conference (IGC) to agree on a text for a new treaty Council Presidency in the second half of 2008. under the Portuguese Presidency during the second half of 2007. eucrim ID=0701015 German Chancellor Angela Merkel wants to present a roadmap for a new treaty at the end of her presidency at the EU Summit on 21/22 11 June 2006: Austrian Chancellor Proposes June 2007, thus fulfilling the mandate which was given by the Euro- EU-Wide Referendum pean Council in June 2006. Finding a way out of the constitutional Austrian Chancellor Wolfgang Schüssel, President of the Euro- deadlock is at the top of Germany’s Presidency agenda. In doing pean Council, proposes putting the EU Constitution to an EU-wide so, Germany rejects ideas in support of the entering into force of referendum. The referendum should be held simultaneously in all only parts of the Constitutional Treaty, but staunchly defends its EU countries; to be successful, the referendum would require the stance to salvage all elements of the Constitutional Treaty. affirmation of the majority of individual countries and of the total eucrim ID=0701020 population. The idea of an EU-wide referendum is favoured by many people. It is often proposed to connect it with the elections 26 January 2007: Phalanx of Member States Advocates to the European Parliament in June 2009. “Maxi-Treaty” eucrim ID=0701016 Representatives of the 18 EU Member States that have already rati- fied the EU constitution meet in Madrid on an initiative of Spain and 14 June 2006: European Parliament Calls for Clear Proposal on Luxemburg. The “friends of the constitution”, as the the meeting is Constitutional Process called, backed the German message, advocate the completion of In the European Parliament resolution “on the next steps for the the current constitutional text, instead of watering it down, and period of reflection and analyses on the Future of Europe”, the call for a ‘daring proposal’. As a result, the States oppose demands Parliament emphasises that the EU needs a constitutional settle- for a slimmed-down “mini-treaty”, as called for by more sceptical ment as quickly as possible. Meanwhile, the Parliament supports opponents; instead they favour the idea of a “maxi-treaty”. democratic improvements to institutional procedures based on the eucrim ID=0701021 existing EU Treaties (e.g., improving transparency in the Council of Ministers, introducing a form of citizens’ initiative, etc.). 25 March 2007: Berlin Declaration eucrim ID=0701017 The EU leaders celebrate the EU’s 50th anniversary at an informal summit in Berlin. On this occasion, they sign the Berlin Declaration 15/16 June 2006: EU Leaders’ Statement on Relaunching the (officially “Declaration on the occasion of the 50th anniversary of the Ratification Procedure signature of the ”). The intention of the Berlin Decla- At the meeting in Brussels, Heads of State or Government seek ration is to recall the EU’s achievements and the common heritage an exit from the impasse of the constitutional process. Germany and values of all Member States. However, its key message deals is commissioned to present, under its presidency in 2007 and with the challenges and tasks lying still ahead. Most importantly, the after talks with the Member States, a report which “should EU leaders express their hope of putting the EU on a “renewed com- contain an assessment of the state of discussion with regard to mon basis before the European Parliament elections in 2009”. Prior the Constitutional Treaty and explore possible future develop- to the summit, some EU leaders uttered scepticism about the main ments”. The exploratory talks are to serve as a basis for a solu- goal of the German Presidency to arrange a new treaty. tion to be found under the French Presidency by the end of 2008. eucrim ID=0701022

6 | eucrim 1–2 / 2007 NEWS

4 June 2007: Amato Group Presents Simplified Treaty 7 June 2007: European Parliament Calls for Roadmap Immediately before the decisive summit of the European Council for the Union’s Constitutional Process at the end of June 2007, a group of “wise” European politicians – In preparation for the EU summit in June 2007, the MEPs vote officially called the Action Committee for European Democracy for a resolution that urges the EU leaders to define a roadmap (ACED) – tables an optimised and streamlined text which would in order to reach a new agreement on institutional reforms. The amend the current treaties. The rewritten treaty is aimed at be- EU leaders are called on to convene an Intergovernmental Con- ing a model for the EU leaders at the June summit. It takes over ference at short notice in order to reach a settlement and to almost all innovations contained in the Constitutional Treaty. The fully involve the Parliament in its work. The MEPs favour keeping “New Treaty” would only contain the fundamental changes of the basic principles of Part I of the Constitutional Treaty in the Parts I and IV of the Constitutional Treaty (with some modifica- future agreement on the institutional reforms. The parlamentar- tions), whereas Part III of the Constitutional Treaty – which es- ians also say that the outcome of the IGC must take into account sentially links the existing provisions of the EC Treaty – be put all questions raised during the period of reflection on the future into additional protocols. As a result, the core text becomes more of Europe. They warn the EU leaders not to lessen the level of readable and understandable for the European citizens, cutting the protection of the rights of citizens as well as democracy, the size of articles to 70 instead of 448 in the Constitutional Treaty. transparency, and efficiency in the functioning of the Union at The Charter of Fundamental Rights gets a binding character by the June 2007 summit. means of a single clause and is thus not reproduced within the eucrim ID=0701024 text of the new treaty. The group is led by former Prime Minister of Italy, Giuliano Amato (also Vice-President of the original European 27 August 2007: Idea of a “Council of the Wise” Convention), and assigned with the task of unofficially rewriting French President Nicolas Sarkozy proposes setting up an inde- the EU Constitution. The group is backed by the Commission. pendent body whose task it would be to debate the future of the The idea of a “simplified Treaty” is not new, especially after Nico- EU, including the extension of its borders. In return, France would las Sarkozy coins the term “mini-treaty” in the run-up to the presi- no longer block negotiations with Turkey. The idea of a “Council of dential elections in France in September 2006. However, he con- the Wise” is supported by German chancellor Angela Merkel at a siders slimming down the Constitutional Treaty by only taking over regular informal meeting with the French President in Meseberg, the articles on the institutional reform from Part I. The ACED, by Germany on 10 September 2007. Since the “Council of the Wise” contrast, tackles the issue in a more thorough way. The “Amato should sketch the EU’s development in the long term, it is expect- group treaty” is the last in a line of proposals by politicians and ed to start work until after the election of the European Parliament academics which seeks the perfect solution for the European Un- in 2009. The concrete shape of the council remains vague, but no ion’s new footing. active European politicians should be involved. eucrim ID=0701023 eucrim ID=0701025

Foundations C-176/03, the Court annuls the Frame- take the necessary measures to ensure work Decision in its entirety. that the offences are punishable by effec- Community Powers in Criminal Matters Background: In the aftermath of the dam- tive, proportionate and dissuasive penal- – Environmental Protection age caused by the oil tanker Prestige, the ties including, at least in serious cases, EU, in 2005, adopted a legal framework penalties involving deprivation of lib- ECJ Gives Second Fundamental Ruling in order to protect the maritime environ- erty which can give rise to extradition”. on EC Competence in the Ship-Source ment against ship-source pollution by In fact, it also prescribes in more detail Pollution Case means of administrative and criminal the type and maximum level of penal- On 23 October 2007, the European Court sanctions. Since the Council staunchly ties to be imposed on both natural and of Justice (ECJ) delivered a long-await- defended its stance that rules in criminal legal persons (cf. Art. 4 and 6 of the FD). ed judgment on the validity of Frame- matters cannot be subject to Commu- Furthermore, the FD on ship-source pol- work Decision (FD) 2005/667/JHA to nity legislation, a Directive sets out the lution was, unanimously, not based upon strengthen the criminal-law framework principles and definitions of maritime the EC’s environmental law provisions for the enforcement of the law against pollution infringements caused by ships, (Art. 175, 176 TEC), but on provisions ship-source pollution (Case C-440/05, while a Framework Decision, which relating to transport policy (Art. 80 para. see also eucrim 1-2/2006, p. 3). After supplements the Directive, provides that 2 TEC). the ECJ’s judgment in Case C-176/03 on these infringements must be regarded The Commission and the European Par- the Framework Decision on the protec- as criminal offences in the most serious liament maintained their position that the tion of the environment through criminal cases (so-called “double text” mecha- EC Treaty also provides the appropri- law (see eucrim 1-2/2003, p. 3, as well nism). In contrast to the Framework De- ate legal bases for criminal matters and as the articles in eucrim 3-4/2006), the cision 2003/80/JHA on the protection of therefore sought annulment of the FD be- present case is the second fundamental the environment, Framework Decision fore the European Court of Justice (ECJ). case on the scope of the competences 2005/667/JHA on ship-source pollution However, this case mainly raises two new of the Community as regards the har- does not (only) contain the common questions of constitutional significance monisation of criminal law. As in Case clause that “each Member State shall beyond the previous Case C-176/03:

eucrim 1–2 / 2007 | 7 NEWS

• Does the Court’s reasoning in Case no reasons for this finding. The Advocate to decide on the validity of the above- C-176/03 also apply to other EC policy General brought forward the argument mentioned Directive 2005/35/EC of the areas (here: transport) or must it be in- that the European Community would European Parliament and the Council of terpreted restrictively as relating exclu- otherwise compromise the coherence of 7 September 2005 on ship-source pol- sively to environmental policy? national penal systems. In paragraph 108 lution and the introduction of penalties • Is it in any event outside the Commu- of his opinion he stated: “[…] the Mem- for infringements. The case had been nity competence to define the type and ber States are as a rule better placed than brought forward before the London High level of criminal penalties to be provid- the Community to ‘translate’ the concept Court by several organisations represent- ed for by the Member States? of ‘effective, proportionate and dissua- ing the interests of the shipping industry. The point of departure of the Court’s find- sive criminal penalties’ into their respec- The High Court followed the applicants’ ings is Art. 47 TEU which provides that tive legal systems and societal context”. view that the Directive could be invalid nothing in the He underlined his view by saying that the and referred questions on its validity for is to affect the Treaties establishing the determination of criminal penalties “goes a preliminary ruling to the ECJ (Case . The ECJ deter- well beyond the mere question of effec- C-308/06, “INTERTANKO and others”). mined that the criminal law provisions tiveness” (para. 118). The applicants argue that the Directive is of the FD in question affect the Commu- For the solution of the case, this means invalid because it conflicts with existing nity’s competence because they had to that Art. 4 and 6 of the FD, in so far as international law and that the Directive’s be adopted on the basis of Art. 80 para. they prescribe in some detail the type and test of “serious negligence” for criminal 2 TEC. In its argumentation, the ECJ fo- level of penalties to be applied, fall within liability for ship-source pollution offends cuses on the objectives of the FD which the scope of title VI TEU, as is the case for the principle of legal certainty. intends to promote environmental protec- the provision on jurisdiction, the exchange eucrim ID=0701027 tion. This consideration leads the ECJ to of information, etc. Provisions concerning draw a parallel with Case C-176/03, re- the establishment of constituent elements Commission Answers on the Protection iterating the formula given in that case: of the criminal offences to be provided of the Environment through Criminal “Although it is true that, as a general rule, for, and the (general) requirement that Law by a New Draft Directive neither criminal law nor the rules of crim- they be punished by effective, proportion- On 9 February 2007, the Commission put inal procedure fall within the Commu- ate and dissuasive criminal penalties (Art. forward a draft for an EC Directive on nity’s competence, the fact remains that 2, 3, and 4 (1)), should have been adopted the protection of the environment through when the application of effective, propor- on the basis of Art. 80 (2) TEC. The same criminal law (COM(2007) 51). It is the tionate and dissuasive criminal penalties is true for the provisions on the liability Commission’s second attempt to har- by the competent national authorities is of legal persons for these offences and the monise the EU Member States’ greatly an essential measure for combating seri- (general) requirement that such legal per- differing laws on serious environmental ous environmental offences, the Commu- sons may be punished by effective, pro- offences through Community legislation nity legislature may require the Member portionate and dissuasive penalties (Art. 5 (first pillar) after its first proposal for a di- States to introduce such penalties in order and 6(1) of the FD). rective in 2001 was rejected by the Coun- to ensure that the rules which it lays down Although the ECJ established the an- cil. Instead, the Council, on the basis of in that field are fully effective” (para. 66 nulment of the entire FD because of its an initiative on Denmark’s part, adopted of the judgment). indivisibility, it is only a partial victory a framework decision in January 2003, The ECJ seems to follow the opinion of for the Commission and the European i.e., a third pillar instrument. The Frame- Advocate General Mazák (28 June 2007) Parliament. The judgment will greatly af- work Decisions was then annulled by the that the “effet utile” is the underlying ratio fect the content of the other Community landmark ruling of the European Court for the ECJ to confer powers to the Com- initiatives which currently seek to harmo- of Justice in September 2005. The Court munity to adopt criminal law measures nise national criminal law, e.g., in the ar- confirmed that the Community had the in the first pillar. However, AG Mazák eas of the protection of the EC’s financial competence to adopt criminal law meas- stated more clearly that the power is not interests, the environment, or intellectual ures if they are necessary to ensure the limited to the protection of the environ- property. The following links lists not effective implementation of its environ- ment under Art. 175, 176 TEC, but also only the judgment and the AG’s opinion, mental policy (see eucrim 1-2/2006, p. 3). exists in other Community policy areas, but also the Directive and the Framework The new Directive would fill the loophole such as transport (Art. 80 TEC). Decision on ship-source pollution. left open by the judgment by putting the As regards the second question, the ECJ eucrim ID=0701026 EU’s criminal law approach against pol- also follows the AG’s view that the Com- luters on a new legal footing. munity legislator is only entitled to pre- Ship Organisations Question Validity of As regards substantive criminal law, the scribe that criminal penalties must be ef- Criminal Liability Concept of Directive new draft largely takes up the definition fective, proportionate and dissuasive, but, on Ship-Source Pollution of offences as set out in the above-men- beyond that, is not empowered to specify In the meantime, another case has been tioned Council Framework Decision of the type and level of criminal penalties pending before the European Court of 2003, but also takes some amendments to be imposed. However, the ECJ gives Justice (ECJ) in which the Court has of the European Parliament made to the

8 | eucrim 1–2 / 2007 NEWS original directive proposal into consid- precedent – established in 2006 – sug- fer of Passenger Name Record (PNR) eration. The list includes: gests common rules on counterfeiting data by air carriers to the US Department • the discharge, emission, or introduc- (see eucrim 1-2/2006, p. 13 and below). of Homeland Security (DHS). The new tion of a quantity of materials or ionising They are the most significant examples of agreement replaces the interim agree- radiation into air, soil, or water, first pillar legislation that would interfere ment of October 2006 which expired on • the unlawful treatment, including dis- with the Member States’ sovereignty on 31 July 2007. The 2006 agreement itself posal and storage, transport, export or criminal law. Of particular relevance for replaced the initial PNR agreement of import of waste, including hazardous the protection of the EC’s financial inter- 2004 which had been annulled by the waste, ests is that both proposals could serve as European Court of Justice because it did • the unlawful operation of a plant in a model for making criminal law arrange- not fall under Community law (first pil- which a dangerous activity is carried ments in the context of the first pillar be- lar, Art. 95, 300 TEC). Instead, the fol- out or in which dangerous substances or fore the reform treaty enters into force. lowing agreements are based on second preparations are stored or used, eucrim ID=0701028 and third pillar provisions of the EU • the illegal shipment of waste, treaty (Art. 24 and 38 TEU). For more • the unlawful trade in endangered spe- State of Play of Environmental Crime details, please refer to eucrim 1-2/2006, cies, and Proposal in the Council p. 3, 4 and eucrim 3-4/2006, p. 48, 49. • the unlawful trade in or use of ozone- During the German Presidency, the first The new agreement of 2007 aims at pro- depleting substances. debates on the above-mentioned Com- viding a more permanent basis for the The Commission clarified that the list mission proposal on the protection of the PNR system and is therefore valid for only deals with serious environmental environment through criminal law started a period of seven years. The DHS and offences which are already prohibited by in the Council working groups. Current- the EU also agreed on periodically re- EU or national legislation. The majority ly, the negotiations mainly focus on the viewing the implementation of the legal of offences are made conditional on the drawing up of criminal offences. In this framework. The new legal framework activities’ result, i.e., that they cause or context, an intitial controversy arose, i.e., consists of three parts: (1) an agree- are likely to cause serious harm to per- whether the directive should only cover ment which was signed by both parties, sons or the environment. The activities breaches against Community legislation the EU and the USA, (2) a letter from are considered criminal offences if they or also apply to purely national environ- the USA to the EU in which it sets out were committed intentionally or by seri- mental law. The majority of delegations assurances on the way in which it will ous negligence. Regarding the latter, it opted for the first alternative. It is notable handle EU PNR data, and (3) a letter is worth mentioning that the Council’s that the issue of whether EU legislation from the EU to the USA acknowledging Framework Decision left the matter of should cover national law was also raised receipt of the assurances and confirming how to punish negligent commitment of in view of the scope of the framework de- that, on this basis, it considers the level the offences up to the respective Member cisions on certain rights in criminal pro- of protection of PNR data in the U.S. as State’s domestic law. ceedings or on data protection in the third adequate. The legal status of the letters Contrary to the original draft directive pillar (see below). Member States agreed and their legal effects are not clear. The of 2001, the Commission now also pro- to postpone discussion on the rules of US side seemingly wanted to avoid hav- poses a concrete level of sanctions both sanctions until the European Court of ing the exchange of letters amount to a for natural and legal persons. The ap- Justice has ruled on the Commission’s (binding) “agreement” under the terms proximation of the sanctions is based on action for annulment of the Framework of international public law. a three-step scale. The scale depends on Decision to strengthen the criminal law The US letter reclassifies the EU PNR whether the offence was committed by framework for the enforcement of the law data required from air carriers into 19 serious negligence or intent and on ag- against ship-source pollution (see above). types instead of 34 elements of data, as gravating circumstances, i.e., whether the Discussion on the matter will continue listed in the previous agreements. How- offence caused death of or serious injury during the Portuguese Presidency. How- ever, all but two of the new data fields to a person, or substantial damage to air, ever, diplomats do not expect a quick virtually correspond to the old ones, so soil, water, animals or plants. Particularly adoption of the directive. that air carriers are obliged to share near- serious breaches should, for instance, be eucrim ID=0701029 ly the same data with the US authorities punishable by a maximum of at least 5 to as to date. The data will be used for the 10 years imprisonment and fines for com- purposes of preventing and combating panies of at least €750.000 to €1.500.000. Community Powers in Criminal Matters: terrorism and related crimes as well as In addition, supplementary or alternative PNR Data other serious crimes that are transnation- sanctions are foreseen for both natural al in nature, including organised crime. and legal persons, such as the obligation EU and USA Conclude Controversial The US was successful in its demands to reinstate the environment. Long-Term PNR Agreement to keep data for a longer period of time The Commission proposal is the second The EU and the United States of Ameri- and be able to pass on the data to other main one which is currently on the ne- ca (USA) reached a deal on a new legal US authorities without tight restrictions. gotiating table in the Council. The first framework on the processing and trans- The DHS now may store data in “an ac-

eucrim 1–2 / 2007 | 9 NEWS tive analytical database for seven years that the new deal fails to offer an ade- EDPS Expresses Concerns in Letter to after which time the data will be moved quate level of data protection and lacks German EU Presidency to dormant non-operational status” for democratic oversight since it has been Shortly before the final conclusions of a further 8 years. In fact, data can be concluded without any involvement of the new PNR agreement, the European retained for 15 years. Under the 2004 parliaments. The main concerns of the Data Protection Supervisor, Peter Hus- agreement, access to PNR data was lim- MEPs are: tinx, tried to influence the negotiations ited for a period of 3.5 years and the data • The processing of personal data from − in vain. He expressed several privacy were even destroyed after that period if air passengers is only founded on non- concerns on the planned deal in a letter they had not been manually accessed binding assurances that can be unilater- (dated 27 June 2007) to the German In- during that period of time. It should be ally changed by the DHS at any given terior Minister, Dr. Wolfgang Schäuble, mentioned that the new retention peri- moment. at that time responsible for the dossier ods also apply to EU PNR data collected • The purpose limitation is not clear, as on behalf of the German EU Council under the agreements of 2004 and 2006 given in the US letter, which notes that Presidency. Like the European Parlia- and that the DHS has not given a guar- PNR data may be also used for other pur- ment, Hustinx’ main concerns were the antee that the data will actually deleted poses than the fight against terrorism. extension of the time that passenger data after 15 years(!). • The data retention period has been ex- are kept – effectively increased from The agreement, pending its entry into tended from 3.5 years to 15 years and is 3.5 to 15 years in all cases – introduc- force, is applied provisionally by the retroactively applicable to data collected ing a concept of “dormant” data that is EU Member States in conformity with under the previous PNR agreements. without precedence; the accessibility of existing domestic law. Ten EU Member • The storage of data for seven years in the data to a broad range of US agen- States stated that they must comply with “active analytical databases” may lead cies; the absence of an effective redress the requirements of their constitutional to a significant risk of massive profiling mechanism of EU citizens to challenge procedure before the agreement can fi- and data mining. the misuse of their personal data; and the nally be binding for them (cf. Art. 24 • The PNR agreement fails to define lack of a binding instrument due to the para. 5 TEU). The EU agreement with precisely which US authorities may ac- exchange of letters. the US was necessary because the US cess the PNR data. eucrim ID=0701033 Aviation and Transportation Security • The transfer of data to third countries Act of 19 November 2001 introduced is already possible if DHS-specified Data Protection Advisory Group Issues the requirement that airlines operating conditions are met. Guidelines on PNR Data passenger flights to, from, or through The European Parliament brought ac- Based on the interim agreement of Oc- the USA provide US authorities with tion against the initial PNR agreement tober 2006, the Art. 29 Working Party electronic access to PNR data contained of 2004 before the European Court of published an opinion which gives in their reservation and departure con- Justice for annulment (eucrim 2006, p. practical advice on who needs to pro- trol systems upon request. A single EU 3). There, it already addressed concerns vide what PNR data to US authorities agreement avoids the conclusion of 27 regarding fundamental rights which the how and when. The opinion replaces bilateral agreements between the Mem- ECJ did not deal with. Due to the new a previous one from September 2004. ber States and the USA. However, nego- legal basis in the second and third pillar, Its main objective is to give guidance tiations turned out to be difficult because the EP has no competence to tackle the so that information is transferred con- of privacy concerns due to European agreement. sistently − throughout the EU − by data protection law. The EU itself is also eucrim ID=0701031 travel agents, airlines, and any other planning the establishment of a PNR In the context of the differentiated views organisations providing travel services system for the EU Member States. between Europe and the USA in relation to passengers flying to and from the eucrim ID=0701030 to the handling of transferred personal United States of America. An annex data for security reasons, a public semi- contains model notices of information European Parliament Strongly Criticizes nar held in Brussels on 26 March 2007 is to passengers about the processing of New EU-US PNR Deal worth mentioning. The seminar entitled their personal data in the framework of The European Parliament examined the “PNR/SWIFT/Safe Harbour: Are Trans- the PNR agreement. new PNR agreement of 2007 which was atlantic Data Protected?” was organised The Article 29 Working Party was set concluded between the EU and US ad- by the European Parliament’s Commit- up under Art. 29 of the EC’s Data Pro- ministration. In a resolution adopted tee on Civil Liberties, Justice and Home tection Directive 95/46. It is an inde- on 12 July 2007, the EP regrets that Affairs (LIBE) and aimed at fostering pendent European advisory body on the agreement is “substantively flawed dialogue between the European Parlia- data protection and privacy. It is com- in terms of legal certainty, data protec- ment and the US Congress. Background posed of representatives of the national tion and legal redress for EU citizens, in information as well as presentations data protection authorities, the Europe- particular as a result of open and vague from the experts can be retrieved via the an Data Protection Supervisor, and the definitions and multiple possibilities for following website: European Commission. exceptions”. The MEPs further state eucrim ID=0701032 eucrim ID=0701034

10 | eucrim 1–2 / 2007 NEWS

World’s Data Protection Commissioners: ously agreed initiatives leaves a lot to Council invited the Court to submit a Global Standards to Protect Passenger be desired. A number of Member States formal proposal for the introduction of Data Needed failed to comply with the deadline for an emergency preliminary ruling proce- The increasing use of passenger data transposing legal instruments into na- dure on the basis of which further dis- for law enforcement purposes induced tional legislation, or have delays in trans- cussion could continue. the world’s data protection and privacy position (one or more years). For exam- eucrim ID=0701037 commissioners to address the related ple, only 4 of the 10 new Member States problems in a special resolution. In the ratified the Convention on the protection Court Drafts Urgent Preliminary Ruling resolution of 28 September 2007, the of the European Communities’ financial Procedure data commissioners called for the ur- interests and its protocols. Often, Mem- After the Council agreed on the princi- gent need to establish global standards ber States fail to communicate sufficient pal direction of the emergency prelimi- for safeguarding passenger data used by information on their transposition meas- nary ruling procedure (see aforemen- governments for law enforcement and ures so that several evaluation reports tioned news), the European Court of border security purposes. They called on by the Commission had to be postponed Justice tabled a concrete proposal for governments not to ignore international (e.g., the Framework Decision on execu- a respective amendment of its Statute data protection safeguards, such as pur- tion of orders freezing property or evi- and its Rules of Procedure. In principle, pose limitation or proportionality, when dence). On balance, the rate of achieve- the urgent procedure must be requested passenger data are processed. The com- ments in 2006 is lower than in 2005 by the national court or tribunal which missioners particularly emphasized that (53 % compared to 65 % in 2005). refers a case relating to visas, asylum, all government proposals to use passen- Commission Vice-President Franco Frat- immigration, or judicial cooperation in ger data must be (1) demonstrably nec- tini, responsible for Justice, Freedom and civil and criminal matters to the Court. essary to address a specific problem; (2) Security regretted that the current una- In exceptional cases, the Court can apply demonstrably likely to address the prob- nimity rule in the decision-making proc- the urgent preliminary ruling procedure lem; (3) proportionate to the security ess used for police and judicial coopera- of its own motion. If the case is dealt benefit; and (4) demonstrably less inva- tion in criminal matters blocks or delays with under the urgent procedure, the sive of privacy than alternative options. many important measures. He therefore Court suggests that written observations eucrim ID=0701035 welcomed that the Intergouvernmen- can only be submitted – within a certain tal Conference reached agreement to time limit – by the parties to the main overcome the pillar structure and apply proceedings, the Member State making The Hague Programme Review qualified majority voting as well as the the reference, and the EU institution(s) co-decision procedure for this area in the affected by the reference, whereas all Second Report on the Implementation of future Reform Treaty. other Member States can be heard dur- The Hague Programme eucrim ID=0701036 ing the oral stage of the proceedings. On 3 July 2007, the Commission pre- The Court argues that this combination sented its second annual report which as- Council Reply to European Court of Jus- of a limited written procedure with an sesses achievements in 2006 as regards tice Reflection on Preliminary Rulings oral procedure best takes into considera- the implementation of the multi-annual At its meeting in April 2007, the JHA tion both an acceleration of references Hague Programme and its action plan Council endorsed a letter of reply to made in the areas of Title IV TEC and (“the scoreboard”, for the first report see the discussion paper on the treatment of Title VI TEU and an appropriate partici- eucrim 3-4/2006, p. 46). The report as- questions for a preliminary ruling con- pation of all Member States. sesses both the measures taken at the EU cerning the area of freedom, security eucrim ID=0701038 level as well as the transposition of the and justice, as presented by the Euro- instruments (directives and framework pean Court of Justice in September 2006 Advisory Group for Post-Hague Pro- decisions) by Member States. The over- (see eucrim 3-4/2006, p. 47). The Coun- gramme Starts Work all assessment is mixed. As regards the cil welcomes the proposal for the intro- The high-level advisory group on the adoption of measures at the EU level, duction of an emergency preliminary future of the European Union’s home the Commission is generally satisfied ruling procedure. The Council suggests affairs policy, proposed by the German with the progress made in “first pillar” that this procedure could be applied in Presidency in January 2007 at the infor- areas, such as fundamental rights, citi- accordance with urgency criteria which mal meeting of Home Affairs Ministers zenship, civil justice, or migration pol- are to be defined more precisely. The in Dresden (see eucrim 3-4/2006, p. 48), icy. However, a lot of goals could not be Council is not in favour of excluding the met twice during the German Presiden- achieved in the third pillar, e.g., police participation of all Member States and cy. The group consists of Vice-President and customs cooperation, prevention of institutions at the first stage of the proce- Frattini, the six Interior Ministers of the and fight against organised crime, and dure (option I of the discussion paper), current and upcoming trio presiden- judicial cooperation in criminal matters. but prefers an accelerated procedure cies (Germany/Portugal/Slovenia and The scoreboard highlights that imple- with their participation from the outset France/Czech Republic/Sweden), one mentation at the national level of previ- (option II of the discussion paper). The representative from the succeeding trio

eucrim 1–2 / 2007 | 11 NEWS presidency (Spain, Belgium, or Hunga- is dependent on the information passed achieved in Justice and Home Affairs in ry), and experts from individual Mem- on to the Commission by the respective the first half of 2007. ber States as needed. The first meeting national authorities. In the area of justice, the report em- took place in Eltville, Hesse, on 20/21 eucrim ID=0701041 phasizes the political agreement on the May 2007. The following link contains Framework Decision on combating rac- background documentation on the work ism and xenophobia at the JHA meet- of the group, the results of the first meet- ing in April 2007 and the agreement on ing, and a draft timetable. Institutions the Framework Decision on the transfer eucrim ID=0701039 of sentenced persons at the meeting in Council February 2007. The German Presidency also laid down the basis for an exchange Legislation / Databases Portuguese Presidency: Priorities in of experience and information among By Sarah Schultz Justice and Home Affairs Member States regarding the growing For the second half of 2007, the Portu- danger of violent videos and games for New Database for National Case-Law in guese Council Presidency set its priorities minors. To this end, Germany had car- the European Union for the area of justice. The Portuguese ried out a survey of the Member States The Network of the Presidents of the Su- Presidency aims at further working on the that presents general and criminal law preme Judicial Courts of the European creation of electronic justice (see the fol- measures by which to deal with media Union has created a public database for lowing news), facilitating the procedures that glorify violence, particularly age- national case law. At “www.network- of European jurisdiction so that the Euro- rating systems and prohibitions that presidents.eu/rpcsjue” the user has ac- pean citizen receives quicker answers re- aim to protect minors. It is a valuable cess to a meta search engine which ena- lated to the area of freedom, security and comparative law document. Finally, bles simultaneous research in case law justice, and further developing the insti- outcomes are reported in the field of e- databases of the Supreme Courts in the tutional reforms of Europol and Eurojust. justice in which Germany promoted the participating Member States by provid- Another focus is the prevention of crime increased cross-border use of informa- ing access through the Internet. The goal and recidivism. In this context, progress tion technology in the justice sector (see is for the user to compare the solutions on the Framework Decision on simpli- eucrim 3-4/2006, p. 76 and below). given by different Member States of the fied cross-border supervision of condi- Beyond the focus on migration policy, European Union to a single legal ques- tions and sentences of probation among the transposition of the Prüm Treaty into tion. The database aims at improving mu- EU Member States will play a role (see the legal framework of the European tual knowledge among European judges eucrim 3-4/2006, p. 75). Generally speak- Union is among the principal results list- and lawyers in general. Furthermore, it ing, Portugal would like to reach a better ed in the area of home affairs (for more simplifies comparative research on case accord between enhancement of judicial/ information on the Prüm Treaty see be- law in the European Union. Research police cooperation (in particular in the low, under the heading “Police Coopera- terms can be entered in one of the official fields of organised crime and terrorism) tion”). Furthermore, political agreement languages of the European Union; the re- and respect for fundamental rights. Here, could be reached on the incorporation of search result appears in the language of it will be crucial that negotiations on the Europol into the EU’s legal framework the relevant database. The case law of the Framework Decision on data protection which will include the extension of Eu- Supreme Courts of the European Union is in the third pillar can be completed by the ropol’s mandate to all forms of serious presented simultaneously. end of the year. cross-border crime. eucrim ID=0701040 In the area of home affairs, the Portu- Progress could be made in view of one guese Presidency will continue to focus of the EU’s crowning achievements, i.e., Database “Taxes in Europe” on the development of the EU’s immi- ensuring the free movement of persons Since May 2007, the new online data- gration policy. It will also work on the between the new Member States without base “Taxes in Europe” has been pro- connection of the new Member States border controls. One of the indispensa- viding citizens and businesses with in- to the Schengen Information System ble conditions is the States’ connection formation on the main taxes in force in (“SISone4all”) and guide the transposi- to the Schengen Information System the Member States. An interface offers tion of the Prüm Treaty and Europol into (SIS); it is the Schengen State’s common information on approximately 500 dif- the legal framework of the EU. data network which allows the storage ferent taxes, including personal income eucrim ID=0701042 and retrieval of data on criminals and tax, corporate income tax, value added illegal immigrants as well as on stolen tax, and excise duties. For each indi- German Presidency: Successful Stock objects. The Presidency was able to stay vidual tax, information is given on its of Results on schedule regarding the connection of legal basis, the assessment base, main The German Justice and Home Affairs the new Member States to the existing exemptions, applicable rate(s), econom- Ministers, Brigitte Zypries and Wolf- Schengen Information System, thus ena- ic and statistical classification, as well gang Schäuble, presented with satisfac- bling the removal of checks at internal as generated revenue. The information tion the results the German Presidency borders at the end of the year. Howev-

