eucrim 2020 / 4 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

The Reception of European Legislation and Case Law in the Member States La réception de la législation et de la jurisprudence européennes dans les États membres Die Rezeption der europäischen Gesetzgebung und Rechtsprechung in den Mitgliedsstaaten

Information Exchange Between Administrative and Criminal Enforcement Silvia Allegrezza The EPPO and the Corporate Suspect Robin Lööf Die Richtlinie 2010/64/EU zum Dolmetschen und Übersetzen in Strafverfahren Magdalena Kotzurek Refusal of European Arrest Warrants Due to Fair Trial Infringements Thomas Wahl Independence of Public Prosecutors’ Offices Giuseppe Ruben Grimaldi The AY Case Florentino-Gregorio Ruiz Yamuza The ECtHR Judgment in Tsonyo Tsonev and Its Influence in Bulgaria Galina Zaharova 2020/ 4 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim.

Contents

News* Articles

European Union The Reception of European Legislation and Case Law in the Member States Foundations Procedural Criminal Law 255 Fundamental Rights 285 Data Protection 302 Information Exchange Between Adminis­ 260 Security Union 287 Ne bis in idem trative and Criminal Enforcement 262 Area of Freedom, Security 288 Freezing of Assets Silvia Allegrezza and Justice 256 Brexit: EU–UK Trade Cooperation 310 The EPPO and the Corporate Suspect and Cooperation Agreement 288 Judicial Cooperation Robin Lööf 272 Schengen 290 European Arrest Warrant 273 Legislation 294 European Investigation Order 314 Die Richtlinie 2010/64/EU zum Dolmet­ 295 Law Enforcement Cooperation schen und Übersetzen in Strafverfahren Institutions Magdalena Kotzurek 275 Council 276 European Court of Justice 321 Refusal of European Arrest Warrants 276 OLAF Due to Fair Trial Infringements 279 Europol Thomas Wahl 280 Eurojust 280 Frontex 330 Independence of Public Prosecutors’ Offices Council of Europe Giuseppe Ruben Grimaldi Specific Areas of Crime / Substantive Criminal Law 336 The AY Case 280 Money Laundering Florentino-Gregorio Ruiz Yamuza 281 Tax Evasion Specific Areas of Crime 282 Cybercrime 297 Corruption 344 The ECtHR Judgment in Tsonyo Tsonev 283 Terrorism and Its Influence in Bulgaria 284 Racism and Xenophobia Procedural Criminal Law Galina Zaharova

350 Konferenz-Bericht: Die Verjährung als Herausforderung der grenzüberschreitenden Zusammenarbeit in Strafsachen – Entwick- lung eines Harmonisierungsvorschlags Thomas Kolb

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

Dear Readers,

The development of European law shows a constant prolifera- In accordance with the ECJ tion of legal sources and a rising phenomenon of reciprocal ruling in the “Pupino” case, assimilation between sets of norms of various origins (Union the Italian Supreme Court law and law from conventional sources, e.g. the Council of (Corte di Cassazione), in Europe) − especially in recent years. Their mutual “interfer- its judgment no. 4614 of ence” and interdependence have contributed to the extension 30 January 2007, referring of the catalogue of fundamental rights and their protection re- to the domestic legislation quirements. This implies for the judge to apply national law implementing Framework not only in compliance with European Union legislation but Decision 2002/584/JHA on also in the light of the case law of the European Court of Jus- the European Arrest War- tice (ECJ) and the European Court of Human Rights (ECtHR). rant, reiterated the need to respect the rule of con- The (legitimacy) control exercised by the highest national forming interpretation, the courts itself moves towards the search for the common fea- only limit to this rule be- tures of a uniform European interpretation of the law. The role ing the impossibility of a Gaetano De Amicis of the aforementioned courts is that of identifying the relevant contra legem interpretation rule, with regard not only to the framework of domestic con- of domestic law if incompatibility between domestic law and stitutional principles but also to the forms and mechanisms of secondary law provisions in the Framework Decision is arises. fundamental rights protection that emerge from supranation- al norms as interpreted in the case law of the two European Moreover, the transfer into national systems of principles courts. established in ECJ case law appears increasingly incisive, for example with regard to the fundamental guarantees of the rule This is a delicate and complex task, based on the awareness of of law and the identification of conditions for the application of cultural change that makes every national judge a European the ne bis in idem principle. Examples can also be found in the judge, called on to develop a common culture of fundamental areas of mutual recognition with regard to judicial cooperation rights protection in the light of procedural fairness and, above in criminal matters and immigration / asylum. The progressive all, to coordinate the structural relations between the domes- assimilation of these principles resulted from the fruitful me- tic legal systems and the impulses coming from the various diation efforts that emerged from the (increasingly) close in- “external” legal provisions, even those of conventional origin teraction between national supreme courts and the ECJ. These (ECHR). To do so, the national judge may use the instruments efforts enabled the development of new perspectives aimed at of conforming interpretation (where possible) or the prelimi- maximizing fundamental rights protection, as embodied in the nary ruling procedure under Art. 267 TFEU. For the purpose safeguards contained in Art. 53 CFR and in the ECHR, while of interpretation of an ECHR provision (relevant to the deci- at the same time strengthening (the perception of) the role that sion in a specific case), the national judge can (now) also re- European case law can assume in the development of case law sort to a preliminary ruling procedure that, following the entry of the supreme courts. into force of Protocol 16 of the ECHR, may be submitted to the Strasbourg Court in order to obtain a non-binding advi- The control over the degree of protection afforded to funda- sory opinion. In this way, the legitimacy control that can be mental rights in concreto is therefore a task reserved to the exercised by national supreme courts extends its remit beyond national courts, none less than to the two European Courts, in national legislation to European legislation, with the aim of an effort to ensure a uniform interpretation of rights through- uniformly defining the effects that can be derived− albeit in out Europe. Within this scope, the activation of so-called con- different ways and forms − from the enforcement of the judg- stitutional “counter-limits” inevitably represents a last resort ments of the two European Courts. and, as such, must be restricted to exceptional circumstances,

eucrim 4 / 2020 | 253 The Reception of European Legislation and Case Law in the Member States which see an insurmountable contrast between an EU provi- constitutional judge. The conclusions aimed at achieving a sion and a domestic fundamental constitutional principle. “systemic” and not a “fragmented” integration of the different levels of protection originating from the combination of rules If the goals of mutual cooperation and willingness to engage in that are not well coordinated and that are in potential conflict. dialogue between the different European jurisdictional actors are not constantly pursued, both at the institutional level and At the same time, however, it is worth mentioning the for- on the parallel level of concrete enforcement practices, this ward-looking and cautious balancing exercise of the ECJ in would inevitably jeopardize not only the remedies necessary the Taricco case (judgment of the Grand Chamber of 5 De- to ensure the effectiveness of judicial protection in the areas cember 2017 in case C-42/17, M.A. S. and M. B.). Here, the governed by EU law (Arts. 19 TEU, 47 of the Charter, and Court recalled the importance of common constitutional tradi- Art. 6 ECHR), consistency among the respective systems, and tions and the need for an interpretation capable of accommo- the proper exercise of the competences of the European Court dating the founding principles of the constitutional identity of of Justice (judgment of 24 June 2019, Commission v. Poland, a Member State in the wider area of these traditions – tradi- C-619/18) but also the robustness of the entire European sys- tions that contribute to shaping Union law and to decisively tem of protection of fundamental rights and freedoms. inspiring its development in a productive give-and-take with the national identities of individual Member States. The broad discretion that the interpretation and application of these rights currently enjoy, however, risks giving rise to prob- Ultimately, each jurisdiction, whether domestic or European, lems concerning the relationship with constitutional principles is required to respect its role within a harmonious and cogni- and the fundamental features of each of the national systems. zant multilevel system, following conscious and distinct plans As far as the Italian system and its relationship with the ECHR and avoiding the narrow confines of its operational ambit. At is concerned, it is worth recalling the problem of the admissi- the same time, jurisdictions should strive to eradicate any am- bility of confiscation foreseen for the crime of illegal allotment, bitions smacking of “supremacy” and to activate good prac- which is acknowledged by the Italian Corte di Cassazione tices of dialogue and constructive confrontation through the even in the case of an expired statute of limitation (provided development of forms of cooperation capable of encouraging that all elements of crime have been ascertained). Regarding the formation of uniform European interpretation. the relationship to the provisions of the EU Treaties (Arts. 325 para. 1 and 2 TFEU) and the Charter of Fundamental Rights, This effort must also be pursued in terms of cultural develop- we can highlight the different interpretative meaning that the ment and of strengthening the current tools for professional principle of legality (referred to in criminal law) assumes in training of all legal practitioners, e.g., by enhancing those Art. 49 of the Charter and in Art. 25 para. 2 of the Italian Con- forms of exchange of information and mutual communica- stitution. There, the principle of legal certainty tends to prevail tion of measures, concrete experiences, and decision-making (according to the numerous rulings that have recently emerged techniques that are the basis of the 2015 Memoranda of Un- in the course of the well-known Taricco case). derstanding (MoU) between the National High Courts, the ECtHR, and the ECJ within the framework of an increasingly In both above-mentioned cases, the intervention of the Ital- closer cooperation. On the one hand, the MoU aimed at foster- ian Constitutional Court proved decisive for the affirmation of ing a deeper knowledge of the specificities of each national two guarantees that are fundamental for the domestic system: legal system, also as part of the parallel initiative aimed at cre- in the first case, the protection of the public interest regarding ating a true “network” of European Supreme Courts. On the orderly land development (judgment no. 49 of 2015); in the other hand, the MoU aimed to foster the increased participa- second case, the right resulting from necessary respect for the tion of national courts in the process of developing a supra- corollaries of the principle of legality in criminal law, that is to national “living” law, as an integral and constitutive part of a say predictability, certainty, and non-retroactivity (judgment common European legal heritage. no. 115 of 2018). With regard to each of these situations, in fact, the European Courts have modified the initially adopted interpretations, reaching conclusions that could hardly have Gaetano De Amicis, been reached without robust intervention on the part of the Consigliere, Suprema Corte di Cassazione, Italy

254 | eucrim 4 / 2020 News Actualités / Kurzmeldungen*

As far as criminal law is concerned, another issue raised is the substand- ard prison conditions in certain Mem- ber States, which MEPs find alarming. Member States are called on to comply with the rules on detention stemming from the instruments of international European Union law and Council of Europe standards. The resolution also reiterates that pre- Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) trial detention is intended to be an excep- tional measure; it regrets the continued overuse of pre-trial detention instead of alternative measures that do not involve Foundations Prosecutor’s Office (EPPO) should soon the deprivation of liberty. Other key is- be operable, thus strengthening the fight sues raised in the fundamental rights re- against fraud in the European Union. port are the following: Fundamental Rights The resolution highlights the impor- „„Economic and social rights: Politics tance of the rule of law as a cornerstone must do more to protect disadvantaged EP Concerned about Deteriorated of democracy and as a precondition groups, particularly women, people with Fundamental Rights Situation in EU for citizens to enjoy their fundamental disabilities, the elderly, children, mi- The European Parliament expressed a rights and freedoms. The EP strongly grants, Roma, and LGBTI+ people; number of concerns in its report on the condemns the efforts of the governments „„Right to equal treatment: MEPs con- situation of fundamental rights in the EU of some Member States to weaken the demn the “organised backlash” against for the years 2018–2019. The underlying­ separation of powers and the independ- gender equality and women’s rights, in- EP resolution of 26 November 2020 was ence of the judiciary. It expresses its cluding sexual and reproductive health adopted with 330 votes in favour of it, deep concern, in particular, about deci- and rights; it also voices concern over 298 against it, and 65 abstentions. sions that call into question the primacy hate speech and different forms of In the field of PIF and criminal law, of European law. In this context, the EP racism that are becoming increasingly the EP highlights the link between cor- reiterates its demand for an EU mecha- normal. ruption and fundamental rights viola- nism on democracy, the rule of law, and „„Freedoms: MEPs are concerned tions in several areas, e.g., the independ- fundamental rights, which was tabled in about measures aimed at silencing criti- ence of the judiciary, media freedom and October 2020 with precise recommen- cal media and undermining media free- freedom of expression of journalists and dations (related link). dom and pluralism. Member States are whistle-blowers, detention facilities, ac- In addition, the EP regrets the lack called on to refrain from adopting laws cess to social rights, and trafficking of of progress in the ongoing Article 7 that restrict the freedom of assembly and human beings. EU institutions and the proceedings (against Poland and Hun- to put an end to disproportionate and Member States are called on to reso- gary) in the Council, despite reports lutely fight corruption, and to devise ef- and statements by the Commission, the fective instruments for preventing, com- UN, the OSCE, and the Council of Eu- * Unless stated otherwise, the news items in bating and sanctioning corruption, and rope indicating that the situation in the the following sections (both EU and CoE) cover the period 16 November – 31 December 2020. fighting fraud, as well as to regularly deviant Member States has deteriorated Have also a look at the eucrim homepage (https:// monitor the use of public funds. MEPs (regular eucrim reports on the rule-of- eucrim.eu) where all news items have been also emphasise that the European Public law situation in these EU countries). published beforehand.