12 | eucrim 1–2 / 2007 NEWS er, this implementation, also known as Office in Paris on 18 November 2002. public to be informed and reassured that “SISone4all”, is only an interim solu- The next day, the applicant was trans- dysfunctions and cases of fraud are being tion. The forthcoming Presidencies need ferred to Brussels and denied all contact. identified and, if discovered, duly eradi- to work hard on the implementation of The applicant also claims that a press cated and sanctioned. The Court further the second generation of the Schengen release issued by the Commission on 21 says that this requirement carries with it Information System (SIS II) which will November 2002 and widely circulated the consequence that officials and other replace the existent SIS I. Despite tech- gave rise to considerable publicity unfa- agents holding management positions in nical setbacks that led to several delays vourable to him in the media. According an administration such as the Commis- in the past, SIS II is envisaged to be op- to the applicant, OLAF’s final report of 6 sion must take into account the existence erational by the end of December 2008. May 2003 concluded that the allegations of a well-justified need to communicate It will offer new capacities and function- against him were groundless. certain information to the public. While alities, such as the possibility to store By his action, the applicant seeks to ob- the Court has no objection as to the in- and transmit fingerprints and photos. tain compensation for the damage caused formation given on the opening of the The home affairs report ultimately men- to him by these acts. In support of his case, it does criticize the Commission tions the progress achieved concerning action, he claims that he was transferred for not having adequately informed the data protection in the third pillar. How- unlawfully, without justification, and in press when the allegations against Mr. ever, it is up to the Portuguese Presiden- breach of the presumption of innocence. Giraudy proved groundless following cy to finalise negotiations on the respec- He also claims that the Commission’s OLAF’s final report. This would have tive framework decision by the end of spokesman did not observe the confi- been a necessary counterbalancing act the year. dential nature of the inquiry and made for the rehabilitation of the person under The following link leads to brochures public statements liable to damage his suspicion. which were published on the Presi- reputation. The case was referred from the Court dency’s results in English, French, and The Court holds that the Commission has of First Instance (CFI) to the EU’s Civil German by the Ministries of Justice and a wide margin of appreciation to decide Service Tribunal after it had taken up its Home Affairs. on measures which secure the smooth functions at the end of 2005. The new eucrim ID=0701043 conduct of OLAF investigations, taking specialised court, composed of seven into account the interest of the service. judges, is called upon to adjudicate in Therefore, the transfer of the applicant disputes between the European Union OLAF to Brussels for the duration of OLAF and its civil service, a jurisdiction for- investigations on the premises in Paris merly exercised by the Court of First European Courts Further Clarify Infor- was an appropriate measure and did not Instance. Its decisions will be subject to mation Policy in Fraud Cases violate the principle of proportionality. appeal on questions of law to the CFI. The European Courts delivered two The principle of the presumption of in- The Tribunal is based on Art. 220 and judgments which concern press releases nocence was not applicable since the 225a, as amended by the , on internal investigations carried out transfer was only a precautionary meas- which provides for the creation of judi- by OLAF. The Courts specified their ure and not intended as a sanction on cial panels to be attached to the CFI in case law on the way the public can be the applicant. However, the Court did order to exercise the judicial competence informed about ongoing investigations. find that the Commission did not fulfil of this court in specific areas. Both judgments are presented in the fol- its duty to pay regard to the official’s eucrim ID=0701044 lowing: interests because the competent Com- mission service did not directly inform Court of First Instance: Indirect Informa- Civil Service Tribunal: Public Has Inter- him about the lifting of the precaution- tion Can also Cause Damage est in Becoming Informed ary measure and, instead, the applicant In the Case T-259/03, the European In its judgment of 2 May 2007, the Civil found out about the measure indirectly Court of First Instance (CFI) had to Service Tribunal of the European Un- through the press. judge whether the applicant could seek ion elaborated on which measures can As regards a possible breach of confi- compensation for non-material dam- be taken against an EU official during dentiality (cf. Art. 8 Reg. 1073/99) due age because leaked OLAF information OLAF investigations and how the pub- to press communications, the Court brought about a negative press echo. In lic can be informed about a concrete holds that these statements must strictly this case, OLAF had carried out internal case (Case F-23/05 “Giraudy v Com- respect the interests of the accused, on investigations against a former member mission”). The applicant was Head of the one hand, but, on the other, attention of the European Court of Auditors. After the Commission’s Office in France. As must also be paid to the need to inform the investigation had been completed, a result of allegations made against him the public about the fight against irregu- certain items appeared in the European concerning supposed irregularities ad- larities and fraud. The Court states that press referring to the applicant and the versely affecting the European Union’s a culture of responsibility has grown in- investigation against her, such that the budget, OLAF carried out an operation side the Community institution, which applicant considered them disparaging at the headquarters of the Commission’s responds particularly to the wish of the and offensive. In addition, OLAF issued

eucrim 1–2 / 2007 | 13 NEWS a press release concerning the investiga- The reorganisation takes up recommen- The OLAF Activity Report must be dis- tion and also included a reference to it dations made by the European Court tinguished from the European Commis- in its annual activity report. Although of Auditors which are contained in the sion’s annual “Report on the protection she was not referred to by name in the special report No. 1/2005 concerning of the financial interests of the Com- documents made public by OLAF, the the management of OLAF (see eucrim munities – fight against fraud” which is applicant feels that the information giv- 1-2/2006, p. 7). The new structure is de- being published at the same time. The en made it particularly easy to identify signed to enable the office to increase its latter is analysed below under “Specific her, so that it was clear who the person focus on core activities and to improve Areas of Crime – Protection of Financial in question was. In addition, after the the management and supervision of its Interests”. investigation had been completed, the operational work. eucrim ID=0701046 applicant requested OLAF to disclose to The report shows that the volume of in- her the file, its final report, and any other formation on fraud which is passed on to First Joint Seminar of OLAF and Eurojust information concerning its findings in OLAF is constantly on the rise. However, on “Fraud and Corruption” the accusations against her. However, decisions on the opening of cases have An example of the strengthened coop- OLAF refused to disclose anything to declined in comparison to previous years. eration of OLAF with EU bodies is the her at all. By her action, the applicant The underlying figures mirror OLAF’s following event: Four years after the sought compensation for the non-materi- focus on more serious, complex cases. signing of a Memorandum of Under- al damage and harm to her health which Furthermore, the different types of cases standing on 14 April 2003, OLAF and she claims to have suffered. show that OLAF tends to concentrate Eurojust, the EU’s Judicial Cooperation The Court of First Instance awarded only more on its own investigations (internal Unit, held their first joint seminar on a small part of the claimed non-material and external cases), rather than simply “Fraud and Corruption Affecting Euro- damage to the applicant. It found that assisting national authorities (coordina- pean Communities’ Financial Interests” the EC data protection law (Regulation tion and criminal assistance cases). For in Brussels on 26/27 March 2007. To- 45/2001) had been violated because of the first time, the number of OLAF’s own gether, they examined corruption, pre- two illegalities: First, specific informa- investigations equals the number of cases ventive measures (such as the develop- tion concerning the applicant was leaked in which OLAF assisted national authori- ment of an interactive e-mailing system by OLAF; and, second, the publication ties. Direct expenditure cases, including and electronic whistle-blowing), and of the OLAF press release on the case external aid, are the most significant area case studies of international corruption. enabled the identification of the appli- in which OLAF opens cases. Furthermore, practical arrangements in cant and publically confirmed certain Cooperation with OLAF’s partners in the cooperation and exchange of infor- information about the accusations. As a the fight against fraud makes up a large mation between Eurojust and OLAF result, the CFI confirmed that even in- part of the report. The report highlights were made. The background and in- direct information which does not refer the well-working agreement between tention of this seminar was to improve explicitly to a specific person can cause the European Commission and Philip relations with national authorities and liable behaviour on the part of EC insti- Morris International. By the end of other EU bodies, namely the European tutions and bodies. The Court also held 2006, all but one of the 25 Member Judicial Network (EJN) and Europol, that the applicant had no opportunity to States were participating in this agree- as well as the future cooperation be- obtain information on the allegations ment. The multi-year agreement with tween them all. Mr Siim Kallas, Vice- against her in a timely manner, thus in- the American tobacco giant has estab- President of the European Commission fringing her defence rights; however, the lished an efficient system of combating responsible for Administrative Affairs, CFI takes the view that this measure did the smuggling and counterfeiting of Audit and Anti-Fraud, stressed that the not constitute an additional damage. The cigarettes; it includes the payment of 1 conference was a signal that there has remainder of the recourse claim was re- billion dollars to the European Commu- been a significant improvement in the jected by the CFI. nity and the Member States over a pe- daily operational cooperation between eucrim ID=0701045 riod of 12 years (see eucrim 3-4/2006, OLAF and Eurojust. p. 57). The report also gives examples eucrim ID=0701047 OLAF Activity Report 2006 of successful cooperation with inter- The seventh Activity Report provides national organisations such as the UN Eurojust Joins OAFCN insight into OLAF’s mission and work- and the World Bank. Lastly, increasing During the aforementioned seminar, ing methods as well as its operational and more effective cooperation with the full body of the OLAF Anti-Fraud activities (including case studies) for the the other EU bodies involved in fraud Communicators’ Network (OAFCN) period from 1 January 2006 to 31 De- cases, Europol and Eurojust, is nota- approved the request from Eurojust to cember 2006. In its foreword, Director ble. Director General Brüner stated that join the network. The OAFCN is an General Franz-Hermann Brüner points “greater and more effective coopera- information and communication tool out the internal reorganisation of the tion both between European bodies and designed to spread information on the office which provides for four Directo- internationally will be an essential part fight against fraud and corruption to rates from 1 September 2006 onwards. [in the coming years]”. the general public and professionals. It

14 | eucrim 1–2 / 2007 NEWS links the major players involved in the tion, the right of access and the right of by the OLAF data protection officer. fight against fraud and irregularities af- rectification. Regulation 45/2001 is the The data processing operations in ques- fecting Community financial interests at basic EC law which protects personal tion referred to the so-called “follow-up the EU and national levels. The OAFCN data within Community institutions and phase” of OLAF investigations. This includes the OLAF Spokesman, spokes- bodies; it establishes the same safe- stage normally begins after investiga- persons responsible for public relations, guards as the data protection Directive tions have been completed; a report on and information officers in the national 95/46 which is addressed only to the the findings of an investigation normally investigation services with whom OLAF Member States. contains recommendations for follow- cooperates in the Member States and The EDPS detected a number of short- up actions. In this stage, OLAF officials Candidate Countries. comings which reveal that the rules in process personal data in order to moni- The objectives of the network are: question do not reach the minimum tor whether the competent Community • Preventing fraud through the “free standard of the data protection Regula- and national authorities have carried flow” of information: “prevention is bet- tion. Since the new OLAF Regulation out the recommended measures. These ter than cure”. would be the lex specialis vis-à-vis the follow-up measures can be of judicial • Creating a permanent dialogue be- general framework contained in Regula- nature (e.g., criminal proceedings before tween the OLAF’s External Communi- tion 45/2001, the EDPS fears a watering national courts), disciplinary nature, ad- cation Unit and its counterparts in the down of data protection standards in the ministrative nature (e.g., exclusion of national investigation services. context of OLAF investigations. The future funding, withdrawal of importer • Informing European citizens of what EDPS makes a number of recommen- privileges), or financial nature (princi- OLAF and its partners in the Member dations in order to address these short- pally recovery of debts). Depending on States are doing both jointly and indi- comings. He suggests that the proposal the type of follow-up measure, differ- vidually in order to protect their finan- should include further provisions: One ent units within OLAF process the data. cial interests. This includes making all provision, for instance, should govern The EDPS makes a number of recom- parties concerned aware of the need for the exchange of information with third mendations which OLAF should com- an anti-fraud program that is global, bal- countries, which should be allowed only ply with in order to correctly apply the anced, and effective throughout the ter- if the third country ensures an adequate data protection rules of Reg. 45/2001. ritory of the European Union. level of protection of personal data. In particular, OLAF should evaluate the • Providing joint media coverage to the Furthermore, an additional paragraph long storage of the data (20 years after public relating to the fight against fraud should guarantee the confidentiality of the follow-up has been completed), en- and irregularities to the detriment of the whistleblowers. sure that data transfers take place only European Union’s financial interests eucrim ID=0701049 “if necessary”, and implement measures with the aim of illustrating OLAF’s op- which safeguard the data subject’s rights erational activities with national inves- EDPS Verified “Follow-up” Data Process- of information and access. tigation services of the Member States ing Operations of OLAF eucrim ID=0701050 and the success achieved by means of Beyond the above-mentioned opinion, administrative cooperation within its the European Data Protection Supervi- operational scope. sor (EDPS) issued a second significant Europol eucrim ID=0701048 opinion concerning OLAF. This time, the opinion did not refer to a legislative Europol Work Programme 2008 EDPS Opinion on OLAF Reform Proposal proposal (consultative function), but The Council endorsed the Europol Work The European Data Protection Super- was a preliminary check on a specific Programme for 2008. The Work Pro- visor (EDPS) published an opinion on data processing measure within the gramme is Europol’s annual business the Commission’s proposal to reform anti-fraud office (supervision function). plan. Its purpose is to communicate the OLAF’s basic legal framework – Regu- Upon receipt of a notification from the organisation’s activity and objective- lation No. 1073/99 (more details on the Data Protection Officers, who are to be based business planning to the EU Mem- reform proposal available in eucrim appointed in each institution or body, ber States in a transparent and structured 1-2/2006, p. 6-8, and 3-4/2006, p. 50). the EDPS checks whether the opera- manner. The Work Programme defines The EDPS assessed the proposal in the tions are in line with the above-men- Europol’s objectives in four key busi- light of data protection and privacy tioned Regulation 45/2001. Requests ness areas, i.e., (1) operations, (2) strat- rights since the proposal sets forth new for prior checking are made when egy and monitoring of overall business rules on the conduct of OLAF investiga- data processing operations of Commu- performance, (3) logistics, and (4) man- tions and their significant impact on the nity institutions or bodies are likely to agement activities. The programme is processing of personal data. He exam- present specific risks to the rights and based on Art. 28 of the Europol Conven- ined whether the proposed rules corre- freedoms of data subjects by virtue of tion. It must first be unanimously adopt- spond with Regulation No. 45/2001, in their nature, their scope, or their pur- ed by the Management Board and then particular, as regards the basic rights of poses (cf. Art. 27 of Reg. 45/2001). The endorsed by the Council. the data subject – the right of informa- OLAF case was submitted to the EDPS eucrim ID=0701051

eucrim 1–2 / 2007 | 15 NEWS

Bulgaria and Romania Become Full Finally, the Management Board adopted The JHA Council seized this opportu- Members of Europol rules on public access to Europol docu- nity and encouraged the Member States On 1 August 2007, the Europol Con- ments. The access to Europol documents to invite Europol to participate in JITs, vention and its Protocols entered into for any EU citizen is based on the new whenever possible and useful. force for Bulgaria and Romania. Both Article 32a of the Europol Convention, eucrim ID=0701057 countries are now full members of the which was introduced by the mentioned Europol also strengthened cooperation European police office. Accession to “Danish Protocol”. The new article ap- at the international level which show the the European Union does not automati- plies the right to access documents relat- following three news items: cally lead to membership in Europol. ing to police and judicial cooperation in The respective new Member State criminal matters as required by Article Cooperation Agreement with Australia must ratify the Europol Convention 41 of the EU Treaty. The implementing Enters Into Force and the accession be agreed upon by rules define the principles, conditions, The strategic and operational coop- a Council decision. The Council deci- and limitations on the grounds of pub- eration agreement between Europol sion involving these two countries was lic and private interests, governing the and Australia entered into force after taken on 23 July 2007. Since 2002 and public right to access to Europol docu- Australia ratified the agreement on 27 2003, Bulgaria and Romania have been ments which will be in line with the September 2007 (further details on the cooperating with Europol on the basis respective regulation for the access to agreement in eucrim 3-4/2006, p. 50). of operational agreements and both European Parliament, Commission and eucrim ID=0701058 countries already have liaison officers Council documents (cf. Art. 255 of the posted at Europol’s headquarters in EC Treaty). The rules aim at promoting Europol Tightens Cooperation with The Hague. good administrative practice on the ac- Interpol eucrim ID=0701052 cess to documents. They shall contribute The Director of Europol, Max-Peter to more openness and greater legitimacy Ratzel, and the Secretary-General of Management Board Decisions on in the area of justice and home affairs. Interpol, Ronald K. Noble, agreed on Implementation of Protocols eucrim ID=0701056 measures to further improve coopera- The entry into force of the three proto- The Management Board is one of Eu- tion between the two police organisa- cols amending the Europol Convention ropol’s organs which – generally speak- tions. They signed a joint initiative on in spring (see eucrim 3-4/2006, p. 50, ing – exercises a more political control. the protection of the euro and discussed 51) required further implementation The Europol Convention enumerates a a better exchange of information. The decisions by the Management Board of number of tasks, including help in de- relationship between Europol and Inter- Europol. termining Europol’s priorities, unani- pol is regulated by an operational coop- The first decision of the Management mous determination of the rights and eration agreement of 2001 which makes Board in the context of the implemen- obligations of liaison officers, adoption it possible to exchange vital information tation of the protocols refers to the es- of data-processing rules, preparation of on organised crime and criminals, assist tablishment of control mechanisms for rules for work files, and the examination in training initiatives, and provide rel- retrievals – including attempted retriev- of problems brought to its attention by evant operational assistance to member als – from the Europol computer system the joint supervisory body. The Board is countries. An Interpol liaison officer has of collected information as amended by comprised of one representative of each been working at the premises of Europol the “Danish protocol” of 2003. Member State; each Member State has since the beginning of 2007. eucrim ID=0701053 one vote. It meets at least twice a year. eucrim ID=0701059 The second decision contains the mo- Each year, it unanimously adopts a re- dalities for the association of third party port on Europol’s activities and a report Europol Cooperation with US Postal In- experts with the activities of Europol’s on its future activities, taking into ac- spection Service analysis groups. The association was count the Member States’ operational Europol further improved its coopera- also made possible by the “Danish pro- requirements and the budgetary implica- tion with the USA by signing a liaison tocol”. To this end, the annex of the de- tions for Europol. agreement with the US Postal Inspec- cision contains a model arrangement. tion Service (USPIS) in September eucrim ID=0701054 Council Conclusions on Europol Partici- 2007. The agreement makes it possible After the protocol of 2002 enabled Eu- pation in Joint Investigation Teams for a liaison officer of the USPIS to be ropol officials to participate in joint in- After the entry into force in spring of this permanently seconded to Europol. The vestigation teams in a support capacity, year of the above-mentioned Protocol USPIS is a federal law enforcement the third decision of the Management of November 2002 made it possible for agency assigned with the task of inves- Board lay down the rules governing the Europol officials to participate in Joint tigating “crimes that may adversely af- arrangements which regulate the admin- Investigation Teams (JITs), experts from fect or fraudulently use the U.S. mail, istrative implementation of participation Member States, Europol, and Eurojust the postal system or postal employees”. in joint investigation teams. met several times in order to enhance the In order to fulfil this mission, the agency eucrim ID=0701055 use of this investigative tool in practice. has approximately 2000 criminal inves-

16 | eucrim 1–2 / 2007 NEWS tigators, an armed uniformed division, In general, the Member States and Eu- Europol’s New Footing: Opinion of the forensic laboratories, and a robust com- ropol partners were satisfied with Eu- Joint Supervisory Body munications system. ropol’s products and services in com- After the European Data Protection Su- eucrim ID=0701060 bating serious crime. Particular success pervisor (see eucrim 3-4/2006, p. 51, 52), was able to be achieved in the Western the Joint Supervisory Body of Europol Europol Annual Report 2006 Balkans. Beyond specific crime areas, (JSB) also presented an opinion with re- Europol published its annual report re- the report provides information on Eu- spect to the Commission proposal for a lating to its activities in 2006 (for the an- ropol’s internal working structures, de- Council Decision establishing Europol. nual report 2005, see eucrim 1-2/2006, velopment of budget and staff, Europol’s The assessment of the JSB especially p. 8). The second part reports on the cooperation agreements, etc. The fifth takes into account the implications of main achievements in specific priority part contains an overview of the liaison the draft for the information structure of crime areas in 2006, the definitions of bureau activities of the 25 EU Member Europol. In its examination of the Com- which are based on the new tool of the States as well as those of third-country mission proposal, the JSB makes specif- Organised Crime Threat Assessment, authorities (Bulgaria, Romania, Norway, ic suggestions on individual articles. The OCTA, (see eucrim 1-2/2006, p. 14 and Switzerland, Colombia, and various US opinion concludes that “[t]he proposed below under “Specific Areas of Crime authorities). Council Decision establishing Europol – Organised Crime”). These crime ar- eucrim ID=0701061 contains some fundamental changes in eas are: organised crime groups, drug comparison with the Europol Conven- trafficking, crimes against persons and Europol’s New Footing: Council Conclu- tion [and that] the JSB understands that facilitated illegal immigration, financial sions there might be a need for flexibility, but and property crime (focusing on money The Council dealt with the Commission such flexibility should comply with the laundering), counter-terrorism, and euro proposal on a Council Decision estab- necessary high data protection standards counterfeiting. lishing Europol (for more detail, see and the principle of proportionality.” According to the report, organised crime eucrim 3-4/2006, p. 51). At its meeting The Joint Supervisory Body of Europol groups in 2006 continued to increase in June 2007, the Council endorsed the is established by Art. 24 of the Europol their level of sophistication as well as replacement of the Europol Convention Convention. Since Europol handles a the use they make of legitimate busi- by the Decision which will incorporate large amount of sensitive personal data, ness structures. As regards their means Europol into the legal framework of the the main task of the JSB is to ensure that of communication and cooperation, they EU. The main changes would be the the rights of the individual are not vio- benefited heavily from globalisation. extension of Europol’s mandate to all lated by the storage, processing, and uti- They employ the latest communication forms of serious cross-border crimes lization of data at Europol. By means of technologies to maintain and expand (thus no longer being restricted to or- regular inspections, the JSB also moni- their national and international links. ganised crime), the financing of Europol tors whether Europol complies with the Closely connected to organised crime from the general budget of the EU, and data protection provisions enshrined groups are financial crimes, which are the application of EC Staff Regulations in the Europol Convention. The JSB is the most favoured crime of these groups and the Protocol on the Privileges and made up of up to two representatives of after drug trafficking. Financial crimes Immunities of the European Communi- the national data protection authority of range from VAT and excise fraud to ties to Europol staff. each Member State. Members are ap- money laundering. Hence, Europol dis- In their conclusions, the Home Affairs pointed to the JSB by their respective covered that organised criminal networks Ministers defined some key points for Member States and serve for a period are increasingly involved in counterfeit- future implementation: the Council De- of five years. The JSB is an independent ing and the smuggling of cigarettes – an cision shall be finalised by 30 June 2008 body, i.e., its members may not receive activity which considerably damages the at the latest, and Europol shall be funded instructions from any other body. EU’s budget. However, Europol, other from the Community budget as from 1 eucrim ID=0701063 EU institutions, and Member States law January 2010. However, some legal is- enforcement authorities were successful sues remain to be solved, such as the Eurojust in taking counter-measures. Joint opera- lifting of immunity for Europol officials tions with customs authorities succeeded when participating in operational ac- Eurojust Signs First Agreement with in depriving criminals of their illicit pro- tivities (especially in Joint Investigation International Organisation ceeds. Europol’s focus on tackling finan- Teams (JITs)), the principle of staff rota- Mr. Michael Kennedy, President of Eu- cial crimes is intended to support cross- tion, the possibility for Europol staff par- rojust, and Mr. Luis Moreno-Ocampo, border money laundering investigations, ticipating in JITs to receive instructions Prosecutor of the International Criminal recover the proceeds of crime, combat from the team leader, as well as general Court (ICC), signed a letter of under- missing trader intra-community fraud, budgetary consequences. Therefore, the standing on cooperation. The agreement and link suspicious transactions report- Commission and Europol still need to with the ICC, which is located in the ed in other Member States with offences present a road map to solve these issues. same building in The Hague as Euro- committed in individual countries. eucrim ID=0701062 just, is the first agreement with an inter-

eucrim 1–2 / 2007 | 17 NEWS national organisation beyond the exist- Council Decision of 22 July 2003 estab- tion for prosecution, since the criminal ing agreements with other EU bodies, lishing Eurojust. However, the report activities were linked to Belgium, the such as OLAF or Europol. Both parties also confirms that the level of implemen- Czech Republic, Luxembourg, Portugal, agreed on enhancing contacts, exploring tation is uneven: First, in some Member the UK, and the Ukraine. areas of cooperation, and exchanging States the Decision has been codified eucrim ID=0701065 experiences of a non-operational nature. by law, in others it has been enacted via The sharing of general and specific in- an administrative directive. Second, the Council Conclusions on Eurojust Annual formation about serious and organised scope of powers of National Members at Report 2006 crime which may be of mutual interest Eurojust is also uneven, a factor which At its meeting in June 2007, the Justice and benefit is a particular aim. The letter can affect the ability to issue letters ro- and Home Affairs Ministers examined of understanding could be the basis for gatory or their specific powers in cases the above-mentioned Eurojust annual a more formal cooperation agreement in of emergency. report and adopted 18 conclusions. the future. In addition, the report regrets that a The Council, inter alia, calls on Mem- eucrim ID=0701064 number of key legal instruments in the ber States to refer complex and serious field of criminal justice have not been cases to Eurojust by involving the unit Annual Report 2006 put into effect in the Member States, at an early stage of investigations, where Eurojust presented the fifth Annual Re- e.g., the Convention of 29 May 2000 possible. It also recommends that Mem- port which describes its activities during on mutual assistance in criminal matters ber States provide Eurojust with high- the calendar year 2006. The report pro- between the Member States of the Euro- quality, up-to-date information about vides valuable insight into the practicali- pean Union and its Protocol of 16 Octo- ongoing investigations concerning seri- ties of judicial cooperation within Europe ber 2001 on mutual cooperation in bank- ous and organised cross-border crime. and shows that the work of Eurojust has ing information, as well as the Council In respect of Eurojust’s capacity, the been of true benefit. In his foreword, the Framework Decision of 22 July 2003 on Council thinks that further development President of Eurojust, Michael Kennedy, the execution of orders freezing property of the Case Management System at Eu- noted an increased caseload: the number or evidence. rojust should be prioritised, in particular of cases referred to the College increased The report discusses the cooperation in view of better analysis. As regards by 31 % over 2005. He also emphasises of Eurojust with the European Judicial the relationship between Eurojust and that the continued growth in referrals re- Network and with OLAF, respectively. OLAF, the Council agrees with the an- flects that there is an increased willing- As regards the relationship with OLAF, nual report that the conclusion of a (for- ness on the part of national prosecution President Kennedy points out that there mal) cooperation agreement is important. and investigation authorities to collabo- are still many opportunities to be de- The Council invites the Commission to rate with Eurojust in fighting cross-bor- veloped. Eurojust and OLAF aim at present the planned Communication on der crime and that there is a continuing replacing the existing Memorandum the future of Eurojust and the European increase of referrals by the new Mem- of Understanding, which now governs Judicial Network (EJN), which should ber States which joined the EU in 2004. their relationship, by a formal coopera- take into account the practical applica- Likewise, Eurojust’s work with non-EU tion agreement which would provide a tion of the Eurojust Decision in the light states is steadily increasing and the list clearer legal basis for the exchange of of five years of experience. of contact points is growing. However, personal data in the context of casework eucrim ID=0701066 Michael Kennedy reiterates the obser- cooperation. The new agreement is vations made in previous years that the planned to be concluded in 2007. Member States do still not make full use The section on casework illustrates the European Union Agency of Eurojust. results achievable by practical coop- for Fundamental Rights The report covers the structure and le- eration. Interestingly, most cases which By Julia Macke gal environment of Eurojust, its rela- were referred to Eurojust concerned tions with national authorities, other drug trafficking and fraud. Some ex- Agency Started Work EU bodies and third states, Eurojust’s amples show how Eurojust is involved As reported in eucrim 3-4/2006, the new development relating to administration, in cases which directly affect the EC’s European Union Agency for Fundamen- an assessment of performance against financial interests. In a large-scale VAT tal Rights (FRA) was ceremonially inau- the objectives set for 2006, and Euro- fraud case, Eurojust supported inves- gurated and took up its work on 1 March just’s objectives for 2007 and 2008. A tigations against Hungarian suspects 2007. The agency first becomes opera- major part of the report is dedicated to who, on behalf of Slovak and Dutch tional in the field of racism and xenopho- casework. It also summarises the discus- companies, imported tons of sugar bia as covered by the previous mandate sions on the future of Eurojust (see also from Croatia without paying VAT. In a of the European Monitoring Centre on eucrim 3-4/2006, p. 53). fraud case about illegal activities in an Racism and Xenophobia, EUMC. With In its discussion of the legal environ- EU programme in the Ukraine, OLAF regard to other areas of fundamental ment, the report stated that all Member requested the assistance of Eurojust in rights, it will gradually build up knowl- States but Greece have implemented the order to find the best place of jurisdic- edge and expertise as required under its

18 | eucrim 1–2 / 2007 NEWS mandate and future work programmes. ropean Parliament. The framework is CoE and the Agency will be the subject The agency is expected to be fully op- expected to be in place by 2008. of a bilateral cooperation agreement be- erational in 2008 (more details on the es- eucrim ID=0701069 tween the CoE and the Community. tablishment of the FRA and its mandate Negotiations on a cooperation agree- in: eucrim 3-4/2006, p. 53-55). Bulletins Inform General Public ment between the two organisations eucrim ID=0701067 One major tool by which the FRA will have already begun. With regard to the regularly inform the public is the re- planned cooperation agreement, CoE Agency’s Work Programme for 2007 lease of bulletins. They contain infor- Secretary General Terry Davis – on On 13 July 2007, the Work Programme mation about its work, the human rights the occasion of the inauguration of the of the FRA for 2007 was adopted by the developments in the European Union, Agency – especially welcomed that the FRA Management Board. As already re- the human rights situation in EU Mem- mandate of the agency, which is clearly ported, the Agency initially takes up its ber States and accession countries, and limited to the EU’s distinct legal order, work in the fight against racism, xeno- forthcoming events. These bulletins will respected the pre-eminent role of the phobia, and related intolerance until the be published six times a year in English, CoE and its European Court of Hu- adoption of the Agency’s first Multi-An- French, and German. The latest issue man Rights in defending human rights nual Framework by the Council. Until can be found under the following link: in Europe. Thus, the concerns which then, the Agency will carry on with its eucrim ID=0701070 representatives of the CoE expressed data collection on (1) racism and xeno- before the establishment of the Agency phobia through the European Racism First Major Report Published seemed to have been put to rest (cf. and Xenophobia Information Network On 28 August 2007, the FRA published eucrim 3-4/2006, p. 53-55). (RAXEN), (2) the content, structure, its first major report. In accordance with eucrim ID=0701072 and expected outcome of Holocaust its current task (see above), the report Education, (3) the situation regarding covers developments on racism and homophobia, and (4) on the situation xenophobia in the EU Member States regarding children’s rights in the EU. in 2006. According to the data col- Specific Areas of Crime / Corresponding research is planned as lected in this report, unequal treatment Substantive Criminal Law well as a series of communication and continues in employment, housing, and cooperation activities. Furthermore, the education. Furthermore, the figures for Protection of Financial Interests FRA will publish several reports, sur- racist crime are up in a number of EU veys, and papers, e.g. an annual report, countries. Nevertheless, the FRA notes Commission Recommends Accession of different progress reports, and so-called that both the EU’s anti-discrimination Bulgaria and Romania to PFI Law bulletins. legislation and the EU’s legislation on The Commission brought in a recom- eucrim ID=0701068 racial equality are gradually stimulating mendation for a Council Decision in positive change. In this context, see also order to determine the date on which Commission’s Proposal for a Five-Year the EU’s new Framework Decision on the Convention on the protection of the Multiannual Framework Now Out Racism and Xenophobia below. EC’s financial interests (PFI) and its On 12 September 2007, the European eucrim ID=0701071 three additional protocols should enter Commission finally presented a propos- into force for Bulgaria and Romania. al for a Council decision regarding the Bilateral Cooperation with Council of The decision of the Council is foreseen adoption of a Multiannual Framework Europe Planned in the 2005 Act of Accession of Bulgaria for the period 2007–2012 establishing The new EU Agency for Fundamental and Romania, by virtue of which the two the thematic areas of the agency. As to Rights (FRA) is also named in the re- new EU Member States acceded to these the planned thematic areas, the proposal cently signed Memorandum of Under- instruments. The Council shall act on a explicitly mentions racism, xenophobia standing between the Council of Europe recommendation of the Commission, af- and related intolerance, discrimination, (CoE) and the European Union (more ter consulting the European Parliament. compensation of victims, prevention of details below under the section “Coun- This is a simplified procedure compared crime and related aspects relevant to the cil of Europe – Foundations”). The to the former one under which specific security of citizens, protection of chil- Memorandum underlines that the FRA accession protocols to the PFI agree- dren, immigration and integration of strengthens the European Union’s ef- ments had to be concluded first; this migrants, asylum, visa and border con- forts to ensure respect for fundamental would have implied ratification by all 27 trol, participation in the Union’s demo- rights within the framework of the EU Member States. cratic functioning, human rights issues and Community law and that it respects eucrim ID=0701073 relating to the information society, and the unity, validity, and effectiveness of access to efficient and independent jus- the instruments used by the CoE to mon- Commission Report 2006 on the Protec- tice. The Commission’s proposal has itor the protection of human rights in its tion of the Financial Interests been transmitted to the Council for Member States. As to the Memorandum, In 2006, the number of irregularities in- adoption after consultation of the Eu- the concrete cooperation between the creased in the areas of agriculture, co-

eucrim 1–2 / 2007 | 19 NEWS hesion and pre-accession funds, and de- focused instead on the aforementioned regrets that they have not yet been ad- creased for own resources (i.e., customs topics, thus allowing for a more detailed equately backed up by cooperation from duties, agriculture duties, and sugar analysis of special themes. The topics the Member States. It therefore views levies) and structural funds. This is the will now change from year to year. The the Commission’s proposal to ensure in- result of the Commission 2006 annual Commission report was presented on 9 creasingly efficient cooperation between report on the “protection of the finan- July 2007, alongside the OLAF Activity national anti-fraud bodies as being an cial interests of the Communities – fight Report (for the OLAF Activity Report absolute priority. This could be achieved against fraud”. The Report compiles the see above; for the 2005 Commission Re- by setting up a network of police forces most significant measures undertaken by port, see eucrim 1-2/2006, p. 10). and investigative bodies, allowing them the Member States and the Commission eucrim ID=0701074 to share available databases. The EESC to prevent and fight fraud against the also recommends that the technical and EU budget more efficiently. This year’s Commission Progress Report on EU Anti- legal issues involved are carefully exam- Commission report focuses especially on Fraud Strategy ined. risk analysis and risk management, de- After having presented a communica- In addition, the EESC encourages the barment (blacklisting) databases, warn- tion on a strategy to fight fiscal fraud at Commission to make full use of OLAF’s ing systems involving whistleblowers, the EU level in May 2006 (COM(2006) current powers, under which the Euro- and mechanisms for recovery by offset- 254) and after the Council had given pean anti-fraud body holds important ting under national law. guidelines on how to proceed with this functions. It urges the Commission to as- An annex gives a more detailed sector- strategy in November 2006 (see eucrim sess whether OLAF has adequate means by-sector explanation on the irregulari- 3-4/2006, p. 57), the Commission pre- to perform its official tasks. Finally, the ties. It shows, for instance, that, in the sented a progress report in May 2007 Committee backs up the proposal to re- politically most controversial field of on the work done so far. The Commis- consider VAT – something it has itself ad- agricultural expenditure, the number sion and the Member States discussed vocated on previous occasions – believ- of irregularities reported was up 3 % the topics which had been given prior- ing that a think-tank should be formed on the previous year whereas the total ity by the Council within the framework to envisage replacing VAT, provided that amount involved in 2006 was 15 % less of a new expert group (Anti Tax Fraud any new tax will not lead to increased (it was about €87 million compared to Strategy expert group). Discussions so payments by businesses or citizens. approximately €102 million in 2005). far have dealt particularly with measures eucrim ID=0701076 In the field of own resources, the num- related to intra-Community supplies, but ber of cases of fraud and irregularities the experts will also consider other top- Kick-Off for Worldwide Treaty on Illicit detected and reported (cases concerning ics raised in the Commission’s Commu- Trade in Tobacco more than €10,000) was down 12 % on nication, such as the role of OLAF in the In July 2007, governments agreed to 2005, but the amount affected by irregu- support of operational and intelligence start negotiations on a new international larities rose by over 7 % (from €328 mil- activities. There seems to be common treaty to combat global trade in illicit to- lion to €353 million). The statistics are agreement in the group that the poten- bacco products. The treaty will be nego- based on notifications by the Member tial impact on business of the possible tiated within the framework of the World States which are obliged to make them measures must be examined carefully. Health Organisation (WHO) and com- by Community law. Since the Commis- Furthermore, some guiding principles of plement the WHO Framework Conven- sion depends on the reporting discipline future anti-fraud strategy have been con- tion on Tobacco Control (FCTC). The of the Member States, the picture may sidered. The Commission’s progress re- FCTC, which is the first global health be inexact. In this context, Siim Kallas, port served as preparation for the Coun- treaty negotiated under the auspices of Commissioner responsible for Admin- cil conclusions on combating tax fraud the WHO, aims at curbing the tobacco istrative Affairs, Audit and Anti-Fraud, which are reported on below under “Tax epidemic with a package of measures. called on Member States to deliver in- Fraud/VAT”. It not only addresses health aspects but formation more precisely, completely, eucrim ID=0701075 also obliges the State Parties to adopt and in a timely manner. and implement effective measures to A second annex to the annual Commis- EESC Opinion on Strategy to Fight Fiscal eliminate illicit trade, illicit manufactur- sion report lists national measures of the Fraud ing, and counterfeiting of tobacco prod- Member States which give effect to Art. In March 2007, the European Economic ucts (Art. 15 of the FCTC). 280 TEC, i.e., measures to combat fraud and Social Committee (EESC) pub- In the preparatory phase of the new in- and all other activities affecting the EC’s lished its opinion on the aforementioned strument, an expert group recommended financial interests. The list is based on Communication from the Commission the adoption of a protocol on combating answers to an annual questionnaire is- “concerning the need to develop a co- illegal trade in cigarettes and other to- sued by the Commission. Unlike ques- ordinated strategy to improve the fight bacco products which contains a com- tionnaires in previous years, this year the against fiscal fraud” (COM(2006) 254). prehensive set of measures in addition Commission did not ask for all measures The EESC supports the Commission’s to Art. 15 of the FCTC. The protocol taken by the Member States in 2006, but initiatives to combat fiscal fraud, but should include:

20 | eucrim 1–2 / 2007 NEWS

• an international tracking and tracing system for tobacco products; European Criminal Law Associations’ which is required to facilitate effective Eu- • markings and codes on packs, cartons, Conference in Catania: Re-launching the ropean criminal law. In relation to the pro- European Project tection of EC interests in particular, there and master cases; was a clear call for a debate as to what • a system of record keeping for all im- The following gives a summary of the an- should spark criminal rather than the, more ports and exports of tobacco products; nual conference of Lawyers of the As- efficient administrative, law reactions. • obligations for tobacco manufacturers sociations for the Protection of the ECs’ There were many positive voices among to control their supply chain, including Financial Interests and of European Crimi- the participants, viewing the provisions of penalties for those who fail to comply; nal law which took place in Catania on the Constitutional Treaty as way forward; • the criminalization of participation in the 24-26th of May 2007. The conference a tool overcoming the democratic deficit illicit trade in various forms; – also celebrating the 10th anniversary of seen in EC structures and doing away with a • increased international cooperation in the Centro di Diritto Penale Europeo – had hindering pillar structure. Whilst displaying the motto „Re-launching the European awareness of the problems entailed, some the sharing of information and prosecu- Project: needs for protecting EC interests emphasised the need to use criminal law tion of offences. and new strategies for penal integration in order to enforce and adequately protect The first results of the negotiations are pending the European Constitution.“ In an EC interests because this task sometimes expected in 2010. OLAF will contribute ambitious programme, scholars and prac- requires the level of social stigma attached by participating in the intergovernmen- titioners from across Europe discussed the only to criminal law. On this basis, thoughts tal negotiating body. It is expected that various challenges faced but also the op- were turned to the potential benefits and the protocol can further facilitate the portunities seen. Some relativised the con- difficulties of enforcing Community related investigative and operational activities troversy sparked by the European Court of offences via national or supra-national in- Justice judgement in Case C-176/03 seeing stitutions, in particular in relation to secur- of OLAF and its operational partners it as a development of argument already to ing efficiency and procedural rights. in the EU Member States. The hope re- be found in the famous Greek Maize judge- The conference also considered the practi- mains that the protocol will be equally ment of 1989. Others pointed to the third cal effects of some European measures: the as successful as the FCTC which has pillar having been used to avoid conflict success of the European Arrest Warrant been ratified by 149 countries so far and over criminal competence; a use the Com- was emphasised. Some suggestions for entered into force on 27 February 2005, mission now objects to. The difficulties of improvement were made, e.g. the installa- less than two years after it was opened overseeing the relevant areas, let alone tion of better reporting structure for failures for signature in June 2003. protecting the financial interests of the EC to ensure the mechanism can be improved. – whether by means of administrative or There was, however, no lack of more philo- eucrim ID=0701077 criminal law – were highlighted. sophical analysis of very specific sugges- The variety of institutions and views rep- tions to improve such mechanisms. Practice: OLAF Detects Fraud Involving resented meant that calls for a central- The conference succeeded in emphasising Citrus Fruit Aid ised enforcement institution and/or direct that the possibilities of co-operation by EU OLAF and Italian authorities discovered administrative sanctioning powers for EC Member States is limited and providing a a fraud scheme directed against Com- agencies were to be heard alongside calls variety of possible fundaments upon which munity aid for the processing of citrus that the Commission should first utilise the suggestions as to what the next steps fruits. This scheme allows economic op- means already available to the full. Whilst should/can be. With a view of the chal- erators to obtain Community aid if cit- there was broad agreement that the princi- lenging developments in the near future, ple of subsidiarity must be observed at all such as the bringing into force of the new rus fruits grown in the EU are processed times and that EC administrative law enjoys Reform Treaty, next year’s conference of into juice. After carrying out on-the-spot primacy, it also became clear that this con- the Associations in Prague will again see a checks and examining the company’s ference could only be the beginning – or multitude of topics requiring discussion. books and registers, the investigators re-launching – of a broad and complex de- By Dr. Marianne Wade found out that the supposed production bate as to the extent of legal harmonisation eucrim ID= 0701081 of juice in Italy and the claimed trans- actions were completely fictitious. The fraud may have damaged the EU budget by up to €50 million. Programme “SAPARD” (Special Ac- Commission Reclaims €285.3 Million in eucrim ID=0701078 cession Programme for Agriculture and Farm Subsidies Rural Development) by applying for Thanks to its 24th decision, the Com- Practice: Illegal Funding in the Agricul- funding of machinery for the process- mission has recovered a total of €285.3 tural Sector Discovered ing and packaging of meat products at million from Member States which were In close cooperation with OLAF, in- inflated prices. The Zollkriminalamt unduly spent within the framework of vestigators in Germany, Bulgaria, and (German Customs Criminological Of- the Common Agriculture Policy (CAP). Switzerland busted a network of sub- fice) confirmed that €3.5 million had At the top of the list this time is Spain sidy fraudsters. Over 50 companies been fraudulently obtained; another which is charged with €60.6 million, in Bulgaria, Germany, and Switzer- €7.5 million may, allegedly, have been followed by the (€53.7 land were involved. They had illegally unduly paid. million), and Italy (€48.5 million). For claimed subsidies from the Community eucrim ID= 0701079 more details on previous decisions and

eucrim 1–2 / 2007 | 21 NEWS on how the recovery system works, see (4) to improve confirmation messages Practice: Co-ordination Meeting at Eu- eucrim 1-2/2006, p. 10 and 3-4/2006, and information on business identified rojust Steps up Investigation in Big VAT p. 56/57. for VAT purposes to operators active in Fraud eucrim ID=0701080 intra-Community trade without hamper- In March 2007, Eurojust hosted a large- ing the risk analyses applied by Member scale co-ordination meeting between States. prosecutors and tax investigators from Tax Fraud / VAT Second, the Council examined two more 18 of the 27 Member States plus Swit- far-reaching proposals of the Commis- zerland, the Netherlands Antilles, and Discussions on Amendments to Present sion relating to combating VAT fraud. the United Arab Emirates. The purpose VAT Scheme Continue in Council The first one relates to the taxation of of the meeting was to share information At its meeting on 5 June 2007, the Coun- intra Community transactions. Among in order to unravel the mystery of money cil responsible for Economic and Finan- the two models for the taxation of intra- flow which originated from various VAT cial Affairs reached a political agreement Community transactions, the vast major- carousel in different Member on some elements of the VAT package. ity of Member States reject taxation in the States. The money was laundered in the Prior to the formal adoption of the full Member State of arrival (country of des- Netherlands Antilles and subsequently package, however, the Portuguese Presi- tination). Instead, Member States agree in Dubai. The fraud is estimated at €2.1 dency has to solve further difficult issues to further explore the system of taxation billion. The meeting identified all rel- in the second half of 2007, e.g., how to in the Member State of departure. The evant investigations and prosecutions improve control and cooperation meas- second issue concerns the introduction in the EU, provided an opportunity for ures involving both the Member State of a general reverse-charge system which an exchange of information, encouraged of the supplier and the Member State of would principally shift tax liability from new investigations and prosecutions to consumption. The Council aims to for- the supplier to the recipient/customer of be taken up in other countries, and ex- mally adopt the package before the end goods or services (see eucrim 3-4/2006, plored how to co-operate successfully in of the year with the intention of having p. 57). The mechanism would apply to each other’s actions. it enter into force on 1 January 2010 at domestic commercial transactions, the eucrim ID=0701085 the latest. The VAT package is composed value of which exceeds a certain thresh- of interlocking elements intended to es- old (€5.000 are proposed). Germany and tablish new rules for determining the Austria consider this mechanism an ef- Corruption place of taxation for services and mini- fective tool to combat VAT fraud and are mise regulatory burdens on businesses in favour of European law providing (at German Initiative on Contact Point Net- engaged in cross-border trade. It also least) an option for Member States to al- work against Corruption includes aspects relating to combating low for application of such a system. Al- Germany recently submitted an initiative VAT fraud (see eucrim 3-4/2006, p. 58). though most Member States oppose the with a view to the adoption of a Council eucrim ID=0701082 plan to date, the Council has invited the Decision to set up a network of contact Commission to present a more detailed points for national law enforcement Council Conclusions on Combating Tax impact assessment on this issue by the agencies charged with preventing and Fraud end of 2007 at the latest. combating corruption. The instrument Taking into account the above-men- eucrim ID=0701083 would formalize the existing informal tioned progress report on the EU strat- cooperation among key representatives egy to fight fiscal fraud, the Council of Commission Launches Public Debate on of the competent Member States’ police Economic and Financial Affairs, at its Reverse-Charge Mechanism authorities or anti-corruption agencies. meeting on 5 June 2007, adopted con- Against the background of the above- The network would also encompass clusions on the next steps to tackle tax mentioned task of presenting an impact the European Commission, Europol, fraud, especially VAT fraud. First, as assessment on the optional reverse- and Eurojust. The establishment of this regards conventional measures, the charge mechanism, the Commission network of contact points is expected to Council agreed that the following issues addressed the business sector and in- make a considerable contribution to a should be pursued with priority: vited its representatives to submit their more effective cooperation, better shar- (1) to introduce amendments in declar- views and opinions on the question of ing of good practices, and the develop- ing intra-Community supplies, with the which impact the possible introduction ment of high professional standards in aim of reducing timeframes; of an optional reverse-charge system the EU-wide fight against corruption. (2) to ensure more rapid sharing of such would have, especially in terms of ad- eucrim ID=0701086 information among tax administrations; ditional costs. The Commission had also (3) to examine joint and several liability launched a study for this purpose. The Commission Blames Member States for where information on intra-Community consultation paper as well as the final Transposition of Anti-Corruption Law supplies has not been provided or has not report of the study can be downloaded On 18 June 2007, the Commission pre- been correctly provided to the extent that from the following website: sented an evaluation report on the im- leads to loss of VAT at a subsequent stage; eucrim ID=0701084 plementation of Council Framework

22 | eucrim 1–2 / 2007 NEWS

Decision 2003/568/JHA on combating G8: Declaration on Fight against to the following question: Does the Direc- corruption in the private sector. The Corruption tive infringe upon the right to a fair trial Framework Decision (FD) was consid- The Heads of State and Government when it imposes on members of independ- ered necessary in order to prevent distor- of the G8 (Group of Eight) adopted a ent legal professions, including the pro- tions of the internal market and strength- declaration on the fight against corrup- fession of lawyer [avocat], the obligation en national economies. Art. 2 of the FD tion at their summit in Heiligendamm, to inform those authorities responsible for obliges Member States to criminalize Germany, in June 2007. The declaration, combating money laundering of any indi- two types of conduct: which is contained in the Summit Dec- cation of such money laundering? a) promising, offering, or giving a bribe laration “Growth and Responsibility in The ECJ concluded that the principle of to a person in the private sector in order the World Economy”, remarks that the fair trial, as enshrined in Art. 6 ECHR, that he or she do something or refrain G8 countries “are aware of their leader- would only be infringed if lawyers were from doing something, in breach of that ship role in setting examples in the fight obliged, in the context of judicial pro- person’s duties; against corruption.” The declaration in- ceedings or preparation for such proceed- b) requesting or receiving a bribe, or cludes a number of concrete measures ings, to cooperate with the authorities by the promise of such, while working in to combat corruption more effectively passing on information obtained in the the private sector, in order to do some- worldwide, inter alia, in view of the course of related legal consultations. The thing, or refrain from doing something, full implementation of the international Court emphasises that this is not the case in breach of one’s duties. anti-corruption agreements (in particu- under the second anti-money laundering The FD also includes features which lar those of the UN), the commitment to Directive since it delimits the lawyer’s have become common in other frame- effective monitoring through the peer- obligation in two ways: First, the obliga- work decisions: it prescribes that review mechanism under the OECD An- tion only applies if specific transactions • instigating, aiding, and abetting are ti-Bribery Convention, the support of in- exhaustively listed in the Directive, are punished (Art. 3), ternational financial institutions’ efforts carried out (essentially of a financial na- • “effective, proportionate and dissua- to combat corruption, the return of illic- ture or concerning real estate). Second, sive” penalties are introduced, including itly acquired assets, and support for the the Directive stipulates that Member that the conduct referred to in Article 2 is efforts of the private sector in combating States may exempt lawyers from report- punishable by a penalty of a maximum and preventing corruption. Furthermore, ing where they are ascertaining the cli- of at least one to three years of imprison- the future focus will be put on sharing ent’s legal position or representing a cli- ment (Art. 4 para. 1 and 2), best practices regarding specific aspects ent in legal proceedings. Taking this into • legal persons are held liable and sanc- of combating corruption and enhancing account and considering the fact that Bel- tioned with penalties (Art. 5 and 6), and assistance in developing countries. gium implemented both exceptions into • jurisdiction is established with regard eucrim ID=0701088 its national law, the ECJ concludes that to the offences referred to in Articles 2 International cooperation in the fight the right of a client to a fair trial is safe- and 3 (Art. 7). against corruption was also one of the guarded and therefore not infringed. Art. 4 para. 3 is quite innovative as it main topics at the meeting of the G8 Furthermore, as regards the obligation to sets forth that a convicted natural person Justice and Interior Ministers in Munich report whether the lawyer is acting specif- should, under certain circumstances, be from 23 to 25 May 2007. The Ministers ically in connection with the above-men- temporarily prohibited from carrying on a particularly dealt with the recovery of tioned financial and real estate transac- particular or comparable business activity assets coming from corruption offences. tions, with no link to judicial proceedings, in a similar position or capacity. They stressed the need for a common the Court holds that such obligations are However, the Commission gave Member implementation of good practices in this justified by the need to combat the crime States a bad review since most of them area. of money laundering effectively. have not or have insufficiently implement- eucrim ID=0701089 For more information about the history ed the circumstances of the FD. Some of the case, see eucrim 1-2/2006, p. 11 Member States, for instance, do not pun- and 3-4/2006, p. 59. The latter reference ish all types of corruption, e.g., promising, Money Laundering analyses the opinion of the Advocate offering, and giving a bribe. Many do not General which comes to the same result criminalise the corruption through an in- ECJ: 2nd Anti-Money Laundering Direc- as the ECJ. It seems that the ECJ also termediary – explicitly foreseen in Art. 2. tive Consistent with Right to Fair Trial follows the Advocate General’s broader Furthermore, many Member States do not On 26 June 2007, the European Court of interpretation on the notion of “ascer- extend their legislation to cover non-profit Justice (ECJ) rendered its judgment on taining the legal position of a client”. organisations (Art. 2 para. 2) and fail to the conformity of the second anti-money eucrim ID=0701090 have legislation when it comes to intangi- laundering Directive 2001 with funda- ble, non-financial benefits. Member States mental rights. A number of Belgian law New Rules on Cash Controls Became had to comply with the provisions of the societies initiated two applications be- Applicable FD by 22 July 2005. fore the Cour d’Arbitrage (Constitutional As from 15 June 2007, the new Regu- eucrim ID=0701087 Court of Belgium) which made reference lation on cash controls by customs is

eucrim 1–2 / 2007 | 23 NEWS applicable in all Member States. Under Commission Report on the Framework coin counterfeiting, the report mirrors the new legislation, persons entering or Decision on Criminal Law Protection of the numbers which had already been leaving the EU have to declare money the Euro published by the Commission in January movements if they are carrying €10.000 The state of play of the legal imple- 2007 (see eucrim 3-4/2006, p. 60). The or more in cash (or its equivalent in oth- mentation of “Framework Decision report also outlines the actions to protect er currencies or easily convertible assets 2000/383/JHA of 29 May 2000 on in- euro coins, as well as the activity of the such as non-crossed cheques). Customs creasing protection by criminal penalties ETSC (European Technical Scientific authorities are empowered to undertake and other sanctions against counterfeit- Centre) in 2006. the necessary controls and detain cash ing in connection with the introduction In sum, awareness of the need to protect that has not been declared. Persons who of the euro” (OJ L 140 of 14.06.2000) euro coins was raised in 2006, mainly fail to make a declaration will face pro- in the EU Member States is detailed in a through actions in the framework of ceedings and penalties. Commission report from 17 September the Pericles Programme (e.g., confer- The Regulation intends to close a loop- 2007. It is the Commission’s third evalu- ences and seminars; for more details hole which emerged because of the dif- ation report on this FD. on the Pericles Programme see eucrim ferent standards in monitoring capital The report concludes that transposition 3-4/2006, p. 68). The report also high- movements among the EU Member by all 27 Member States of the FD is lights that a number of Member States States. This factor also undermined the globally satisfactory. The penalisation of began to implement the Commission effective implementation of the third acts of counterfeiting, as well as the sanc- Recommendation of 27 May 2005 anti-money laundering directive which tions provided, were generally introduced which provides for common rules on the already introduced an obligation for cred- into the Member States’ legislation, thus authentication procedure of euro coins. it and financial institutions to monitor achieving a homogeneous level of pro- The report concludes that, in spite of in- transactions. The Regulation was adopted tection of the euro as required by the FD. creased efforts in the detection of coun- in October 2005 and entered into force on A small number of national measures are terfeit euro coins, increased vigilance 15 December 2005 (see eucrim 1-2/2006, still necessary for its complete implemen- and cooperation is also necessary in the p. 12). The following website contains tation. These cases of non-compliance upcoming years. Therefore, it is recom- more detailed information on the new mainly concern the level of sanctions, as mended that (1) cooperation increases cash controls, including a multilingual well as the penalisation of specific acts in between all official bodies involved (na- leaflet explaining the new rules. certain countries. tional law enforcement authorities, Eu- eucrim ID=0701091 The Framework Decision ensures that the ropol, Coin National Analysis Centres, euro is appropriately protected against ETSC, European Central Bank, etc.); (2) counterfeiting by the criminal laws of all all Member States use coin authentica- Money Counterfeiting Member States. It supplements the 1929 tion procedures; (3) closer cooperation International Convention for the Suppres- is established with private sector coin- Commission Proposal: Banks Should Be sion of Counterfeiting Currency (“Ge- operated industry. Included in Protection of Euro against neva Convention on counterfeiting”) by eucrim ID=0701094 Counterfeiting, requiring Member States to introduce ef- The Commission aims at implement- fective, proportional and dissuasive pen- Practice: Europol Helps Dismantle ing improved measures designed for the alties for certain offences relating to the Illegal Print Shop in Colombia protection of the euro against counterfeit- counterfeiting of the euro. It also stipu- A successful police cooperation in a non- ing. For this purpose, it tabled a proposal lates that the offences of fraudulent mak- EU country, Colombia, resulted in the which would amend Regulation (EC) No ing or altering of currency is punishable arrest of nine criminals and the seizure 1338/2001, laying down measures neces- by terms of imprisonment, the maximum of more than 400.000 counterfeit euro sary for the protection of the euro against being no less than eight years. Further- and 5,5 million US dollar notes. Europol counterfeiting. In particular, the Commis- more, the FD contains requirements on successfully supported the operation sion intends to obligate banks and other the jurisdiction of the Member States and from the very beginning by providing relevant establishments (e.g., bureaux the liability/sanctions of legal persons. analytical and technical support to Span- de change) to check the authenticity of The FD was amended by Framework ish, Colombian, and US authorities. The euro banknotes and coins before they are Decision 2001/888/JHA of 6 December investigation, which lasted eight months, put back into circulation. Today, agreed 2001 which introduces the mutual rec- was completed on 14 June 2007. During uniform and effective methods of detec- ognition of convictions handed down in the eight-month investigation, it was tion of counterfeits exist which make this another Member State. possible to identify the different tech- verification easy and perfectly feasible. eucrim ID=0701093 niques used by the counterfeiters in the The authentication procedure should be different stages of production as well carried out in line with recommendations Protection of Euro Coins in 2006 the routes used to distribute the bank of the European Central Bank and the The Commission/OLAF also released notes in Europe, United States, Panama, Commission, respectively. a report on the protection of euro coins Costa Rica, Venezuela and Ecuador. The eucrim ID=0701092 in 2006. As regards the situation of euro Director of Europol, Max-Peter Ratzel,

24 | eucrim 1–2 / 2007 NEWS stated that Europol will continue to sup- and Internet service provider Telefonica property rights triggered a new wave of port Member States and partner states in to hand over the names and addresses controversial debates when the Euro- this fight (in line with the Council De- of subscribers who had allegedly ille- pean Parliament issued its comments on cision of 2005), designating Europol as gally distributed copyrighted songs, so the proposal in spring 2007. the Central Office for combating euro that Promusicae could take legal action. The Commission proposal aims at har- counterfeiting. In this context, it is worth Promusicae claimed that various Com- monising the national laws of the 27- mentioning that Europol works closely munity directives which protect a pri- member bloc as regards the criminal with Colombia on the basis of an agree- vate person’s intellectual property rights law enforcement of intellectual property ment which allows the exchange of tech- would oblige Internet service providers rights. It foresees criminal sanctions, in- nical and strategic information. to hand over the required data to the cluding imprisonment and criminal and eucrim ID=0701095 rights owners. Telefonica refused, since, non-criminal fines, in cases of intention- under Spanish law, it is only allowed to al infringements of an intellectual prop- Practice: Joint Blow against Credit Card deliver information as part of a criminal erty right on a commercial scale. Fraud Network prosecution or in matters of public secu- It is the Commission’s second initia- The successful operation ‘Clone’, car- rity and national defence. tive which amended the original draft of ried out by the Italian Carabineri and In the final analysis, the Advocate Gen- 2005 in the aftermath of the judgement supported by Europol since April 2006, eral agreed with the view of Telefonica. of the European Court of Justice in Case was recently finalised by smashing an According to Ms. Kokott, EC data pro- C-176/03 (see eucrim 1-2/2006, p. 13). international organised criminal group. tection law prevents private persons from On 25 April 2007, the MEPs voted for The criminals were skimming credit the disclosure of personal traffic data in a legislative resolution which proposes card data at manipulated payment termi- civil cases. Spanish law is in line with EC several amendments to the draft of the nals inside several shopping centres in law if it restricts the obligation to hand Commission. The main amendments Italy for the purpose of subsequent ille- over traffic data to law enforcement au- which are backed by the majority of gal cash withdrawals at automated teller thorities only. In particular, Art. 15 of the MEPs are: machines within Italy and other Europe- EC’s electronic communication Directive • reducing the directive’s scope to the an countries. The successful outcome of 2002/58, which allows the transmission extent that industrial property rights un- this operation is the result of cooperation of traffic data in cases of unauthorised use der a patent should be excluded; between Italy, Spain, Sweden, France, of the electronic communication system • introducing a number of definitions, Romania, Eurojust, and Europol. Euro- as an exception of the principal ban, must such as “intellectual property rights”, just aided the operation and provided all be interpreted narrowly and cannot serve “infringements on a commercial scale”, indispensable judicial assistance, while as a basis for the transmission of data to and “intentional infringements of an in- Europol was responsible for the identifi- the intellectual property rights owner. tellectual property right”; cation and location of various members Otherwise, the entire communication • having penalties include an order re- of the criminal group acting in Italy and would have to be stored in order to check quiring the infringer to pay the costs of abroad. As a result, 42 persons were ar- its unauthorised use effectively; then the keeping seized goods; rested in various countries and 1020 “transparent citizen” would become real- • taking into account repeated offences counterfeited credit cards, 540 blank ity, Ms. Kokott says. committed by natural and legal persons card data of 1280 skimmed cards, and The online newspaper euobserver re- in a Member State other than the offend- 41 damaged payment terminals were ported on 20 July 2007 that “the opinion er’s country of origin or domicile when seized. comes only days after the Swedish Jus- determining the level of penalties; eucrim ID=0701096 tice Department proposed that copyright, • obliging Member States to ensure patent and trademark owners should be that the misuse of rights is prohibited by able to request a court to force Internet means of a new article; Counterfeiting and Piracy service providers to reveal the identity • inserting more adequate safeguards of of Internet users who have infringed individual rights, e.g. within the frame- Advocate General: Internet Service Pro- their rights. A Belgian court has in the work of cooperation in joint investiga- viders Need Not Turn Over Traffic Data meantime ruled that one of its national tion teams; to Intellectual Property Owners Internet service providers must install a • ensuring, by means of a new article, Advocate General Kokott gave her filter to prevent its Internet users from that evidence obtained by law enforce- opinion in an interesting case about illegally downloading music”. ment authorities is made available for the relationship between the protection eucrim ID=0701097 use in civil proceedings, and, where of intellectual property rights and data practicable, that the law enforcement protection law (Case C-275/06 “Produc- European Parliament Voted for Criminal authorities inform the right-holder about tores de Música de España (Promusicae) Measures IP Directive the evidence. v. Telefonica de España SAU). A Span- The Commission proposal of 2006 for a The legislative resolution was prepared ish music association – Promusicae – re- directive on criminal measures aimed at by Italian MEP Nicola Zingaretti – quired the Spanish telecommunications ensuring the enforcement of intellectual member of the Committee on Legal Af-

eucrim 1–2 / 2007 | 25 NEWS fairs. Opinions were also delivered by stance on the draft of the criminal law and Dr. Alexander Peukert, doubt that the Committee on Industry, Research directive for the protection of intellectu- the conditions for the harmonisation of and Energy, and the Committee on Civil al property rights. A coalition of associa- infringements against intellectual prop- Liberties, Justice and Home Affairs. tions representing consumer protection, erty rights through criminal law meas- The Council has not yet adopted a for- libraries, and innovators presented a pa- ures as drawn up by the European Court mal position on the proposal. A debate per with alternative amendments which of Justice in its judgement C-176/03 and and further examination of the draft in seek to prevent the extensive crimi- as set forth in Art. 95 TEC are fulfilled. the Council is expected in December nalisation of users and the creation of They elaborate that a harmonisation of 2007 (see also the Council discussion in vaguely defined criminal offences. Tak- criminal laws for IP infringements is eucrim 3-4/2006, p. 60). ing into account the preparatory work in not necessary with respect to the proper eucrim ID=0701098 the European Parliament, the associa- functioning of the internal market. tions are urging the Parliamentarians to They also call on the legislator to be European Economic and Social Com- further amend the proposal or reject it aware that a balance must be achieved mittee Releases Opinion on Proposed in its entirety. They advocate, inter alia, between the interests of the proprietors Directive that the scope of the directive be further of IP rights and public interests as well In its opinion of 12 July 2007, the Eu- reduced, definitions of the criminal of- as conflicting fundamental rights. As ropean Economic and Social Committee fences described more precisely, and regards the elements of crime, it is ad- (EESC) generally supports the proposed secondary liability (aiding, abetting, vocated that the directive should be con- directive to combat intellectual property inciting) eliminated. They also stress fined to cases of clear piracy and coun- rights infringements with criminal meas- that the proposal needs clarification in terfeiting – a request which was also ures. However, the EESC recommends that legitimate commercial enterprises taken up by the above-mentioned NGOs. that the European legal act should em- and consumers not be criminalised. It The MPI makes a concrete suggestion as phasis large-scale counterfeiting, coun- has been criticized that the proposal “is to how to formulate the elements of the terfeiting by organised crime groups, and badly drafted” and would put thousands criminal act. Lastly, the statement points counterfeiting endangering health, safety of young Europeans into jail. out the necessity for countermeasures if and life. These instances should be con- eucrim ID=0701100 right-holders misuse the threat of crimi- sidered aggravating circumstances in the On the occasion of the above-mentioned nal penalties. In this context, the drafters determination of penalties. In opposition report of MEP Nicola Zingaretti, the express concern about the privatisation to the EP, the EESC favours that the Di- Foundation for a Free Information Infra- of criminal prosecution since right- rective should cover industrial property structure (FFII) – a German non-profit holders may participate in joint investi- rights as a whole, thus including inven- organisation dedicated to establishing a gation teams, according to the proposal. tion patents. The EESC calls for a clear- free market in information technology This issue of the misuse of rights has er definition of the elements of the crime by the removal of barriers to competi- been taken up by the European Parlia- (e.g., “commercial scale”, “intent”), also tion – addressed a letter to the Members ment (see above). However, it remains taking account the different practices of of the European Parliament in March open whether the amendment of the EP counterfeiting. In this context, the EESC 2007. In it, the FFII states that the draft is sufficient and will be maintained by suggests that combating IT piracy should report of the Committee of Legal Affairs the Council. be addressed specifically. As regards the is not ready for adoption. A reference to eucrim ID=0701102 determination of maximum penalties in the letter as well as to other links with the draft directive, the EESC points out opposing statements to the criminal law Customs Statistics on Counterfeiting in an interesting link to national criminal IP directive is contained in the follow- 2006 law systems: according to the EESC, ing link. In spring 2007, the Commission pub- European law must avoid the occurrence eucrim ID=0701101 lished the figures on seized counterfeit of inconsistencies between penalties on products in the year 2006. According to single infringements and those on com- Statement of the MPI for Intellectual the Commission, the seizure of 250 mil- mercial-scale infringements (to which Property, Competition and Tax Law on lion counterfeit products – an increase the Directive will be limited only), since Draft Directive of 330 % compared to 2005 (75 mil- some Member States actually sanction The Max Planck Institute (MPI) for In- lion) – shows the tremendous growth or penalise single infringements more tellectual Property, Competition and Tax in trade of these goods on the one hand, severely than commercial ones; thus, a Law issued a detailed analysis on the and, on the other hand, is also a result genuine harmonisation must be ensured. redrafted Commission proposal of 2006 of better risk management analysis and eucrim ID=0701099 as to the protection of IP rights through better cooperation between the customs criminal law. The MPI examined the authorities. In 2006, customs actions NGOs Propose Alternative Amendments proposal in relation to legal competence, succeeded in some large-scale seizures In the run-up to the above-mentioned fundamental rights, elements of crime, which the Commission exemplified by resolution of the European Parliament, and misuse of rights. The drafters, Prof. the joint customs operation “DAN” (see several NGOs renewed their critical Dr. Reto M. Hilty, Prof. Dr. Annette Kur, eucrim 3-4/2006, p. 61). Traditionally,

26 | eucrim 1–2 / 2007 NEWS fake cigarettes remain at the top of the list tion was coordinated by OLAF and in- intellectual property rights (IPR) pro- of articles most likely to be counterfeited volved not only the customs authorities tection and enforcement. It renews an (60 %). The cigarettes seized (150 million of all 27 Member States – Romania and earlier joint IP enforcement initiative. packets – an equivalent to 3 billion single Bulgaria also took part in the operation In the first part of the new action plan, cigarettes) make up an estimated loss of as EU Member States for the first time a range of measures to enhance coop- €460 million to the European Communi- – but also Europol, Interpol, and the eration in the field of IP enforcement ty and Member States’ budgets. However, World Customs Organization. Operation has been formulated, for instance with the Commission stresses that the increase “Diabolo” targeted the maritime routes a view to sharing information, customs in seizures of other counterfeit products of branded cigarettes and other counter- cooperation, the assessment of dam- – such as medicines – is particularly wor- feit products which originate from Asian ages resulting from IP infringements, rying since it doubled compared to 2005 ports. It was based on an initiative by the public-private cooperation, or technical (see eucrim 3-4/2006, p. 60/61 for the sta- Member States of ASEM (Asia-Europe assistance. The action plan also suggests tistics on 2005). Meeting). ASEM is an informal dialogue exploring the possibility of strengthen- As in previous years, China spearheads process which was initiated in 1996. It ing the international legal framework to the list of countries where the most brings the 27 EU Member States and the combat counterfeiting and piracy. The counterfeit goods come from. However, European Commission together with 13 second part of the action plan deals with if broken down by sector, India is the Asian countries. The aim of ASEM is to the improvement of IPR protection, inter main source of counterfeit medicines, deepen the relationship between Europe alia, improvements of patent prosecu- Turkey predominates in the food sector, and Asia. The dialogue is dedicated to tions, the strengthening of cooperation and Malaysia has taken over the top of political, security, economic, education- relating to geographical identification the list when it comes to electric equip- al, and cultural issues. systems, and the promotion of informa- ment. In this context, it is worth men- eucrim ID=0701104 tion exchange on copyrights compensa- tioning that it is becoming more and tion systems. At the multilateral level, more difficult to identify the country Practice: Successful International Op- both parties will work together towards where the fake articles are in fact pro- eration against Network of Fake Pills the harmonisation of their different pat- duced, since criminals use complicated A first efficient international coopera- ent systems. The text of the action plan transport routes. Furthermore, more and tion in the fight against counterfeit drugs is published in the first annex of the joint more articles are being detected in postal has been reported by Eurojust. The EU’s press statement at the following link: and air traffic due to booming Internet judicial cooperation body prepared and eucrim ID=0701106 sales. Commissioner László Kovács, re- coordinated the simultaneous execu- sponsible for taxation and customs, ad- tion of French rogatory commissions in OECD – Study on Economic Impacts of monished the consumer to be aware of four EU countries (Sweden, Romania, Counterfeiting and Piracy the problem of counterfeiting and urged the Netherlands, and Denmark) in April Governments should work more closely avoiding cheap fakes. He also stated that 2007. The co-ordinated police actions with companies and strengthen enforce- international customs cooperation with resulted in the dismantling of a network ment in the fight against the rising global the major trading partners of the EU, in of Internet sales of fake pills, namely trade in counterfeit and pirated goods. particular China and India, needs to be the drug “Rimonabant”. The actions led These are the key findings of a new further implemented. to a series of searches in all four coun- OECD study on the global economic eucrim ID=0701103 tries and two arrests in Sweden based impact of counterfeiting and piracy. An on European Arrest Warrants. The drug Executive Summary of phase I of this Practice: Joint Customs Operation “Rimonabant” made headlines last year study was released in early June 2007. “Diabolo” when the Commission warned about The results are limited to the internation- After the joint customs operations the danger of counterfeit medicines on al trade in counterfeit and pirated goods, “FAKE” and “DAN” (see eucrim the occasion of detected “Rimonabant” which, according to the OECD report, 1-2/2006, p. 13 and 3-4/2006, p. 61) the fakes (see eucrim 1-2/2006, p. 13). accounts for USD 200 billion in total in EU can chalk up another joint customs eucrim ID=0701105 2005 (excluding digital piracy). operation against counterfeit products The actual growing threat of counterfeit- The study (1) analyses the market for as a success. The code-named opera- ing and piracy has also been addressed at counterfeit and pirated products, (2) tion “Diabolo”, which was carried out in the international level during the recent shows the magnitude and scope of coun- February 2007 and the results of which months. The main developments are terfeiting, (3) assesses the effects of were presented in April 2007, led to the briefly reported in the following news: counterfeiting and piracy, (4) presents an seizure of 557.000 articles in total and eight-point framework for assessing the nearly 135 million counterfeit ciga- EU-Japan Action Plan on IPR Protection effectiveness of policies and measures rettes. In cigarettes alone, the operation and Enforcement to combat counterfeiting – including a avoided a potential loss of €220 million At the 16th EU-Japan summit, held in description of the situation of the econo- to the budget of the European Commu- Berlin, Germany on 5 June 2007, the mies in 12 different countries − and (5) nity and its Member States. The opera- EU and Japan adopted an action plan on elaborates on the challenges in combat-

eucrim 1–2 / 2007 | 27 NEWS ing the phenomenon at the national and ments of fair and effective national and ommendations for companies on how international levels. The OECD report, international commerce. It was founded they can prevent infringements of intel- inter alia, recommends: in 1878. INTA members closely work lectual property rights. Goods, for exam- • increasing the enforcement of existing together in various committees. ple, could be marked with microchips laws; eucrim ID=0701108 which would prove their authenticity. • further strengthening the coopera- It was also suggested that more intense tion between governments and industry G8 – Declaration on IP Protection cooperation with law enforcement bod- to make current policies more effective Germany used its presidency of the G8 ies could help better prosecution of fake and help identify new strategies to fight (Group of Eight) to strengthen the glo- goods detected at trade fairs and exhibi- counterfeiting; bal fight against perpetrators of counter- tions. • strengthening criminal penalties to feiting. In its Declaration “Growth and eucrim ID=0701111 deter criminals and toughening sanc- Responsibility in the World Economy”, tions to more effectively redress the issued at the summit in June 2007 in harm caused to rights-holders; Heiligendamm, Germany, the Heads of Organised Crime • educating consumers to raise pub- State and Government of the G8 coun- lic awareness of the growing threat to tries reaffirmed their commitment to Second Organised Crime Threat Assess- health and safety of substandard coun- combat counterfeiting and piracy, em- ment (OCTA) by Europol terfeit products; phasizing that the “benefits of innova- Europol recently presented its Organ- • making efforts (both governments and tion for economic growth and devel- ised Crime Threat Assessment 2007. business) to invest more in collecting opment are increasingly threatened by It is the second issue of this compre- and analysing information in order to infringements of intellectual property hensive annual report which identifies obtain reliable and up-to-date informa- rights worldwide”. The leaders endorsed and assesses the main organised crime tion on the extent of counterfeiting and a number of measures which should im- trends in the European Union. It is the piracy. prove and deepen cooperation among core of the so-called “intelligence-led eucrim ID=0701107 G8 partners and deliver real enforcement law enforcement”, as advocated by The results. The measures concern better Hague Programme of 2004. The main INTA – Request for Criminal Law Action border enforcement, improved technical aim is to provide a forward-looking, Taking into account the above-men- assistance, prosecution of organized and proactive approach to the fight against tioned OECD study on the economic serious IP crimes, and a new internation- organised crime. At a practical level, impact of counterfeiting and piracy, al legal framework. OCTA helps to close the gap between the Anti-Counterfeiting & Enforcement eucrim ID=0701109 strategic and operational activities. At Committee (ACEC) of the Internation- The enforcement of intellectual property the policy level, it is one of the instru- al Trademark Association (INTA) has rights was also high on the agenda at the ments by means of which the EU in- requested action concerning the inter- meeting of the G8 Justice and Interior stitutions and Member States develop national legal framework for criminal Ministers in Munich from 23 to 25 May the common area of freedom, security sanctions against trademark counter- 2007. In the Concluding Declaration, the and justice as outlined by the Treaty of feiting. The document of 20 June 2007 Ministers stressed that the rights-holders Amsterdam. A special feature of OCTA suggests prioritizing four criminal law need to be protected by both civil and is that information for the assessment areas where action should be taken at criminal law, and be better supported in is based on contributions from a wide the international level: (1) recognize the cross-border assertion of these rights. range of persons and organisations: EU counterfeiting as a transnational organ- For this purpose, national contact points, Member States; Europol’s law enforce- ized crime; (2) criminalize the launder- among other things, are to improve the ment partners in third countries; Eu- ing of proceeds of crime resulting from exchange of information. ropean and international bodies, such counterfeiting; (3) remove jurisdictional eucrim ID=0701110 as Eurojust, OLAF, European Central gaps over counterfeiting offences; and Bank, Frontex, SECI, Interpol and oth- (4) harmonize prosecution, adjudication, German Economic Associations Present ers; as well as academia, and the private and sanctions against trademark counter- Strategies against Counterfeiting sector were involved. feiting so that a harmonized, minimum In April 2007, several German associa- The present OCTA follows the structure level of deterrence is applied throughout tions which are dedicated to the repre- of the first report of 2006 (for more detail the world. sentation of economic branches and the see eucrim 1-2/2006, p. 14). OCTA 2007 The International Trademark Associa- industry presented a joint paper outlin- concludes that OC groups are character- tion (INTA) is a non-profit membership ing strategies for the prevention of coun- ised by dynamic combinations of sev- association of more than 5,000 trade- terfeiting and piracy. The paper was con- eral threatening features as highlighted mark owners and professionals from sidered a basis for the negotiations of the in the report. Although most OC groups more than 190 countries, dedicated to the political leaders at the above-mentioned are acting across the EU and beyond, support and advancement of trademarks G8 summit in Heiligendamm, Germany. regional patterns are sometimes discern- and related intellectual property as ele- The paper contains a wide range of rec- ible, according to OCTA. Hence, it sug-

28 | eucrim 1–2 / 2007 NEWS gests regional initiatives, devised and Cybercrime in conjunction with other crimes, such as executed at the local, national, and inter- fraud (something much more difficult to national levels in a co-ordinated manner. Commission Discusses Common EU Ac- prove), the Commission will in 2007 start Furthermore, the report suggests meas- tion to Fight Cybercrime consultations to assess whether harmo- uring the struggle of law enforcement Crimes related to the Internet, as well nising EU legislation is appropriate. in terms of dismantlement and destruc- as the use of the Internet and other in- The Commission also stresses that the tion of the most threatening OC groups formation systems as a criminal tool, Council of Europe’s Convention on accompanied by adequate arrests, sei- are becoming an increasingly worrying Cybercrime of 2001 is one of the most zures, asset confiscations, and penalties. criminal phenomenon with national leg- important instruments against this crim- The following link leads to the publicly islation and law enforcement operations inal phenomenon. It encourages all EU available version of the OCTA. There is having difficulties keeping pace. Taking Member States, which have not yet done also a second version which is restricted into account this basic assessment, the so, to ratify the Convention and con- to law enforcement partners only. Commission, in May 2007, launched siders the possibility for the European eucrim ID=0701112 a Communication entitled “Towards a Community to become a party to the general policy on the fight against cyber­ Convention. Council Sets EU Priorities for the Fight crime”. The main objective is to formu- The Communication is supplemented by against Organised Crime late a general EU policy in this field. an impact assessment report which, inter Based on Europol’s OCTA 2007, the The Communication assesses which ac- alia, elaborates on the policy options for Council defined the EU priorities for the tion should be taken in order to clamp the EU to react. It is worth mentioning fight against organised crime. Among down on all forms of cybercrime, such that the Commission’s proposals came the criminal markets which should be as online fraud and , child por- just a few days after the state informat- tackled in 2007 is fraud, especially tax nography, and hacking. The Commis- ics systems of Estonia had become the fraud, euro counterfeiting, and money sion lists a number of actions planned target of massive cyber attacks. laundering. The Council also came to as next steps. Due to the limited pow- eucrim ID=0701115 a conclusion on the approach against ers of the EU in this field, policy will, organised crime, the implementation of in a first phase, concentrate on actions the EU priorities, and the methodology to improve transnational cooperation Illegal Employment for producing the next OCTA report. An between the law enforcement authorities annex lists the measures for implement- and to strengthen public-private cooper- Directive with Set of Sanctions against ing the EU priorities in the battle against ation in the fight against cybercrime. As Illegal Employment of Immigrants organised crime together with the re- a necessary means for the effectiveness Proposed sponsible party (e.g. the Member States, of the fight, the latter aspect was particu- The Commission tabled a proposal OLAF, or Europol). larly highlighted by JHA Commissioner which aims at a significant approxima- eucrim ID=0701113 Franco Frattini when he presented the tion of national laws in order to curb Communication to the public. He also black-market labour involving illegal Practice: Joint Judicial and Police pointed out a more comprehensive con- immigrants. In principle, all employers Action Smashes OC Network ference in November 2007 which will who hire undocumented entrants should A positive practical example of the im- bring together law enforcement experts be sanctioned with fines and, in some plementation of the EU’s strategy in and representatives of the private sector cases, with criminal charges. Workers the fight against organised criminal (especially Internet Service Providers) are not targeted with sanctions. The draft networks is the joint action which took to discuss how to improve public-private Directive contains a general prohibition place on 13 June 2007 in six EU coun- operational cooperation in Europe. on the employment of third-country na- tries and dismantled a transnationally As regards the question of whether leg- tionals who are illegally staying. As a operating Albanian criminal network. islative action at the EU level should be preventive measure, employers, before This criminal organisation was involved taken or not, the Commission thinks that recruiting a third-country national, would in drug trafficking, trafficking in human “general harmonisation of crime defini- be required to check that he/she has a beings and prostitution, money launder- tions and national penal laws in the field residence permit or other authorisation ing, illegal arms trafficking, trafficking of cybercrime is not yet appropriate, due to stay in the country. Employers who of stolen vehicles, document fraud, and to the variety of types of offences covered are a business or legal person (such as a organised transnational burglary. The by the notion”. However, the Commission registered non-profit association) would action, coordinated by Eurojust and Eu- will consider EU legislation in specific further be obliged to notify the compe- ropol, consisted of house searches and areas, for example . “Identity tent national authorities. Employers who arrests in Belgium, Germany, France, theft” is understood as the use of personal can show that they had carried out these the Netherlands, Italy, and the United identifying information, e.g. a credit card obligations would not be liable to sanc- Kingdom. The extensive investigation number, to commit other crimes. Since tions. Employers who have not carried started in July 2006. identity theft is not criminalised in the out the pre-recruitment check would be eucrim ID=0701114 majority of EU States, which prosecute it liable to sanctions consisting of:

eucrim 1–2 / 2007 | 29 NEWS

• fines (including the costs of returning Racism and Xenophobia of 2001 in 2002, will be re-consulted. illegally staying third-country nation- Furthermore, some parliamentary scru- als), Governments Reach Compromise on tiny reservations have to be lifted and repayment of outstanding wages, taxes Frame­work Decision the text must be revised by the legal lin- and social security contributions, and The German Justice Minister was suc- guistic group (see also eucrim 3-4/2006, • if appropriate, other administrative cessful in achieving a general approach p. 61). sanctions, including the loss of subsidies on the Framework Decision on combat- eucrim ID=0701117 for up to three years and disqualification ing racism and xenophobia with her col- from public contracts for up to five years, leagues from the other 26 EU Member if the employer is acting in the course of States. The text establishes that the fol- Procedural Criminal Law business activities. lowing intentional conduct will be pun- The Commission proposes that the ad- ishable in all EU Member States: Procedural Safeguards ministrative measures should be accom- • Publicly inciting to violence or hatred, panied by criminal penalties for four even by dissemination or distribution of Framework Decision on Procedural types of serious cases: tracts, pictures or other material, directed Rights Failed • repeated infringements, against a group of persons or a member The EU Justice Ministers, at their meet- • the employment of a significant of such a group defined by reference to ing in June 2007, were not able to agree number of third-country nationals, race, colour, religion, descent or national on a framework decision on certain pro- • particularly exploitative working con- or ethnic origin. cedural rights in criminal proceedings ditions, and • Publicly condoning, denying or gross- which would have required unanimous • knowledge on the part of the employ- ly trivialising agreement. A compromise failed be- er that the worker is a victim of human (i) crimes of genocide, crimes against cause six States – the United Kingdom, trafficking. humanity and war crimes as defined in Ireland, the Czech Republic, Cyprus, The draft further contains the common the Statute of the International Crimi- Malta, and Slovakia – persistently op- provisions on the liability of and sanc- nal Court (Articles 6, 7 and 8) directed posed the idea that the European Union tions against legal persons. Moreover, against a group of persons or a member has the competence to adopt a binding the Directive envisages obliging Mem- of such a group defined by reference to text covering domestic criminal pro- ber States to facilitate complaints made race, colour, religion, descent or national ceedings. The other 21 Member States, by illegal workers against their employ- or ethnic origin, and on the contrary, shared the view that the ers and to carry out a minimum number (ii) crimes defined by the Tribunal FD should cover all proceedings, i.e., of inspections of companies. of Nüremberg (Article 6 of the Charter domestic and cross-border proceedings. The Commission’s draft Directive forms of the International Military Tribunal, After having tabled a compromise pro- part of a package of new Commission London Agreement of 1945) directed posal on the content in late December initiatives to combat the employment of against a group of persons or a member 2006 (see eucrim 3-4/2006, p. 62), the illegal immigrants and to better manage of such a group defined by reference to German Presidency attempted to untie migration. The Directive aims at enhanc- race, colour, religion, descent or national the Gordian knot by elaborating models ing the protection of human rights, as or ethnic origin. which would have allowed the FD to well as promoting fair competition within Member States may choose to punish cover at least cross-border proceedings the EU’s internal market. It would sup- only conduct which is either carried out involving the European Arrest Warrant plement other penal EU legislation in the in a manner likely to disturb public or- and, in addition, provide an optional field of illegal immigration, such as the der or which is threatening, abusive, or choice to extend it to all proceedings for Framework Decision on human traffick- insulting. They will ensure that the con- those Member States willing to comply. ing or the criminal law measures against duct is punishable by criminal penalties However, the Member States were also the facilitation of unauthorised entry, of a maximum of at least one to three divided on these options. The “coalition transit and residence. It could also serve years of imprisonment. of the unwilling states” finally feared as a model for future proposals. The three Baltic countries as well as that it would “open up Pandora’s box” EU Employment Commissioner Vladimír Poland and Slovenia wanted to include if the EU is once allowed to legislate on Špidla announced that the EU will launch crimes committed by totalitarian re- domestic procedural rights. a general initiative against black-market gimes, such as crimes committed under It is now possible that the issue of an EU labour this year which will not only the Stalin regime in the former Soviet legal instrument on procedural rights concern immigrants from third coun- Union, into the FD. The Ministers agreed could become the first precedent in the tries. The Council had a first exchange to exclude these crimes for the time be- area of Justice and Home Affairs to use of views on the presented the Directive ing and to decide on an additional in- the procedure of “enhanced coopera- at its meeting in June 2007. The Portu- strument after the FD has been assessed. tion” (cf. Art. 40 – 40b TEU). This proc- guese Presidency put negotiations on the Before the Council can formally adopt ess would allow eight or more Member proposal on its agenda. the text, the European Parliament, which States to move ahead with an EU pro- eucrim ID=0701116 gave a first opinion on the initial draft posal on their own.

30 | eucrim 1–2 / 2007 NEWS

The Heads of State and Governments of the Italian penal code), in addition Deep Rifts on Procedural Guarantees at the European Council on 21/22 June to the crime of abetting (art. 378 of the Mirrored at Conference in Berlin 2007, at which the issue was discussed, penal code). “call[ed] for work on procedural rights By Dr. Lucia Parlato At a conference in Berlin in February in criminal proceedings to be continued 2007, many practitioners, in particular as soon as possible in order to contribute defence lawyers, alongside academics, to increasing confidence in the legal sys- Data Protection policy-makers from many EU Member tems of other Member States and thus to States and NGO representatives took facilitate the mutual recognition of judi- Framework Decision on Data Protec- the opportunity to use the opportunity offered by the German Ministry of Jus- tion: Ongoing Debates in Council cial decisions.” tice and the Academy of European Law Against the background that, in addition, After the failure of an agreement on a (ERA) to discuss the suggested Frame- negotiations on a FD on data protection framework decision on data protection in work Decision on common standards in police and judicial cooperation in police and judicial cooperation in crimi- in criminal proceedings brought back criminal matters are still open (see be- nal matters (FD DPPJCC) at the end into the policy spot-light by the German low), critics blame the EU for stalling of 2006, the German Presidency tried Presidency. measures which deal with extra rights to give negotiations a new impulse by The fundamental rift between the group- for citizens while those which enhance trimming down the draft proposal (see ings represented became all too clear as many practitioners and academics security are waved through. eucrim 3-4/2006, p. 63). In doing so, the condemned the lack of reference to the  eucrim ID=0701118 German Presidency set out a series of right to silence and the presumption of basic points for revision in January 2007 innocence in the proposed framework Italy: Role and Qualification of the De- and then tabled a revised text in March decision and remained critical of the fence Counsel in Case of Defence Inves- 2007. This text also contained some new failure to provide equal protection for tigations provisions compared to the initial pro- all suspects throughout the EU, in par- Act No. 397 of 7 December 2000 in- posal of the Commission of 4 October ticular during the investigative stage of troduces a new Title (Title VI bis) into 2005. The new draft Presidency text was criminal proceedings. Tome V of the Italian code of criminal the basis for subsequent negotiations in Amongst the critical voices there was, however, sympathy for the representa- procedure. In accordance with this law, the respective Council committees with tives of the European Council calling the defence counsel can conduct its the aim of removing outstanding reser- for agreement to at least this watered- own investigation. In particular, it can vations (there were 250 reservations af- down draft, in the face of the absolute examine witnesses privately. Although ter one year of negotiations!). The new opposition voiced on behalf of (though this particular investigation can be car- proposal should contribute to an agree- not exclusively practiced by) Ireland; ried out in the interest of every private ment among the 27 Member States. declaring this Framework Decision a participant to the trial and at any time – Meanwhile, the text has been altered classic example of what the EC should even post-iudicatum, with the purpose in the responsible Council committee. not be doing and has no competence to do. of review of the trial – it is primarily The compromise remained difficult for In a situation of incompatible hard conducted pro reo and parallel with the two main issues: (1) Should the FD also fronts there could be little surprise investigation of the public prosecutor. apply to data processing at the national at Council calls for harmonisation or One of the many issues related to this level? (2) What are the conditions for Franco Frattini’s response to a ques- law concerns the position and the ob- data transfer to states outside the Euro- tion from the floor that one might ligations of the defence counsel. The pean Union (third countries)? be forced to consider the use of en- United Sessions of the Court of Cas- At the meeting of the Justice and Home hanced co-operation mechanisms “as sation (Cass., Sez. Un., 28.09.2006, n. Affairs Council in September 2007, the a last resort.” By Dr. Marianne Wade 32009) have addressed the questions Portuguese Presidency proposed lim- eucrim ID=0701119 related to the role undertaken by the iting the scope of the FD to the cross- defence counsel while recording the border exchange of personal data only. statements of a witness, and the legal However, an evaluation by the Com- consequences deriving from a false mission three years after the application At its meeting in June 2007, the Jus- transcript. By considering the transcript of the FD is now to clarify whether the tice and Home Affairs Council adopted as a public act, the Court’s decision en- scope should be extended to purely do- conclusions on the FD DPPJCC. It con- dorses the qualification of the counsel mestic data-processing operations. As cluded that the Framework Decision as a public officer. Moreover, it states regards the latter, the Council agreed “will build upon the minimum data pro- that the counsel is not compelled to an that data transmitted to another Mem- tection principles set by the Convention impartial search for the truth; but if he ber State may be transferred to third of 28 January 1981 for the protection manipulates or screens the acquired in- countries or international bodies only if of individuals with regard to automatic formation (and uses them in the trial), a number of conditions, including prior processing of personal data and its Addi- his conduct amounts to the crime of consent, are met. tional Protocol of 8 November 2001, and fraudulent misrepresentation (art. 479 eucrim ID=0701120 take account of Recommendation (87)15

eucrim 1–2 / 2007 | 31 NEWS regulating the use of personal data in the lice and judicial cooperation in criminal according to a common EU standard. police sector, both adopted in the frame- matters, derived from the relevant inter- • Conforming with the principles laid work of the Council of Europe.” Moreo- national conventions and European law. down in the Council of Europe data pro- ver, the Council announced that it will They go back to a draft text which was tection instruments, in particular with examine all solutions suggested by the initiated by the Directorate General of regard to: (1) the limitation of the further European Parliament (see below). Fi- Commissioner Frattini, responsible for purposes for which personal data may be nally, the Council “intends to reach po- Freedom, Security and Justice. These processed; (2) the quality of data, e.g., litical agreement on the proposal as soon principles are to be annexed to the by distinguishing between factual and as possible and at the latest by the end Framework Decision. It is hoped that the “soft” data, as well as between catego- of 2007.” European institutions and bodies as well ries of data subjects (criminals, suspects, eucrim ID=0701121 as Member States adopt formal posi- victims, witnesses, etc.); and (3) specific tions on these common principles which conditions for data exchanges with non- European Parliament: Second Legisla- could also serve as a basis for negotia- law enforcement authorities and private tive Resolution on Framework Decision tions with third countries. The Council parties, as well as for access and further After having suggested amendments to stated that it will take these principles use by law enforcement authorities of the original Commission proposal for into consideration. personal data controlled by private par- a FD DPPJCC in September 2006 and eucrim ID=0701122 ties. adopted a recommendation to the Council eucrim ID=0701123 in December 2006 (see eucrim 3-4/2006, EDPS Further Criticizes Work on Frame- After the Council, in September 2007, p. 63 f.), the European Parliament was re- work Decision agreed to limit the scope of the FD to consulted and hence delivered its second In an unusually intense manner, the only the cross-border exchange of per- legislative resolution on the basis of the European Data Protection Supervisor sonal data, the EDPS reiterated its stand new draft text of the German Presidency (EDPS), Peter Hustinx, took a stand on that a distinction between cross-border of March 2007 (see above). As in its first the ongoing negotiations as regards the exchange and domestic data processing resolution, the EP recommends a series Framework Decision on data protection operations is not reasonable. He warned of amendments, including the following in the framework of police and judicial against a dilution of the level of protec- main changes: cooperation in criminal matters. After tion for personal data provided in police • It is absolutely necessary to extend the revision of the “December text” by and judicial cooperation in criminal mat- the scope of the FD to also cover the Germany (see above), the EDPS pub- ters. processing of personal data within the lished its third opinion on the proposal eucrim ID=0701124 framework of police and judicial coop- in April 2007 (for the first two opinions, After the working group in the Council eration at the national level. Therefore, refer to eucrim 3-4/2006, p. 64). had continued to discuss the proposal on the EP proposes setting a time limit of He expresses grave concern about a dilu- the FD, the EDPS issued comments on three years, at the end of which the Com- tion towards the lowest common denom- the recent developments (on 16 Octo- mission should propose the extension. inator. He thinks that the new draft not ber 2006). The EDPS brought forward • The transfer of data to third countries only fails to ensure an adequate protec- seven points which he thinks need to should only be possible if there is an ad- tion of the EU citizen as required by the be taken into consideration during the equate level of data protection in these EU treaty, but also falls below the stand- negotiations. Among these points are countries. ard of the Council of Europe Convention (1) the demand that the FD must reflect • Subsequent processing of data for No. 108 which has been providing the the minimum protection of the Council purposes different from those for which basic minimum standards of data pro- of Europe Convention No. 108; (2) the the data were collected must be limited. tection in the European countries since incompatible use of data must be linked • In view of the debate on data reten- 1981. The EDPS strongly advises the to the purpose limitation; (3) the right of tion, the FD must set the conditions for Council not to adopt the draft without access needs to be completed; and (4) a the transfer of personal data to private making significant improvements to it. forum of national and European super- persons and for the processing of data The EDPS addresses mainly the follow- visory authorities should be established by private persons when carrying out a ing concerns, many of which are shared − analogous to the Article 29 Working public service remit. by the European Parliament: Party − with a view to ensuring a har- • An assessment and revision clause • Extending the scope to also include monised application of the FD and pro- should be inserted so that the Commis- domestic data processing; otherwise viding advice on legislative proposals sion can submit proposals for improv- a muddle would be created if a law within the third pillar. ing the framework decision in the mid- enforcement body has to deal with a eucrim ID=0701125 term. criminal file consisting of information In its last amendment, the EP lists 15 originating from various national, other Data Protection Commissioners Voice principles which summarise the existing Member State, and EU authorities. Criticism on FD approach to the protection of personal • Requiring an adequate level of protec- The Conference of European Data Pro- data processed in the framework of po- tion for exchanges with third countries tection Authorities delivered two opin-

32 | eucrim 1–2 / 2007 NEWS ions on the proposal for a FD DPPJCC. processing of personal data also made Ne bis in idem The European Conference convenes the some remarks on the proposal for a representatives of the data protection au- Framework Decision on the protec- Art. 54 of the ClSA thorities of the Member States of the EU tion of personal data processed in the Before summarising two further impor- and the Council of Europe. They meet framework of police and judicial coop- tant judgments of the European Court of annually in the spring. Best practices eration in criminal matters. The Com- Justice on the application of the ne bis in and other matters of common interest mittee stressed that the EU framework idem principle enshrined in Art. 54 of the are discussed in plenary sessions, and decision should have an added value to Convention Implementing the Schengen the conference traditionally ends with the Council of Europe’s Data Protec- Agreement (CISA), the wording of the the adoption of a number of important tion Convention (ETS No. 108) and article will be reiterated for better un- documents. advocated as wide as possible a scope, derstanding: “A person whose trial has In its first opinion of 24 January 2006 on including, in particular, not only cross- been finally disposed of in one Contract- the issue at stake, the Conference wel- border data transfers but also national ing Party may not be prosecuted in an- comed the Commission proposal for a data processing. As far as the debate other Contracting Party for the same acts comprehensive general data protection on data transfers to third countries is provided that, if a penalty has been im- framework in the third pillar and en- concerned, a clear statement is made in posed, it has been enforced, is actually couraged the approximation of the laws favour of the principle of an adequate in the process of being enforced or can and regulations of the Member States to level of data protection as enshrined in no longer be enforced under the laws of this end. The opinion contains specific the Additional Protocol to Convention the sentencing Contracting Party”. Art. remarks on the individual articles of the 108 (ETS No. 181). 54 hinders Member States from pros- Commission proposal. eucrim ID=0701128 ecuting the same cases twice or more in eucrim ID=0701126 the . In its second opinion adopted at the EDPS Expresses General Concerns eucrim ID=0701130 2007 Spring Conference (“Cyprus about Politicians’ View on Data Pro- Declaration”), the data protection com- tection Final Judgment in “Kraaijenbrink” Case missioners criticize that “the version of In letters of 11 June 2007 to the in- In the “Kraaijenbrink” case, the Europe- the draft framework decision as pre- coming Portuguese Presidency, the an Court of Justice (ECJ) again had the sented by the German Presidency on European Data Protection Supervisor, opportunity to interpret what constitutes 13 March 2007 [see above] does not Peter Hustinx, points out two general “the same acts” in the meaning of Art. present a solid and high data protection concerns in relation to data protection. 54 CISA (Case C-367/05). As reported regime and has neither taken on board He first states that, when discussing in eucrim 1-2, p. 17, the Belgian Court our European data protection Authori- anti-terrorist measures, the leaders and of Cassation wanted to know whether it ties’ Opinion issued on 24 January representatives of the Member States could prosecute the laundering of mon- 2006 nor the EP’s opinion from May are overlooking data protection legis- ey committed in Belgium, although the 18, 2006.” The Conference agrees with lation. In a press release, Peter Hustinx money originated from drug trafficking the European Parliament and the Euro- said: “I fear that messages such as ‘no in the Netherlands where the defendant pean Data Protection Supervisor that right to privacy until life and security had already been tried for holding the the scope of the FD must also cover are guaranteed’ are developing into a proceeds of trafficking. In particular, processing of personal data at the na- mantra suggesting that fundamental the Belgian court raised the question as tional level and that the adequacy prin- rights and freedoms are a luxury that to whether acts can be regarded as the ciple must govern the data transfers security can not afford. I very much “same acts” if they constitute the suc- to third countries. The Cyprus Decla- challenge that view and stress that there cessive and continuous implementation ration also refers to key principles of should be no doubt that effective anti- of the same criminal intention, even data protection, such as the purpose terror measures can be framed within though different acts are involved in the limitation, categories of data subject, the boundaries of data protection”. two Schengen countries. As a result in information of the data subject, and His second concern refers to the rela- the affirmative, the acts could be dealt his/her right of access, with which the tionship between the Council of the with as a single legal act under the Bel- future EU third pillar legislation must European Union and the EDPS, es- gian Criminal Code. be brought in conformity. pecially against the background that In answering the question, the ECJ reit- eucrim ID=0701127 some Council initiatives are being im- erated its formula as first developed in plemented without sufficient consid- the “Van Esbroeck-case”, namely that Council of Europe Committee Intervenes eration of data protection implications. the only relevant criterion for the ap- in Discussion on Framework Decision Just like the Commission, he urges the plication of Article 54 CISA is identity In addition to the EU bodies, the Coun- Council to refer to him as an advisor of the material acts, understood as the cil of Europe’s Consultative Committee and involve him in the projects in a existence of a set of concrete circum- of the Convention for the protection of timely manner. stances which are inextricably linked to- individuals with regard to automatic eucrim ID=0701129 gether. The Court clarified that it is nec-

eucrim 1–2 / 2007 | 33 NEWS essary that an objective link between the appealed in view of Art. 54 CISA, ex- longer prosecute him. The ECJ objects material acts in question is established. pressed doubts on the interpretation of to this view by arguing that this interpre- A subjective link (i.e., “intention”), as the notions “same acts” and “enforce- tation would contradict the actual word- held by the Belgian court, does not nec- ment” in the meaning of Art. 54. Fur- ing of Art. 54 CISA. Thus, the mere fact essarily mean that an objective link ex- thermore, the Bundesgerichtshof wanted that a final and binding custodial sen- ists, especially if the material acts can to know which impact the Framework tence could possibly be enforced in the be considered as being different in time Decision on the European Arrest War- sentencing State following surrender of and space and by their nature. The ECJ rant has on the interpretation of the no- the convicted person by another State leaves it for the national court “to as- tion “enforcement”. cannot affect the interpretation of the sess whether the degree of identity and As regards the first question of whether notion of “enforcement” according to connection between all the facts to be the conduct of the defendant constitutes the meaning of Article 54. compared is such that it is possible, in one single act, the ECJ advises that the eucrim ID=0701132 the light of the said relevant criterion, to conduct in question may be covered by find that they are ‘the same acts’ within the notion “the same acts”. By citing the the meaning of Article 54 of the CISA”. above mentioned “Van Esbroeck formu- Victim Protection The judgment of the ECJ corresponds to la“, it argues that the relevant criterion the opinion of the Advocate General (see for the purpose of the application of Art. ECJ’s Second Fundamental Ruling on eucrim 3-4, p. 65). 54 is the identity of the material acts, un- the FD on the Standing of Victims in eucrim ID=0701131 derstood as the existence of a set of facts Criminal Proceedings which are inextricably linked together. In its judgment of 28 June 2007, the Eu- Final Judgment in “Kretzinger” Case In the context of the present case, the ropean Court of Justice dealt with ques- The European Court of Justice (ECJ) Court emphasises that the legal classifi- tions on the interpretation of Council replied to several questions which were cation given to the acts or the legal in- Framework Decision 2001/220/JHA of submitted by the Bundesgerichtshof terest protected is irrelevant. As a result, 15 March 2001 on the standing of victims (German Federal Court of Justice) in a the argumentation of the Landgericht in criminal proceedings (Case C-467/05). customs fraud case (Case C-288/05; see Augsburg in sentencing the defendant An Italian court referred two questions to eucrim 1-2/2006, p. 17 [reference] and for the illegal importation of goods into the ECJ which had been raised in crimi- 3-4, p. 65 [opinion of Advocate Gener- Greece while the Italian courts’ judg- nal proceedings for enforcement follow- al]). The case involves a German citizen, ments related to the illegal importation ing a judgment of embezzlement against Mr. Kretzinger, who transported contra- into Italy cannot be upheld. Italian Giovanni Dell’Orto. The Italian band cigarettes by lorry through Italy As regards the second question on the judge wanted to know whether – by in- and Germany. The cigarettes had previ- “enforcement condition”, the ECJ con- terpreting the Italian law in conformity ously been smuggled into Greece and cludes that, for the purposes of Article with the Framework Decision (FD) – he were bound for the United Kingdom. In 54, it is necessary to consider that a pen- was obliged to order the return of seized February 2001, Mr. Kretzinger had been alty imposed by the court of a Contract- money to a company which was dam- sentenced in absentia to a custodial sen- ing State “has been enforced” or “is ac- aged by Dell’Orto’s behaviour. The de- tence of one year and eight months by tually in the process of being enforced” cisive question was whether the concept the Corte d’appello di Venzia/Italy for a if the defendant has been given a sus- of victims in the Framework Decision first consignment. In January 2001, Mr. pended custodial sentence in accordance also covers legal persons. Whereas the Kretzinger was again sentenced in ab- with the law of that Contracting State. FD defines in Art. 1(a) that it only cov- sentia by the Tribunale di Ancona/Italy By contrast, this is not the case if the ers natural persons, the Italian court re- to a custodial sentence of two years for a defendant was taken into police custody lies on Council Directive 2004/80/EC of second consignment. Both Italian courts for a short time and/or held on remand 29 April 2004 relating to compensation found him guilty of failure to declare pending trial and that detention would to crime victims, which does not contain cigarettes and not paying customs duties count towards any subsequent enforce- any definition of victims. The Italian arising from their importation into Italy. ment of the custodial sentence under the court questions whether the Framework Whereas the first custodial sentence had law of the State in which judgment was Decision must be interpreted in the light been suspended, the second was not. given. of the Directive and therefore also ex- In awareness of these judgments, the In the third response, the ECJ had to tended to legal persons. Landgericht Augsburg/Germany sen- deal with the defendant’s argument The ECJ decided that both the wording tenced Mr. Kretzinger to imprisonment, that the option of the sentencing State and the legislature’s objective limited taking into account both consignments. (here: Italy) to issue a European Arrest the personal scope of the FD to natural The German court found him guilty of Warrant in order to enforce a final and persons only. In addition, the Directive evasion of the customs duties which binding judgment (here: judgment of relating to compensation to crime vic- had arisen from the importation of the the Tribunale di Ancona) would satisfy tims is not of such kind as to invalidate smuggled goods into Greece. The Bun- the “enforcement condition” of Art. 54, this interpretation. The Framework De- desgerichtshof, to which Mr. Kretzinger meaning that the German court could no cision and the Directive govern differ-