eucrim 4 / 2020 | 255 NEWS – European Union

eucrim – Common abbreviations violent interventions on the part of law

AFSJ Area of Freedom, Security and Justice enforcement authorities. AG Advocate General „„Fundamental rights of migrants, asy­ AML Anti-Money Laundering lum seekers, and refugees: Parliament CBRN Chemical, Biological, Radiological, and Nuclear expresses grave concern over reports CCBE Council of Bars and Law Societies of Europe that asylum seekers are facing violent CCJE Consultative Council of European Judges pushbacks. It is also concerned about CDPC European Committee on Crime Problems the humanitarian situation in hotspots. CEPEJ European Commission on the Efficiency of Justice Intimidation, arrests, and criminal pro- CEPOL European Police College ceedings against organisations and in- CFR Charter of Fundamental Rights of the European Union dividuals for providing humanitarian CJEU Court of Justice of the European Union assistance must end. CoE Council of Europe The report additionally raises the is- COSI Standing Committee on Operational Cooperation on Internal Security sue of new technologies, especially Arti- COREPER Committee of Permanent Representatives ficial Intelligences systems and their po- CTF Counter-Terrorism Financing tential danger to fundamental freedoms DG Directorate General and security. Biased outputs must be EAW European Arrest Warrant avoided, in particular when the systems ECA European Court of Auditors are used by law enforcement authorities. ECB European Central Bank Further safeguards are needed to ensure ECBA European Criminal Bar Association privacy and data protection in light of ECHR European Convention on Human Rights the development of new technologies. ECRIS European Criminal Records Information System Regarding terrorism and security ECtHR European Court of Human Rights threats in the European Union, the EU EDPS European Data Protection Supervisor must find an effective EU response by EES Entry-Exit System means of strengthened security coopera- EIO European Investigation Order tion. It must also take appropriate meas- EJN European Judicial Network ures to avoid subsequent victimisation. ENISA European Network and Information Security Agency (TW) (M)EP (Members of the) European Parliament EPO European Protection Order EP Calls for EU Values to be Upheld EPPO European Public Prosecutor's Office in State of Emergency EU European Union In a resolution of 13 November 2020, FCC (German) Federal Constitutional Court the European Parliament assessed the FD Framework Decision impact of COVID-19 measures on de- FT Financing of Terrorism mocracy, the rule of law, and fundamen- GRECO Group of States against Corruption tal rights. The EP makes three central GRETA Group of Experts on Action against Trafficking in Human Beings demands: ICTY International Criminal Tribunal for the former Yugoslavia „„Emergency powers must be neces- JHA Justice and Home Affairs sary, proportional, time-limited, and JIT Joint Investigation Team subject to democratic scrutiny; LIBE Committee Committee on Civil Liberties, Justice and Home Affairs „„Bans on demonstrations should not MoU Memorandum of Understanding be used to pass controversial measures; MONEYVAL Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism „„The rights of all people, including ML Money Laundering vulnerable groups, e.g., women, LGBTI OJ Official Journal persons, refugees, and prisoners, must OLAF Office Européen de Lutte Anti-Fraude (European Anti-Fraud Office) be safeguarded. PNR Passenger Name Record The resolution stresses that emer- SIS Schengen Information System gency measures pose a “risk of abuse SitCen Joint Situation Centre of power” and calls on the Commission TEU Treaty on European Union to step up its efforts by taking legal ac- TFEU Treaty on the Functioning of the European Union tion where necessary. Several precise

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requests have been addressed to the EU plinary Chamber of the Supreme Court. „„17 December 2020: Advocate Gen- countries. These include: The case was brought to the CJEU by eral Tanchev proposes that the CJEU „„End their “state of emergency,” or the Commission on 10 October 2019 decide that Polish law violates EU law at least clearly define the delegation of (eucrim 3/2019, 157–158). The Pol- by excluding legal review of the Na- powers to their executives, and ensure ish government defends its reform of tional Council of the Judiciary’s assess- appropriate parliamentary and judicial the judicial system, since it ensures that ment of judicial candidates to the Polish checks and balances; judges do not place themselves above Supreme Court. The opinion refers to a „„Exercise utmost restraint in restrict- the law; thus, the reform even increases reference for a preliminary ruling by the ing the freedom of movement, especial- judges’ independence and impartiality. Polish Supreme Administrative Court in ly in relation to the right to family life; When the judges in Luxembourg asked the context of legal proceedings against „„Maintain the rules of the Schengen about the lifted immunity of reform the appointment procedure of candidates Borders Code and the Free Movement critic Judge Igor Tuleya (related link) for the National Council of the Judiciary Directive; by the said Disciplinary Chamber, the (Case C-824/18, A.B. and Others). The „„Make sure that all new surveillance or Polish government could not respond AG also harshly condemns recent Pol- tracking measures respect EU data pro- satisfactorily, citing the need to address ish legislation that denies the referring tection rules, in particular the principles obvious and blatant breaches of judicial court both the possibility to successfully of purpose limitation and proportional- law. In this particular infringement case, initiate preliminary ruling proceedings ity; the CJEU had ruled on 8 April 2020 that before the CJEU and the right to wait „„Guarantee the rights of defendants, the Polish Disciplinary Chamber must for a ruling from the CJEU. This under- including their unfettered access to a suspend its work for the time being and mines the EU principle of sincere coop- lawyer, and evaluate the possibility of had granted the EU Commission’s re- eration. In addition, the AG clarifies that online hearings as a solution and alterna- quest for interim measures (C-791/19 R; the referring court can directly apply tive to hearings in court or to the transfer eucrim 2/2020, 4). The Polish govern- Art. 19(1), second subparagraph TEU of suspects to other EU Member States ment disregarded the ruling and allowed in order to disapply those national pro- under the European Arrest Warrant; the Disciplinary Chamber of the Polish visions that exclude legal review and to „„Safeguard the rights and health of Supreme Court to make further deci- declare itself competent to rule on those prisoners, in particular their rights to sions, such as lifting the immunity of cases in the legal framework to which medical assistance, visitors, time in the judges with a view to prosecuting them Art. 19(1) was applicable before adop- fresh air, and educational, professional, if necessary. A decision by the CJEU in tion of the contested law. Polish courts and leisure activities; case C-791/19 is expected in the first must maintain the appearance of inde- „„Target the elimination of hate speech half of 2021. pendence of the judges appointed in the and discrimination. „„3 December 2020: Since the Polish procedures at issue. (TW) The resolution was adopted with 496 government has allowed the contentious to 138 votes and 49 abstentions. It was Disciplinary Chamber of the Supreme Hungary: Overview of Recent Rule-of- forwarded not only to the Commission, Court to further continue to decide on Law Developments the Council, and the governments/parlia- matters of Polish judges, which may af- „„3 December 2020: In the Opinion in ments of the EU Member States but also fect their status and restrict their judicial Case C-650/18 on the European Parlia- to the Council of Europe, the OSCE, and activities, the European Commission ment’s decision to initiate Article 7 TEU the United Nations. (TW) adds this point to the recently launched proceedings against Hungary, Advocate infringement proceedings on 29 April General Bobek advises the CJEU to Poland: Overview of Recent Rule-of- 2020 (eucrim 1/2020, 4). These in- dismiss the Hungarian application for Law Developments fringement proceedings take action annulment as unfounded. Hungary had This news item continues an overview against the so-called Polish muzzle law challenged the Parliament’s vote on the of recent developments on the rule-of- that entered into force in February 2020 resolution that triggered the procedure law situation in Poland as far as their (eucrim 1/2020, 3). The Commission for determining the existence of a clear relationship with European law is con- considers the independence and impar- risk of a serious breach by Hungary of cerned (previous eucrim issues): tiality of the Disciplinary Chamber not the EU’s fundamental values. Hungary „„1 December 2020: The oral hearing to be guaranteed and its powers and on- argued that the vote result did not take in infringement case C-791/19 against going activity not in line with Art. 19 into account the abstentions, which is Poland takes place at the CJEU. It ad- TEU / Art. 47 CFR. The Polish govern- why the required two-third majority was dresses doubts about the powers, inde- ment has one month to react to this new not reached. According to the Advocate pendence, and impartiality of the Disci- grievance. General, the relevant provisions of the

eucrim 4 / 2020 | 257 NEWS – European Union

TFEU and the EP Rules of Procedure tities associated with them. It can target Security Policy and EU Member States exclude abstentions from the count. Fur- state and non-state actors. Consequently, can put forward proposals for listings. It thermore, MEPs were duly informed be- perpetrators and their associates can be is then for the Council to decide on these fore the vote that abstentions would not banned from entering the EU, their as- listings. count as vote cast; therefore, they were sets in the EU frozen, and EU persons The EUGHRSR is an important EU able to exercise their right to vote in the prohibited from making any funds and policy tool for strengthening human light of these rules. A decision in this economic resources available to them. rights and democracy in the EU’s exter- case by the CJEU is expected in the first The EU already has human rights nal actions, as set out in the EU Action half of 2021. sanctioning mechanisms in place; how- Plan on Human Rights and Democracy „„17 December 2020: The CJEU, sit- ever, they are geographically limited in 2020–2024 of 25 March 2020 (eucrim ting in for the Grand Chamber, states scope to individual countries. The EU- 1/2020, 6–7). The EUGHRSR is also that Hungary failed to fulfil its obli- GHRSR no longer needs a separate le- dubbed the “European Magnitsky gations under EU law in the area of gal framework and Council decision for Act.” Sergey Magnitsky was a Russian procedures for granting international each country in order to add new per- whistleblower who uncovered massive protection of and returning illegally sons or entities to an EU sanctions list. fraud involving corrupt officials. Fol- staying third-country nationals (Case More concretely, the EUGHRSR cov- lowing his death in prison in 2012 due C-808/18). In particular, the following ers the following acts of human rights to ill treatment by officials, the USA, constitute infringements of EU law: re- abuses: as a forerunner, and other countries, stricting access to the international pro- „„Genocide; e.g. Canada, the UK and Baltic states, tection procedure, unlawfully detaining „„Crimes against humanity; adopted legislation that envisages the applicants from that protection in transit „„Torture and other cruel, inhuman, or sanctioning of persons responsible for zones, moving illegally staying third- degrading treatment or punishment; serious human rights violations and cor- country nationals to a border area, and „„Slavery; ruption all over the word. The US leg- not observing the guarantees surround- „„Extrajudicial, summary, or arbitrary islation, which served as a model for ing a return procedure. The CJEU rejects executions and killings; other countries, was called the “Global Hungary’s arguments that the migration „„Enforced disappearance of persons, Magnitsky Act.” It should be noted that crisis justified derogating from certain arbitrary arrests or detentions. the new EU legislation supplements but EU rules with a view to maintaining It also covers other acts, in so far does not replace other sanctioning possi- public order and preserving internal se- as those violations or abuses are wide- bilities already in place, such as country- curity. The CJEU maintains the greater spread, systematic or are otherwise of specific ones (see above). (TW) part of an infringement proceeding ini- serious concern as regards the objectives tiated by the Commission against Hun- of the common foreign and security European Democracy Action Plan gary. (TW) policy set out in Art. 21 TEU. These can On 3 December 2020, the Commission include the following: presented its Action Plan for Democ- New EU Sanctioning Regime for Human „„Trafficking in human beings; racy, which complements the Action Rights Violations around the World „„Abuses of human rights by migrant Plan on Human Rights and Democracy On 7 December 2020 – three days pri- smugglers; 2020–2024 of March 2020 (eucrim or to International Human Rights Day „„Sexual violence and gender-based 1/2020, 6–7). The Action Plan proposes – the General Affairs Council adopted violence; measures to: the EU Global Human Rights Sanctions „„Violations or abuses of freedom of „„Promote free and fair elections; Regime (EUGHRSR). It is seen as a peaceful assembly and of association; „„Strengthen media freedom; landmark initiative that underscores the „„Violations or abuses of freedom of „„Counter disinformation. EU’s determination to enhance its role in opinion and expression; In concrete terms, the Action Plan addressing serious human rights viola- „„Violations or abuses of freedom of re- provides for the establishment of a joint, tions and abuses worldwide. The regime ligion or belief. operational mechanism for the protection consists of a Council Decision ((CFSP) The regulation does not mention cor- of elections against threats such as cy- 2020/1999) and a Council Regulation ruption as a criterion for sanctions, al- ber-attacks, in order to be able to ensure (1998/2020). though it was requested by the European free and fair elections, especially during It enables the EU to list individuals Parliament and established in similar US the COVID-19 pandemic. Hate crime and entities responsible for or involved legislation. and incitement, including online incite- in serious human rights violations or The High Representative of the Eu- ment, should also be included in the list abuses as well as any individuals and en- ropean Union for Foreign Affairs and of “EU criminal offences” in Art. 83(1)