34 | eucrim 1–2 / 2007 NEWS ent matters: the Directive sets up a sys- decisions, i.e., in the area of police and spective Regulation in 2004, it issued tem of cooperation to facilitate access judicial cooperation in criminal matters. an amended proposal in September to compensation to victims of crimes eucrim ID=0701134 2006 (COM(2006) 473). This amended in cross-border situations, whereas the proposal incorporates the amendments Framework Decision aims to approxi- Greece Blamed for Non-Implementation made by the European Parliament as mate the legislation of the Member of Directive Relating to Compensation to given at a first reading on 25 May 2005. States concerning the protection of the Crime Victims It also takes into consideration sugges- interests of the victim in criminal pro- At the suit of the Commission, the Eu- tions made by the Member States in ceedings and ensuring that the offender ropean Court of Justice ruled on 18 July the Council Anti-Fraud working group makes reparation for the harm suffered 2007 that Greece has failed to fulfil its as well as the opinion of the European by the victim. As a result of these find- obligation under the EC Treaty to im- Court of Auditors (see eucrim 1-2/2006, ings, the ECJ did not look into the sec- plement Council Directive 2004/80/EC p. 18). The new legal framework aims ond question of the Italian court on of 29 April 2004 relating to compensa- at establishing communication and as- whether the rights of the victim under tion to crime victims. Greece has not yet sistance procedures between the Com- Art. 2 and 9 of the FD continue to exist adopted norms which would transpose mission and the Member States to allow even in the course of criminal proceed- the Directive. For the same reason, the swift investigations and appropriate ac- ings for enforcement. More detailed ex- Commission also brought a suit against tions against EC fraud. It will strengthen planations on this issue can be found in Italy before the Court (Case C-112/07). the coordinating role of the Commission the opinion of Advocate General Kokott The deadline for transposition ended on which acts through OLAF. of 8 March 2007. 1 January 2007. Greece is obliged to In essence, the amended draft makes Before the ECJ could deal with the ques- take the necessary measures to comply more clear the Commission’s role as a tion in substance, it had to dispel doubts with the Court’s judgment. Otherwise, service platform and the added value of on the admissibility of the reference. In the Court, at the specification of the OLAF in view of operational and intel- this respect, the Court gave some fun- Commission, may impose a lump sum ligence support. It also clarifies the de- damental explanations. First, the Court or penalty payment on the country (cf. lineation with respect to criminal law holds that the reference for preliminary Art. 228 TEC). and other instruments of administrative ruling on framework decisions is ad- Directive 2004/80 mainly aims at facili- cooperation. The altered proposal in- missible even when it does not mention tating the access of victims of violent in- cludes a new provision concerning the Art. 35 TEU, but referred only to Art. tentional crimes to state compensation, facilitation of recovery, which, inter alia, 234 TEC. Second, the Court transfers through increased cooperation between shall make it possible to use information its case law on the relevance of refer- the authorities of the Member States, in on suspicious transactions in the money ences for preliminary rulings under Art. situations where the crime took place laundering sector in order to detect EC 234 TEC (first pillar) to those under Art. in a Member State other than the vic- fraud activities. The following link con- 35 TEU (third pillar) by stating that rel- tim’s country of residence. The Direc- tains both the amended Commission pro- evance is presumed and questions can tive complements the above-mentioned posal as well as the opinion of the Euro- only be rebutted in exceptional cases. Framework Decision 2001/220/JHA on pean Parliament at first reading. A first Third, the ECJ applies settled case law the standing of victims in criminal pro- reading in the Council on the amended to the provisions of the FD in question ceedings. The FD, based on the third proposal is still pending. in that procedural rules are generally pillar, allows crime victims to claim eucrim ID=0701136 applicable ratione temporis to all pro- compensation from the offender in the ceedings pending at the time they enter course of criminal proceedings. EDPS: Opinion on Amended Proposal on into force (Mr. Dell’Orto’s conviction eucrim ID=0701135 Anti-Fraud Assistance dates from 1999 whereas the FD came Following the aforementioned amended into effect in 2002). proposal, the Commission requested eucrim ID=0701133 Cooperation advice on the new proposal from the As in the majority of cases, the Court’s European Data Protection Supervisor judgment follows the opinion of the Ad- Mutual Administrative Assistance (EDPS). In its opinion of 13 Novem- vocate General. The Dell’Orto case is ber 2006, the EDPS considers that, on the second one which deals with the in- Legislation on Anti-Fraud Assistance in the whole, the amended proposal main- terpretation of the FD on the standing of Slow Progress tains the level of protection of personal victims in criminal proceedings. The first The European institutions and bodies data contained in the EU data protection one was the judgment of 16 June 2005 have further proceeded with the crea- framework, namely Directive 95/46/ in Case C-105/03 (“Pupino”). There, the tion of a legal framework for general EC and Regulation (EC) No 45/2001. Court ruled in a ground-breaking way mutual administrative assistance in or- However, he also points out that further that the principle that national law must der to strengthen the protection of the monitoring will be essentially required be interpreted in conformity with Com- EC’s financial interests. After the Com- at a later stage since a number of provi- munity law also applies to framework mission had tabled a proposal for a re- sions require implementing rules which

eucrim 1–2 / 2007 | 35 NEWS also involve data protection issues, such the supervision of the system for which sult, traders will save money and time as the access of the Commission to na- the EDPS, together with the national in their business transactions with cus- tional data on value-added tax (Art. 11) data protection authorities, is respon- toms. One main feature, for example, or the spontaneous exchange of financial sible. Regarding FIDE, the EDPS sug- will be “centralised clearance” under information (Art. 12). The EDPS will be gests an annual review of the retention which authorised traders will be able reconsulted in the implementing phase. of data in order to avoid having data to declare goods electronically and pay The EDPS already gave a first opinion that is not needed remain in the system. their customs duties at the place where on the initial Commission proposal in Lastly, the EDPS recalls that he is enti- they are established, irrespective of the 2004. tled to prior checks of the three systems Member State through which the goods eucrim ID=0701137 in accordance with Art. 27 of Regulation will be brought in or out of the EU cus- 45/2001. toms territory or in which they will be Commission Proposal on Mutual Ad- eucrim ID=0701138 consumed (more details on the MCCC ministrative Assistance in Customs and can be found in eucrim 3-4/2006, p. 71). Agricultural Matters under Scrutiny European Court of Auditors Comments The common position of the Council, on The European bodies further examined on Commission Proposal which political agreement was reached the Commission proposal for a Regu- Following the EDPS, the European on 25 June 2007, endorses a number of lation amending Council Regulation Court of Auditors (ECA), on 21 March the amendments made by the European (EC) No 515/97 on “mutual assistance 2007, gave its opinion on the above- Parliament, but it also contains new between administrative authorities of mentioned Commission Proposal to modifications. Now, the EP can start a the Member States and cooperation be- strengthen administrative assistance as second reading on the proposal under tween the latter and the Commission to regards the correct application of Com- the co-decision procedure. ensure the correct application of the law munity customs and agriculture legisla- eucrim ID=0701140 on customs and agricultural matters” tion. The ECA generally points out that (COM(2006) 866 final). The proposal an overlap between communications to Paperless Environment for Customs and intends, on the one hand, to modernize OLAF and those to the Commission’s Trade: Political Agreement the existing basic legal framework on Directorate General responsible for tax- In July 2007, the Council adopted a customs cooperation and, on the other, ation and customs union (DG TAXUD) common position on the Commission to strengthen the exchange of informa- ought to be avoided. Furthermore, the proposal to create a paperless environ- tion between the Member States and the Commission should consider measures ment for customs throughout the Euro- Commission (see eucrim 3-4/2006, p. which make information more reliable pean Union. The new electronic system 70 on the principal content). In the fol- and complete – an essential issue for a will interconnect the various Member lowing two opinions on the proposal are more effective fight against fraud in the States’ electronic customs systems in reported: view of the ECA. The opinion also con- existence and create a single, shared tains some remarks on specific provi- computer portal. Electronic declarations EDPS Calls for Improvements to Com- sions of the proposal. would become compulsory, with paper- mission Proposal eucrim ID=0701139 based declarations remaining the excep- In its opinion of 22 February 2007, tion (for more details on the project, see the European Data Protection Super- also eucrim 3-4/2006, p. 71, 72). Mem- visor (EDPS) particularly looked into Customs Cooperation ber States and the Commission favour the aforementioned Commission draft a step-by-step approach by which elec- relating to the exchange of (personal) Modernized Customs Code: Council tronic systems will be implemented in information via central databases, i.e., Reaches Agreement several phases. The common position the Commission’s proposals on (1) the On 15 October 2007, the Council was prepared by a political agreement creation of the (new) European Central reached a common position on a new in May 2007. The draft was forwarded Data Directory, (2) the extended use of Regulation which would introduce the to the European Parliament for a second the Customs Information System (CIS), so-called modern Community Customs reading under the co-decision proce- and (3) the establishment of rules on the Code (MCCC). Together with the elec- dure. Files Identification Database (FIDE). tronic customs initiative, the modernised eucrim ID=0701141 The EDPS makes a number of sugges- Customs Code is part of the Commis- tions for inclusion into the proposal. As sion’s global reform aimed at creating Customs 2013 Adopted regards the European Data Directory, a new electronic customs environment. In April 2007, the Council and the Euro- the EDPS doubts its necessity and points It will simplify customs legislation and pean Parliament put on track the Com- out that the proposal does not deal with streamline customs processes and proce- munity Programme “Customs 2013”. security measures of the new system. dures. At the same time, the electronic The new programme renews for a period With respect to the Customs Informa- customs initiative will provide for more of six years the “Customs 2007” pro- tion System, the EDPS remarks that the convergence between the IT systems of gramme which ends on 31 December regulation needs to define more clearly the 27 customs administrations. As a re- 2007. The new EU programme for 2008–

36 | eucrim 1–2 / 2007 NEWS

2013 will have a total budget of €323.8 formation systems – the main feature a framework decision would be the ap- million. The programme will, inter alia, of the Decision – is the first step in propriate means under the EU-Treaty, fund actions which would implement the implementation of the principle of a decision pursuant to Art. 34 para. 2c) the above-mentioned modernisation of availability. This principle as set out in TEU would be excluded. In this context, the customs code and help introduce the Hague Programme means that in- the Parliament thinks that a framework the paperless customs environment. It is formation which is available to certain decision would be more advantageous also an important tool for the promotion authorities in one Member State must because, in case of a decision, the Coun- of actions in view of an improved fight also be provided to equivalent authori- cil may adopt subsequent implementa- against customs fraud and the protec- ties in other Member States. Another tion measures by a qualified majority tion of the financial interests of the EC important issue concerns the possibility without consulting the Parliament (see and the Member States (see also eucrim for national police to enter another EU Art. 34 para. 2c). 3-4/2006, p. 72). state’s territory and operate alongside Other amendments largely concern the eucrim ID=0701142 their colleagues while carrying their insertion of more data protection aspects usual service weapons and wearing their into the single provisions of police coop- European Community Joins World Cus- own national uniforms. However, a pro- eration. Interestingly, the MEPs favour toms Organisation vision in the original Prüm Treaty on hot including provisions on hot pursuit in As from 1 July 2007, the European pursuit in the event of imminent danger the event of imminent danger (see afore- Community has been given membership – in which case national officers cross mentioned news item) and on mutual rights to the World Customs Organisa- borders without asking permission from police assistance in accordance with Art. tion. In face of the competence of the the host country – remains removed. 39 para. 1 of the Schengen Convention. EC in customs matters, the membership eucrim ID=0701144 Both provisions are in the Prüm Treaty is expected to improve international cus- The German delegation also brought but were not taken up in the draft deci- toms cooperation, inter alia, in the fields forward a draft Decision in view of the sion. of security and intellectual property technical and administrative implemen- Lastly, the Parliament regrets several rights enforcement. tation of the above-mentioned norms. A issues: (1) the obligation imposed on it eucrim ID=0701143 separate manual with factual informa- by the Council to express its opinion as tion for the authorities of the Member a matter of urgency, without adequate States is also in preparation. and appropriate time for Parliamentary Police Cooperation eucrim ID=0701145 review; (2) the absence of a comprehen- The initiative of 14 Member States with sive impact assessment and evaluation Integration of “Prüm Treaty” into EU Law a view of adopting a Council Decision of the application of the Prüm Treaty Books Successful which integrates the essential parts of the to date; and (3) the lack of an adequate At its meeting on 12 June 2007, the Prüm Treaty into the legal framework of framework decision for the protection of EU Justice and Home Affairs Ministers the EU is published in the Official Jour- personal data in police and judicial co- reached a political agreement on a Deci- nal C 71 of 28 March 2007, at p. 35. operation, which it considers necessary sion to step up cross-border cooperation, eucrim ID=0701146 before any other data processing legisla- particularly when combating terrorism tion is adopted under the third pillar. So and cross-border crime. It will incorpo- Parliament Resolution on Draft Decision far, the proposed amendments have not rate the substance of the provisions of Integrating Prüm Treaty been substantially taken into account by the Prüm Treaty into the legal frame- On 7 June 2006, European parliamentar- the Council. work of the European Union (see eucrim ians adopted a legislative resolution on eucrim ID=0701147 3-4/2006, p. 72). To this end, the Deci- the initiative of 15 Member States for sion will contain rules on: a decision which would incorporate the European Data Protection Supervisor’s • the automated transfer of DNA pro- Prüm Treaty provisions into EU legisla- Opinion on Integration of Prüm Treaty files, dactyloscopic data, and certain na- tion (OJ C 71, 28 March 2007, p. 35). In his opinion of 4 April 2007, the Eu- tional vehicle registration data; The resolution, which is based on a re- ropean Data Protection Supervisor • the supply of data in connection with port by MEP Fausto Correia of 24 May (EDPS) also recommends amendments major events with a cross-border dimen- 2007, proposes 70 amendments to the to the text of the draft decision on the sion; initial draft. stepping up of cross-border cooperation, • the supply of information in order to The EP takes the view that the envis- particularly in combating terrorism and prevent terrorist offences; aged measure should be adopted as a cross-border crime. Remaining in line • other forms which step up cross-border framework decision instead of a deci- with the European Parliament, the EDPS police cooperation (joint operations and sion, since the provision on the step- criticizes the time pressure for the adop- assistance in connection with mass gath- ping up of cross-border cooperation tion of the legal instrument as set by the erings, disasters, and serious accidents). seeks to achieve the approximation of German Presidency and the conclusion Mutual access to each others’ DNA, the laws and regulations of the Member of the essential elements of the draft de- fingerprint, and vehicle registration in- States. Under these circumstances, only cision outside the prerogative under the

eucrim 1–2 / 2007 | 37 NEWS third pillar, as a result of which a lack eration in criminal matters must first be listed in the Framework Decision, the of democracy and transparency is con- achieved before incorporating the Prüm Council was able to form the view, on stituted. He also regrets that, in view of Treaty into EU legislation. the basis of the principle of mutual rec- the necessity and proportionality of the eucrim ID=0701149 ognition and in the light of the high de- measure, neither an impact assessment gree of trust and solidarity between the on privacy issues nor a proper evalu- Member States, that, whether by reason ation of the existing measures on the European Arrest Warrant of their inherent nature or by reason of exchange of law enforcement informa- the punishment incurred of a maximum tion (e.g., via the Schengen Informa- ECJ: Framework Decision on European of at least three years, the categories tion System) or even of experience with Arrest Warrant is Valid of offences in question feature among the DNA databases made by the States On 3 May 2007 the European Court of those the seriousness of which in terms which already apply the Prüm Treaty Justice (ECJ) declared that the Frame- of adversely affecting public order and has taken place before introducing the work Decision on the European Arrest public safety justifies dispensing with system EU-wide. Like the EP, the EDPS Warrant and the Surrender Procedures the verification of double criminality.” requests that the provided Council De- between the Member States is valid. With regard to the fact that the lack of cision should not be adopted before the It rejected all arguments against the precision in the definition of the catego- adoption of the general framework on Framework Decision as brought for- ries of offences in question risks giving data protection within the EU’s police ward by the Advocaten voor de Wereld, rise to disparate implementation of the and judicial cooperation (see above). He a Flemish association of lawyers and the FD within the various national legal or- gives several reasons illustrating the im- initiator of the proceedings before the ders, the Court points out that it is not portance of a general legal framework as Belgian Arbitragehof which referred the the objective of the FD to harmonise the a condicio sine qua non for the exchange questions to the ECJ (for more details re- substantive criminal law of the Member of personal data among law enforcement fer to A. Weyembergh, eucrim 1-2/2006, States. On balance, the ECJ follows the authorities based on special rules (as is p. 26 ff.). First, the ECJ rejects the argu- opinion of the Advocate General (see the case for the present draft decision). ment that the EAW ought to have been eucrim 3-4/2006, p. 74). As regards the different types of data, regulated by a convention (Art. 34 para. eucrim ID=0701150 the EDPS welcomes the gradual ap- 2 d TEU). The Court takes the view that proach of the initiative and the concept it is within the Council’s discretion to “EAW Is a Success”, Second Commis- of indirect access via reference data give preference to the framework deci- sion Evaluation Report States instead of direct access. However, he sion as a legal instrument in cases where, The Commission published its second requires extra safeguards for the use of as in the present, the conditions govern- evaluation report on the state of transpo- biometric data (DNA analysis files and ing the adoption of such a measure are sition of the Framework Decision (FD) fingerprints) and strongly advocates a satisfied. on the European Arrest Warrant. The first minimum harmonisation of essential el- Second, the ECJ also sees no violation report was published in February 2005 ements regarding the collection and ex- of fundamental rights, such as the princi- and supplemented by a revised version in change of the different data. It is worth ple of legality, as regards the removal of early 2006 (see eucrim 1-2/2006. p. 19). mentioning that the EDPS issued this verification of double criminality for 32 The present report covers the period from opinion ex officio since no request for offences (Art. 2 para. 2 of the FD). The 2005 to 2007. The report states that the advice had been sent to him. He calls on Court argues that it is up to each Mem- instrument is well established in practice the Council to consult him before adopt- ber State to define the offences and pen- and generally effective. As in the first ing implementation measures. alties applicable for a non-verification of report, the considerable reduction in the eucrim ID=0701148 double criminality and therefore must length of surrender procedures compared respect the principle of the legality of with the traditional extradition is high- Reaction of Presidency to European criminal offences and penalties as one of lighted. On average, when the person Data Protection Supervisor the fundamental legal principles as en- concerned does not consent to his or her There are not many examples in which shrined in Art. 6 TEU. surrender, a surrender request now takes the Council Presidency immediately Third, the Court also objects to accept- less than six weeks to process. When the comments on the opinions of the EDPS. ing a breach of the principle of equal- person does consent to his or her sur- The German Presidency did so in re- ity and non-discrimination. The “Ad- render, the average surrender period is sponse to the presentation of the afore- voocaten voor the Wereld” argued that only 11 days, compared to previous ex- mentioned EDPS’ opinion on the initia- the distinction between the offences for tradition arrangements which meant that tive which would incorporate the Prüm which “double criminality” is no longer such requests took over a year to proc- Treaty into EU law. In its statement, the verified and the other offences where ess. However, in 2005, the 90-day time Presidency especially contradicts the double criminality still applies is not ob- limit as set in Art. 17 para. 4 of the FD view that agreement on the Framework jectively justified. The ECJ, by contrast, was adhered to in scarcely 5 % of the Decision on the protection of personal points out that “(w)ith regard (…) to the cases. On the basis of figures submitted data relating to police and judicial coop- choice of the 32 categories of offences by 23 EU Member States, nearly 6900

38 | eucrim 1–2 / 2007 NEWS arrest warrants were issued in 2005, in minor cases is not prohibited in the The concerns were expressed during twice as many as in 2004. They resulted Framework Decision which does not in- the proceedings against the European in the location and arrest of over 1700 clude any grounds for refusal in relation Arrest Warrant before the German Fed- persons, of whom 1532 (86 %) were ac- to it. However – against the background eral Constitutional Court (see eucrim tually surrendered. of judgment of the European Court of 1-2/2006, p. 18-19 and p. 39 ff.). There The report also states that many Mem- Justice in Case C-303/05 “Advocaten it was doubted whether some categories ber States’ laws still do not fully comply voor de Wereld” and judgments of the of offences from the list of 32 offences, with the requirements of the FD. Nu- Court in cases on the freezing of assets – for which double-criminality checks are merous shortcomings which had already the principle is to be respected. It can be waived in the course of the execution of been revealed by the Commission in the expected that discussion on this matter a European Arrest Warrant, would be first report remain. The most significant will continue at the EU level. compatible with the principle of legal differences exist in the transposition eucrim ID=0701152 certainty. of mandatory and optional grounds for With the exercise, as proposed to the the non-execution of an arrest warrant. Statistics for 2006 other Member States in the Council, The annexed staff working document to The Council published statistics on the Germany intends to make state ac- the report contains an article-by-article practical operation of the European Ar- tion more foreseeable and transparent, evaluation of the implementation leg- rest Warrant in 2006. The picture is particularly in view of offences which islation in the Member States. It also somewhat fragmented since several greatly differ in substance and coverage encompasses the Bulgarian and Roma- Member States did not deliver data by across the bloc’s 27 legal systems. The nian implementing laws that entered into the deadline. A special annex contains approach does not envisage a full har- force on 1 January 2007 (for more detail figures on the grounds for refusal. monisation of the offences in question, see the article by Isabelle Pérignon in eucrim ID=0701153 but it sets criteria for a common under- this issue). standing in the horizontal instrument of eucrim ID=0701151 the EEW. Notwithstanding, this “hori- European Evidence Warrant zontal approach” would also affect other Discussions on European Arrest War- legal instruments which implement the rant in the Council Conclusions on So-Called “Horizontal principle of mutual recognition, such as Experts continue to discuss practical im- Approach” the European Arrest Warrant, or orders provements to the European Arrest War- In the context of negotiations on the freezing property or evidence. rant in the Council working parties. At a draft Framework Decision on the Euro- However, the opinions of the Member meeting on 23 July 2007, they had an ex- pean Evidence Warrant (EEW), Germa- States on the German approach differed change of views on the above-mentioned ny initiated discussions on how to apply considerably, e.g., on how to specify cri- second Commission evaluation report. In at least 6 undefined offences for which teria for the precise definition of the of- this context, a discussion on practical in- Member States must waive double-crim- fences (reference to international instru- adequacies was held, e.g., on the reintro- inality checks. These offences are terror- ments and/or autonomous definition?), or duction of the double-criminality test in ism, computer-related crime, racism and on the nature of the horizontal instrument some Member States’ law and in practice, xenophobia, sabotage, and (definition in a binding instrument or by grounds for refusal not compatible with extortion, and swindling. general guidelines?). At its meeting in the FD, and the surrender of country’s Germany reserved the right to double- June 2007, the Justice and Home Affairs own nationals. Delegations also agreed to check evidence requests relating to these Ministers came to the conclusion to post- draft an EU manual on how to fill in the offences, except in cases where the is- pone the implementation of a horizontal form for the European Arrest Warrant as suing authority has declared that the of- concept until the European Evidence annexed to the FD. The manual is aimed fence concerned falls within the scope Warrant has been implemented and fur- at assisting authorities by giving practical of criteria indicated in a specific declara- ther experience gained in the application orientation. tion (see eucrim 1-2/2006, p. 20). of other similar legal instruments, such as Moreover, another important issue arose The issue was further pursued during the the European Arrest Warrant. on the occasion of mutual evaluation Finnish and German Council Presiden- eucrim ID=0701154 rounds on the practical application of cies. Germany proposed finding a com- the EAW which are carried out by na- mon understanding of the six categories tional experts on behalf of the Council. of offences by defining them more pre- European Supervision Order / Transfer Experience showed that European Ar- cisely. If the core conditions of the defi- of Sentenced Person rest Warrants are issued for very minor nitions are met, the executing authority offences, such as the theft of a piglet or is obliged to enforce the judgment of Mutual Recognition of Non-Custodial the possession of 0.15 grams of heroin. another State without examining double Decisions: Council Conclusions The question is whether the principle of criminality. In doing so, Germany is at- As mentioned in eucrim 3-4/2006, p. 74- proportionality is upheld in these cases. tempting to meet constitutional law con- 75, two proposals on framework deci- The issuing and execution of EAWs cerns at the supranational level. sions are currently on the table which

eucrim 1–2 / 2007 | 39 NEWS aim at implementing the principle of sion of suspended sentences, alternative 2007 which also contains comparative mutual recognition for non-custodial ju- sanctions and conditional sentences. The information on the use of IT in the jus- dicial decisions. They both seek to pre- instrument will allow a person to live tice systems of the EU Member States. vent recidivism and enable the suspect and work in his/her residential Member eucrim ID=0701158 to remain in his/her social and legal en- State whose authorities also supervise The JHA Council, at its meeting in June vironment. probation measures following a convic- 2007, adopted conclusions on the sub- The first proposal (COM(2006) 468) tion issued in another Member State. ject. The Council set priorities for fu- – the “European Supervision Order” – The agreed cornerstones concern the ture work. It was also agreed that the refers to the pre-trial phase and aims at scope of the FD, its scope of application, system should be decentralised and pi- setting rules under which the Member the types of suspensory measures and al- lot projects, in which not all Member State of residence would supervise ob- ternative sanctions, and the division of States necessarily take part, be set up ligations imposed on a person awaiting competences between the issuing State in the field of e-Justice (see also eucrim trial in another EU Member State. and executing State. The latter issue was 3-4/2006, p. 76). The second legislative instrument, which particularly controversial in the Council eucrim ID=0701159 is based on a German-French initiative, working groups. The Ministers are now Further progress was made at the infor- refers to the post-trial phase and aims at in agreement that, as a general rule, it mal meeting of the Justice Ministers in setting common rules under which the is the executing Member State which Lisbon on 1 and 2 October 2007. The Member State of residence would super- is responsible for taking all subsequent Portuguese Presidency is working on vise probation measures or alternative decisions relating to the judgment, e.g., presenting a prototype of the Internet sanctions imposed on a person in anoth- revocation and pardon. This common site for European Justice by the end of er Member State. While progress has al- understanding is the preliminary stage the year, which will allow the user single ready been made on the second proposal of a political agreement and does not access to several electronic instruments on “probation”, work on the “European commit delegations to specific wording and tools. The targeted users are not only Supervision Order” is stuck in the initial of the articles. However, it is hoped that professionals in the area of Justice (mag- stage in the relevant Council working negotiations can be quickly finalised. istrates, lawyers, police authorities, etc.) groups. eucrim ID=0701156 but also citizens and businesses. After the Council had carried out a sur- eucrim ID=0701160 vey among the Member States, the Jus- tice and Home Affairs Ministers, at their E-Justice meeting on 18 September 2007, con- Exchange of Information on Criminal cluded that the text on the European Su- Ambitious EU Project on E-Justice Records pervision Order needs to be redrafted. In Progresses Well particular, it turned out that some practi- During 2007 further progress was made Framework Decision on Exchange of cal aspects need to be reconsidered, such in the area of e-Justice. The project, Criminal Records is on the Way as the return mechanism of suspects to which is one of the priorities of the Ger- The EU is going ahead with a better ex- the issuing State, as well as greater re- man, Portuguese, and Slovenian Council change of information on criminal records spect for specific features of the national Presidencies in 2007 and 2008, involves (see eucrim 3-4/2006, p. 76-78). At its systems of criminal justice and criminal developing an electronic system at the meeting on 13 June 2007, the EU Justice procedure as regards the criteria and EU level by taking advantage of modern Ministers reached a general approach on conditions for issuing a European Su- information and communications tech- the Framework Decision (FD) on the or- pervision Order. Furthermore, special nology both in criminal matters as well ganization and content of the exchange attention should be paid to achieving as civil and commercial matters. It is of information extracted from criminal coherence between the legal instruments envisaged, for instance, that citizens and records between Member States, which on mutual recognition of non-custodial companies have easier access to the law was proposed by the Commission in 2005. decisions in the pre-trial and post-trial of different legal systems, facilitate cross- The FD still has to be formally adopted by phases (FD on “probation”). border communication between parties to the EU Member States before it enters into eucrim ID=0701155 judicial proceedings, or exchange infor- force. The aim of the FD is to improve the mation from national registers more ef- quality of storage and transmission of con- Framework Decision on Suspended fectively. The German Presidency invited victions EU-wide. In the future, national Sentences: Council Endorses Key experts to a conference, entitled “Work criminal records will serve as the central Elements on e-Justice”, that took place in Bremen authority for the EU-wide exchange of The EU Justice Ministers, at their Coun- from 20 to 31 May 2007. information; a new centralized European cil meeting on 12/13 June 2007, reached eucrim ID=0701157 criminal records register will not be cre- a common understanding on the major A “Council Working Party on Legal ated. The convicting Member State will cornerstones of the aforementioned Ger- Data Processing” carried out initial work be obliged to transmit to the Member man-French draft Framework Decision in three meetings in February, April, and State of the person’s nationality infor- (FD) on the recognition and supervi- May 2007. It released a report in June mation on the convictions handed down

40 | eucrim 1–2 / 2007 NEWS against its national as soon as possible. The home state is then required to store the information in its national records as the EU central authority. Additionally, the national judicial authorities can obtain information from the criminal records of other EU Member States within a period of 10 working days. Council of Europe The information exchange will be based Reported by Julia Macke on a uniform format which is planned as a template for the electronic data ex- change – as is already exercised by Ger- many, France, Belgium, Spain, Luxem- Foundations Relations between the Council of bourg, and the Czech Republic within Europe and the European Union the framework of a pilot scheme for a Membership network of judicial registers. Memorandum of Understanding Finally eucrim ID=0701161 Accession of Montenegro to the CoE Signed On 11 May 2007, Montenegro became The Council of Europe and the European Belgian Initative on Mutual Recognition the 47th Council of Europe (CoE) Mem- Union finally signed a Memorandum of of Prohibitions Integrated ber State. Understanding on 23 May 2007 (see also It is worth mentioning that Belgium has Montenegro was formerly a member of eucrim 3-4/2006, p. 81/82). The Memo- agreed to make its initiative of 4 Novem- the CoE as part of the State union of Ser- randum creates an institutional frame- ber 2004 part of this Framework Deci- bia and Montenegro. However, follow- work to reinforce the cooperation in ar- sion. Belgium at that time reacted to the ing the dissolution of the state union in eas of common interest, in particular the Fourniret case, in which the offender con- June 2006, Montenegro became an inde- promotion and protection of pluralistic fessed to kidnapping, raping, and murder- pendent state and thus had to apply for democracy, the respect for human rights ing girls in France and Belgium in the membership again. and fundamental freedoms, the rule of 1980’s and 1990’s. The Belgium initia- eucrim ID=0701164 law, political and legal cooperation, cul- tive envisaged making it an EU-wide ob- ture, education, and social cohesion. ligation to recognize and enforce prohibi- PACE: Some Conditions Still to Be Ful- The Memorandum confirms the role of tions arising from convictions for sexual filled the CoE as the benchmark for democ- offences committed against children. The Following its declaration of independ- racy, human rights, and the rule of law planned FD on the exchange of criminal ence on 3 June 2006, Montenegro directly in Europe. It stipulates the need for co- records will ensure that full information submitted a request to accede to the CoE. herence between EU legislation law and can be made available on a EU-wide ba- The Committee of Ministers transmitted CoE conventions in the fields of human sis if applications for a certificate of good the request to the Parliamentary Assem- rights and fundamental freedoms. Im- conduct are made. The following link bly for its opinion, in accordance with the portantly, the relevant CoE norms will leads to the original Belgium initiative. usual procedure. In April 2007, the CoE’s be cited as a reference in EU documents eucrim ID=0701162 Parliamentary Assembly, PACE, there- because the European Union regards upon gave green light to Montenegro’s the CoE as the Europe-wide reference European Parliament: Legislative Reso- request for accession. The Committee of source for human rights. The Memoran- lution on the Framework Decision on Ministers followed the approval. dum underlines that early accession of Criminal Records However, Montenegro has to fulfill some the European Union to the Convention The European Parliament issued its opin- conditions in the near future: It should for the Protection of Human Rights and ion on the Commission’s draft text of the adopt, within a year, a new Constitution Fundamental Freedoms would greatly above-mentioned Framework Decision on which incorporates seven minimum prin- contribute to coherence in the field of 21 June 2007. The amendments mainly ciples, including a total ban on the death human rights in Europe. It further points aimed at making the proposal more inclu- penalty, the independence of the judiciary, out the relationship between the new Eu- sive and clarifying its wording. Some of the and measures to protect minority rights. ropean Union Agency for Fundamental amendments are intended to bring it into The Assembly further set deadlines for Rights and the CoE (see above). line with the Framework Decision on the Montenegro to sign and ratify a long list Furthermore, the Memorandum envis- taking into account of convictions in the of CoE conventions. Montenegro agreed ages the possibility of consultation be- Member States of the EU in the course of to these commitments. tween the CoE and the EU at an early new criminal proceedings. It also aims at On 23 October 2007, Montenegro has stage with regard to the elaboration deleting obligations which are difficult for fulfilled the first condition and promul- of common standards. It likewise an- Member States to comply with. gated its new constitution. nounces the development of joint activ- eucrim ID=0701163 eucrim ID=0701165 ities and deepened cooperation through

eucrim 1–2 / 2007 | 41 NEWS specialized CoE structures, processes the CoE and the European Union (see In the meantime, Russia is the only and initiatives as well as appropriate in- eucrim 3-4/2006, p. 81 and 82 for more Member State which has not yet ratified stitutions of the EU. Ongoing coopera- information on the high-level group and Protocol No. 14. Critical voices assume tion will be reinforced in the framework the Juncker Report). that the Russian blockade intends to ex- of the joint programmes. The implemen- eucrim ID=0701167 ert pressure on the CoE and the Euro- tation of the Memorandum will be sub- The Committee of Ministers agreed to pean Court of Human Rights (ECtHR) ject to a regular evaluation. In the light continue work on the follow-up to the Finally, it is a fact that an extremely high of this evaluation, it will then be decided Juncker report. The work should be reg- number of applications lodged before by common agreement, no later than ularly reviewed at the future sessions, on the ECtHR comes from Russian people 2013, to, if necessary, revise the Memo- the basis of updated reports prepared by and that Russia often does not accept the randum with a view to including new the high-level group. correspondent judgments of the Court. priorities for their cooperation. eucrim ID=0701168 eucrim ID=0701170 eucrim ID=0701166 Commissioner for Human Rights Com- Talks in San Marino Pave Way for Council of Europe Further Works on ments on Juncker Report Discussing Future of the Court Juncker Report Beyond the high-level group, the Com- From 22 to 23 March 2007 a colloquy, At the ministerial session of 11 May missioner for Human Rights, Thomas entitled “Future Developments of the 2007, the high-level group published Hammarberg, also discussed the Junck- European Court of Human Rights in the a report concerning the follow-up to er report. His report especially refers to light of the Wise Persons’ Report”, was the so-called Juncker report. Stressing Juncker’s recommendation that the re- held in San Marino. San Marino at that Juncker’s twin-track approach, which sources and budget of the Commissioner time held the chairmanship of the CoE’s combines long-term with short-term rec- for Human Rights at the Council of Eu- Committee of Ministers. In preparation ommendations, the report underlines that rope need to be substantially increased if for the 117th Ministerial Session of the follow-up action on the Juncker report he is to do his job properly. He illustrates Committee of Ministers of the CoE, needs to proceed at two parallel levels that the Office of the Commissioner does it was the first opportunity for a broad – first, that of examining the long-term not have the capacity to fully utilise his and open exchange of views at a high recommendations concerning Europe’s potential and to meet the growing ex- technical level on the various measures future shape, and, secondly, the follow- pectations. In order to make fuller use of recommended in the report by the Group up to the practical, short-term recom- the potential of the Office, he holds the of Wise Persons, including, e.g., the im- mendations. It welcomes the concrete view that the following is needed: (1) mediate ratification and entry into force recommendations Juncker made in his a systematic, professional cooperation of Protocol No. 14. report, urges the CoE to make this issue with other structures in the Council of The report of the Group of Wise Persons one of its chief priorities, and suggests Europe and with other bodies working in which was published in November 2006 that progress made with the follow-up to Europe for human rights, (2) an effec- contains proposals making the judicial the Juncker recommendations be subject tive management and administration of system of the Convention more flexible. to regular review at the future ministe- the Office of the Commissioner, and (3) The Group of Wise Persons was set up by rial sessions. an increase of the number of staff and the Third CoE Summit in Warsaw in May In an addendum, the high-level group other resources for the Office. 2005 to draw up a comprehensive strategy identifies some measures that have al- eucrim ID=0701169 for securing the long-term effectiveness ready been taken or are underway to of the European Convention on Human implement Junker’s recommendations. Rights and its control mechanisms (more Juncker’s recommendation that the EU Reform of the European Court of Human details in: eucrim 3-4/2006, p. 82-83). bodies should recognise the CoE as the Rights eucrim ID=0701171 Europe-wide reference source for hu- man rights is, for instance, already rec- Increased Pressure on Russia Way out of Impasse Due to Non-Ratifi- ognised by the above-mentioned Memo- At the 117th session of the Committee cation of 14th Protocol Reflected randum of Understanding. of Ministers from 10 to 11 May 2007 in Against the background that only Russia The high-level follow-up group was Strasbourg, and in several statements af- still has not ratified Protocol No. 14, ex- set up at the ministerial session in May terwards, the CoE urged Russia to finally perts are looking for ways to overcome 2006 to intensify the work concerning ratify Protocol No. 14 without delay to al- the deadlock. While presenting the re- the relations between the CoE and the low for its rapid entry into force. The Pro- sults of the discussion of the above-men- European Union. The Juncker report, tocol is the major legislative instrument tioned colloquy in San Marino, Maud entitled “Council of Europe – European which will achieve a more effective op- de Boer-Buquicchio, Deputy Secretary Union: A sole ambition for the European eration of the European Court of Human General of the CoE, listed a number of continent”, was published in April 2006 Rights (see eucrim 3-4/2006, p. 82). possible measures which could be im- and includes different proposals on how Protocol No. 14 has to be ratified by all plemented in the short term without Pro- to improve the relationship between CoE Member States to enter into force. tocol No. 14, including:

42 | eucrim 1–2 / 2007 NEWS

• the use of the potential of the Court’s Human Rights and therefore support- tors in order to strengthen the implemen- developing practice of adopting pilot ing most of the proposals made by the tation of the ECHR at the national level judgments, Group of the Wise Persons, the NGOs and simultaneously reduce the influx of • the required redefinition of what con- also expressed their opposition to some cases coming to the ECtHR. stitutes an application, of them. For instance, they do not accept The site therefore especially contains • the equipping of CoE Information Of- the proposal to add a treaty provision standard curricula on the ECHR, a man- fices in high case-count countries with obligating state parties to the ECtHR to ual on training methodology, a collection an information desk to provide practical introduce domestic legal mechanisms to of ‘e-learning courses’ and further train- assistance to applicants or translation redress the damage resulting from any ing materials as slide shows, case studies, services, violation of the ECtHR. Furthermore, and moot courts. Although the site is open • wider dissemination to target groups of they consider it problematic that the CoE to the public, there is a restricted area for the Court’s key judgments in languages Information Offices should take on the judges, prosecutors, and trainers which is other than French or English, and function of advising individuals about only accessible with a password. • closer collaboration of the Commis- existing domestic and other non-judicial The website was developed as part of the sioner for Human Rights with national hu- remedies. They also reject the plan that European Programme for Human Rights man rights institutions and ombudsmen. the information necessary for the deter- Education for Legal Professionals, the As to long-term measures, Maud de Bo- mination of admissibility of an appli- so-called “HELP” Programme. The er-Buquicchio stressed that two propos- cation should be submitted only on the HELP Programme, launched in March als of the Wise Persons’ Report proved Court’s application form and the referral 2006, is a 3-year initiative aimed at inte- controversial: First, the proposal on just of decisions on awards of compensation grating the ECHR into the national train- satisfaction which would refer the deci- be returned to the state concerned. ing structures of judges and prosecutors sion on the amount of compensation to eucrim ID=0701173 in CoE Member States. the concerned state, would risk com- eucrim ID=0701175 plicating and prolonging the procedure New Web Features Bring about Better and creating divergent standards, and Transparency of ECtHR Election of 12 Judges to the European would not fit in well with domestic ju- Independent of the above-mentioned re- Court of Human Rights dicial infrastructures for dealing with form debate, the ECtHR launched two Incidentally, on 2 October 2007, the Par- damages. Second, the proposal to insti- initiatives on 25 June 2007 which at liamentary Assembly of the CoE elected tute a judicial committee which would least improve the Court’s web presence. twelve judges to the European Court of be responsible for filtering applications First, a webcast of its public hearings en- Human Rights. Six new judges were was criticized. However, some other ables journalists and the public to view elected, who will begin their work on proposals of the Wise Persons were the Court’s hearings from anywhere 1 February 2008, and six sitting judges largely welcomed, such as the proposal in the world and to download extracts were re-elected, who will begin their to make it easier to adapt the Conven- of interest. Second, the Court provides new term of office on 1 November 2007 tion machinery by making it possible for new information about pending cases on already. the Committee of Ministers to carry out its website. In this regard, a report ap- eucrim ID=0701176 reforms by way of unanimously adopted pears on the Court’s Internet site every resolutions, without an amendment to Monday, giving a list of cases which the Convention being necessary each have been officially communicated to time, and the proposal to adopt a new the government of the country against Specific Areas of Crime Council of Europe Convention contain- which the applicant’s complaints are di- ing obligations for CoE Member States rected. For each case, there is a link to Corruption as regards the availability, functioning, a summary of the facts, the applicants’ and effectiveness of domestic remedies, complaints, and the questions put by the GRECO: Italy and Monaco New Mem- in particular concerning the excessive Court to the parties. bers length of proceedings. eucrim ID=0701174 On 30 June 2007, Italy became the 45th eucrim ID=0701172 Member State of the Group of States New Website for Training on Human against Corruption (GRECO). On 1 July Report on Court’s Future under Scrutiny Rights to Help Reduce the Influx of 2007, Monaco followed as 46th Member at NGOs Cases State of GRECO. In January 2007, a number of NGOs On 9 October 2007, the CoE launched GRECO is the CoE’s anti-corruption presented a joint response to the propos- a new website containing materials and monitoring mechanism which aims at als in the above-mentioned report of the tools for education on the European Con- improving its members’ capacity to fight Group of Wise Persons. While basically vention on Human Rights (ECHR). It is corruption by monitoring the compliance welcoming the commitment of the CoE aimed at supporting the CoE Member of states with their undertakings in this Member States to ensuring the long-term States in the integration of human rights field. GRECO monitors all its members effectiveness of the European Court of into their training of judges and prosecu- on an equal basis through a dynamic

eucrim 1–2 / 2007 | 43 NEWS process of mutual evaluation and peer procurement. Two meetings took place Money Laundering pressure. It therefore works in evaluation in March and February 2007 where the rounds, each covering specific themes. State Duma Anti-Corruption Commis- First Joint Plenary Meeting of FATF and GRECO’s first evaluation round (2000– sion, the Council of Europe, and the Eu- MONEYVAL 2002) dealt with the independence, spe- ropean Commission further discussed the From 21 to 23 February 2007, a first joint cialisation, and means of national bod- issue of the development of national anti- plenary meeting of the Financial Action ies engaged in the prevention and fight corruption strategy. At their last meeting Task Force (FATF) and the Council of against corruption. It also dealt with the in April 2007, Russian experts presented Europe’s Committee of Experts on the extent and scope of immunities of public legislative proposals to strengthen the Evaluation of Anti-Money Laundering officials from arrest, prosecution, etc. The anti-corruption effort in specific areas. Measures (MONEYVAL) took place in second evaluation round (2003–2006) fo- They further finalized discussions on the Strasbourg. With the aim of strengthen- cused on the identification, seizure, and issue of the development of national anti- ing international cooperation in the fight confiscation of corruption proceeds, the corruption strategy and the creation of a against money laundering and terrorist prevention and detection of corruption in specialized body responsible for the coor- financing, the approximately 400 partici- public administration, and the prevention dination of national efforts in the sphere pants studied the FATF’s mutual evalu- of legal persons (corporations, etc.) from of combating and preventing corruption. ation report on Turkey, MONEYVAL’s being used as shields for corruption. The These issues of the project have run since third-round mutual evaluation report on third evaluation round started in January October 2006. The RUCOLA 2 project, Georgia, and a progress report submitted 2007 (see the following news items). which is a joint project of the European by Cyprus. Reports from Armenia and eucrim ID=0701177 Commission and the CoE, aims at sup- Azerbaijan have been considered also by porting the State Duma Anti-Corruption MONEYVAL. GRECO: Third Evaluation Round Commission in the development of leg- The FATF is an intergovernmental body, Launched islative and other measures for the pre- the purpose of which is the development As already mentioned in eucrim 3-4/2006, vention of corruption (see also eucrim and promotion of national and interna- p. 84, GRECO launched its third evalu- 3-4/2006, p. 84). tional policies to combat money launder- ation round in January 2007. The third eucrim ID=0701179 ing and terrorist financing. It was founded evaluation round addresses (a) the in- in 1989 by the G7. The Secretariat of the criminations provided for in the Criminal New Anti-Corruption Projects Launched FATF is housed in the headquarters of the Law Convention on Corruption and (b) in Three Countries Organisation for Economic Co-operation the transparency of party funding. In this In September 2007, three new Anti- and Development (OECD) in Paris. Most context, it held a training workshop on in- Corruption Projects were launched by common are the 40 recommendations criminations at its 33rd plenary meeting the CoE to support the governments of of the FATF which set the international from 29 May to 1 June 2007. The main Azerbaijan, Georgia, and Turkey in the standard for measures against money topics were the monitoring of the imple- next 24 months in their ongoing reforms laundering. They are designed to be im- mentation of international anti-corruption and efforts to constrict and prevent cor- plemented into national legislation. standards in the criminal law sector and ruption, and to enhance and strengthen MONEYVAL, by contrast, is an expert the practical aspects of applying crimi- good governance, including ethics safe- committee of the Council of Europe re- nal legislation in the investigation and guards, in line with European and other sponsible for evaluating anti-money prosecution of corruption at the domestic international standards. laundering measures. MONEYVAL was level. The Member States also examined The project in Georgia, called GEPAC, founded in 1997 in order to monitor and reports in the framework of the first and will support the new anti-corruption facilitate the implementation of the 1990. second evaluation rounds at the meeting. strategy as well as the new Georgian CoE anti-money laundering convention The Plenary held two round table discus- anti-corruption action plan by means of For its evaluation activity, MONEYVAL sions on the following topics: “Recent de- technical assistance. considers the practice and rules of the velopments in anti-corruption institutions eucrim ID=0701180 FATF. The Committee’s task is to per- and strategies” and “Actual and potential Similarly, the CoE will provide techni- form evaluation of the Member States obstacles to the ratification of the Civil cal assistance in Azerbaijan in order to which are not members of the FATF as Law Convention on Corruption”. support the ongoing legislative and insti- regards their compliance with the in- eucrim ID=0701178 tutional anti-corruption reforms. ternational standards to counter money eucrim ID=0701181 laundering and the financing of terrorism. Russia: RUCOLA 2 In Turkey, the CoE will primarily strength- MONEYVAL and the FATF have already A series of meetings in the framework of en the Council of Ethics, support the im- been cooperating more closely for some the so-called RUCOLA 2 project looked plementation of the new Code of Ethics years: The Secretariat of the FATF has into the issue of the Russian approaches across public administration, and develop a regular observer status with MONEY- towards assessing and preventing cor- codes of ethics for other categories of of- VAL and MONEYVAL became an Asso- ruption risks in such areas of legisla- ficials or holders of public office. ciate Member of the FATF in 2002. tion as healthcare, education, and public eucrim ID=0701182 eucrim ID=0701183

44 | eucrim 1–2 / 2007 NEWS

MONEYVAL: Several Country Reports this year. More than 140 cybercrime State as a whole, attempting to paralyse Published experts from some 55 countries, inter- the functioning of its vitally important MONEYVAL also published a series national organizations, and the private infrastructure (Republic of Estonia). It of country reports on Latvia, Georgia, sector met in Strasbourg, France, from therefore urges that an efficient protec- Poland, and Albania which contain in- 11 to 12 June 2007 to analyze the threat tion and reaction system has to be devel- formation about their compliance with of cybercrime, review the effectiveness oped at the international level and makes the relevant international standards on of cybercrime legislation, promote the some concrete proposals. anti-money laundering and countering use of the Cybercrime Convention and eucrim ID=0701188 terrorist financing. They are listed in the its Additional Protocol, and strengthen following link: international cooperation in the fight eucrim ID=0701184 against cybercrime. Counterfeiting Furthermore, a series of country profiles Russia: MOLI-RU-2 on cybercrime legislation was published Call for Stronger Measures against A Follow-up Project against Money during the conference. The country pro- Counterfeiting Laundering and Terrorist Financing in the files allow a survey of the current state At the spring session of the Parliamen- Russian Federation, called MOLI-RU-2, of the implementation of the Convention tary Assembly of the Council of Europe started in 1 January 2007. The start-up of Cybercrime, that is, the implementa- from 16 to 20 April 2007, a call for conference on the new project took place tion of the provisions of the Convention stronger measures against counterfeit- on 24 May 2007 in Moscow. This project under national legislation. They were ing was raised. Recommendation 1793 is funded by the European Union and co- prepared within the framework of the (2007) contains the recommendation for funded and implemented by the Council Council of Europe’s Project on Cyber- a Council of Europe convention on the of Europe. Its aim is to contribute to the crime which enables the sharing of in- suppression of counterfeiting and traf- prevention and control of money launder- formation on cybercrime legislation and ficking in counterfeit goods. According ing and terrorist financing in the Russian assessment of the current state of imple- to the Parliamentary Assembly, given Federation in accordance with European mentation of the Convention on Cyber- the accelerating pace of globalization, and other international standards and crime under national legislation. counterfeiting, which forms a signifi- best practices. The follow-up action con- The Octopus programme of the CoE is cant part of the shadow economy and tinues two former projects in this area an umbrella technical cooperation pro- accounts for up to 9 % of world trade, which helped build up a functional sys- gramme against economic crime. Ad- is increasingly affecting European coun- tem against money laundering and terror- ditional information about the Octopus tries and is closely linked to organized ist financing in the Russian Federation. Interface 2005 and 2006 can be found criminal networks (see eucrim 1-2/2006, MOLO-RU-2 is intended to maintain the in eucrim 1-2/2006, p. 21, and eucrim p. 13 on the impact of counterfeiting on efforts already made. 3-4/2006, p. 83. the EU). All CoE Member States are af- eucrim ID=0701185 eucrim ID=0701187 fected as countries of origin, transit, or destination for counterfeit goods. Not Ukraine: MOLI-UA-2 PACE Resolution: How to Prevent Cyber- only fake medicines but also many other This twin project which seeks to imple- crime against State Institutions? products − such as spare parts, toys, per- ment European standards on anti-money The Parliamentary Assembly of the CoE sonal care products, electric appliances, laundering and combating terrorist fi- also addressed the topic of cybercrime. foodstuffs, alcoholic beverages and nancing in the Ukraine, the MOLI-UA-2 At its third session from 25 to 29 June other goods − when counterfeited, can project (see eucrim 3-4/2006, p. 84, and 2007 in Strasbourg, France, it adopted endanger consumers health and safety, eucrim 1-2/2006, p. 22), continued with Resolution 1565 (2007) on “How to pre- seriously damage the European econo- several seminars – e.g., a seminar for vent cybercrime against state institutions my as well as state budgets, and nurture prosecutors and legal drafters and a semi- in Member and Observer States?”. criminal networks. nar for the Ukrainian banking sector. In Due to the fact that cybercrime is a real The Assembly therefore believes that addition, a workplan for 2007 was adopt- threat to democratic stability and nation- the time has come for the Council of ed. It contains a detailed timeframe for the al security, which raises fundamental Europe and its Member States to tackle events planned for the entire year 2007. issues as regards the respect for human the problem of counterfeiting in a more eucrim ID=0701186 rights and the rule of law, PACE stresses comprehensive manner than has been that this issue should be treated as a mat- the case until now. Thus, the Assembly ter of top priority. It further points out welcomes the prospect – as a first step Cybercrime that politically motivated attacks against – of elaborating a European convention the military or government websites of a on the fight against pharmaceutical- and Octopus: Annual Conference 2007 number of CoE Member and Observer health-care-related crime and is con- The annual conference of the Octopus States are becoming increasingly fre- vinced that a further similar initiative is programme, the so-called Octopus Inter- quent and sophisticated and that crimi- necessary to fight all counterfeiting and face 2007, was dedicated to cybercrime nal cyber attacks have already targeted a trafficking in counterfeit goods. In this

eucrim 1–2 / 2007 | 45 NEWS respect, it has been recommended that of Justice (CEPEJ) released in October a questionnaire has been fine-tuned and the Committee of Ministers instruct the last year (see also eucrim 3-4/2006). will be sent to the pilot courts. competent intergovernmental committee eucrim ID=0701191 eucrim ID=0701193 to work, in consultation with the Euro- pean Union and other stakeholders, on CEPEJ: 2nd Meeting of the Network of the preparation of a European conven- Pilot Courts tion on the suppression of counterfeit- On 19 March 2007, a meeting of the Cooperation ing and trafficking in counterfeit goods, Network of Pilot courts of the CEPEJ covering both civil and criminal law as- took place in Strasbourg. The first year South-Eastern Europe: New Network to pects of the problem. of experience has been reviewed and the Improve Sharing of Information on Fi- eucrim ID=0701189 working programme for 2007 presented. nancial Crime The CEPEJ set up this network com- On 20 June 2007 in Belgrade, Serbia, the Call for a Convention to Combat Phar- posed of so-called pilot courts reflect- heads of police from six South-Eastern maceutical Crime ing the judicial situation in the Member European countries – Albania, Bosnia and In close connection to the above-men- States. These pilot courts will regularly Herzegovina, Croatia, Montenegro, Ser- tioned topic is Recommendation 1794 be invited to answer questionnaires on bia, and “the former Yugoslav Republic (2007), entitled ‘The quality of medi- their practice regarding judicial organisa- of Macedonia” – plus the United Nations cines in Europe’ and adopted at the same tion and judicial procedures with respect Interim Administration Mission in Kos- session, which calls for a convention to timeframes. The aim of the network is ovo (UNMIK) signed a Memorandum of to combat pharmaceutical crime. As to promote innovative projects regard- Understanding on regional cooperation already noted by the participants at the ing the reduction and management of the and exchange of information related to conference on ‘Europe against Counter- length of proceedings, quality of justice, identification, seizure, and confiscation feit Medicines’ held in Moscow on 22 and mediation. of proceeds of crime. The Memorandum and 23 October 2006, counterfeiting has eucrim ID=0701192 is designed to facilitate an effective, easy, been tackled mainly from the angle of and prompt exchange of information for industrial property rights rather than the CEPEJ: Timeframes of Proceedings the purpose of identifying, tracing, seiz- protection of the rights of the individual. The CEPEJ also looks into the length of ing and confiscating proceeds of crime. As yet, there is no legal instrument on time for proceedings which often give rise It will strengthen informal networking in matters relating to crime in the pharma- to complaints before the European Court the region. In order to facilitate this goal, ceutical field (see also eucrim 3-4/2006, of Human Rights. The SATURN Centre – the six countries and UNMIK appointed p. 84f.). The Assembly therefore under- Study and Analysis of judicial Time Use contact persons to encourage this process. lines the need to make provisions for an Research Network – is a Centre for judi- The implementation of the Memorandum international legal instrument establish- cial time management which was set up by will be subject to an evaluation in 2008 in ing specific offences relating to counter- CEPEJ at the beginning of the year. There- which Europol is also involved. feiting in this field so that counterfeiters fore, the CEPEJ SATURN Centre has The Memorandum is the result of the can be arrested and prosecuted. started working towards a better knowl- regional police project against serious eucrim ID=0701190 edge of judicial timeframes, per type of crime in South Eastern Europe, “CAR- cases, in the Member States. Indeed, the PO”, which is jointly founded by the CEPEJ noticed that only few detailed fig- CoE and the EU. It aims at strengthening ures were available on length of proceed- police capacities against serious crimes Procedural Criminal Law ings although the violation of the concept in South-Eastern Europe, developing a of reasonable time (Article 6 ECHR) is the regional strategy against economic and Justice Organisation first reason for complaining before the Eu- organized crime in this area, and provid- ropean Court of Human Rights. ing law enforcement institutions with the CEPEJ: Evaluation of Judicial Systems Therefore, the SATURN Centre shall tools necessary to implement this strat- The in-depth exploitation of the Report collect specific information necessary for egy (see also eucrim 1-2/2006, p. 22). “European judicial systems – Edition the knowledge of judicial timeframes in eucrim ID=0701194 2006” continues. Specific studies will the Member States and detailed enough be finalized before the end of the year to enable Member States to implement South-Eastern Europe: Update of 2006 on access to justice, administration and policies aiming to prevent violations of Situation Report on Organized and Eco- management of judicial systems, use of the right to fair trial within a reasonable nomic Crime IT in courts, training of judges and pros- time as protected by Article 6 of the Eu- The last Situation Report on Organized ecutors, and execution of court decisions. ropean Convention on Human Rights. It and Economic Crime in South-Eastern These in-depth analyses are the result of therefore aims to gather and process the Europe has been further updated. The a report on the evaluation of European largest possible amount of information update was published in June 2007. Based judicial systems which the Council of relevant to the management and calcula- on contributions from the project areas, it Europe’s Commission for the Efficiency tion of judicial timeframes. To this day, allows a 3-year overview on the situation

46 | eucrim 1–2 / 2007 NEWS of organized and economic crime. The re- Ratifications and Signatures (Selection) port arrives at the main conclusions that economic crime continues to evolve but Date of remains fuzzy and unclear, that all project Council of Europe Treaty State ratification (r) areas have set up a Financial Intelligence or signature (s) Unit or similar bodies by recognizing the European Convention on Mutual Assistance in Monaco 19 March 2007 (s+r) negative impact of serious crime on their Criminal Matters (ETS No. 30) economy, and that corruption appears to be the main tool for influencing and pen- European Convention on the International Validity Serbia 26 April 2007 (s+r) etrating political, commercial, and law of Criminal Judgments (ETS No. 70) enforcement structures. Convention for the Protection of Individuals with Andorra 31 May 2007 ( The report, which is expected to provide regard to Automatic Processing of Personal Data additional guidance to policy makers (ETS No. 108) in Europe, further contains information Convention on the Transfer of Sentenced Persons Russia 28 August 2007 (r) about drug trafficking, trafficking in hu- (ETS No. 112) Mexico 13 July 2007 (r) man beings, and illegal migration and makes several proposals to overcome Additional Protocol to the Convention on the Russia 28 August 2007 (r) Transfer of Sentenced Persons (ETS No. 167) Germany 17 April 2007 (r) the detected shortcomings. More in- Croatia 28 March 2007 (r) formation about the 2006 report can be found in eucrim 3-4/2006, p. 86. Criminal Law Convention on Corruption Monaco 19 March 2007 (s+r) eucrim ID=0701195 (ETS No. 173) Additional Protocol to the Convention for the Andorra 31 May 2007 (s) Ukraine: International Cooperation in Protection of Individuals with regard to Automatic France 22 May 2007 (r) Criminal Matters Processing of Personal Data, regarding supervi- Latvia 22 May 2007 (s) As already mentioned in eucrim sory authorities and trans-border data flows (ETS 1-2/2006, p. 22, and eucrim 3-4/2006, No. 181) p. 86, a series of events accompany the Second Additional Protocol to the European Serbia 26 April 2007 (r) UPIC project about ‘International Coop- Convention on Mutual Assistance in Criminal eration in Criminal Matters’. In the past Matters (ETS No. 182) several months, several seminars have been held, e.g., a ‘Human Rights and Ju- Convention on Cybercrime (ETS No. 185) Finland 24 May 2007 (r) dicial Co-operation Training Seminar’, Latvia 14 February 2007 (r) a ‘Human Trafficking Legislative Work- Additional Protocol to the Convention on Latvia 14 February 2007 (r) shop’, and a ‘Conference on International Cybercrime, concerning the criminalisation of Co-Operation’, all in Kyiv, Ukraine. Of acts of a racist and xenophobic nature committed particular interest in this context is that through computer systems the Ukraine ratified the CoE Convention (ETS No. 189) on Cybercrime on 10 March 2006 and Additional Protocol to the Criminal Law Conven- Moldova 22 August 2007 (r) its additional Protocol on the criminali- tion on Corruption (ETS No. 191) zation of acts of racist and xenophobic nature committed through computer sys- eucrim ID= 0701199 tems on 21 December 2006. eucrim ID=0701196 ism, such as incitement, recruitment and CoE Compiled its Co-Operation Conven- training. It also reinforces international tions in the Criminal Law Field co-operation in the prevention of terror- The CoE recently published a new book ism by modifying existing arrangements on “Co-operation against crime: the con- Legislation for extradition and mutual assistance. The ventions of the Council of Europe (2007)”. Convention has been open for signature It compiles the main CoE conventions on Convention on the Prevention of Terror- since 2005. For its entry into force, six such co-operation mechanisms as extradi- ism in Force ratifications (including four CoE Member tion, mutual legal assistance, the transfer The new CoE Convention on the Pre- States) were necessary. So far, it has been of sentenced persons, etc. It also includes vention of Terrorism came into force on signed by 39 countries, seven of them conventions addressing specific forms of 1 June 2007, as a result of its ratification have already ratified it. To date, it has en- crime which have a cross-border dimen- by Romania in February 2007. The Con- tered into force in the following countries: sion, such as cybercrime, money launder- vention is the first international treaty to Albania, Bulgaria, Denmark, Romania, ing, terrorism, trafficking in human be- establish as criminal offences several ac- Russia, Slovakia, and the Ukraine. ings, and corruption. tivities which may lead to acts of terror- eucrim ID=0701197 eucrim ID=0701198

eucrim 1–2 / 2007 | 47 Nationale Umsetzung der Gesetzgebung der „dritten Säule“

Der Kommissionsbericht über die Umsetzung der Instrumente zum Schutz der Finanzinteressen der Europäischen Gemeinschaften

Dr. Bernd-Roland Killmann*

I. Einleitung Auch die neuen Mitgliedstaaten müssen dem EU-Betrugs- abkommen und seinen Protokollen beitreten. Bisher haben Der Bericht der Kommission vom 25. Oktober 20041 über die Zypern, Slowenien, die Slowakei, Litauen und Lettland alle Umsetzung des Übereinkommens zum Schutz der finanzi- Abkommen, Estland alle bis auf das EuGH-Protokoll ratifi- ellen Interessen der Europäischen Gemeinschaften und seiner ziert. Die tschechische Republik, Polen, Ungarn und Malta Protokolle durch die Mitgliedstaaten reiht sich in die von der haben die Ratifizierungsschritte noch nicht abgeschlossen. Kommission ausgearbeiteten Umsetzungsberichte von Instru- Und dies, obwohl alle Kandidatenländer bereits zur materi- menten der sogenannten dritten Säule – zumeist von EU-Rah- ellen Einführung entsprechender Straftatbestände während menbeschlüssen – ein. Er geht insofern über die­se hinaus, als der Beitrittsverhandlungen verpflichtet waren. Für Bulgarien er versucht, sich mit allen Aspekten des Wirtschaftsstrafrechts und Rumänien sehen die Beitrittsakte vor, dass der Rat noch zu Lasten der EG-Finanzinteressen auseinanderzusetzen.­ Der einen Beschluss zu erlassen hat, in dem er den Tag festlegt, Bericht weist das Übereinkommen zum Schutz der finan- an dem die betreffenden Übereinkünfte für diese neuen Mit- ziellen Interessen der Europäischen Gemeinschaften vom gliedstaaten in Kraft treten. 26. Juli 19952 (EU-Betrugsabkommen) und seine Protokolle – das erste Protokoll vom 27. September 1996,3 das EuGH-Pro- Die Kommission sah die Notwendigkeit der Erstellung eines tokoll vom 29. November 19964 sowie das zweite Protokoll Berichts, auch ohne dass das EU-Betrugsabkommen oder seine vom 19. Juni 19975 – als zwar auf Grundlage der dritten Säule Protokolle eine derartige Verpflichtung vorsahen, darin, dass erlassene, aber auch die Verpflichtungen nach Art. 280 EGV bereits nahezu zehn Jahre nach deren Aushandlung im Rat konkretisierende Materie aus. Obwohl der Bericht sich mit vergangen waren und ein gleichwertiger und wirksamer Straf- der Umsetzung eines Instruments, nämlich des EU-Betrugs- rechtsschutz – dessen Fehlen aufgrund der vorangegangenen, abkommens und seiner Protokolle, beschäftigt, lässt er sich in sogenannten „Delmas-Marty-Studie“9 belegt war – nunmehr Bezug setzen zu dem Bemühen einer Auseinandersetzung mit zumindest in den alten Mitgliedstaaten erreicht hätte werden einer teilweisen Strafrechtsharmonisierung zum Schutz der Fi- müssen. Wie schon der Vorschlag der Richtlinie, hat der Bericht nanzinteressen mittels einer EG-Richtlinie.6 In gewisser Weise erneut alten und neuen Mitgliedstaaten vor Augen geführt, wie ergänzt der Bericht den Richtlinienvorschlag um die Bewer- ernst es der Kommission mit der Einführung eines effizienten tung des Notwendigkeitserfordernisses, wie es vom EuGH im strafrechtlichen Schutzes der EG-Finanzinteressen ist. Urteil C-176/037 aufgestellt wurde. Er besitzt daher eine für die Kommission politisch bedeutsame Ausrichtung. Während der Bericht lediglich die Ergebnisse zusammenfasst, enthält III. Methode des Berichts das nur auf Englisch verfügbare Dienststellenpapier8 eine ver- tiefte, vergleichende Gegenüberstellung der verschiedenen na- Auffällig im Vergleich zu anderen Umsetzungsberichten ist der tionalen Umsetzungsmaßnahmen. Aufwand der Erklärung der Methode bei der Beurteilung der Umsetzung des EU-Betrugsabkommens im Dienststellenpapier. Zuallererst werden die Bestimmungen des EU-Betrugsabkom- II. Ausgangslage und Auswirkung des Berichts mens und seiner Protokolle nicht einfach in ihrer vorgegebenen Ordnung beurteilt, sondern – entsprechend kontinentaleuropä- Der Bericht und das Dienststellenpapier beurteilen den Um- ischer Strafrechtskodifizierungen – thematisch neu geordnet, setzungsstand betreffend die fünfzehn Mitgliedstaaten vor indem die materiellen Strafdelikte von den allgemeinen Straf- der Erweiterung 2004 und 2007. Nach wie vor stellt sich die rechtsbegriffen und den ergänzenden, das Strafverfahrensrecht Lage so dar, dass das EU-Betrugsabkommen, das erste Proto- betreffenden Normen abgegrenzt werden. Für jede dieser Grup- koll und das EuGH-Protokoll am 17. Oktober 2002 in Kraft pen gilt ein unterschiedlich strenger Beurteilungsmaßstab, wo- getreten sind, das zweite Protokoll dagegen noch nicht. Seit bei vor allem bei den Strafdelikten auf die Anforderungen der dem Bericht haben sowohl Luxemburg als auch Österreich das Rechtssicherheit zu achten ist. Bei den allgemeinen Strafrechts- zweite Protokoll ratifiziert. Für dessen Inkrafttreten fehlt es begriffen und dem Strafverfahrensrecht wird dagegen auf die nach wie vor an der Ratifikation durch Italien. Einbettung in die bestehende und historisch gewachsene natio-

48 | eucrim 1–2 / 2007 Der Kommissionsbericht zum Schutz der Finanzinteressen nale Strafrechtskultur Rücksicht genommen, ohne dass auf eine gezwungen entsprechende Strafvorschriften einzuführen und Effizienzbeurteilung der Umsetzung verzichtet würde. setzte sich erstmals mit der Problematik des Unterschiedes zwi- schen Betrug als rechtswidrigem Erlangen eines Vorteils und Als Bewertungsmaßstab zieht der Umsetzungsbericht die er- missbräuchlicher Verwendung nach bereits erfolgtem, rechtmä- wähnte „Delmas-Marty-Studie“ heran. Es war die Absicht ßigem Erlangen eines Vorteils auseinander. Dies führte dazu, des EU-Betrugsabkommens, die von der Studie aufgezeigten dass zugleich auch der Schutz der nationalen Finanz­interessen strafrechtlichen Regelungslücken zwischen den Mitglied- verbessert wurde, denn keiner der Mitgliedstaaten beschränkte staaten zu beseitigen. Nur insofern, als die in dieser Studie den Missbrauchstatbestand nur auf EG-Finanzmittel allein. Was aufgezeigten Bedenken nicht mehr bestehen, wird angenom- den einnahmenseitigen Betrug betrifft,11 hat die Kommission men, dass das EU-Betrugsabkommen erfolgreich umgesetzt einmal mehr ihre Ansicht klargestellt, dass aufgrund des EU- wurde. Die Methodik des Berichts und des Dienststellenpapiers Betrugsabkommens auch eine Verpflichtung zum Schutz der beschränkt sich jedoch im Wesentlichen auf eine Analyse der Einnahmen besteht, die sich aus der Anwendung eines einheit- Normsetzungstätigkeit der Mitgliedstaaten und beurteilt nur die lichen Satzes auf die Umsatzsteuer-Eigenmittelbemessungs- Übereinstimmung des nationalen Strafrechts mit den Anforde- grundlage eines jeden Mitgliedstaats ergeben. Der Rat der rungen des EU-Betrugsabkommens und seiner Protokolle. Die Europäischen Union gab im Erläuternden Bericht zum EU-Be- Rechtswirklichkeit und konkrete Rechtsanwendung durch Ver- trugsabkommen an, dass die Umsatzsteuereinnahmen deshalb folgungsbehörden wird ausnahmsweise in Betracht gezogen, vom Anwendungsbereich des EU-Betrugsabkommens ausge- nicht aber systematisch verglichen. Eine vollständige System- schlossen seien, weil sie „nicht zu den Eigenmitteln gehören, und Funktionsanalyse jedes Mitgliedstaates würde den Rahmen die unmittelbar für die Gemeinschaft erhoben werden“.12 Die eines Umsetzungsberichts in Umfang und Arbeitsaufwand wohl Kommission hat bereits mehrmals ihre Auffassung zum Aus- sprengen und könnte sicher nicht alle Mitgliedstaaten zugleich druck gebracht, dass der Schutz der Gemeinschaftsfinanzen erfassen. Dennoch wäre es wünschenswert, über einen solchen vor widerrechtlichen Handlungen den Bereich Umsatzsteuer vollständigen Vergleich der konkreten Rechtsanwendung zu einschließt,13 und so hat sie konsequent auch eine Beurteilung verfügen, um gezielter die Lücken im Strafrechtsschutz der EG- der einschlägigen Umsatzsteuerbetrugsbestimmungen vorge- Finanzinteressen schließen zu können. nommen. Sie kommt dabei zu einem durchaus positiven Er- gebnis, wohl aus dem einfachen Umstand heraus, dass Umsatz- steuereinnahmen in allen Mitgliedstaaten als eine Hauptquelle IV. Wesentliche Erkenntnisse des Berichts des nationalen Budgets strafrechtlich geschützt sind.14

1. Allgemeines 3. Korruption und Geldwäsche Natürlich können an dieser Stelle weder der Bericht noch das umfangreiche Dienststellenpapier vollständig dargestellt wer- Hinsichtlich der Bekämpfung der Korruption und der Geldwä- den. Die wesentlichste Folgerung der Kommission lässt sich sche lässt sich erkennen, dass die Umsetzung in den Mitglied- jedoch in einem Satz zusammenfassen: Das EU-Betrugsab- staaten weiter fortgeschritten ist, wohl weil inzwischen auf in- kommen und seine Protokolle haben zwar zur Verbesserung ternationaler Ebene eine Vielzahl von Rechtsinstrumenten zu des strafrechtlichen Schutzes der Finanzinteressen beigetra- diesen Deliktsformen geschaffen wurden. Bei den Vortaten zur gen und eine Gleichstellung gemeinschaftsrechtlicher Finanz­ Geldwäsche zeigt sich aber einmal mehr ein Auffassungsun- interessen mit nationalen nahezu erreicht, doch ist das von terschied zwischen der Kommission und den Mitgliedstaaten: den Abkommen beabsichtigte, lückenlose, gesamteuropäische Die Kommission geht davon aus, dass „schwerer“, d.h. ein Mindestschutzniveau aufgrund der nach wie vor bestehenden die Wertgrenze von 50.000 Euro überschreitender Betrug eine Unterschiede in der Ausgestaltung der nationalen Strafnorm Vortat darzustellen hat, wogegen manche Mitgliedstaaten auf- nach wie vor nicht erreicht. Im Ergebnis kommt der Bericht grund des Wortlauts des Artikel 1 Buchst. e) des Zweiten Pro- zum Schluss, dass die Umsetzung unterschiedlich weit fortge- tokolls davon ausgehen, dass der Begriff „Betrug, zumindest schritten ist und keiner der Mitgliedstaaten eine vollständige in schweren Fällen“ es dem Umsetzungsgesetzgeber offen Umsetzung erreicht hat. Trotz der positiven Entwicklungen lässt, welche Betrugsformen schwer genug sind, um als Vor- wird es daher noch ein langer Weg sein, bis die Kommission taten für Geldwäsche angesehen zu werden.15 Es ist dabei un- europaweit einen wirksamen Schutz der EG-Finanzinteressen vermeidlich, dass die Umsetzungsbewertung der Kommission erreicht haben wird. insofern strenger ausfällt.

2. Betrug 4. Strafmaß

Eine wesentliche Neuerung für nationale Strafrechte brachte Besonders schwer tut sich der Bericht bei der Bewertung der Artikel 1 Abs. 1 des EU-Betrugsabkommens durch die Vorga- Wirksamkeit, Verhältnismäßigkeit und Abschreckungswirkung be, auch die missbräuchliche Verwendung von EG-Ausgaben der vorgesehenen Strafen, da diese Kriterien zwar vom EuGH zu sanktionieren.10 Die Mehrzahl der Mitgliedstaaten sah sich entwickelt,16 aber bisher nicht weiter konkretisiert wurden.

eucrim 1–2 / 2007 | 49 Nationale Umsetzung der Gesetzgebung der „dritten Säule“

Rechtsvergleichend fällt vor allem der Unterschied der Sankti- Verantwortlichkeit, als auch was die angedrohten Sanktionen onierung von ähnlichen Deliktsformen, nicht nur zwischen den anlangt – derart unterschiedlich, dass einmal mehr nur ein Mitgliedstaaten, sondern auch innerhalb der Mitgliedstaaten, Vergleich der Rechtswirklichkeit es zulassen würde, die Wirk- etwa bei ausgaben- und einnahmenseitigen Betrug, auf. samkeit, Verhältnismäßigkeit und Abschreckungswirkung der getroffenen Maßnahmen zu beurteilen.

5. Verantwortung von Unternehmensleitern und juristischen Personen V. Ausblick

Die Pflicht zur Einführung der Verantwortung von Unterneh- Der Bericht stellt einen zweiten Bericht zur Umsetzung in mensleitern ist ein allein im EU-Betrugsabkommen auftre- den neuen Mitgliedstaaten in Aussicht. Dabei werden sich tendes Konzept. Die Kommission gibt an, dass sich die Beur- die politischen Vorhaben der Kommission, wie etwa der teilung der Umsetzung als äußerst schwierig erweist, handelt Richtlinienvorschlag über den strafrechtlichen Schutz der es sich doch zumeist um eine Bewertung der allgemeinen Be- finanziellen Interessen der Gemeinschaft auf der Grundlage teiligungsformen und deren Vergleich untereinander in Bezug von Artikel 280 EGV, im gesamteuropäischen Kontext neu auf die möglichen strafrechtlichen Haftungsfolgen. Die Kom- bewerten lassen.18 mission sieht selbst Bedarf zur Abdeckung dieser Problematik in vertiefter Form. Bisher sind jedoch kaum wissenschaftliche Der vorliegende Bericht beurteilt letztlich nur die bloß for- Abhandlungen dazu erschienen.17 melle Erfüllung der Umsetzung des EU-Betrugsabkommens und seiner Protokolle und kommt selbst zum Ergebnis, dass Eine „Erfolgsgeschichte“ des Zweiten Protokolls ist die Ein- der Mindeststrafrechtsschutz in den Mitgliedstaaten noch führung der Haftung juristischer Personen für Straftaten – ein verbesserungswürdig ist. Der geringe Fortschritt bei der An- Konzept, das sich seitdem in nahezu allen EU-Strafrechts­ gleichung der Sanktionsvorschriften wirkt überdies auf die instrumenten sowie auch in anderen internationalen Abkom- Verjährungsbestimmungen in den Mitgliedstaaten zurück, men findet. Der Bericht gibt einen Überblick über die verschie- deren große Unterschiedlichkeit nach wie vor dazu führt, denen von den nationalen Gesetzgebern gewählten straf- oder dass dieselben Verhaltensformen in einem Staat strafbar verwaltungsrechtlichen Methoden der Einführung einer sol- bleiben, im anderen aber verjährt sind.19 Allein dieser Über- chen Haftung an, kommt insgesamt zu einer positiven Beur- blick zeigt, dass der Bericht nicht eine Beurteilung abschließt, teilung, allerdings nur aufgrund der formalen Überprüfung sondern erst erlaubt aufzuzeigen, wo noch mehr auf Gesetz- der bestehenden Rechtsregime. Jedoch sind die Regelungen gebungsebene, im praktischen und im akademischen Bereich in den Mitgliedstaaten – sowohl was die Voraussetzungen der zu leisten ist.

5 Zweites Protokoll zum Übereinkommen über den Schutz der finanziellen Interes- sen der Europäischen Gemeinschaften (ABl. C 221 vom 19.7.1997, S. 12). 6 KOM (2001) 272 endg. vom 23.5.2001 (ABl. C 240 E vom 28.8.2001, S. 125), Dr. Bernd-Roland Killmann, M.B.L.-HSG zuletzt geändert durch KOM (2002) 577 endg. vom 16.10.2002 (ABl. C 71 E vom Rechtsrat im Referat „Gesetzgebung und Rechts­ 25.3.2003, S. 1). angelegenheiten“ des Europäischen Amts für 7 EuGH, Urteil vom 13.9.2005 (C-176/03) – Kommission/Rat – Slg. 2005 Betrugs­bekämpfung (OLAF). S. I-7879. 8 SEK (2004) 1299 vom 25.10.2004, verfügbar auf: http://ec.europa.eu/comm/dgs/ olaf/mission/legal/annex709final_en.pdf . 9 Mireille Delmas-Marty, Incompatibilities between legal systems and harmoni- sation measures: Final report of the working party on a comparative study on the protection of the financial interests of the Community, in: European Commission (ed.), The legal protection of the financial interests of the Community: Progress and * Diese Untersuchung wurde vom Autor unabhängig verfasst und gibt nicht die prospects since the Brussels seminar of 1989, Brussels 1993, p. 59 et al. Meinung der Europäischen Kommission, ihrer Dienststellen oder des Europäischen 10 Zu den EG-Ausgaben als finanzielle Interessen der Gemeinschaft Prieß/ Amts für Betrugsbekämpfung (OLAF) wider. Für wertvolle Hinweise bedanke ich Spitzer in: von der Groeben/Schwarze, EU-/EG-Vertrag, 6. Auflage, Art. 280 EG mich herzlich bei Dr. Lothar Kuhl. Rn. 23. 1 KOM (2004) 709 endg., verfügbar auf: 11 Zu den EG-Einnahmen als finanzielle Interessen der Gemeinschaft Prieß/ http://ec.europa.eu/comm/dgs/olaf/mission/legal/709final_de.pdf Spitzer a.a.O. 2 ABl. C 316 vom 27.11.1995, S. 48. 12 ABl. C 191 vom 23.6. 1997, S 4. 3 Protokoll zum Übereinkommen über den Schutz der finanziellen Interessen der 13 Zuletzt in der Mitteilung der Kommission hinsichtlich der Notwendigkeit der Europäischen Gemeinschaften (ABl. C 313 vom 23.10.1996, S. 2). Entwicklung einer koordinierten Strategie zur Verbesserung der Bekämpfung des 4 Protokoll betreffend die Auslegung des Übereinkommens über den Schutz der Steuerbetruges, KOM (2006) 254 endg. vom 31.5.2006, S. 4. finanziellen Interessen der Europäischen Gemeinschaften durch den Gerichtshof 14 Weiterführend zum deutschen Recht Martin Kemper, Umsatzsteuer­karusselle der Europäischen Gemeinschaften im Wege der Vorabentscheidung (ABl. C 151 (§ 370 VI AO und Art. 280 IV EGV), NStZ 2006, 593 ff. vom 20.5.1997, S. 2). 15 So etwa Matthias Korte, Der Schutz der finanziellen Interessen der Europä-

50 | eucrim 1–2 / 2007 Implementation of the PFI Convention in the Czech Republic

ischen Gemeinschaft mit den Mitteln des Strafrechts – Das „Zweite Protokoll“, NJW tung des Unternehmensleiters für deliktisches Verhalten seiner Untergegebenen 1998, 1464 f. (2002). 16 EuGH, Urteil vom 21.9.1989 (Rs. 68/88) – Griechischer Mais – Slg. 1989, 18 Weiterführend Lothar Kuhl/Bernd-Roland Killmann, The Community Compe- S. 2965 Rn. 24. tence for a Directive on Criminal Law Protection of the Financial Interests, eucrim 17 Z.B. wie jene von Henrike Stein, Die Regelung von Täterschaft und Teilnahme im 3-4/2006, 100 ff. europäischen Strafrecht am Beispiel Deutschlands, Frankreichs, Spaniens, Öster­ 19 Ausführlich schon zum im EU-Betrugsabkommen gar nicht angesprochenen reichs und Englands – Zugleich eine Untersuchung zur strafrechtlichen Verantwor- Verjährungsproblem Mireille Delmas-Marty, Fn. 9, S. 78.

The Level of Implementation of the Convention on the Protection of the EC’s Financial Interests and of the Follow-up Protocols in the Czech Republic

Prof. Dr. Jaroslav Fenyk

I. Introductory Remarks instruments adopted for this purpose were the PFI Convention of 26.7.1995,1 the (first) Protocol of 27.9.1996,2 the European It is common knowledge that there is a great movement of Court of Justice Protocol of 29.11.1996,3 and the second Proto- significant financial means from the European Communities’ col of 19.6.1997.4 All were adopted according to Title VI of the constantly increasing budget (with regard to the total budget EU Treaty. In spite of the fact that the PFI instruments are in- of the EC, for example, revenues and expenditures in 2005 tergovernmental and therefore placed under the third pillar, they amounted to 106.3 billions of ). That is why it is not pursue aims also stipulated by Article 280 of the EC Treaty. surprising that the supranational nature of “the European legal space” is abused in the form of unauthorized enrichment, misu- se, and wasteful use of financial means, to the detriment of the II. The PFI Convention and its Protocols5 EC budget. The assessment of the European Court of Auditors found that approximately 10 % of EC funds are used contrary The PFI Convention presumes the Member States shall com- to European legislation and about 1–2 % of the contributions pare, above all, texts containing criminal law definitions of from these funds are obtained fraudulently (the Commission fraud according to national law with the PFI Convention texts estimates the share of fraud at 1–4 %). and change domestic law, if necessary.6 For the purposes of the protection of the financial interests of the EC, the PFI Con- From a general point of view, under Article 280 (ex Art. 209a) vention7 defines fraud as it affects the European Communi- of the EC Treaty, the Community and the Member States shall ties’ financial interests (Article 1). According to the PFI Con- counter fraud and any other illegal activities affecting the finan- vention, all Member States shall take the necessary measures cial interests of the Community through measures assuring ef- (1) to ensure that the conduct referred to above − including fective protection in the Member States. Member States shall participation, instigation, or attempt − is punishable by effec- take the same measures to counter fraud affecting the financial tive, proportionate, and dissuasive criminal penalties, (2) to interests of the Community as they take to counter fraud affec- allow heads of businesses or any persons having the power to ting their own financial interests (principles of assimilation and take decisions or exercise control within a business, to be de- equivalence). The text of the Treaty does not explicitly speci- clared criminally liable in accordance with the principles de- fy what kind of legal measures (if only non-criminal) Member fined by national law in cases of fraud affecting the European States shall take. Only par. 4 stipulates that the above-mentioned Community’s financial interests, and (3) to establish jurisdic- measures shall not concern the application of national criminal tion over the above-mentioned offences. law or the national administration of justice. The (first) Protocol to the PFI Convention enshrines the fol- The protection of financial interests through criminal law has lowing obligations for the EC and Member States: In order for been emphasised as a high priority for the European Commu- the relevant provisions of the Convention on the protection of nity since the middle of the 1970s. The first concrete and legal the European Communities’ financial interests of 26 July 1995

eucrim 1–2 / 2007 | 51 National Implementation of “Third Pillar” Legislation to be made applicable to the criminal acts covered by this Pro- to be particularly unsatisfactorily regulated. The compatibility tocol, the States have agreed on (1) common definitions of the level with the PFI Conventions and the Protocols is not suffi- Community or national “Officials” (Article 1), and (2) passive cient in this matter. and active corruption (Articles 2–3). Each Member State shall take the necessary measures to ensure that, in its criminal law, It was presumed that full compatibility with the PFI Con- the descriptions of the offences constituting conduct of the type vention and its Protocols would be achieved through amend- referred to in Article 1 of the Convention, committed by its na- ments and re-codification of the existing Czech legal fra- tional officials in the exercise of their functions, apply similar- mework by the date of accession by the Czech Republic to ly in cases where such offences are committed by Community the EU at the latest. In this context, an analysis of the PFI officials in the exercise of their duties (assimilation, Article 4 Convention, its Protocols, and documents regarding simpli- par. 1). Targeted is the corruption committed by enumerated fied extradition proceedings among the Member States was officials in the exercise of their functions − Government Mi- carried out. The analysis proved that certain adjustments of nisters, elected members of its parliamentary chambers, the the Criminal Code would have to be enacted from the point members of its highest Courts, or the members of its Court of of view of the principle of assimilation (Article 280 of the Auditors. The relevant provisions need to be applied similar- EC Treaty) no later than the Czech Republic’s accession to ly in cases where such offences are committed by or against the European Union. members of the Commission of the European Communities, the European Parliament, the Court of Justice, and the Court of Neither the PFI Convention nor the Protocols have been pu- Auditors of the European Communities (Article 4 par. 2). blished in the Official Journal of the EU in the Czech language, hence their official translation is not available. The Ministry of The European Court of Justice Protocol contains mainly the Justice was engaged in drafting the official translation of the obligation to accept the jurisdiction of the Court of Justice of text of the Convention in 2004. The first translated versions of the European Communities to give preliminary rulings on the these documents were commented upon by the Supreme Public interpretation of the PFI Convention and the first Protocol to Prosecutor’s Office. The translations were, of course, subject the Convention pursuant to the conditions specified in either to an external comment procedure and subject to the Council paragraph 2 (a) or paragraph 2 (b). Secretariat translators’ opinion. Then, the PFI Convention and the first Protocol should have been submitted to the Govern- The second Protocol to the PFI Convention convinces the ment of the Czech Republic alongside the proposal for acces- addressees of the need for national law to provide that legal sion. Nevertheless, neither the Convention nor the Protocols persons can be held liable in cases of fraud or active corrup- were delivered to the Parliament of the Czech Republic with tion and money laundering committed for their benefit which the proposal for the accession of the Czech Republic. This me- damage or are likely to damage the European Communities’ ans that the Czech Republic has not commenced the process financial interests. of ratification yet. The reasons for the translation delay are not of a technical nature but are due to political points of view and have a historic context. The special section of the Czech Cri- III. Implementation of the Convention on the Protection of minal Code on protection of socialist common (state) property the EC’s Financial Interests and of the Follow-up Protocols was implemented during the Communist era. It was a special in the Czech Republic section within the section of crimes against individual proper- ty.8 The sanctions protecting socialist property were more se- The following economic and financial crime development vere than sanctions concerning private property offences. The trends can be observed in the Czech Republic: proposed section of the draft Criminal Code about the finan- • Crimes committed by bankruptcy trustees and liquidators of cial protection of EC interests (see the following extract from trade and investment companies, the legal text) was compared with the above-mentioned former • Crimes committed by the management of companies admi- regulation by right-wing deputies of the Parliament. nistering entrusted assets, • Crimes related to awarding and implementing public contracts In spite of the obstacles, the necessity to implement a special of the state, local and regional authorities, and municipalities, provision into the Czech Criminal Code seems obvious. Con- • Crimes related to unauthorised allocation and misuse of sub- temporary provisions of the Czech Criminal Code on fraud sidies and financial support of the state and the EU (drawing and associated crimes do not cover all the acts stipulated on money from EU structural funds). by the Convention. The crimes of fraud under sections 250 (Fraud)9 and 250b (Credit Fraud)10 or 248 (Embezzlement)11 Czech criminal law is essentially compatible with the standards of the Czech Criminal Code do not refer to all the types of of the European Union and its Member States. The compatibi- acts covered by Article 1 of the PFI Convention and it could lity prevails mainly in the general definition of fraud, corrupti- be difficult to prosecute negligent acts as well. The Criminal on, money laundering, jurisdiction, extradition, and the ne bis Code protects state subsidies and revenues by a special pro- in idem principle. However, the accountability/responsibility vision of section 127 (Breaches of Mandatory Rules in Eco- of legal persons based on the Czech administrative law, seems nomic Relations)12. However, it does not directly target funds

52 | eucrim 1–2 / 2007 Implementation of the PFI Convention in the Czech Republic

coming from the EC budget. The penalties for committing the Communities, uses without authorization funds of such a budget or above-mentioned crimes would not correspond with the penal- receipts lawfully acquired for such a budget. ties imposed in other Member States. A term of imprisonment from one year to five years or a fine shall be imposed on every offender who a) commits the offence described in paragraph 1 or 2 as a member In the recent past (2005–2006), the draft Criminal Code has of an organised group, or been discussed in Parliament. Regardless of the lack of PFI b) causes major damage through such an act. ratification, a partial success had been achieved. Under the A term of imprisonment from two years to eight years shall be im- posed on every offender who influence of the Czech Association for the Protection of the a) commits the offence described in paragraph 1 or 2 as a person 13 Financial Interests of the EC, and in accordance with the charged with a special duty to defend the European Communities’ Resolution of the Government on approval of the National interests, or Strategy Protecting the Financial Interest of the EC,14 when b) causes major damage through such act. A term of imprisonment from five to twelve years shall be imposed drafting the new Criminal Code (2001–2006), the Ministry on every offender who causes extensive damage through the offence of Justice of the Czech Republic took into consideration the described in paragraph 1 or 2. necessity of instruments for penal protection of the financial interests of the EC. The Ministry implemented into the special part of the draft code a draft section prosecuting acts affecting Unfortunately, a draft of the Criminal Code was not accepted the European Communities’ financial interests. As a follow- by Parliament in 2006.17 The reasons did not concern the pro- up to the Convention on the protection of the European Com- blems of the section on protection of the financial interests of munities’ financial interests, the draft defines a new criminal the EC, but rather a general conception of criminal liability. offence of harm done to the European Communities’ finan- This first issue was the replacement of the material conception cial interests (section 238). Thereby Articles 1 and 2 of the of crime based on social dangerousness by a so-called formal Convention would be implemented in the Czech legislation. conception of crime. The second issue was a disagreement Although the said Convention mentions fraud affecting the among deputies of the Parliament regarding several new types European Communities’ financial interests, the nature of acts of crime, e.g., euthanasia, etc. described in Article 1 of the Convention is that of economic discipline infringement rather than fraud in the Czech sense: As regards the implementation of other elements of the PFI although they are premeditated criminal acts, the said Article Convention and its Protocols, the following observations can 1 still does not require a fraudulent intent. That means that be made: The problem of criminal responsibility of heads of the conception of fraud under Article 1 of the Convention is businesses (Article 3 of the PFI Convention) is not to be found based both on intentional and negligent acts. Since the Czech in legal works (e.g., draft code) at all so far. General forms of criminal law does not recognize a negligent act as a subjective criminal participation in crime are not applicable because of element of fraud at all, the offence was included in Part 3, the necessity of intent and the limitation of criminal acts. The Chapter VI on economic offences. Any negligent act should next problem seems to lie in definition of the term “head of be prosecuted in accordance with sections protecting not only business”. The territoriality and active personality principles financial interests of the EC. (Article 4 of PFI Convention) are covered by sections 17 and 18 of the Czech Criminal Code. Moreover section 18 covers The criminal offence of harm done to the European Commu- the principle aut dedere aut judicare without any problems.18 nities’ financial interests (section 238) would apply to various The same conclusion can be reached concerning the ne bis in criminal practices, and Article 1 also requires a harmful ef- idem principle.19 section 11, par. 4 of the Czech Code of Cri- fect to be caused in the fields of expenditures, incorrect use minal Procedure (as amended) stipulates the ne bis in idem of funds, or withholding of funds either from the European principle for all pertinent decisions of the courts or judicial Communities’ basic budget or from a budget administered by bodies of all EU Member States. All of these rules were imple- or on behalf of the European Communities, or even in the field mented in the draft Criminal Code. of diminution of such budget resources.15 The latest wording of the draft is as follows: The situation relating to the first Protocol is more or less posi- tive. The Czech Criminal Code stipulates a special definition Section 1 Harm done to the European Communities’ financial interests16 of the term “Public Official” for all acts of corruption com- mitted by officials of international organisations in section Every person who, in the fields of expenditures or receipts of the Eu- 162a par. 2 lit. c).20 However, it is not clear if such a definition ropean Communities’ basic budget or budgets administered by or on behalf of the European Communities, uses or presents untrue, incor- pertains to EU officials because it is not evident whether the rect or incomplete information or documents or conceals such infor- European Union is an international organisation or not. Bet- mation or documents, and thereby enables inadequate use of funds ter clarification was achieved within the project introducing or the withholding of funds of such a budget or diminution of such a new common definition for foreign or international officials budget resources, shall be punished by a term of imprisonment of six by means of sections 309–313 or, more precisely, 411 of the months to three years or by prohibition to undertake activities. The same punishment shall be imposed on every person who, in the draft Criminal Code of the Czech Republic. The question of fields of expenditures or receipts of the European Communities’ ba- jurisdiction (Article 6 of the Protocol) is an explicit demand sic budget or budgets administered by or on behalf of the European for the introduction of the principles of territoriality and active

eucrim 1–2 / 2007 | 53 National Implementation of “Third Pillar” Legislation personality (sections 17 and 18 of the Czech Criminal Code). unfortunately also added several crimes typical for commissi- The Czech law is not in contradiction with such requirements. on by physical offenders and therefore subject to a system of However, the principle of passive personality – also menti- individual liability (rape, etc.). Several lobbying associations oned in Article 6 of the Protocol – is not directly applied in declared that the criminal responsibility of corporations is ob- Czech Criminal Law. It can be used only as a modification of viously the overzealous tendency of the state to criminalise the subsidiary universality principle (under section 20 of the commercial operations. The Minister of Justice was not well Czech Criminal Code). According to the draft Criminal Code prepared for discussions in Parliament and his reactions and (section 7 par. 2), the principle of passive personality would answers were not adequate and fruitful.21 The absence of the be introduced. liability of legal persons for criminal offences is one of the most significant failures of the Czech legislator to fulfil its ob- The Czech Criminal Law is compatible with the European ligations to the European Union.22 Court of Justice Protocol. Under section 9a of the Czech Code of Criminal Procedure, any court can send a request to the European Court of Justice to answer a preliminary question IV. Conclusions within the framework of criminal proceedings if the question lies in the power of the Court. According to Chapter 1 Article 1, par. 2 of the Czech Constitu- tion, the Czech Republic shall observe its obligations resulting The assessment of the implementation of the second Proto- from international law. In the case of the European Conventi- col to the PFI Convention is more critical. It has not yet been on on the Communities’ Financial Interests and its Protocols, submitted to the Government. On the one hand, the Czech Cri- this means that the Czech Republic is acting against its own minal Code contains sections 251a on money laundering and Constitution if the procedure of ratification is so time-consu- associated crimes. On the other hand, the question of crimi- ming, and it is uncertain when the ratification process will be nal responsibility/accountability of legal persons has not been accomplished. However, in spite of the lack of ratification, the conclusively dealt with in the Czech Republic. The proposal to protection of the financial interests of the European Communi- provide for this form of collective liability was rejected by the ties in the Czech Republic is, generally speaking, established. House of Deputies of the Parliament of the Czech Republic. Provisions of the Criminal Code, activities on the part of the Anti-Fraud Co-ordinating Service (AFCOS) system in the fra- Major reasons for the rejection of the draft law lay not only mework of administrative investigations of cases, and the co- in the conflict between two known opinions, i.e., whether the operation of competent authorities with OLAF are safeguards responsibility should be an administrative or a criminal one. for the basic protection of EU funds and the common currency. Some deputies stressed the lack of the subjective element of Nevertheless, a higher level of protection of the Communities’ the offence if committed by a legal person. Several objections financial interests in the Czech Republic could be achieved by have concerned the too wide a list of offences for legal perso- accomplishing the ratification of the PFI Convention and its ns. The Ministry of Justice proposed not only a list of offences Protocols and introducing a new common definition of crime corresponding to international treaties or conventions, but against the financial interests of the EC.

4 Second Protocol to the Convention on the protection of the European Communi- ties’ financial interests, OJ C 221, 19.7.1997, p. 12. Prof. Dr. Jaroslav Fenyk 5 It is necessary to add that considerable further instruments and measures con- cerning the subject had been taken till the time being, but none were so important Law Faculty Masaryk University Brno, as the PFI Convention and its Protocols. Association of Czech Lawyers for the 6 Article 10 PFI Convention requires Member States to transmit to the Commission Protection of the Financial Interests of the EC the text of the provisions transposing the PFI instruments into their domestic law. 7 Entry into force: 17. 10. 2002. 8 Section 132 of the Czech Criminal Code 1961 (text till the end of the year 1989). 9 Fraud occurs when a person enriches himself or another to the detriment of another person’s property by misleading another person, by taking advantage of another person’s mistake, or by withholding substantial facts, and thereby causing damage to another person’s property which is not negligible (CZK 5,000). 1 Convention on the protection of the European Communities’ financial interests, 10 Credit fraud occurs when a person provides false or grossly distorted data or OJ C 316, 27.11.1995, p. 49. conceals substantial data when concluding a credit (loan) contract or applying for a 2 Protocol to the Convention on the protection of the European Communities’ grant (intentional crime). financial interests, 11 Embezzlement occurs when a person who has been entrusted with the OJ C 313, 23.10.1996, p. 2. administration, management, or care of someone else’s property appropriates it. If 3 Protocol on the interpretation, by way of preliminary rulings, by the Court of the damage caused by embezzlement is less than CZK 5,000, it is dealt with under Justice of the European Communities of the Convention on the protection of the provision 50(1)(a) of the Misdemeanours Act. There is one main difference between European Communities’ financial interests, OJ C 151, 20.5.1997, p. 2. Embezzlement and Fraud crimes: In an embezzlement case, an offender is not

54 | eucrim 1–2 / 2007 PFI Convention in Hungary

sure that he will deceive somebody at the moment the act is committed. In the case 16 Official English translation of the text is not available, therefore an inofficial of fraud, an offender has the intent to deceive the other person before/or at the version has been provided by author of this article. moment the act is committed at the very latest (intentional crime). 17 At present, the new draft Criminal Code is in preparation. It is mainly based on 12 The offence occurs when a person essentially breaches the rules of economic a previous draft including a draft section protecting the financial interests of the EC. relations, as stipulated in generally binding statutory provisions, with the intention 18 Art. 5 of the PFI Convention. Because of the implementation of the European of acquiring for himself or someone else a substantial unjustified advantage. An Arrest Warrant, the text of the PFI Convention’s provision on extradition became offender shall be sentenced to up to two years of imprisonment, or to pecuniary redundant. penalty or to a prohibition of activity. An offender shall be sentenced to a more 19 Cf. Article 7 of the PFI Convention. severe penalty (6 months to 3 years of imprisonment) if, by committing the above- 20 The general definition of “Public Official” for Czech public officials is covered mentioned crime, he causes a serious disruption of economic activity or supplies by section 89 par. 9 of the Czech Criminal Code. of a substantial curtailment of state income (revenue). 21 The protocol of the 37th meeting of the House of Deputies of the Czech Parlia- 13 Founded 1998. ment in the first reading – Resolution 1327 (Parliament Press 745) on 2.11.2004. 14 Resolution No. 456 of 12 May 2005, drafted mainly by the Czech Anti-Fraud 22 According to OLAF representative, L. Kuhl, the Second Protocol was ratified Co-ordination Service (AFCOS). at the meeting of the EU Council working group for criminal substantive law by the 15 Explanatory report to draft code of criminal procedure of Ministry of Justice following new Member States: Cyprus, Lithuania, Latvia, Estonia, and Slovakia on (www.justice.cz). 30.5.2005.

Why Delays the Ratification of the PFI Convention in Hungary?

Prof. Dr. Ákos Farkas

I. Introduction Concurrently, with the ratification of the OECD Convention, Hungary amended its Criminal Code by Act LXXXVII of Twelve years have passed since the PFI Convention of 26 July 1998 and the new Title VIII on Crimes against the Propriety 1995 was signed.1 During this period, there were permanent of International Affairs was inserted in Chapter XV containing efforts on the part of the EU to urge the Member States to provisions on the purity of state administration, administration ratify the Convention and its Protocols.2 These efforts were of justice, and public life. A new amendment by Act CXXI of successful in the case of 15 Member States. These states had 2001 widened the scope of this chapter by separately crimina- ratified the Convention and the 1st Protocol by the endof lizing the bribery in justice and public administration in both 2002. The Convention entered into force on 17 October 2002. active and passive forms (Article 255 of HCC). Three years after the accession, the willingness to ratify the PFI Convention in the new Member States has decreased. This Sections 258/B-258/E regulate the criminal act of bribe- statement is also true for Hungary. In order to search for the ry within international relations. Without going into detail, reasons for the non-ratification, we have to go back before the I would like to emphasize that the already existing factual accession date of 2004. In the pre-accession period, Hunga- elements of bribery have been adopted in the regulations. ry attempted to fulfil all the requirements of the EU which This corresponds to the requirements of both the above- were prescribed in the regular reports of the Commission and mentioned conventions and the EU Convention on the fight to respond to the new challenges posed. At the end of the 90’s against corruption.3 Moreover, it goes beyond those requi- and beginning of the 21st century, Hungary introduced several rements, which did not require the declaration and punish- new regulations into Act IV of 1978 of the Hungarian Criminal ment of passive bribery as crime; the Hungarian law renders Code (hereinafter: HCC). The last modifications, which con- it punishable as well (Section 258/D). The scope of foreign cern our topic, were undertaken in 2001 by Act CXXI. officials was extended to all kinds of foreign officials. Prior to Act CXXI of 2001, the circle of foreign officials was com- prised only of (1) persons who served in international organi- II. Corruption zations as established by international treaties, provided that their activity was integral to the proper functioning of these Hungary ratified the OECD Convention on Combating Bribe- organizations, or (2) persons who were elected members of ry of Foreign Public Officials in International Business Trans- the assembly, public bodies of international organizations, or actions on 17 December 1997 and the Council of Europe Cri- who were members of an international court, provided that minal Law Convention on Corruption on 22 November 2000. their activity was integral to the proper functioning of the

eucrim 1–2 / 2007 | 55 National Implementation of “Third Pillar” Legislation court; in all cases it was a prerequisite that the Republic of prevented by fulfilling the obligation of supervision and con- Hungary has jurisdiction on its territory or over its citizens. trol of the leading official of the legal person.

Act CXXI of 2001 narrowed the scope of “advantage”, which is one of the elements of the legal definition of bribery. Prior V. Financial Control and Subsidy Fraud to this Act, the notion of “advantage” included all types of advantages. The Act limited them to “unlawful” advantages. By the end of the 90’s, the regular Commission reports on Hungary’s progress towards accession criticized that only a basic system of control and recovery of EC funds existed in III. Money Laundering Hungary and proposed more expedient procedures.5 The 2002 Report already stated that an anti-fraud inter-ministerial co- Hungary also ratified the Council of Europe Convention on ordination Committee had been created in November 2001, Laundering, Search, Seizure and Confiscation of the Proceeds which is to contribute to safeguarding the financial interests from Crime on 2 March 2000. Money laundering has been a of the Community.6 The AFCOS unit now exists within the crime in Hungary since 1994. Since then, the definition of the organization of the Hungarian Customs Service under the Mi- offence was amended four times. Chapter XVII Sections 303– nistry of Finance. By the end of 2000, the definition of fraud 303/B on Money Laundering was last amended by Act CXXI of did not fulfil the criteria of protecting the Communities’ finan- 2001. The characteristics of these provisions are that not only cial interests. The definition of fraud, which is based on the the laundering of the proceeds of crime by the offender is punis- classical criminal law elements, did not provide a solution for hable, but also the laundering of the proceeds of crimes commit- this problem. The requirements for the accession of Hungary ted by persons other than the money launderer himself. to the EU were the creation of new criminal rules in this field. This problem was resolved by the above-mentioned Act CXXI of 2001 which amended Chapter XVII on Economic Crimes. IV. Criminal Liability of Legal Persons Title IV of the HCC now contains a new section on the “bre- ach of the financial interests of the European Communities”.7 The debate on the liability of legal persons began at the end Section 314 practically repeats the wording of the definition of of the 90’s. By then, the main obstacle to the liability of legal fraud of Article 1–3 of the PFI Convention. entities was the classical doctrinal system of criminal law which was and is based on the constitutional principle of culpability The offence can be punished with no more than 5 years of of natural persons. The second counter-argument was that the imprisonment. According to paragraph 3, the offender can be international conventions – except for the Council of Europe punished with no more than 5 years of imprisonment if he or Criminal Law Convention on Corruption – do not require the she is the head of a business, or a member or employee of creation of criminal liability of legal persons. These arguments a firm entitled to supervise or control its activity according were supported by several leading law experts and academics.4 to the firm’s statutes, assuming that he or she committed the breach of financial interests of the EC in favour of the firm The solution – which was also politically motivated – was a and that the crime could have been prevented by fulfilling the compromise. The individual liability of natural persons re- obligation of supervision and control. mained the basic principle of the criminal law, but Act CXXI of 2001 introduced a new criminal measure into the HCC against legal entities. Act CIV of 2001 to amend the criminal VI. Conclusions law introduced measures against legal persons in Section 70 point 8 HCC. The detailed rules of these measures are con- These regulations were positively evaluated by the 2002 Re- tained in Articles 1–6 of Act CIV of 2001 on the criminal law gular Progress Report of the Commission. However, since rules applicable to legal persons. Potential sanctions against 2001, no criminal law provisions have been created. It would legal persons are the termination of the legal person, restric- have been logical for the Hungarian Government to submit the tion of its activity, and fines. PFI Convention and its Protocols to Parliament for ratification shortly after Hungary’s accession to the EU, as it did in other As far as the personal scope is concerned, these rules are appli- cases, even though there is no deadline for transposition of the cable to legal entities if the crimes were intentionally commit- PFI Convention in the new Member States. ted in order to gain pecuniary advantage for that entity and the crime was committed in the sector of activity of the entity by The silence has three main reasons: The first general reason an executive director, a member of the supervisory board, an must be seen in close connection to national sovereignty. It official, a member of the legal person who has the power to re- seems obvious that, in the Member States of the European Uni- present the legal person or is an authorized person of the legal on, complete national sovereignty in the field of criminal law no person. The second group of offenders can be the members/ longer exists. The various framework decisions of the past eight employees who committed the crime in the sector of activity years relating to criminal law and criminal procedural prove that of the legal person, provided that the crime could have been the approximation of the rules of criminal law and procedure is

56 | eucrim 1–2 / 2007 Second Evaluation Report on the European Arrest Warrant unavoidable. Despite this development, the Member States are tion of the ECs’ financial interests. Leading to the current cri- attempting to preserve the remains of their sovereignty as long minal law, the Act CXXII of 2001 is the clause for the harmo- as it still can be done. One of the techniques is to remain silent nization of the area of the protection of the financial interests. and act as if the PFI Convention had been forgotten. It takes into consideration the following: • Articles 1–3 of the Convention on the protection of the Eu- The second reason is that the transformation of the legal system ropean Communities’ financial interests, was only intended for accession purposes. It was a task which • Articles 1–3 of the First Protocol to the Convention on the had to be fulfilled. Hungary did it and is now inside the door- protection of the European Communities’ financial interests, way as a member of the EU. After the accession, Hungary is in and no hurry in this field. If the EU urges the ratification, it can refer • Articles 1–2 and 5 of the Second Protocol Convention on the to the rules of the Hungarian criminal law which guarantee a protection of the European Communities’ financial interests. solid basis for the protection of the ECs’ financial interests. It should be noted that approximately thirty investigations The third reason – being synonymous with the official stand- were initiated by either the Hungarian Police or Customs Ser- point of Hungary – is that Hungary has fulfilled the obligations vices under these new rules in the past three years but, so far, of harmonization of criminal law rules concerning the protec- only one case has been brought before the court.