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TFEU. In addition, the establishment of ber States to ensure effective application der the Justice programme), in order to an expert group and the presentation of of the Charter; make access to justice easier for all; an initiative to protect journalists and „„Support best practice sharing between „„Use EU funds to promote Charter-re- civil society through so-called SLAPP local authorities on use and awareness of lated training activities and material on lawsuits (i.e., to avoid lawsuit abuse in the Charter; the new “European training platform” strategic lawsuits against public partici- The Commission invites Member States within the European e-Justice Portal pation) is planned for 2021. The fight to: (separate news item under “Area of against disinformation, especially in the „„Nominate a Charter focal point to Freedom, Security and Justice”, p. 272). digital sphere, is to be further intensified ease coordination and cooperation; (3) Fostering the use of the Charter with guidelines for an improved code of „„Use impact assessments and legisla- as a compass for EU institutions conduct to combat disinformation in the tive scrutiny procedures to ensure that The Commission will, inter alia, spring of this year. initiatives implementing EU law comply boost its internal capacity for Charter A public consultation of citizens, civil with the Charter; compliance, e.g., through e-learning, society, and stakeholders conducted by „„Develop guidance and training for updated guidance for staff, and training the Commission between July and Sep- national and local administrations; plans. The Commission will also support tember 2020 revealed support for further „„Share best practices on use and “Charter mainstreaming” throughout the EU action in all three areas. A review of awareness of the Charter on the Euro- European legislative process. progress and possible further steps will pean e-Justice Portal. (4) Strengthening people’s awareness take place in 2023. The tabled European From 2021 on, the Commission will of their rights under the Charter Democracy Action Plan is considered present annual reports, which will look Against the background of a recent one element of a broader endeavour into how the Member States apply the Eurobarometer survey, indicating that at EU level to strengthen democracy, Charter in selected policy areas. The only 42% of respondents have ever equality, and respect for human rights. 2021 report, for instance, will focus on heard about the Charter and only 12% (TW) fundamental rights in the digital age. really know what it is, the Commission The EP and the Council are to organise will: New Commission Strategy substantive discussions on the follow-up „„Launch an information campaign to on Application of Charter to these annual reports. The Commis- raise people’s awareness of their Char- On 2 December 2020, the Com- sion also proposes a variety of measures ter rights and how to use them, giving spot mission presented its new strat- to ensure compliance of EU-funded pro- specific examples and cooperating with light egy to strengthen the applica- jects with the Charter. actors on the ground; tion of the EU Charter of Fundamental (2) Empowering civil society „„Develop young people’s awareness Rights (CFR/“Charter”) over the next organisations, rights defenders, of their Charter rights through the Eras- ten years. Although the CFR led to and justice practitioners mus+ programme; greater promotion and protection of citi- The Commission will: „„Member States are also encouraged zens’ fundamental rights in the EU dur- „„Take action against measures that to develop their own initiatives to pro- ing the past two decades, the Commis- breach EU law, including the Charter, mote awareness. sion states that the CFR has also faced which affect civil society organisations; Background of the new strategy: The many challenges, for instance in the ar- „„Support an enabling environment for Commission highlights that the Charter eas of migration and security, and, most civil society organisations, in particu- – proclaimed 20 years ago on 7 Decem- recently, in the context of the COVID-19 lar by means of the new Union values ber 2000 and legally binding since De- crisis. Therefore, the Commission calls strand of the Citizens, Equality, Rights cember 2009 – has enabled the EU legal for renewing the EU’s commitment to and Values programme. order to develop into a “beacon of funda- ensuring that the EU institutions and Member States are invited to estab- mental rights protection.” It has become Member States apply the Charter to its lish national human rights institutions the embodiment of what EU rights and full potential. The new strategy is built and to ensure that they have the means to values mean and is therefore a strong upon the following four pillars and in- work fully independently. Other meas- symbol of European identity. It has also cludes a number of measures in each of ures concern capacity building and sup- led to a more coherent and comprehen- them. port in the justice sector. In this context, sive interpretation of fundamental rights (1) Ensuring the effective application the Commission will: across the EU. of the Charter by the Member States „„Support capacity building on the The new strategy on successful appli- The Commission will: Charter, for rights defenders and civil cation of the CFR in the coming years „„Strengthen its partnership with Mem- society organisations (particularly un- takes up calls from the European Parlia-

eucrim 4 / 2020 | 259 NEWS – European Union ment for stronger monitoring of applica- order to evaluate progress in awareness MEPs demand a holistic approach tion of the Charter in the Member States and use of the Charter. (TW) to preventing and countering radicali­ (“Šimečka report” and EP resolution sation, which should combine security, of October 2020, eucrim 3/2020, 160). education, social, cultural, and anti-dis- It also heeds calls from the Council to Security Union crimination policies, and involve all the set out ways to improve application of relevant stakeholders. the Charter (eucrim 3/2019, 154). EP Resolution on EU Security Union In the field oforganised crime, MEPs In preparation of the new strategy, Strategy advocate the revision of Council Frame- the Commission carried out a Eurobaro­ MEPs welcome the new EU Se- work Decision 2008/841/JHA of 24 Oc- spot meter survey on awareness of the CFR curity Union Strategy presented tober 2008 on the fight against organised light in the EU as well as a public consulta- by the European Commission in crime and reiterate the need to establish tion. The results of this consultation, July 2020 (eucrim 2/2020, 71–73) but a common definition of organised crime. reflecting the public’s input to the new stress that any new legislative proposal Further measures should be taken on strategy, were analysed by the Funda- must be accompanied by a thorough and freezing and confiscating assets, includ- mental Rights Agency in June 2020. comprehensive impact assessment, espe- ing on non-conviction-based assets. The strategy complements other re- cially on fundamental rights and risks of The resolution reiterates the EP’s call cent overarching initiatives on the part discrimination. With 543 votes in favour, on EU institutions and the Member States of the Commission that aim at promot- 64 votes against, and 82 abstentions, the to resolutely fight systemic corruption ing and protecting the fundamental val- EP adopted a non-legislative resolution on and to devise effective instruments for ues on which the EU is founded. These 17 December 2020, making an important preventing, combating, and sanctioning mainly concern the European Democra- political statement on the EU’s future se- corruption and the fight against fraud. The cy Action Plan (presented on 3 Decem- curity policy. MEPs call for effective im- use of public funds should be regularly ber 2020 separate news item) and the plementation and evaluation of existing monitored. It renews its call on the Com- Commission’s first rule-of-law report of EU legislation related to internal security mission to resume its annual anti-corrup- 30 September 2020 (related link). The and stress that the Union’s security policy tion monitoring and reporting immediate- strategy also complements targeted ef- must remain grounded in the values upon ly, which should cover all Member States forts to make EU rights and values more which the EU was founded. The resolu- and EU institutions, agencies, and bodies. tangible in specific areas: tion refers to a number of current security EU funding under the new multiannual fi- „„Victims’ rights and access to jus- issues, among them: nancial framework and the Recovery Plan tice (inter alia the EU strategy on vic- „„The fight against terrorism and organ- must be effectively prevented from being tims’ rights, COM(2020)258 (eucrim ised crime; used for corruption and fraud by organ- 2/2020, 104); „„Child abuse; ised crime groups. „„The Communication on access „„Disinformation and hybrid threats; The fight against child abuse online to justice in environmental matters, „„Migrant smuggling; and offline must be stepped up. The EP COM(2020) 643; „„Illicit drugs and firearms trafficking; welcomes the Commission’s plan to pre- „„Economic rights (an investment pro- „„The impact of new technologies on sent a legislative proposal in this regard tection and facilitation framework is security; in 2021. It also renewed its call to ap- planned for 2021); „„The EPPO’s contribution to internal point an EU representative for children’s „„Rights of EU citizens; security; rights, who should serve as a point of „„Rights of the child (strategies on „„The reform of Europol, police, and reference for all EU matters and policy rights of children and the European child judicial cooperation in criminal matters, related to children. guarantee are planned for 2021). etc. A major part of the resolution deals The, new strategy tabled on appli- As regards the fight against terrorism, with new technologies and their impact cation of the CFR aims to spark inter- the resolution welcomes the new Com- on internal security issues. As regards institutional discussions. The Commis- mission counter-terrorism strategy pre- law enforcement access to encrypted sion invites the Council, in particular, sented on 9 December 2020 (separate data, MEPs call for a thorough pre- to prepare follow-up conclusions. A news item, p. 283) and stresses that the assessment of a regulatory resolution. report on implementation of the strat- terrorist threat in the EU remains high. They stress that end-to-end encryption egy is envisaged for 2025. In 2030, the The Commission is urged to ensure full contributes to citizens’ privacy and the Commission will launch a stocktaking and swift implementation of Directive security of IT systems and that it is in- exercise in cooperation with the key (EU) 2017/541 on combating terrorism dispensable for investigative journalists actors in the Charter’s enforcement in in all Member States. and whistle-blowers.

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Considering that new and evolving implementation of EU security meas- technologies permeate all aspects of ures by the Member States requires not Snapshots on Projects Funded security and create novel security chal- only their implementation by keeping to in the Areas of Home Affairs lenges and threats, the resolution also the letter of the law but also in the spirit In November 2020, the Commission highlights that 5G infrastructure is a of the law; published two new e-books presenting strategic component of future European „„ The effectiveness of the EU’s secu- a selection of projects implemented security and a key component of Euro- rity measures has not yet been proven by the Member States of the EU and the Schengen area under the Asylum, pean strategic resilience. The EU needs by publicly available quantitative and Migration and Integration Fund (AMIF) a plan for building European 5G, includ- qualitative evidence; and the Internal Security Fund (ISF). ing a plan to phase out and replace 5G „„ Regular evaluation of current security Both funds form a central part of the technology from third countries that do policies and agreements should include EU’s home affairs funding instruments. They are designed to address common not respect fundamental rights and Eu- an examination of whether they must and/or individual challenges faced by ropean values. be brought in line with CJEU case law the EU in migration, security, and pro- As for the proposal to update Euro­ (e.g., the PNR agreements with the USA tection of the Schengen area. pol’s mandate (separate news item and Australia); The two e-books include a description p. 279), the resolution supports the goal „„ Outsourcing of a number of activities of each project (in the local Member State’s language and English). They of equipping the agency with all neces- from law enforcement agencies to the also provide relevant links to detailed sary tools for more effective coopera- private sector is a matter of concern, par- information about the project and tion with its partners; however, it is also ticularly since there are deficiencies in the funding managed by the Member emphasized that such changes should be oversight over any private-public coop- States. (TW) accompanied by enhanced political ac- eration in the field of security and in the countability as well as enhanced judicial transparency of EU funding for private control and parliamentary scrutiny. companies establishing security systems In the field of police cooperation, or parts thereof. „„ Implementing technical solutions for the resolution takes note of the pos- Furthermore, MEPs are deeply con- a secure and confidential communication sible modernisation of the legislative cerned by the lack of resources allocated between law enforcement authorities; framework of the Prüm decisions. One to some EU agencies acting in the field „„ Making full use of the instruments for of the shortcomings identified is the of justice and home affairs (JHA) to EU-wide alerts on criminal acts; poor data quality provided by Member comply fully with their mandate. They „„ Better linking of the information al- States. MEPs reiterate, however, that a therefore call for proper funding and ready available, in particular by imple- reform proposal must be accompanied staffing of the JHA agencies in order for menting the interoperability of EU infor- by a thorough impact assessment, cov- the EU to deliver on the Security Union mation systems; ering fundamental rights implications, Strategy. (TW) „„ Reviewing and updating the Prüm which should demonstrate whether there framework; would be added value in automatic data Council Conclusions on Internal „„ Modernising the acquis of cross- exchange and whether any additional Security and European Police border police cooperation, e.g., cross- categories of biometric data are needed. Partnership border surveillance and hot pursuit; Regarding judicial cooperation, the On 14 December 2020, the Council „„ Enabling law enforcement authorities resolution acknowledges Eurojust’s adopted conclusions on internal security to use artificial intelligence in their daily work in supporting and coordinating and European Police Partnership. They work, subject to clear safeguards; investigations/prosecutions of transna- are designed to give further political guid- „„ Improving the capacity of law en- tional crime but stresses that judicial ance on improvements in the field of law forcement authorities in the Member cooperation in criminal matters is lag- enforcement cooperation, future reactions States and at Europol to work with third ging behind in digitalisation. The Com- to security challenges, and use of the po- countries and public and private partners mission is called on to carry out an as- tential of evolving new technologies for worldwide, thus ensuring access to the sessment of a potential extension of the law enforcement purposes. For the estab- information necessary to counter serious EPPO’s mandate, in line with Art. 83 lishment of an effective European partner- crime. TFEU, once the EPPO is fully opera- ship for internal security, the key part of The conclusions also pave the way tional. the conclusions defines milestones that forward in a number of areas: Ultimately, the resolution voices con- are to be achieved up to 2025: „„ Law enforcement cooperation; cern over several cross-cutting issues: „„ Enhancing the principle of availabil- „„ Keeping pace with technological pro- „„ A systematic lack of full and timely ity of information; gress;

eucrim 4 / 2020 | 261 NEWS – European Union

„„ Global cooperation; the digitalisation of justice. The tool- nologies in the field of justice. In 2021, „„ Fighting transnational organised box comprises binding and non-binding together with Member States, the Com- crime; measures and entails financial support to mission will also start exploring ways „„ Preventing and combatting terrorism/ Member States from the EU, legislative to increase the availability of relevant violent extremism. initiatives, IT tools, and the promotion machine-readable data produced by the A separate set of conclusions, in- of national coordinating and monitoring judiciary in order to establish trustwor- cluded as Annex I, set out measures for instruments. The Commission stresses thy machine-learning AI solutions for stepping up cross-border law enforce- that any actions in relation to the digi- use by interested stakeholders. ment cooperation (separate news item talisation of justice must be implement- „„ Interconnection: The Commission under “Law Enforcement Cooperation” ed in full compliance with fundamental will take further action in order to im- p. 295). (TW) rights, notably rights to the protection prove the interconnection of registers of personal data, to a fair trial and to an and to enhance digital access to infor- effective remedy, and the principles of mation. Member States should pursue Area of Freedom, Security proportionality and subsidiarity. the establishment of electronic registers and Justice Next to an explanation of the toolbox and databases as a priority. Furthermore, items, the Communication includes an Member States are encouraged to foster Commission Plans to Speed Up outline of the actions that are to be pro- the use of videoconferencing (whenever Digitalisation of Justice Systems posed in 2021 and the years after: possible) by developing the facilities According to its Communica- „„ Financial support for Member States: in accordance with national law and in spot tion of 2 December 2020, the Under the next Multiannual Financial close coordination with one another. light Commission wishes to bring the Framework, the Commission will con- „„ Secure cross-border cooperation: e- digitalisation of justice in the EU up to tinue to financially support the digitali- CODEX (e-Justice Communication via full speed. The Commission provides sation of justice, inter alia via the 2021– Online Data Exchange) – the main tool evidence that the use of Information and 2027 cohesion policy instruments, the for secure cooperation in civil, com- Communication Technologies (ICT) Recovery and Resilience Facility, the mercial, and criminal law proceedings tools in the EU Member States’ judicial Digital Europe Programme, and the Jus- across borders – is to become the gold systems is very uneven. In addition, the tice Programme. standard for secure digital communica- COVID-19 pandemic has highlighted „„ Digitalisation of cross-border coop­ tion in all Member States. To this end, the need to speed up efforts to digitalise eration: The Commission announces the Commission presented a proposal judicial institutions’ handling of cases, that it will present a legislative proposal on a Regulation for the EU-wide e-CO- to enable exchange of information docu- in the fourth quarter of 2021 that will DEX system. The regulation shall lay ments between parties and lawyers in make judicial cooperation instruments down the definition and composition electronic form, and to strengthen easy both in civil/commercial and crimi- of the system. It entrusts the Euro­pean access to justice for all. nal matters (e.g., the European Arrest Union Agency for the Operational Man- The objective of the Communication Warrant) fit for the digital age. Digital agement of Large-Scale IT Systems is twofold: First, at the national level, it communication between the competent in the Area of Freedom, Security and aims to help Member States move their authorities should become the default Justice (eu-LISA) with the manage- national justice systems into the digital option. Interoperability of and between ment, further development, and main- era. Second, it aims at further improv- the national systems will be promoted. tenance of the e-CODEX system as of ing cross-border judicial cooperation be- „„ Artificial Intelligence (AI): The Com- July 2023. By 2024, the Commission tween competent authorities at the Euro- mission reiterates its assessment with aims to expand the scope of another pean level. The latter would especially regard to the benefits and opportuni- IT tool: eEDES (the e-evidence digital concern promoting the use of secure ties offered by AI-based applications, exchange system), by means of which and high-quality distance communica- balanced against their inherent risks Member State authorities can securely tion technology (videoconferencing), fa- (previous eucrim issues). From 2021 exchange European investigation or- cilitating the interconnection of national on, the Commission will promote a ders, mutual legal assistance requests, databases and registers, and promoting number of targeted measures. These in- and associated evidence in digital for- the use of secure electronic transmission clude quarterly expert webinars in which mats. eEDES should be developed channels between competent authorities. EU institutions, JHA agencies and bod- further, integrated into the framework After having outlined the challenges ies, legal professional organisations, etc. of the new e-evidence Regulation for justice systems in the digital age, the can exchange best practices and lessons (eucrim 1–2018, 35–36), and made Communication proposes a toolbox for learned on the use of innovative tech- available to all EU Member States.

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„„Digital criminal justice at the EU Lastly, the Communication explores tal capacity building as well as training level: The Commission plans a series of ways in which the EU can be equipped tools and innovative learning. As a next measures to equip the EPPO, Eurojust, for future evolution in the digital sphere. step, the JHA agencies agreed to draw and Europol with the necessary tools to During the second quarter of 2021, the up a list of upcoming challenges and better cooperate with each other: Euro- Commission will develop a monitor- opportunities for joint initiatives in the just’s Case Management System, which ing, analysis, and foresight programme field of digitalisation. The meeting was allows the Agency to cross-check dif- on justice-relevant digital technology chaired by Eurojust. (CR) ferent cases in order to coordinate the within its Joint Research Center. In par- EU-wide fight against serious cross- allel, the Commission plans to create a Legal Practitioner Training in 2019 border crime (including terrorism), will mechanism on the e-Justice portal for The number of justice professionals be modernised. In addition, amend- regular reporting, analysis, feedback, trained in EU law or the law of another ments to the Europol mandate will in- and exchange of best practices on jus- Member State remains remarkably high. troduce a hit/no-hit link between the tice-relevant IT. In 2019, over 182,000 justice profession- EPPO and Europol. Thanks to these The Communication presented on als (judges, prosecutors, court staff, law- “hit/no-hit connections” between their digitalisation of justice in the EU is ac- yers, bailiffs, and notaries) were trained case management systems, Eurojust, companied by a Staff Working Docu- accordingly. Although this is a slight Europol, and the EPPO will become ment (SWD(2020) 540). The SWD decrease compared to 2018 (190,000 aware of ongoing investigations and serves to provide evidence-based back- eucrim 4/2019, 229–230), the par- prosecutions. For this purpose, the ground information. It maps the level ticipation rate continues to remain high. Commission will create a task force of digitalisation of Member States’ jus- Figures and charts on European judicial in the first quarter of 2021, bringing tice systems. It also contains a synopsis training in 2019 are provided in the an- together the EPPO, Eurojust, Europol, of the public feedback received on the nual report that the Commission present- and OLAF. In 2021, the Commission Roadmap to this initiative, which took ed on 2 December 2020. will also present legislative initiatives place from 30 July –24 September 2020. Commissioner for Justice, Didier for digital information exchange on Next steps: The Commission intends Reynders, emphasized that the findings cross-border terrorism cases and on the to reach a prompt follow-up on its plans. of the 2019 report confirm the success of establishment of a Joint Investigation Therefore, the Commission will discuss the strategy on European judicial train- Teams Collaboration Platform. the digitalisation of justice with the rel- ing adopted in 2011. As reported previ- „„“My e-justice space”: The Commis- evant entities, e.g., public administra- ously, the Commission already reached sion plans to create a personal electronic tions, the judiciary, legal professional the strategy’s goal to train half (800,000) space (as part of the e-justice portal), in organisations, etc. of all justice professionals in the EU by which a user (or his/her legal representa- Background: The Commission initia- 2020 in 2017, two years ahead of sched- tive) can consult or obtain judicial docu- tive on the digitalisation of justice can ule. Other results of the ninth report on ments; however, judicial documents be considered a response to the Coun- European judicial training include the concerning a person’s criminal proceed- cil conclusions on this matter adopted following: ings are to be excluded. on 13 October 2020 (eucrim 3/2020, „„The decrease in total numbers, in „„Cooperation, coordination, and mon­ 164). The conclusions, inter alia, call on comparison to 2018, is mainly due to itoring: The Commission proposes sev- the Commission to develop a compre- a decrease in the EU legal training of eral measures to ensure that progress in hensive EU strategy on the digitalisation lawyers; the digitalisation of justice is adequately of justice by the end of 2020. In addi- „„Lawyer training figures dropped sig- monitored. In addition, new initiatives tion, the Communication contributes to nificantly, by almost 40% in comparison and tools are to advance cooperation. the priorities of the current Commission with 2018, due to less reported partici- The EU justice scoreboard (eucrim under Ursula von der Leyen, who plans pants in several large Member States; 2/2020, 74–75) will monitor progress at to make Europe fit for the digital age „„Between 2011 and 2019, close to 1.19 the national level. A dedicated section in during her presidency. (TW) million justice professionals received the e-Justice portal will be set up, so that training in EU law and the law of an- Member States can share national initia- JHA Agencies Stepping Up other EU Member State; tives on the digitalisation of justice. In Digitalisation „„Regarding the proportion of practi- 2021, the Commission will also organise On 20 November 2020, the heads of the tioners by profession, judges (62.14%) an online Digital Justice Ministerial Fo- EU’s Justice and Home Affairs (JHA) and prosecutors (40.46%) remain the rum, featuring high-level participation Agencies met virtually to exchange professional legal groups that receive by EU institutions and key stakeholders. ideas on Artificial Intelligence and digi- the most continuous training on EU law

eucrim 4 / 2020 | 263 NEWS – European Union

ropean judicial training, on 2 December should attend training on EU law and ECA Journal 3/2020 with Focus on 2020 (following news items). (TW) training providers should improve the Realising European Added Value EU law training on offer. Objectives In the European Court of Auditors’ New Strategy on European Judicial in terms of quantity are however more journal no 3/2020, various authors Training for 2021–2024 targeted to the professional groups. By provide contributions on how Euro- On 2 December 2020, the Commission 2024, continuous training on EU law pean added value can be realised and which challenges are faced in this re- presented its new strategy on European should reach each year: gard. The journal unites contributions judicial training for 2021–2024. It fol- „„65% of judges and prosecutors; ranging from institutional leaders, e.g. lows-up the strategy that was adopted „„15% of court and prosecution office EU Commissioner Elisa Ferreira, ECA in 2011 and covered the period until staff who need EU law competence; President Klaus-Heiner Lehne and EP 2020. The Commission stresses that ju- „„15% of lawyers; Committee on Budgets Chair, Johan dicial training remains high on the EU „„30% of notaries; Van Overtveldt, to a number of experts. agenda and needs further be strength- „„20% of bailiffs. Gaston Moonen writes in his editorial ened. It addresses challenges detected The main qualitative objectives are: that all underline that the EU’s great- est impact is created through its leg- (annual reports on European judicial „„Making sure that European acquis on islation, its regulatory role. He quotes training, e.g. eucrim 4/2019, 229–230 the rule of law and fundamental rights is the American historian and journalist for the 2018 report; eucrim 1/2019, 10 not only a standard component of basic Anne Applebaum who puts it: “The for the 2017 report) and new develop- judicial training but also part of the con- EU is a superpower when it comes to ments, such as the exponential digi- tinuous trainings; regulation.” Moonen highlights that talisation of societies or the deteriora- „„Embedding “judgecraft”, non-legal she has her hopes for the EU when it tion of fundamental rights in some EU knowledge and skills in the national comes to anti-trust action and the pro- tection of citizens’ privacy, where for countries. Based on a thorough evalu- continuous training programmes; instance the General Data Protection ation of the 2011–2020 strategy and a „„Making sure that every future or new- Regulation (GDPR) has set an example public consultation conducted in 2018, ly appointed judge and prosecutor takes of regulation far beyond the European the Commission sets out its vision for part in a cross-border exchange during continent. The topic of European add- the coming years. It also includes calls the initial training. ed value is dealt with through different on actions addressed to the training „„Organising cross-border training ac- angles and not only reflected through providers, e.g. European Judicial Train- tivities every year for at least 5% of all the lens of the EU budget. (TW) ing Network, the Academy of European judges and prosecutors; Law (ERA), and the European Institute „„Assuring training providers offer tai- of Public Administration (EIPA-Lux- lored e-learning, which is interactive, embourg). The new strategy is build practical and accessible to all learners; upon four strands: „„Encouraging training providers to by far; these figures confirm the results „„Training substance addressing broad follow more closely the recommenda- of the past annual reports; areas of EU law, providing a flexible re- tions in the Advice for training provid- „„2.98% of all EU justice professionals’ sponse to existing and emerging EU law ers and the EJTN Handbook on judicial training was (co)-funded by the EU in training needs; training methodology in Europe; 2019. „„Training audience addressing a broad „„Promoting e-training to address jus- As found in past annual reports, con- range of justice professionals enlarging tice professionals’ immediate needs in siderable differences remain in the level geographical coverage and boosting ju- the context of a concrete case; of training participation across Member dicial training for young practitioners; „„Exploiting the full potential of e- States and across the various legal pro- „„Training methodology using modern learning methodologies; fessions. The Commission concludes and digital training methods to guaran- „„Evaluating every training activity that there are still challenges, notably for tee high-quality and effectiveness; more uniformly. lawyers’, court staff, and bailiffs’ train- „„Shared responsibility for judicial The new strategy confirms that judg- ing. Challenges (also in view of the trend training between Member States, train- es and prosecutors remain the main tar- towards the digitalisation of justice) will ing providers, national and European get group for training on EU law. The be tackled by the new European judicial justice professions’ organisations, and strategy also supports justice profes- training strategy 2021–2024 and the the EU. sionals in the Western Balkans and in launch of the European Training Plat- The new strategy sets ambitious tar- other EU partner countries, in Africa and form. Both initiatives were presented, gets both in terms of quantity and qual- together with the annual report on Eu- ity. Overall, more justice professionals Continued on page 272