1 Convention on the protection of the European Communities’ financial interests, OJ C 316, 27.11.1995, p. 49. Professor Dr. Ákos Farkas 2 Protocol to the Convention on the protection of the European Communities’ financial interests, OJ C313, 23.10.1996, p. 2; Protocol on the interpretation, by J.D (1980), PhD (1995), hab. (2001), Professor of criminal way of preliminary rulings, by the Court of Justice of the European Communities’ procedure and prison law of the University of Miskolc (2002), financial interests, OJ C151. 20.5.1997, p. 2; Second protocol to the Convention Professor of the University of Debrecen (2002), Director of on the protection of the European Communities’ financial interests, OJ C 221, the Institute of Criminal Justice of the University of Miskolc 19.7.1997, p. 12. (2006); President of the Association of Hungarian Lawyers 3 Convention drawn up on the basis of Article K.3 (2) of the Treaty on European for European Penal Law (1997) Union on the fight against corruption involving officials of the European Communi- ties or officials of Member States of the European Union, OJ C 195, 25.6.1997, p. 2. 4 Erdei, Árpád (2000) Hogyan lehet terhelt a jogi személyből avagy a jogi felfogás változásának ára. In: (ed.Gellért,Balázs) Békés Imre Ünnepi Kötet, ELTE Állam- és Jogtudományi Kar, Budapest; Sárközy, Tamás (2002) Büntetőjogi intézkedések a jogi személyekkel szemben? Magyar Jog 7 6 2002 Regular Report on Hungary’s progress towards accession, COM(2002) 5 2000 Regular report from the Commission on Hungary’s progress towards 700 final, p. 113. accession of 8 November 2000 p.77. 7 The regulation came into force after the accession of Hungary to the EU.

The Implementation of the European Arrest Warrant into National Law

The Second Evaluation Report of the Commission

Isabelle Pérignon1

I. Introduction work Decision in all 27 Member States until 1 June 2007.3 Indeed, since 1 January 2007, Bulgaria and Romania have On 11 July 2007, the Commission adopted its second report begun applying the European Arrest Warrant. The first eva- on the implementation of the Framework Decision on the luation by the Commission was made in accordance with Ar- European arrest warrant and surrender procedures between ticle 34 of the Framework Decision4 and revised by a report Member States (the “Second Report”).2 This is the first time on Italy published in January 2006.5 The evaluation criteria that a report has covered the implementation of the Frame- used by the Commission for these reports are the general

eucrim 1–2 / 2007 | 57 National Implementation of “Third Pillar” Legislation criteria now normally applied in order to evaluate the imple- arrangements for offences committed prior to a certain date. mentation of framework decisions (practical effectiveness, Three Member States, namely the Czech Republic, Luxem- clarity and legal certainty, full application, compliance with burg, and Slovenia, apply transitional provisions in breach the time limit for transposition) and criteria specific to the of the Framework Decision. The Italian implementation law arrest warrant; principally, the fact that it is a judicial instru- states, however, that its provisions apply only to requests for ment, its efficiency, and its rapidity. This Second Report is the execution of European Arrest Warrants issued and recei- particularly important since it not only details both the con- ved after the entry into force of the Italian law, i.e. prior to tent of the implementing laws in all 27 EU Member States, 14 May 2005; this is not in conformity with the Framework but also refers to the situation in practice with the support Decision. of the practical evaluations led by the General Secretariat of • the surrender of nationals: Austria notified the Coun- the Council and in which the Commission participates.6 cil that it will make use of the special clause in Article 33 which explicitly allows Austria to suspend the extradition of its own citizens. Due to the decision of the German Federal II. The European Arrest Warrant in Practice: Success in Constitutional Court, Germany stopped the surrender of the Face of Initial Transposition Hurdles German citizens between 18 July 2005 and 2 August 2006. The Czech Republic and Cyprus authorise the surrender of The Commission confirms that the European Arrest Warrant is their nationals only for offences committed after certain a success.7 The Commission refers in its Second Report to the dates (see III. below). widespread use of European Arrest Warrants in all Member States. Indeed, the number of European Arrest Warrants issued All the constitutional difficulties that occurred in several for the year 2005 was over 6900. This represents more than a Member States and especially in Germany9, Cyprus10, and doubling compared to 2004. Unofficial figures for 2006 con- Poland11 have now been overcome. Today, there are no longer firm this upward trend from year to year. Of the 6900 EAWs, any obstacles to the application of the European Arrest War- 1770 persons were identified and arrested and 1532 persons rant. Some provisions of the implementing laws of Cyprus were effectively surrendered in 2005, corresponding to a very and Poland and the whole of Germany’s law12 had indeed good rate of 86 % (60 % in 2004).8 In addition, persons were been declared unconstitutional in 2005 by their respective surrendered within the time limits set out by the Framework Constitutional courts. Following these decisions, Cyprus and Decision: 42 days in practice if the person does not consent to Poland amended their Constitutions, respectively. Germany his/her surrender, 10 days if the person consents. Surrenders had to pass a second law in order to implement the Frame- are being effected within much shorter time periods than in work Decision, the first having been declared unconstitu- the past. On average, the time taken to execute requests, which tional and void by the Bundesverfassungsgericht (German used to be approximately one year under the old extradition Federal Constitutional Court) on 18 July 2005 (Darkazanli procedure, has been sharply reduced. However, despite this Case).13 Cyprus also initiated a revision of its constitution average, it cannot be overlooked that certain countries (Ireland which came into force on 28 July 2006. and the United Kingdom) take much longer and even exceed the maximum time limits set out in the Framework Decisi- In Poland, despite its ruling against some provisions of the on – a fact that the Commission very much regrets. In 2005, implementing law, the Polish Constitutional Court delayed the Commission noted approx. 80 cases (scarcely 5 % of sur- the entry into force of its judgment for 18 months from its renders) where the 90-day time limit set in Article 17(4) of date of publication so that the Parliament would have en- the Framework Decision had not been respected. The Com- ough time to amend the Constitution and the provisions mission also outlines that more than one fifth of the persons could be enacted properly. However, difficulties still exist surrendered in the year 2005 pursuant to the European Arrest since a EAW issued against a Polish national can only be Warrant procedure were nationals of the executing Member executed if the offence for which the European Arrest War- State. This is an important and interesting figure since, under rant is issued has not been committed on Polish territory and the old regime of extradition, nationals were not extradited. constitutes an offence under Polish law.

The total number of requests exchanged between Member In addition, the constitutionality of the Framework Decisi- States has risen sharply. The European Arrest Warrant has on was upheld by the European Court of Justice on 3 May therefore not only virtually replaced the extradition procedu- 2007 in the ‘Advocaten voor de Wereld’ case.14 In this case, re within the European Union, but its use is now much more a non-profit association, Advocaten voor de Wereld, lodged widespread thanks to its advantages. The remaining cases of an appeal before the Belgian Court of Arbitration against non-application mainly concern certain restrictions on: the law of 19 December 2003 which transposed the Frame- work Decision in Belgium on the grounds that it was in- • the transitional application of the European Arrest War- compatible with Articles 10 and 11 of the Belgian Consti- rant: France, Italy, and Austria made the appropriate state- tution. The Constitutional Court stayed the proceedings and ments as set out in Article 32 of the Framework Decision; referred two questions to the Court of Justice for a preli- as a result, these states will apply the previous extradition minary ruling. The first question dealt with the Framework

58 | eucrim 1–2 / 2007 Second Evaluation Report on the European Arrest Warrant

Decision’s compatibility with Article 34(2)(b) TEU, which carefully taken into consideration. Indeed, the new German provides that framework decisions may be adopted only for implementing law, in effect since 2 August 2006, provides the purpose of approximation of the laws and regulations of for the surrender of nationals only in exceptional cases. In its the Member States. The second issue was the conformity of new implementing law, which followed the guidelines given the abolition of double criminality checks with Article 6(2) by the Federal Constitutional Court in the above-mentioned TEU; more particularly the Belgian court questioned the judgment, Germany makes a distinction between three ca- conformity with the principles of legality in criminal matters tegories of cases. First, cases which contain predominantly as well as equality and non-discrimination guaranteed by that “national elements” should not give rise to surrender. Se- provision.15 In his conclusions, Advocate-General Colomer cond, cases which contain predominantly “foreign elements” stated that the Framework Decision was not contrary to Ar- automatically justify surrender to the requesting Member ticles 34(2)(b) TEU and 2(2) of the Framework Decision on State. Third, in “mixed cases”, i.e., cases where national and the European arrest warrant and that it infringed neither the foreign elements of the case are in balance, the German judge principle of legality in criminal matters nor the principle of must verify the double criminality requirement before orde- equality and non-discrimination. In its judgment, the Court ring execution of the European Arrest Warrant. It is this third followed the Advocate-General’s opinion and rejected all the category of cases that worries the Commission. arguments advanced by the Belgian association. The Commission report also finds fault with the imposition As an interim analysis, it can be concluded that the balance of additional conditions as regards the guarantees to be given sheet regarding the surrender system introduced by the Fra- by the issuing Member State in particular cases (cf. Article mework Decision is largely positive but difficulties remain. 5 of the Framework Decision). Malta20 and the United King- dom impose conditions not envisaged in the Framework De- cision in relation to decisions rendered in absentia (Article III. Remaining Difficulties: More Still Needs to Be Done 5(1)); conditions set by the Netherlands and Italy run counter to Article 5(3) which regulates the guarantee on the return of The Commission underlines in its Second Report, however, nationals or residents of the executing Member State. The re- that some issues remain which had already been identified in quest for particulars or documents not mentioned on the form the first report. The first remaining issue is the reintroduction (cf. Article 8(1) of the Framework Decison) is also worrying of the double criminality requirement for offences listed in (this is the case for the Czech Republic, Italy, and Malta). In the thirty-two categories of Article 2(2) of the Framework practice, some countries (the United Kingdom and Ireland) Decision.16 It is worrying to see that some Member States seem to almost systematically ask for additional information have reintroduced this requirement in their implementing na- or even insist on the arrest warrant being reissued – a re- tional laws. In addition, a double criminality check is some- quirement which poses problems for certain countries whose times still carried out in practice by the judge, even if the legislation does not allow such a request. The requirements implementing national law is correct. also lengthen proceedings considerably.

Additional grounds for refusal have been incorporated by Without going into detail, the following issues are also wor- some Member States. Indeed, the Framework Decision pro- thy of mention. Some Member States have appointed an exe- vides for limited grounds for refusal that have been strictly cutive body as the competent judicial authority for issuing enumerated. In contrast, several Member States have added and/or executing a European Arrest Warrant (cf. Article 6); grounds for refusal that are not provided for in the Framework Denmark is not in conformity in whole, and Germany and Decision. In transposing the Framework Decision, Italy, for the Baltic countries (Estonia, Latvia, and Lithuania) in part. instance, multiplied the grounds for refusal.17 For example, In addition, the role of central authorities is problematic. Be- an Italian judge can refuse to execute a European Arrest War- aring in mind that Article 7 of the Framework Decision only rant if the requested person is pregnant or the mother of a assigns the mere role of facilitating cooperation to central child younger than three years of age, except in extremely authorities, several Member States (for instance, Estonia or serious circumstances, or if the requested person is an Italian Ireland) are not in line with the norm because they entrust citizen who did not know that the conduct was prohibited. decision-making powers to the central authorities. Finally, An Italian judge can also refuse to execute a European Arrest insufficiencies are apparent as regards the implementation of Warrant if the requested person is subject to an indefinite pe- time limits and procedures for the decision to execute the Eu- riod of preventive custody, a situation which causes difficul- ropean Arrest Warrant (Article 17): the stipulated maximum ties for Belgium and Luxemburg for example.18 period of 90 days within which a EAW must be executed may be exceeded in the event of a final appeal (France, Italy). Another problematic issue is the surrender of nationals. As Due to the absence of a maximum time limit for the decision mentioned above, nationals are now surrendered thanks to of higher courts in several Member States (the Czech Repu- the Framework Decision. However, some countries restrict blic, Malta, Portugal, Slovakia, and the United Kingdom), this possibility ratione temporis, such as Cyprus and the the adherence to the time limits of Article 17 is thus rendered Czech Republic.19 The situation in Germany also needs to be impossible.

eucrim 1–2 / 2007 | 59 National Implementation of “Third Pillar” Legislation

IV. Conclusion − always with full respect for fundamental rights. Neverthe- less, the list of Member States which need to make an effort In its second report on the implementation of the Framework to comply fully with the Framework Decision (in particular, Decision on the European arrest warrant, the Commission the Czech Republic, Denmark, Estonia, Ireland, Italy, Cyprus, confirms the general conclusions drawn with respect to 2004. Luxemburg, Malta, the Netherlands, Poland, Slovenia, and the Despite an initial delay of up to 16 months (Italy) and hiccups United Kingdom) is still a long one. Given its nature, the pre- caused by constitutional difficulties in at least two Member sent evaluation is without prejudice to any future in-depth ana- States (Germany, during part of 2005 and 2006, and Cyprus), lysis of practice. Hence, the Commission is also fully taking the implementation of the Framework Decision has indeed part in the mutual evaluation exercise (peer review) concer- been a success. The European Arrest Warrant has been ope- ning the application of the European Arrest Warrant and seeks rational throughout all the Member States, including Bulgaria in the presented report and its enclosed annex to underscore and Romania since 1 January 2007. Its positive impact is wit- the practical aspects of the Framework Decision’s implemen- nessed daily in terms of judicial control, efficiency, and speed tation in the 27 Member States.

July 2005 decided that the implementing law was null and void on the grounds that it was contrary to Article 16(2) and Article 19(4) of the Basic Law. The judgment can Isabelle Pérignon be downloaded via the following link: http://www.bundesverfassungsgericht.de/en/ press/bvg05-064en.html. The new implementing law entered into force on 2 August Administrator – Directorate-General Justice, 2006 (see: http://www.bgblportal.de/BGBL/bgbl1f/bgbl106s1721.pdf). Freedom and Security, European Commission 10 Decision of the Cypriot Supreme Court of 7 November 2005. The Cypriot constitutional amendment entered into force on 28 July 2006. 11 In Poland, the Constitutional Court on 24 May 2005 struck down Article 607t(1) of the Code of Criminal Procedure on the grounds that it was contrary to Article 55 of the Constitution which prohibited the extradition of nationals. Article 55 of the Polish Constitution was amended on 7.11.2006 and the Polish Code of Criminal Procedure accordingly on 26 December 2006. 12 S. Molders, The European Arrest Warrant in the German Federal Constitutional 1 The opinions expressed in this article are personal views and do not bind the Court, German Law Journal 1/2006, p. 45–57. institution to which the author belongs. 13 F. Geyer, The European Arrest Warrant in Germany – Constitutional Mistrust 2 Framework Decision on the European Arrest Warrant and surrender procedures towards the Concept of Mutual Trust, in: Elspeth Guild (Ed.), Constitutional between Member States of 13 June 2002, OJ L 190 of 18 July 2002, p. 1. challenges to the European arrest warrant, Nijmegen 2006, p. 101–124. See also 3 COM(2007) 407 and its Annex SEC(2007) 979. H. Ahlbrecht, Europäischer Haftbefehl im Interim, eucrim 1-2/2006, p. 39–44. 4 The first report was published on 23 February 2005, COM(2005) 63 final and 14 Case C-303/05 Advocaten voor de Wereld, 3 May 2007, judgment has not yet SEC(2005) 267. been published in the Report of Cases (see www.curia.europa.eu). 5 The revised report on Italy was published on 24 January 2006, COM(2006) 8 15 L. Walleyn, The Belgian Court of Arbitration and the European Arrest Warrant, final and SEC(2006) 79. in Elspeth Guild (Ed.), Constitutional challenges to the European Arrest Warrant, 6 The Commission used the declassified evaluation reports produced for Belgium Nijmegen 2006, p. 137–139; A. Weyembergh, Les juridictions belges et le mandat (16454/1/06 REV1 COPEN 128 dated 3 January 2007), Denmark (13801/1/06 d’arrêt européen, eucrim 1-2/2006, p. 26–29. REV1 COPEN 106 dated 6 December 2006), and Estonia (5301/01/07 REV1 16 The thirty-two categories of offences are extracted from the Europol Conventi- COPEN 6 dated 20 February 2007). on and its annex. 7 S. Combeaud, Premier bilan du mandat d’arrêt européen, Revue du Marché 17 Law No 69/2005, Gazzetta Ufficiale No. 98, which came into force on 14 May Commun et de l’Union Européenne, n°495, 114–124 (2006); S. Combeaud, Imple- 2005. mentation of the European Arrest Warrant and the Constitutional Impact in Member 18 See article by E. Selvaggi in this issue. States, in: Elspeth Guild (Ed.), Constitutional challenges to the European Arrest 19 A Cypriot national cannot be surrendered for facts committed prior to the 1st Warrant, Nijmegen 2006, p. 187–194. May 2004, whereas a Czech national will not be surrendered for facts committed 8 Statistics for the year 2005 as communicated by 23 Member States (COPEN 52 before 1 November 2004. REV 4 and COPEN 52 REV 5 of 18 January 2007). 20 Malta meanwhile modified its domestic legislation, so that it is now in line with 9 The Bundesverfassungsgericht (German Federal Constitutional Court) on 18 Art. 5(1).

60 | eucrim 1–2 / 2007 Implementation of the European Arrest Warrant in Italy

Euroscepticism versus Building a Common System for the Surrender of Fugitives

The Implementation of the European Arrest Warrant in Italy

Eugenio Selvaggi

Italy was one of the latest countries, together with the Czech courts and courts which ordinarily deal with the surrender of Republic, which implemented the Framework Decision (FD) fugitives should be duly considered. If one accepts the idea of on the European arrest warrant and the surrender procedures a common legal system in this domain, it goes without saying between Member States (hereinafter: EAW) in its domestic that courts applying mutually agreed upon laws must aim to system. Since the new provisions of the Italian law appeared interpret them in line with common principles.4 to be inconsistent with the European decision in several parts, Italian courts, in particular the Italian Supreme Court of Cas- A conclusion may be drafted to this extent: when interpreting sation, interpreted the national legislation in such a way as to and applying the FD on the EAW, it appears crucial and un- ensure consistency with the new European system of the sur- avoidable to have this more general scenario in mind. This is render of fugitives that has replaced the traditional system of why – unlike the practice in the past – almost all legal reviews extradition among the Member States of the European Union. in Italy now have sections which report on decisions of Euro- The present contribution intends to give an overview both on pean and foreign courts. the way Italy has implemented the European decision as well as on the said decisions made by Italian courts. II. Positions as to the Implementation of the European Arrest Warrant in Italy I. Preliminary Remarks: From a Domestic to a Multilevel System Italy implemented the Framework Decision by means of law no. 69 of 22 April 2005.5 It is worth mentioning that the Fra- It is nowadays widely accepted among judges, prosecutors, mework Decision itself was subjected to a great deal of criti- and other practitioners that domestic legal systems are of a cism in Italy immediately following its adoption. Some criti- multilevel nature: not only are provisions that have originated cism was the result of a eurosceptical attitude, i.e., particularly elsewhere than in one’s own country to be applied but the case politicians, but also lawyers, were not ready to accept the idea law and jurisprudence of other European countries are also to that, in criminal matters, the sovereignty of States is no longer be taken into account. This is true, in particular, as regards the the golden rule. Leaving aside these rather political criticisms, new system for the surrender of fugitives from one jurisdiction academics put forward more substantial concerns. They ar- to another within the new framework of the European Arrest gued that the establishment of a common platform would have Warrant. In fact, one might say that a common European pro- implied first ensuring (at least a certain degree of) uniformity cedure on a small scale has been created with the EAW.1 in substantive criminal law among different legal systems in the EU. This issue becomes even more crucial if the lack of In this context, the Court of Justice of the European Communi- democracy in the decision-making process in the EU is taken ties comes into consideration first. In particular, reference must into account; fundamental decisions are not taken by the Par- be made to the Court’s recent decision on the EAW in response liament whereas it is a general and standard rule in national to a request of the Belgian Constitutional Court (Arbitrage- legal systems. hof). However, other judgments are important too, including the one stating the need for national courts to apply domestic Although I would not rule out that the original idea behind the legislation in conformity with framework decisions (Pupino EAW was a revolutionary one – i.e., a “foreign” arrest warrant case) and those on the ne bis in idem principle.2 Likewise, the can be executed identically in any place of the European ju- European Court of Human Rights (ECtHR) plays an important dicial space − it already became clear during the preparatory role in this respect, in particular its case law on article 5 of the works on the Framework Decision that the delegations could Convention for the Protection of Human Rights and Funda- more easily reach an agreement on the grounds that extradition mental Freedoms (ECHR).3 should be simplified and streamlined among the Members of the EU: the surrender of a fugitive should not be treated in the Yet the scenario is not limited to the above-mentioned Europe- same way within the European Union (e.g., between Italy and an courts alone. Decisions of national courts in other EU Mem- France) as it is regulated between EU Member States and other ber States should also be taken into account, i.e., constitutional countries outside the EU (e.g., between Italy and Azerbaijan).

eucrim 1–2 / 2007 | 61 National Implementation of “Third Pillar” Legislation

Of course, the idea of mutual recognition was − and indeed tutes a further specific ground for refusal, the background of is − the “cornerstone” of the entire system, so it is difficult to which is based on the Italian Constitution: according to article say whether the EAW is a modernized fashion of extradition 13 of the Italian Fundamental Charta, deprivation of liberty (a species of a genus that comprises the surrender of a fugi- is possible only where expressly provided for by law, and the tive from one jurisdiction to another jurisdiction) or something law itself has to establish strict terms for pre-trial detention.9 entirely new. However, this discussion seems rather theoretic. According to some experts10 the Italian “EAW provision” on pre-trial detention is a clear example of an italocentric atti- Most judges and prosecutors and other practitioners in Italy tude. This means that one’s own system is considered the best looked at the novelties of the EAW in a favourable way. In in the world. The latter comment is not ill-founded if one takes particular, they accepted the essence of the new system, i.e., into account particularly the jurisprudence of the ECtHR on when deciding on whether a person is to be surrendered to this issue and the fact that other legal systems − in contrast another jurisdiction, all political assessment is eliminated and with the Italian one − are considered to be more respectful of everything put in the hands of the judicial authorities.6 the freedom of individuals and more in line with the case law of the ECtHR in practice.

III. Major Inconsistencies with the Framework Decision in Italy IV. Reaction of the Italian Court of Cassation

As implied before, most Members of the Italian Parliament The aforementioned two issues were also the subject of decisi- were not supporters of the new system. As a result, law no. ons rendered by the Italian Supreme Court of Cassation. As a 69/2005 did not appear to be in line with requirements of the result, the Italian Court of Cassation limited the impact of the Framework Decision.7 This is the case, for instance, as to the domestic provisions on the EAW cited above. The decisions grounds for refusals which had been listed as discretional in must be considered as favouring an interpretation of the natio- the Framework Decision but were implemented as mandatory nal law in line with the scope of the Framework Decision. in the Italian law. Furthermore, other grounds for refusal have been introduced that were not included in the Framework De- a) As to the evidential requirement, the Court of Cassation cision, such as the grounds for refusal in cases in which the rendered two decisions which were the first ones on the EAW person sought is a pregnant woman. In the following, I will in Italy. With the decisions of 13 and 23 September 200511 the describe in more detail two issues which also became relevant Court of Cassation clarified that the assessment of evidence in the decisions of the Italian Court of Cassation (see IV). provided for by the Italian law cannot to be interpreted as a fresh assessment regarding whether there is a probable cause a) Evidential requirement. According to article 17, para 4 of (that the person sought did commit the crime) because this is a Italian law no. 69/2005, surrender is to be refused in the ab- matter for the judge of the State where the trial is to be carried sence of adequate evidence of the crime (this, of course, ap- out. The Italian judge (the court of appeal, according to the plies in a case where the surrender is requested for prosecuti- domestic system) can only check whether the foreign arrest on). In substance, this means that a requirement of prima facie warrant (the one of the issuing State) contains a reference to (or probable cause) was introduced by Italy. If one considers evidence, so as to make sure that the foreign authority con- that such a prerequisite is not even provided for by the Council sidered the probable cause when issuing the warrant dome- of Europe Convention on Extradition of 1957, it appears that stically. As a result, the Italian law providing for a refusal on the Italian law even went backwards in respect of the extradi- grounds of evidence would be applicable according to the case tion system which the EAW had intended to improve upon! law of the Court of Cassation if (1) a foreign arrest warrant ex- In addition, the evidential requirement leads to an evaluation pressly indicates that no evidence was taken or found against of criminal liability by the executing Italian court.8 Normally, the person sought or (2) there is evidence that he/she did not this is something which pertains to the judge who is competent commit the crime. Apparently, both considerations are more for the criminal trial because the ratio of the (extradition and) or less hypothetical. In my view, the Italian law would also EAW procedure is a sort of complementary procedure which apply if the foreign arrest warrant is based only on evidence is instrumental in facilitating the procedure establishing cri- that is considered illegal in the Italian system − for example, minal liability and based on solidarity among the States of the a statement taken by means of a lie detector (not to mention International Community in fighting crime. This also matches cases where the mental and physical integrity of the accused the interest of the State where the crime was committed in pur- was gravely violated, such as statements gained by torture). suit of justice and the interest of other States in avoiding their countries becoming dens of criminals. b) On 30 January 2007, the Court of Cassation delivered a Grand Chamber (Sezioni Unite) judgment on the ground for b) Pretrial detention. According to the Italian implementation, refusal as to pre-trial detention (Ramoci case).12 a European Arrest Warrant must be refused if the legal system The facts of the case can be summarised as follows: Mr. of the issuing State does not provide for legal provisions that Ramoci, a Serbian citizen, was arrested in Italy after an EAW stipulate maximum terms of pre-trial detention. This consti- had been issued by a German judge on the basis of a domes­­tic

62 | eucrim 1–2 / 2007 Implementation of the European Arrest Warrant in Italy arrest warrant (Haftbefehl) for attempted homicide. The Ita- 3. Looking at the systems of the European Union (or of the lian Court of appeal, which was competent as to the execu- Council of Europe), one might say that there is no uniformity tion of EAW, rendered a decision in favour of the surrender. in legislations to this extent. It is then crucial to make refe- It noted that, in reference to the ground of refusal stated in rence to the jurisprudence of the ECtHR on this item, which is article 18, lit. c of law no. 69/2005 (surrender is to be refused not incompatible with the provision (article 13) of the Italian if the legal system of the issuing State does not provide for constitution. maximum terms of pre-trial custody), it is up to the arrested person to prove that the foreign legislation does not contain 4. It is important and decisive that the legal system of the is- such provisions. The accused then lodged an appeal with the suing State provide for a periodical evaluation as to the need Court of Cassation arguing that the Italian law did not have to to retain the person concerned in custody and provide for a be applied. The Court of Cassation rejected the appeal on the release of the person should such a prerequisite be lacking, and following grounds: this was the case in the German legislation.

1. The judgment of the European Court of Justice in the Pupino case had to be taken into account. Domestic provi- V. Conclusion sions are to be interpreted in conformity with the relevant European acts. This is particularly true where the national The reason for this brief presentation is not only to provide law led to its implementation. As a consequence, the dome- information as to the Italian law and the relevant case law, but stic provision providing for a refusal where the legal system also to give evidence on the need to make reference to a wider of the issuing State does not provide for maximum terms of scenario than the one resulting only from domestic provisions. pre-trial custody, is to be interpreted in a way that does not Of course, not everything which glitters is gold. Lacunae are contradict the FD on the EAW which does not indicate such not only in the Italian law implementing the FD on the EAW, a ground for refusal. but also in the European instrument itself. As an example: if the person whose surrender is requested is a citizen of the exe- 2. The FD (recital no. 12) expressly mentions the common cuting State, questions arise as to the mechanism to be used principles indicated in article 6 of the European Union Trea­ in order to have the person returned back to his/her country ty, which also makes reference to the European Convention of origin in order to serve the sentence or have that person on Human Rights. According to the latter (article 5), no fixed serve the sentence directly in the country of origin. Is the FD terms for pre-trial custody are prescribed and, even where this on the EAW the only legal basis for the return or must a refe- occurs in given legal systems, a violation of the convention rence be made to the Council of Europe Convention of 1983 is not therefore excluded, provided that the delay of custody on the Transfer of Sentenced Persons? In the latter case, is the may nonetheless be ascertained13. The Court of Cassation also convention applicable in toto or would it be applied mutatis mentions Recommendation (06) 13 of the Council of Europe mutandis? The Italian experience is that the provision con- where it was recommended that States insert in their legislati- tained in the Framework Decision is not applied in practice. ons “continuous review” as to pre-trial detention − “at regular This might also depend on the lack of specific provisions in the intervals” − noting that systems that provide for maximum pe- Italian law of implementation, but it seems that the surrender riods only may not sufficiently ensure (although perhaps faci- of citizens gives rise to problems in many jurisdictions. There- litate) the respect of the fundamental right at stake. fore, a reflection on this matter appears necessary.

1 There is no doubt that the European Convention on Extradition of 1957 (ETS No. 24) already contained some common basic provisions, but they were poor in number; for instance, the one providing for a release of the person arrested in view Eugenio Selvaggi of extradition if the requesting State hadn’t sent the request within the term set in Deputy of the Prosecutor General in the Supreme Court of article 16 para 4. Cassation, President of the Italian Association of European 2 The judgment on the European Arrest Warrant dates from 3 May 2007; the one Lawyers for the Protection of the Financial Interests of in the Pupino case was delivered on 16 June 2005; the first judgment on ne bis in the EC (EURGIT), Contact Point of the European Judicial idem dates from 11 February 2003 (Gözütok and Brügge) and the latest decisions Network – Rome were rendered in the Kretzinger and in the Kraaijenbrink cases, both on 18 July 2007. 3 It is well known that, according to the European Court of Human Rights, article 6 (fair trial) does not apply to extradition; the question is whether this case law can be maintained in relation to the EAW. 4 Relevant is, for instance, the decision of the House of Lords (UK) of 11 February 2007 which states that domestic provisions implementing the Framework Decision an EAW by Italy where they had been sentenced in absentia and surrendered to on the EAW should not be applied if they were inconsistent with it. It is also interest- the issuing State. The Dutch authority did not ask for guarantee as to the renewal ing to cite two decisions of the Dutch court (Rechtbank-Internationale Rechtshulp- of the trial; this was decided on the basis of the fact that the persons concerned, kamer) of 10 and 31 March 2006. In these cases, persons were sought by means of although not notified in person, were nevertheless familiar with the criminal

eucrim 1–2 / 2007 | 63 National Implementation of “Third Pillar” Legislation

proceedings in Italy. Such a decision appears to be in line with the latest decisions example of a national constitution going even further than the principle stated in the of the ECtHR on the balance between fair trial and trial in absentia (see inter alia European Convention on Human Rights as interpreted by the ECtHR. Some ex- ECtHR, Grand Chamber judgment of 1 March 2006, Sejdovic v. Italy). perts consider the introduction of this specific ground for refusal possible because 5 Cf. S. Manacorda, Notes sur la loi italienne portent mise en oeuvre du mandate recital no. 12 of the FD on the EAW ensures the right of Member States to respect d’arret europeéen (loi du 22 avril 2005, n° 69) in eucrim 1-2/2006, p. 33–35. the principles of national constitutions. 6 However, some States maintained a political involvement when they imple- 10 See E. Selvaggi, L’attuazione del mandato europeo d’arresto, in Cassazione mented the EAW. In doing so, they simply stated that, to this extent, the relevant penale, 2003, p. 3651. authorities are considered as judicial authorities (see the way the FD has been 11 The decisions have been published in the review Cassazione penale, 2005, p. implemented in Denmark or Germany, for instance). 3766 and p. 3772 respectively. 7 See, in particular, the Commission’s evaluation report of 24 January 2006 12 Published in Cassazione penale, no. 5/2007, p. 1911. The case was brought (COM(2006) 8) and the annexed Commission Staff Working Document before the Grand Chamber because one chamber previously gave a different deci- SEC(2006) 79. sion stating that the Italian authority had to refuse the surrender. Oddly, the issuing 8 According to Italian law no. 69, the assessment includes possible discriminating State was Belgium, which has a system of automatic continuous review of pre-trial circumstances. custody; experts suspected that such a decision (of 8 May 2006, no. 16542, Cusini 9 In Italian law, pre-trial detention is related to the type of crime and to the stage case) led towards making clear that the provision contained in law no. 69 was of the proceedings; for example, whether it is in the investigation phase, where an unreasonable. indictment has been filed, or whether a first instance sentence has been passed 13 The Court of Cassation mentions the decision of the ECtHR in the Sardinas and the defendant lodged an appeal. The issue of pre-trial detention is a concrete Albo v. Italy case (17 February 2005).

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