264 | eucrim 4 / 2020 Brexit

Brexit: EU–UK Trade and Cooperation Agreement – Impacts on PIF and JHA in a Nutshell

On 24 December 2020, EU and UK ne- „„ Implementing the main negotiating ance, clarifying how the TCA will be gotiators reached agreement on the text of principles set by the European Coun- operated and controlled (including the a new Trade and Cooperation Agreement cil, i.e., protection of the integrity of the establishment of a Joint Partnership (TCA). It regulates a close relationship Single Market, indivisibility of the four Council and binding enforcement and between the EU and UK for the period freedoms, and integrity of the EU’s legal dispute settlement mechanisms). immediately after the UK finally left the order; These pillars, which are regulated in EU on 1 January 2021, 00.00h, when the „„ Striking a balance between the specif- Parts Two, Three, and Six of the TCA, transition period (agreed in the Withdraw- ic status of the UK as a close EU partner are flanked by: al Agreement) also ended. Since the nego- (as regards both economic and security „„ Common and institutional provisions tiations were finalised at a very late stage issues) and the fact that a non-EU coun- (Part One); before expiry of the transition period, and try cannot enjoy the same benefits as „„ Provisions on thematic cooperation in light of the exceptional circumstances, what EU membership offers. in the fields of health and cyber security the Council and the Commission agreed Against this background, the TCA at- (Part Four); to apply the TCA on a provisional basis, tempts to cover areas of economic part- „„ The participation of the UK in Un- namely for a limited period of time until nership as comprehensively as possible ion programmes, sound financial man- 28 February 2021. This transition period and to be an agreement unprecedented agement, and financial provisions (Part has been designed to enable the EU to fi- in scope. However, in some areas – in- Five); nalise its internal ratification procedures, cluding law enforcement cooperation „„ Final provisions (Part Seven). especially for the European Parliament to – damage control prevails over security The provisions on economic, societal, exercise democratic scrutiny. After con- gains. A number of areas, such as for- and security policy areas are further sup- sent by the EP, the agreement must be eign policy, security and defence are not plemented by several annexes, eight of formally adopted by the Council. Mean- covered by the agreement. This means, which deal with law enforcement and ju- while, the Commission and the Council for instance, that there will be no joint dicial cooperation. The following three requested an extension of the transition responses or coordination if it comes protocols with annexes round out the period till 30 April 2020. The UK agreed to the imposition of smart sanctions on TCA: to this proposal. Now the decision lies third-country nationals or economic „„ Protocol on administrative coopera- with the EP. The UK itself has already entities. As regards cooperation in the tion and combating fraud in the field of finalised its ratification process: the UK enforcement of judicial decisions, for value added tax and on mutual assis- Parliament ratified the TCA on 30 De- example, which is also not covered by tance for the recovery of claims relating cember 2020. The bill implementing the the TCA, international agreements ap- to taxes and duties; TCA received royal assent on 31 Decem- ply to which both the UK and the indi- „„ Protocol on mutual administrative as- ber 2020 and became the European Union vidual EU Member State are party. The sistance in customs matters; (Future Relationship) Act. latter mainly means that the UK “falls „„ Protocol on social security coordina- The TCA was published in the EU’s back” on the standard of the Council of tion. Official Journal L 444 of 31 December Europe. The main content and principles of 2020, pp. 14 et seq. It is important to In substance, the TCA regulates three EU–UK cooperation in the fields of pro- note that the numbering of articles in the pillars: tection of the EU’s financial interests TCA is provisional and subject to further „„ Free trade arrangements in a num- (PIF) and justice and home affairs are amendments after final adoption of the ber of areas of EU interest, in particu- outlined in the following. act. lar trade in goods and services, but also hh Protection of Financial Interests − The EU conducted negotiations with investment, digital trade, intellectual Customs the following aims: property, public procurement, energy, „„ The EU and the UK (hereinafter also „„ Ensuring respect for rights of busi- tax transparency, etc.; “the Parties”) agreed on the establish- nesses, consumers, and individuals; „„ Arrangements for a security partner- ment of a free trade zone with zero tariffs „„ Establishing fair competition while ship establishing a framework for law and zero quotas on all goods that comply recognizing each Party’s regulatory au- enforcement and judicial cooperation in with the appropriate rules of origin. tonomy, e.g., in the field of granting sub- criminal matters; „„ The Parties are obliged to cooper- sidies; „„ A horizontal framework for govern- ate in preventing, detecting, and com-

eucrim 4 / 2020 | 265 NEWS – European Union bating breaches or circumventions of well as the powers of OLAF to investi- on implementation of the anti-fraud customs legislation, in accordance with gate irregularities, fraud, and other crim- measures; the chapter providing the rules of origin inal offences affecting the EU’s financial yyDesignation of a contact point in the and the Protocol on mutual administra- interests in the UK. UK responsible for effective coopera- tive assistance in customs matters. Each „„The European Commission and tion and information exchange with Party will take appropriate and compa- OLAF are authorised to carry out ad- OLAF. rable measures to protect its own and ministrative investigations, including „„Art. UNPRO.4.4 ensures that Com- the other Party’s financial interests re- on-the-spot checks and inspections, in mission decisions imposing a pecuniary garding the levying of duties on goods the territory of the UK. OLAF’s powers obligation on legal or natural persons are entering the customs territories of the include: enforceable in the UK. The competent UK or the Union (principle of equiva- yyCarrying out on-the-spot checks and UK authority is to recognize such de- lence – cf. Part Two, Title I, Chapter 1, inspections on the premises of any cisions and issue an enforcement order Art. GOODS.19). natural person residing in or legal without any formality other than verifi- „„The Parties agreed on a series of entity established in the UK and re- cation of the authenticity of the decision. measures for customs cooperation in or- ceiving Union funding under a fund- The same applies to judgments/orders der to ensure compliance with the cus- ing agreement or a contract, as well as rendered by the CJEU in application of toms and trade facilitations; the TCA on the premises of any third party in- an arbitration clause. stresses that the measures will also en- volved in the implementation of such sure the proper protection of security Union funding residing or established hhVAT Fraud – Administrative and safety of citizens and the effective in the UK; Cooperation fight against fraud (Part Two, Title I, yyAccessing all relevant information „„The TCA includes a protocol that Chapter 5, Arts. CUSTMS.1 and .2). and documentation (in electronic or establishes the framework for adminis- „„A protocol stipulates the legal frame- paper versions, or both), which are trative cooperation in VAT-related mat- work for cooperation between the Par- required for the proper conduct of on- ters. Like the Protocol on administrative ties’ customs authorities, so that correct the-spot checks and inspections (in cooperation in customs matters, it is a application of customs legislation is particular, OLAF agents may copy self-standing, directly applicable agree- ensured. Cooperation will particularly relevant documents); ment. It pursues the aim of enabling EU include preventing, investigating, and yyRequesting assistance from UK au- Member State and UK authorities to as- combating operations in breach of that thorities to carry out the necessary sist each other in order to ensure compli- legislation. measures if the person/entity under ance with VAT legislation, protect VAT „„This protocol is a comprehensive, investigation resists. revenue, and recover claims relating to self-standing agreement that can be di- „„The European Commission may im- taxes and duties. rectly applied. It regulates not only the pose administrative measures and pen- „„Rules and procedures govern, inter rules and procedure for information alties on legal or natural persons par- alia: exchange following requests but also ticipating in the implementation of a yyThe exchange of information that spontaneous and automatic information programme or activity in accordance with may help effect a correct VAT assess- exchanges. Union legislation. ment, monitor the correct application „„Cooperation between OLAF and the of VAT, and combat VAT fraud; hhProtection of Financial Interests – UK authorities mainly includes: yyThe recovery of claims relating to EU Programmes yyObligation for UK authorities to in- VAT, customs, and excise duties (lev- „„Part Five of the TCA lays down the form about facts or suspicion of irreg- ied by or on behalf of a State or on conditions that will enable the UK to ularities, fraud, or any illegal activity behalf of the Union); participate in Union programmes, ac- affecting the EU’s financial interests yyAdministrative penalties, fines, fees, tivities and services thereunder. The Un- “within a reasonable period”; and surcharges relating to said claims. ion programmes in which the UK may yyClose collaboration in the preparation participate will be specifically listed in and conduct of on-the-spot checks hhData protection protocols. and inspections; „„In general, both the EU and the UK „„Chapter 2 of Title Five provides sev- yyObligation for OLAF to inform the affirm their “longstanding” commitment eral provisions on financial manage- competent UK authorities of the re- towards ensuring a high level of protec- ment. Art. UNPRO.4.2 regulates the sults of on-the-spot checks and in- tion of personal data in the realm of law cooperation between UK authorities and spections; enforcement and judicial cooperation in the European Commission/OLAF as yyRegular exchange of information criminal matters.

266 | eucrim 4 / 2020 Brexit

„„The TCA sets out a range of data hhLaw Enforcement Cooperation − for the exchange of VRD, because the protection principles that the Parties’ Prüm UK has not yet implemented the coop- respective data protection regimes must „„Title II of Part Three (Arts. LAW. eration system for this data category. ensure, e.g.: PRUM.5 et seq.) ensures that the UK can „„Keeping in mind that the Prüm yyThe principles of lawful and fair data continue to participate in the exchange legislation will be substantially revised processing and of data minimisation, of information as regards DNA profiles, (“next generation Prüm”, eucrim purpose limitation, accuracy, and dactyloscopic data (fingerprints), and 3/2020, 189–190), the TCA has foreseen storage limitation; vehicle registration data (VRD), which a consultation mechanism by means of yyThe guarantee of data subjects’ are at the heart of the so-called Prüm which the UK may participate in the enforceable rights regarding access, cooperation regime set out in Council future Prüm agreement. If agreement is rectification, and erasure; Decisions 2008/615/JHA and 2008/616/ not reached, Prüm cooperation between yyThe data subjects’ rights to effective JHA. In essence, Title II copies the the UK and the EU can be suspended administrative and judicial redress in relevant provisions from said Council (Art. LAW.PRUM.19). the event of violation of data protec- decisions. Annex Law-1 lays down ad- tion safeguards; ministrative and technical details for the hhLaw Enforcement Cooperation – yyNotification of data breaches; implementation of Title II. PNR yyOnward transfers to third countries „„To ensure a high standard of data „„Title III of Part Three (Arts. LAW. only under the condition that the level protection, the TCA maintains the hit/ PNR.18 et seq.) sets up a cooperation of protection is not undermined; no-hit procedure, i.e., retrieval is only agreement between the EU and the UK yySupervision of compliance with data carried out with anonymised index files. that ensures the transfer of passenger protection safeguards and the enforce- Accordingly, the querying police officer name records (PNR) to the UK by air ment of data protection safeguards by is only informed as to whether data on carriers. It includes detailed rules for independent authorities (Part Three, the searched profile is also available in police and judicial cooperation on PNR Title I, Art. LAW.GEN.4). the other contracting state’s databank. In data between the EU Member States, „„Cooperation between the UK and the order to obtain further information, e.g., Europol, and Eurojust, on the one hand, EU on data protection issues is loosely on the identity of the person, the police and UK law enforcement authorities, on agreed in Art. COMPROV.10 (Part Six, service must take up contact with the the other. Title II). contracting state or initiate a request for „„The provisions on PNR cooperation „„In principle, the Party transferring mutual legal assistance. are quite unique, because the EU has, personal data shall respect its rules on „„The UK must undergo an “ex ante for the first time, taken into account the international transfers of personal data. evaluation” procedure (Art. LAW. findings of the CJEU’s opinion of 26 „„For a transition period, the UK will PRUM.18). The meaning of this provi- July 2017 that stopped the EU-Canada not be considered a third country, so that sion is unclear, however, considering that PNR deal (eucrim 3/2017, 114–115). smooth transmission of personal data the UK became successfully connected Therefore, the EU casted the CJEU’s de- can continue, provided that the UK up- to the exchange procedure in the areas mands into an international PNR agree- holds its current data protection standard of DNA and fingerprints after a lengthy ment (the TCA). This concerns mainly incorporating EU legislation (cf. Part evaluation procedure that started be- the following issues: Seven, Art. FINPROV.10A – bridging fore the Brexit. Art. 18 is probably to be yyPurpose limitation; clause). During this transition period, read such that the UK and EU Member yyScope of PNR data; the Commission is called on to adopt ad- States can only carry out exchanges on yyNon-discrimination and sensitive data; equacy decisions as required by the Law the basis of the Prüm regime (automated yyTransparency and passenger rights; Enforcement Data Protection Directive searching and comparison of DNA pro- yyAutomated processing of PNR data; 2016/680 and the General Data Protec- files, automated searching for -dacty yyData retention; tion Regulation. These will then form loscopic data, and supply of additional yyConditions for the use of PNR data the legal basis for transmissions of per- personal data) for nine months after en- other than border and security checks, sonal data after the end of the transition try into force of the TCA. The Special- disclosure to other UK government period when the UK must be regarded as ised Committee on Law Enforcement authorities, and disclosure to other a “third country”. and Judicial Cooperation can extend this third-country authorities. „„These general rules on data protec- time limit by another nine months. The „„If either Party considers the contin- tion are topped up with specific rules ex ante evaluation will then take place ued operation to be “no longer” appro- in the relevant chapters on law enforce- after expiry of the 9/18 months. In any priate, the cooperation on PNR may be ment cooperation. event, a pre-evaluation must take place suspended (Art. LAW.PNR.38).

eucrim 4 / 2020 | 267 NEWS – European Union hhLaw Enforcement Cooperation – cial authority without the consent of the hhCooperation with Eurojust Information Exchange country that provided it (this can be al- „„Like cooperation with Europol, the „„Title IV of Part Three establishes a ready indicated in the reply). TCA sets up the basic legal framework framework that will allow the efficient that ensures continuation of the UK’s exchange of information between po- hhCooperation with Europol operational cooperation at Eurojust (Part lice, customs, and other authorities ac- „„Title V of Part Three ensures the Three, Title VI). tive in the field of the prevention, inves- smooth transition of the UK from being „„Likewise, the section on Eurojust tigation, detection, and prosecution of a former EU Member State to being a provides regulations, inter alia, on the criminal offences. non-EU country. However, the aim is scope of cooperation, the UK liaison „„The Title, consisting of a single provi- that the UK remains a privileged partner prosecutor, and the exchange of non- sion (Art. LAW.OPCO.1), is a slimmed- to Europol. Brexit mainly means that the personal and personal data. down version of the EU’s Framework UK no longer has direct access to the „„Brexit mainly affects the switch of Decision on simplifying the exchange Europol Information System and loses the UK National Member at Eurojust of information and intelligence between some other Member State privileges. to a liaison prosecutor position. His/her EU countries’ law enforcement authori- „„The section on Europol establishes tasks, rights, and obligations and those ties (FD 2006/960/JHA, also known as a framework for cooperative relations of his/her assistant as well as any costs the “Swedish Initiative”). between Europol and the competent UK involved will be regulated in a working „„The TCA enables the sharing of infor- authorities in order to maintain mutual arrangement between Eurojust and the mation that a competent authority in an police cooperation when preventing and UK. EU country or in the UK holds. The pur- combating serious crime, terrorism, and „„In addition, the modalities of cooper- poses of the exchange have been broadly forms of crime that affect a common in- ation between the Parties as considered formulated. Mutual assistance through terest covered by Union policy. “appropriate to implement Title VI” the provision of relevant information „„The provisions regulate, inter alia, the shall be subject to a working arrange- can be performed for the purposes of: scope of cooperation, liaison officers, in- ment concluded between Eurojust and yyPreventing, investigating, detecting, formation exchanges, and personal data the competent authorities of the UK (in and prosecuting criminal offences; flows. accordance with Arts. 47 (3) and 56 (3) yyExecuting criminal penalties; „„In addition to the exchange of per- of Eurojust Regulation 2018/1727). yySafeguarding against and preventing sonal data (under the conditions laid threats to public safety; down in Title V and in accordance with hhExtradition yyPreventing and combating money the tasks of Europol outlined in Europol „„Title VII of Part Three provides a self- laundering and the financing of -ter Regulation 2016/794), cooperation may standing chapter with directly applicable rorism. include: regulations on extradition between an „„The provision can also be consid- „„The exchange of information such as EU Member State and the UK. The regu- ered compensation for the UK’s ter- specialist knowledge; lations (Art. Law.SURR.76–Art. Law. minated access to the Schengen Infor- „„General situation reports; SURR.112) are basically modelled on the mation System after Brexit. Therefore, „„Results of strategic analysis; 2006 surrender agreement between the Art. LAW.OPCO.1 clarifies that infor- „„Information on criminal investigation EU and Iceland and Norway. mation on wanted and missing persons procedures; „„The Framework Decision on the Eu- and on objects can also be requested by „„Information on crime prevention ropean Arrest Warrant no longer applies a competent authority from the UK or methods; in relation to the UK, except for EAWs from a Member State. „„Participation in training activities; issued and executed (i.e., the requested „„Information can be exchanged either „„Advice and support in individual person was arrested) before the transi- upon request or spontaneously. Explicit criminal investigations and operational tion period. grounds for refusal are not stipulated; cooperation. „„The TCA explicitly establishes the however, the provision of information „„Title V clarifies that certain provi- principle of proportionality in relation is made subject to the conditions of the sions and details of cooperation must be to surrenders, which mainly mirrors a domestic law that applies to the provid- implemented by Working and Adminis- corresponding provision in the UK’s ing competent authority and within the trative Arrangements that will be con- Extradition Act 2003 (cf. Art. LAW. scope of its powers. cluded between Europol and the com- SURR.77). „„Like the FD 2006/960, Art. LAW. petent UK authorities (on the basis of „„The list of offences known from the OPCO.1 clarifies that information can- Art. 23(5) and Art. 25(1) of the Europol FD EAW, for which double criminal- not be used as evidence before a judi- Regulation). ity checks are no longer carried out, is

268 | eucrim 4 / 2020 Brexit applicable if reciprocity is given; this visions laid down in the EU’s procedural tion and its Protocols, MLA requests can means that giving up the requirement of rights Directives, in particular the right also be directly transmitted between the double criminality is subject to recipro- to be informed and the right of access public prosecutor’s offices of the UK cal notifications on the part of the EU to a lawyer. and EU Member States. In urgent cases Member State and of the UK; „„ Annex LAW-5 provides a form to be and if information needs to be provided „„ In essence, Arts. LAW.SURR.81 and used for surrender requests. spontaneously, the authorities can also .82 have taken over the mandatory and „„ Since the UK is no longer connected resort to the communication channels of facultative refusal grounds laid down in to the SIS, the main channel for trans- Europol and Eurojust. Arts. 3, 4, and 4a FD EAW. What is new, mission will be the red notice procedure „„ EU Member States may invite the however, is an optional refusal ground via Interpol. UK to participate in Joint Investigation for arrest warrants that are based on dis- „„ Notifications that limit surrender – Teams. criminatory prosecution. i.e., those on double criminality, the „„ The political offence exception political offence exception, and the na- hh Exchange of Criminal Records (abandoned in the FD EAW) may be tionality exception – are subject to re- „„ As a special form of mutual legal as- principally applicable and disregarded view and evaluation. The notification sistance, the exchange of criminal record for terrorism offences only if the UK or referring to the nationality exception information is defined in specific rules in the EU (acting on behalf of any of its must be renewed every five years in or- Title IX of Part Three. The provisions in Member States) provide a correspond- der to remain applicable (cf. Art. LAW. this title take precedence over the provi- ing notification. SURR.110). sions foreseen for mutual assistance in „„ Based on reasons rooted in the fun- Title VIII. damental principles or practice of the hh Mutual Legal Assistance „„ The future exchange of criminal re- domestic legal order, each EU Mem- in Criminal Matters cord information is based on the respec- ber State (or the UK) can declare that it „„ Unlike the provisions on extradition/ tive provisions of the aforementioned will not surrender its own nationals or surrender, the TCA does not provide for CoE Convention on Mutual Assistance can authorize their surrender only under an own corpus of law as regards mu- in Criminal Matters and its protocols, certain specific conditions; in this case, tual assistance in criminal matters. In- which are supplemented by Title IX. The the other Party can apply the principle stead, Arts. LAW.MUTAS.113 – LAW. supplements aim to maintain certain ele- of reciprocity. If applied, the Member MUTAS.122 (Title VIII of Part Three) ments of the established ECRIS system State must consider initiating proceed- include only provisions that aim to sup- after Brexit. ings against its own national (principle plement the mutual legal assistance „„ Requests for criminal records can be aut dedere aut iudicare). framework of the Council of Europe, made to and from a UK designated au- „„ Art. LAW.SURR.84 regulates the i.e., the CoE’s “mother” Convention on thority and an EU Member State central possibilities to make extradition subject Mutual Assistance in Criminal Matters authority and must be complied with as to guarantees, e.g., in case of life impris- of 1959 and its two Additional Protocols soon as possible − in any event, within onment and surrender of nationals/resi- of 1978 and 2001. A peculiarity of these 20 working days. dents, which resembles Art. 5 FD EAW. supplements is that they include some el- „„ At least once a month, the UK will Interestingly, the provision additionally ements of the Directive on the European notify the respective EU Member States implements the CJEU case law (estab- Investigation Order, such as the provi- of convictions of EU nationals. Con- lished in Aranyosi/ Căldăraru and “LM”) sions on conditions for an MLA request versely, EU Member States have the on the respect for fundamental rights in reflecting the proportionality principle, same obligations to report to the UK any EAW cases: before it decides whether to recourse to a different type of investiga- convictions of UK nationals in their ju- execute the arrest warrant, the executing tive measure, the obligations to inform, risdictions. judicial authority may require, as ap- the transnational ne bis in idem principle „„ Annex LAW-6 lays down technical propriate, additional guarantees as to the as a refusal ground, and time limits for and procedural specifications, enabling treatment of the requested person after the execution of an MLA request. the communication of criminal record his/her surrender if there are substantial „„ Unlike the chapter on surrender, there information to take place electronically. grounds for believing that there is a real is no agreed form for MLA requests yet. risk to the protection of the fundamental A standard form will be established by hh Anti-Money Laundering and rights of the requested person. the Special Committee on Law Enforce- Counter-Terrorist Financing „„ Art. LAW.SURR.89 sets out the rights ment and Judicial Cooperation. „„ By means of Title X of Part Three, the of the requested person in the extradition „„ If direct transmission channels are UK and the EU agreed to support and procedure and takes up the relevant pro- provided by the CoE’s MLA Conven- strengthen action to prevent and combat

eucrim 4 / 2020 | 269 NEWS – European Union money laundering and terrorist financ- saw Convention, CETS 198). This legal and judicial cooperation chapters. Art. ing. Measures shall include: framework is rounded off with elements LAW.OTHER.134 regulates the modus yySupport for international efforts in of EU Regulation 2018/1805 on the mu- operandi for notifications to be made, this area; tual recognition of freezing and confisca- in particular as regards those provided yyRecognition of the need to cooperate; tion orders (eucrim 4/2018, 201–202). for in the chapter on surrender. The Par- yyExchange of relevant information (as „„Title XI provides a twofold regime: ties also agreed on a joint review of Part appropriate and provided the UK sys- (1) mandatory cooperation for freez- Three five years after the entry into force tem is considered equivalent in terms ing and confiscation of property within of the TCA (Art. LAW.OTHER.135). of data protection); the framework of criminal proceedings „„Each Party may terminate Part Three yyMaintenance of a comprehensive re- and (2) cooperation in favour of non- at any moment by written notification gime in the UK and EU and endeav- criminal (e.g., civil or administrative) through diplomatic channels. Termina- ours to regularly enhance it, taking proceedings, where the States are (only) tion can be explicitly justified if the UK into account FATF Recommendations. obliged to assist “to the widest extent or a EU Member State have denounced „„Detailed provisions were introduced possible under [their] domestic law”. the European Convention on Human to ensure the transparency of beneficial „„As a rule, cooperation takes place via Rights or Protocols 1, 6, or 13 thereto ownership. They reinforce that UK– central authorities. In urgent cases direct (cf. Art. LAW.OTHER.136). EU cooperation goes beyond FATF communication between the competent „„There are two reasons for a suspen- standards and reflects the achievements judicial authorities of the requesting sion of Part III or individual Titles there- reached at the EU level. The UK and the state and the requested state is possible. of, which can be notified by each Party EU will, for instance, ensure that legal The EPPO as Union body is also entitled through diplomatic channels (Art. LAW. entities maintain adequate, accurate, and to participate in the confiscation scheme; OTHER.137): up-to-date information about beneficial it is considered both a competent author- yyAn event involving serious and owners, set up central registers with ben- ity and a central authority. systemic deficiencies within one eficial ownership, and grant their com- „„Title XI provides for the different Party as regards the protection of petent authorities access to such regis- forms of investigative assistance, e.g., fundamental rights or the principle ters without restriction and in a timely identification and tracing of instrumen- of the rule of law; manner. talities, proceeds, and other property lia- yyAn event involving serious and sys- ble to confiscation, information on bank temic deficiencies within one Party hhFreezing and Confiscation accounts and safe deposit boxes, infor- as regards the protection of personal „„The EU and the UK agreed on a com- mation on banking transactions, and the data, including deficiencies leading prehensive set of rules to govern the monitoring of banking transactions. up to a relevant adequacy decision execution of requests for the purposes „„Rules inspired by the 2018 EU Regu- ceasing to apply. of both investigations and proceedings lation mainly concern time limits, form „„Title XIII of Part Three (Arts. LAW. aimed at freezing property, with a view (provided in Annex-LAW 8), language DS.1 – LAW.DS.7) designed a dedicated to its subsequent confiscation, as well as regime, and grounds for refusal (for the dispute resolution mechanism in order to investigations and proceedings aimed latter, cf. Art. LAW CONFISC.15). effectively settle disputes that concern at confiscating property. Like the provi- „„Title XI includes obligations to take law enforcement and judicial coopera- sions on surrender, the rules stipulated in provisional measures in relation to con- tion in criminal matters. The provisions Title XI of Part Three (Arts. LAW.CON- fiscation and in relation to the execution are lex specialis to the general provi- FISC.1 – LAW.CONFISC.34) represent of confiscation requests. For both meas- sions on dispute settlement laid down in a self-standing legal agreement with di- ures, each State ensures that the affected Part Six (cf. Art. INST.10(2)). rectly applicable cooperation rules. persons have effective remedies to pre- „„The mechanism of Title XIII does not „„The section was inspired by the serve their rights; however, substantive apply to provisions in Part Three that 1990 Council of Europe Convention on reasons for requested measures can only explicitly provide for the termination or Laundering, Search, Seizure and Con- be challenged before a court of the re- suspension of the agreement, including fiscation of the Proceeds from Crime, questing State. the aforementioned provisions in Title (also known as the Strasbourg Conven- XII and specific suspension provisions tion, CETS 141) and the 2005 Council hhCross-Cutting Issues and Dispute in the chapters on PNR and Prüm coop- of Europe Convention on Laundering, Settlement eration (see above). Search, Seizure and Confiscation of the „„Title XII of Part Three deals with „„The dispute settlement mechanism is Proceeds from Crime and on the Financ- several cross-cutting issues affecting all triggered if a Party (“the complaining ing of Terrorism, (also known as the War- the other parts of the law enforcement Party”) considers the other Party (“the

270 | eucrim 4 / 2020 Brexit responding Party”) to have breached an forms and manifestations in accordance ship Council. The EU and the UK com- obligation under Part Three of the TCA. with international law…”. mit to regularly consulting civil society The procedure involves consultations „„A regular dialogue will be established organisations on implementation of the aimed at finding amicable solutions with the aim to promote and facilitate, TCA. This is in keeping with the EU’s within three months. inter alia: commitments as is customary in modern „„If no amicable solution is found and yyThe sharing of assessments on the international agreements negotiated by the complaining Party considers the threat of terrorism; the EU. responding Party to have been in seri- yyThe exchange of best practices and ous breach of its obligations, the com- expertise on counter-terrorism; hhSummaries plaining Party may suspend the Title(s) yyOperational cooperation and infor- The Commission has provided a concerned. In this case, the responding mation exchange; brochure that gives an overview of the Party may counteract and suspend all re- yyInformation exchange on cooperation new relationship and the most important maining Titles of Part III. within the framework of multilateral changes it entails. Another brochure con- organisations. tains a compilation of the consequences hhCyber Security of the UK’s choice to leave the EU and The Parties confirm their “endeavour hhGovernance the benefits of the TCA. Summaries of to establish a regular dialogue in order Another peculiarity is that the TCA the various components of the TCA are to exchange information about relevant established a single and clear horizontal given in a Q&A memo. policy developments, including in rela- institutional governance framework to tion to international security, security of ensure the proper implementation and hhFirst Assessment emerging technologies, internet govern- operation of the agreement and to control The EU–UK “Christmas deal” of- ance, cybersecurity, cyber defence and the Parties’ commitments. To facilitate fers citizens, businesses, and adminis- cybercrime”. In Title II of Part Four, the overall management of the agreement, trations legal certainty on the rules that UK and the EU agreed on a “thematic the EU and the UK agreed to create a joint need to be followed and the guarantees cooperation” in the field of cyber secu- body, called the Partnership Council. The that need to be provided after 1 January rity. Measures of cooperation may in- Partnership Council is to be co-chaired 2021. In the field of justice and home clude: by a Member of the European Commis- affairs, a number of provisions ensure „„Sharing of best practices and joint sion and a representative of the UK at the that the UK is not suddenly cut off from practical actions aimed at promoting and ministerial level. The Partnership Council the most important tools in police and protecting an open, free, and secure cy- will meet at least once a year and oversees judicial cooperation. In particular, the berspace; the attainment of the TCA’s objectives. fact that the UK will not be treated as a „„Information exchange on methods/ The EU or the UK can refer any issue third country for a transition period will tools, general threats, and vulnerabili- to the Partnership Council relating to the enable the exchange of personal data to ties among the computer emergency re- implementation, application, and interpre- continue, in particular in the field of law sponse teams of the EU and the UK; tation of the TCA. The powers of the Part- enforcement. When applying the TCA’s „„Subject to invitation, participation of nership Council are included in Part One, JHA chapters, practitioners should keep the UK in activities of the EU’s Network Title III, Art. INST.1(4). in mind, however, that the EU and UK and Information Security Cooperation The Partnership Council will be as- have decided on a three-part system: Group; sisted by Specialised Committees, „„Self-standing cooperation agreements, „„Upon invitation, participation of the which will address matters regulated in such as those on PNR, surrender, and UK in certain activities carried out by the different parts and titles of the TCA, confiscation; the EU Cybersecurity Agency (ENISA). such as matters of law enforcement and „„Arrangements supplementing the judicial cooperation as well as the UK’s Council of Europe cooperation frame- hhCounter-Terrorism participation in EU programmes. The work, such as those on mutual legal as- „„The framework for cooperation in general powers of the Specialised Com- sistance; the fight against terrorism has been laid mittees are provided for in Part One, „„In some cases, no regulations at all down in the horizontal provisions of Part ­Title III, Art. INST.2(4). (e.g., for the transfer of prisoners). Six of the TCA. In Art. COMPROV.9, The TCA also enables the European In conclusion, the UK has a spe- the EU and UK reaffirm their commit- Parliament and the UK Parliament to cial status in the relationship with EU ments to “cooperate at the bilateral, re- create a joint parliamentary assembly to Member States. Gaps and uncertainties gional and international levels to prevent exchange views on the Agreement and remain and they must be solved by inter- and combat acts of terrorism in all its make recommendations to the Partner- pretative efforts in the future. (TW)

eucrim 4 / 2020 | 271 NEWS – European Union

Continued from page 264 new strategy on European judicial train- „„Making more strategic use of unan- ing for 2021–2024 (aforementioned nounced evaluations and thematic eval- Latin America. This should contribute to news item, p. 264), which aims to give uations; strengthening democracy, human rights a new boost to the trainings of judicial „„Improving synergies and cooperation and upholding of the rule of law around practitioners in the years to come. (TW) with EU agencies and national quality the word. control mechanisms; The 2021–2024 European judicial „„Elaborating and up-dating catalogues training strategy was presented together Schengen with best practices; with the Commission’s annual report „„Adopting the annual report to facili- that assessed the achievements of judi- Commission Report on the Functioning tate political discussion. cial professional trainings on EU law of the Schengen Area over the Past Based on the results of more than 200 in 2019 and the launch of the Europe- 5 Years evaluations carried out between 2015 an Training Platform (separate news Ahead of the newly created Schen- and 2019, the report finds that Schen- items). (TW) gen Forum (following news item), gen states implemented the Schengen the Commission published a report on rules adequately overall, with serious European Training Platform Launched 25.11.2020 on the implementation of deficiencies identified only in a limited On 2 December 2020, the Commission the Schengen acquis rules and the func- number of countries and promptly cor- launched the test phase of the European tioning of the Schengen Evaluation and rected. However, recurring deficiencies Training Platform (ETP). The ETP aims Monitoring Mechanism between 2015 (e.g. insufficient number of staff,- tech at solving the problem that currently in- and 2019. The current Schengen Evalu- nological and regulatory barriers) and formation on judicial training opportu- ation and Monitoring Mechanism is op- diverging practices remained and could nities and training materials is scattered erational since 2015; as a peer review ultimately affect the integrity and func- all over the internet. Embedded into the tool, it aims to ensure an effective, con- tioning of the Schengen area. EU’s e-justice portal, the ETP is a search sistent and transparent application of the According to the Commission, a tool by means of which justice prac- Schengen rules. higher level of harmonisation should titioners can find training courses and The Commission report includes: be ensured in the coming years. The ef- self-training resources on a great variety „„An outline of the Schengen evalua- fectiveness of the evaluation mechanism of EU law. During the test phase, the tion process and the actions taken within must be enhanced while some short- four recognised EU-level judicial train- the First Multiannual Evaluation Pro- comings could be solved by operational ing providers (European Judicial Train- gramme (2015–2019); measures, others need legislative chang- ing Network (EJTN), Academy of Euro- „„The main findings and progress made es. The Commission finally stresses pean Law (ERA), European Institute of during the First Multiannual Evaluation that it will establish a more regular and Public Administration (EIPA) and Euro- Programme; structured political dialogue among the pean University Institute (EUI)) supply „„Specific finding in the various policy actors involved in the functioning of information on their training activities fields of the Schengen regulations, e.g. the Schengen area, which is considered and in different languages. The Euro- external border management, police a key factor to make the Schengen area pean Commission contributes to the cooperation, the Schengen Information stronger and more resilient. platform with ready-to-use training ma- System (SIS), and data protection; The tabled report will feed into the terials or handbooks produced notably „„Shortcomings identified when having discussion of the Schengen Forum which thanks to EU financial support. Legal carried out the multiannual evaluation is to discuss the future Schengen Strat- professional are able to search according programme. egy. The Commission has announced to different search fields (such as topic The report also proposed a number that it will present the new strategy for of the course, venue, date, language and of operational measures to improve the a stronger Schengen area in mid-2021. practice area: from civil law, public law, Schengen evaluation mechanism, inter (TW) criminal law to fundamental rights, legal alia: language, etc.). „„Simplifying internal workflows and Strengthening the Schengen Area: If the test phase is completed, the set benchmarks to reduce the length; Schengen Forum Meets for the First Commission will explore the possibili- „„Developing new trainings in the area Time ties to open the platform to other training of visa policy; 35 years ago, on 14 June 1985, France, providers. The ETP is to be fully opera- „„Updating checklists to focus on Germany and the three Benelux States tional in the course of 2021. The ETP is the main elements that may affect the signed the Schengen Agreement that closely connected to the Commission’s Schengen area as a whole; removed internal border controls be-

272 | eucrim 4 / 2020 Foundations

tween those Member States. Today, the to present in mid-2021. The Schengen „„“caching services” which – beyond Schengen area encompasses 26 Europe- Forum will continue to meet regularly mere conduit services – are involved in an states with over 400 million citizens. both at political or technical levels. Tar- the automatic, intermediate and tempo- Since several years, the area has become geted consultations at technical level rary storage of that information, for the under pressure (e.g. migrant crises, ter- will take place with representatives from sole purpose of making more efficient rorist attacks and the corona pandemic, the European Parliament and national the information’s onward transmission which all led to the reintroduction of in- authorities over the next months. The to other recipients upon their request; ternal border checks). Today, the Schen- next meeting at political level will take „„“hosting services” that consists of the gen model is confronted with a different place in spring 2021. (TW) storage of information provided by, and reality than at the time of the creation at the request of, a recipient of the ser- of the area. Against this background, vice. the EU takes steps to make the Schen- Legislation In other words, the new regulation is gen area stronger and more resilient. On addressed to the large number of digital 30 November 2020, the Commission Commission Proposes New Regulations online services, ranging from simple web- convened the first ever Schengen Fo- on Responsibilities of Digital Services sites to internet infrastructure services rum. A videoconference gathered Mem- On 15 December 2020, the and online platforms. These may be, for spot bers of the European Parliament and Commission tabled two impor- example, online marketplaces, cloud ser- light Home Affairs Ministers with the aim of tant proposals that will establish vice providers, messaging providers, so- fostering cooperation and political dia- horizontal, harmonised rules on govern- cial networks, content-sharing platforms, logue as well as of building up stronger ing digital services in the EU. They are app stores as well as online travel and confidence in the Schengen rules. part of the European Digital Strategy, accommodation platforms. The DSA will The main topics of discussion were: Shaping Europe’s Digital Future; the set out rules on the obligations of inter- „„Improving the mechanism to evaluate package will complement the European mediaries and the conditions for liability the implementation of Schengen rules; Democracy Action Plan aiming at mak- exemptions. Due diligence obligations „„Finding a way forward on the revi- ing European democracies more resil- are however asymmetric, taking account sion of the Schengen Borders Code; ient (separate news item). The legisla- the different types of intermediaries, the „„Better managing of EU’s external tive initiative consists of: nature of the services, and their size and borders; „„The proposal for a Regulation on a their impact on society. Certain substan- „„Enhancing police cooperation and in- Single Market for Digital Services (Dig- tive obligations are limited only to very formation exchange; ital Services Act) and amending Direc- large online platforms which have a cen- „„Strengthening the governance of the tive 2000/31/EC (“DSA”); tral role in facilitating the public debate Schengen area. „„Proposal for a Regulation on contest- and economic transactions. The DSA is to In the field of police cooperation, able and fair markets in the digital sector achieve a balance between upholding the participants discussed, for instance, bet- (Digital Markets Act – “DMA”). benefits for citizens and innovation that ter use of new technologies to ensure Both proposals pursue common ob- digital services have created in Europe security within the Schengen area. Po- jectives: and increasing responsibility since they lice checks were considered as an effec- „„Creating a safer digital space in are prone to misuse. Digital services tive alternative to the reintroduction of which the fundamental rights of all users must in future take actions, in order to border controls. Measures such as joint of digital services are protected; effectively fight trade in and exchange patrols, joint investigation teams, cross- „„Establishing a level playing field to of illegal goods, services, and content border hot pursuits or joint threat analy- foster innovation, growth, and competi- online, curb manipulative algorithmic sis were discussed as being alternatives tiveness, both in the European Single systems that amplify the spread of disin- to effectively address threats to security. Market and globally. formation and other harms, and be more Ahead of the meeting, the Commis- The DSA will establish common rules transparent as regards advertising. More sion presented a report that outlined the for intermediary services. “Intermediary concretely, the future Regulation will main findings and shortcomings over services” are defined and categorised as: provide for the following: the past five years in light of the Schen- „„“mere conduit” services which are „„Rules for the removal of illegal gen evaluation programme carried out involved in the transmission of informa- goods, services or content online: (separate news item, p. 272). The tion in a communication network pro- yyCitizens will be able to notify (“flag”) Schengen Forum is to support the Com- vided by a recipient of the service, or illegal content, including counterfeit mission in drafting its new Schengen in providing access to a communication and dangerous products in an easy Strategy, which the Commission intends network; way;

eucrim 4 / 2020 | 273 NEWS – European Union yyPlatforms are obliged to closely coop- It can impose fines of up to 6% of the the protection and safety online of EU erate with “trusted flaggers”, i.e. enti- global turnover of such service pro- citizens. ties that have demonstrated particular vider. The second piece of proposed legis- expertise and competence in tackling yyDSCs and the Commission will have lation, the Digital Markets Act (DMA), illegal content online, such as asso- the power to directly order immediate will flank the DSA. The DMA lays ciations supporting brand owners; actions, if necessary, to address very down rules on so-called “gatekeep- yyMember States can order any plat- serious harms; ers” in the digital sector. They are large form operating in the EU, irrespec- yyCourts may – as a last resort – tem- companies that function as bottlenecks tive of where they are established, to porarily suspend “rogue services”, between business and consumers in the remove illegal content. i.e. platforms that refuse compliance digital world due to their size that im- „„Safeguards for users whose content with important obligations, thereby pacts the internal market, their ability has been erroneously deleted by plat- endangering people’s life and safety. to control an important digital gateway forms: „„New cooperation mechanism that for business users and their (expected) yyRedress rights are to ensure that nei- brings together DSCs in the “European entrenched and durable position. Gate- ther under-removal nor over-removal Board for Digital Services”. The board keepers could be search engines, social of content on grounds of illegality is designed to give support by analyses, networking services, certain messaging happens; reports and recommendations and to co- services, operating systems and online yyUsers and consumers will have the ordinate joint investigations by DSCs. intermediation services. The DMA will, possibility to contest the removal de- It should be stressed that the Digital inter alia: cisions taken by the online platforms. Services Act will not replace or amend „„Oblige gatekeepers to take proac- yyUsers can complain directly, choose sector-specific legislation, such as those tive action or refrain from behaviour, so an out-of-court settlement or seek re- on copyrights in the digital single mar- that unfair practices are prevented, e.g. dress by courts. ket, consumer protection rules, or the blocking users from un-installing any „„New obligations for very large plat- (proposed) regulation on preventing the pre-installed software or apps; forms (i.e. reaching at least 45 million dissemination of terrorist content online „„Empower the Commission to impose users in the EU representing 10% of the (eucrim 2/2018, 97–98). The DSA sanctions for non-compliance, which population): they must make risk-based will set new horizontal rules covering all could include fines of up to 10% of the assessments, in order to prevent abuse of services and all types of illegal content, gatekeeper’s worldwide turnover; their systems; assessments and measures including goods or services. However, „„Allow the Commission to carry out will be subject to an independent audit; the DSA will not define what is illegal. targeted market investigations to assess „„New powers to scrutinise how plat- This will remain subject to national and whether new gatekeeper practices and forms work and how online risks evolve, EU laws. The DSA rather harmonises services need to be added to these rules. inter alia by facilitating access by re- due diligence obligations for online in- The tabled legislative package was searchers to key platform data; termediaries. preceded by extensive public consulta- „„New rules on traceability of business It builds upon the e-Commerce Di- tion. During the summer of 2020, the users in online market places, to help rective – the core legal EU framework Commission consulted a wide range track down sellers of illegal goods or setting the basic requirements for the of stakeholders to seek their support services; functioning of the single market and the whether specific issues may require an „„New enforcement mechanism, con- supervision of digital services. The DSA EU-level intervention in the context of sisting of national and EU level coop- will react to the changes and challeng- the Digital Services Act and the new eration: es that have emerged since the past 20 competition tool. yyAn independent “Digital Service Co- years when the e-commerce Directive The open public consultations re- ordinator” (DSC) in each EU Member was established, particularly in relation ceived more than 3000 replies from State will be responsible for supervis- to online intermediaries. The DSA also the whole spectrum of the digital ing the intermediary services estab- reacts to the meanwhile differentiated economy and from all over the world lished in the Member State and/or for rules in the EU Member States that were (Commission’s summary report). coordinating with specialised sectoral meanwhile established for the protection The Commission provides comprehen- authorities. The DSC can impose pen- of consumers against powerful online sive material on the legislative package alties (incl. fines) if services do not platforms or social media companies. on its website, including the impact comply with the EU regulation. This legal fragmentation affects both assessments of the two acts, a scheme yyThe Commission is empowered to di- the ability of European service provid- with answers on frequently asked ques- rectly supervise very large platforms. ers to scale in the single market, and on tions and glossaries. A brochure out-

274 | eucrim 4 / 2020 Foundations

Report

Transposition of the PIF Directive into National Legislation Status quo and its consequences on the effectiveness of the EPPO’s investigations and prosecutions – Annual Forum on Combating Fraud in the EU Report of the ERA-Online Conference 25–26 February 2021

Reducing the level of fraud, both within Member States and EU features of the 2017 PIF Directive” done by two OLAF speakers, institutions, is by no means a novel issue on the EU’s criminal Andrea Bordoni (Deputy Head of Unit, Unit C.1, Anti-corruption, justice agenda. On the contrary, it ranks amongst the priority Anti-Fraud Strategy and Analysis at OLAF) and Stanislav Stoykov areas where political and legislative actions are needed. The (Seconded National Expert, Legislative Officer, Unit D1 – Legis- EU’s fragmented regulatory framework leads often to an uneven lation and Hercule, OLAF), various national experts from Italy, transposition and poor results in effective implementation of le- Belgium, Germany, Spain, Romania and Portugal addressed the gal instruments. implementation of the PIF Directive into the national legislation. Already back in 2011, the European Commission announced a set Yves Van Den Berge, European Prosecutor from Belgium at the of initiatives on protecting the licit economy, including: European Public Prosecutor’s Office (EPPO) in Luxemburg pre- „„A communication on a comprehensive policy against sented not only the transposition of the PIF Directive into national corruption; legislation from his Belgian experience as national prosecutor „„A proposal of a new legal framework on the confiscation and as policy officer for criminal legislation of the Minister of and recovery of criminal assets; Justice. He also focussed on his recent experience at EPPO, em- phasising how the EPPO draws its most important powers from „„A communication on the anti-fraud strategy. the PIF Directive. Despite the progress made in the last 10 years, the level of pro- From a perspective of the defence (as well as from a perspec- tection for the EU’s financial interests by criminal law, however tive of victims’ lawyers), general remarks were made by Holger still varies considerably across the Union, this state of affairs Matt, defence lawyer in Frankfurt a.M., Germany and former being generated by a patchy legal and procedural framework. Chair of the European Criminal Bar Association (ECBA). As it To this extent, the existence of a common legal approach would stands, there are no provisions dealing with the defence and lead to better cooperation and assistance in cross-border cases. their interactions with the EPPO, in particular not in the internal The online ERA conference “Transposition of the PIF Directive rules of procedure adopted in October 2020. According to Holger into National Legislation”, which took place on 25–26 February Matt, this is regrettable as it shows that the internal rules are 2021 and which was co-financed by OLAF under the Hercule III not aimed at providing any interaction with defence and victims’ Programme, presented the initiatives recently put forward by the lawyers, although there are, of course, procedural necessities European Commission to revamp EU’s policies on fraud in an in- for such interaction. tegrated manner, an approach made possible by the adoption of The international and European legal frameworks (with a special Directive (EU) 2017/1371 (the so-called “PIF Directive”) in 2017. emphasis on the role of OLAF) were presented by the speakers The PIF Directive aims at strengthening administrative and crimi- and discussed with the audience, which consisted mainly of EU nal law procedures to fight fraud against the Union’s financial lawyers, prosecutors and anti-fraud investigators. The holistic interests. Its objective is to deter fraudsters, to improve the pros- approach of this conference, encompassing legal profession- ecution and sanctioning of crimes against the EU budget and to als from throughout the EU, along with various Presidents and facilitate the recovery of misused EU funds, thereby increasing members of the European Associations for the protection of the the protection of EU taxpayers’ money. EU’s financial interests and European criminal law ensured a All in all, the conference debated ideas on how to improve the good mix of practitioners to discuss cooperation in trans-border EU’s fight against fraud by enhancing transnational and multi- cases of fraud. disciplinary cooperation. After a general introduction: “Fraud types, threats and risks to the EU’s financial interests: the key Laviero Buono, ERA, Trier

lines how online platforms shape the Institutions Council meeting that was chaired by the EU citizens’ life and businesses. It also German Presidency – participants above illustrates the benefits and risks arising all discussed justice-related aspects in from the platform economy and the Eu- Council the fight against terrorism and the de- ropean Union’s regulatory response as velopment of the rule of law in the field well as facts and figures about online Last Justice Council under German of justice. The state of play of the Euro- platforms. Presidency Focused on Justice Aspects pean Public Prosecutor’s Office (EPPO) It is now up to the Council and Euro- of Countering Terrorism was also on the agenda. The conference pean Parliament to discuss the proposal At the videoconference of the Minis- reached, inter alia, the following out- and to adopt the laws in the ordinary leg- ters of Justice of the EU Member States come: islative procedure. (TW) on 2 December 2020 – the last Justice „„Hate speech: binding EU rules are

eucrim 4 / 2020 | 275 NEWS – European Union needed on how online platforms deal a respective report by Eurojust and the cases, and more frequent referrals of cas- with hate speech. Voluntary commit- Genocide Network. The report conclud- es to extended chamber formations. (CR) ments are not sufficient. Incitement of ed that better justice for victims could violence must be prosecuted more ro- be done if the prosecution of terrorism bustly and at an earlier stage throughout offences committed by the ISIS is com- OLAF Europe. EU rules may not only regulate bined with the prosecution of acts of the deletion of hatred content online, but war crimes and other core international OLAF’s New Amended Legal also include the obligation for online crimes. Framework platforms to report criminal offences As far as rule of law developments The European Parliament and spot related to hate crime and hate speech to are concerned, the conference followed the Council adopted Regulation light the competent authority if they become up the Commission’s annual rule of law 2020/2223 amending so-called aware of them. report of September 2020 (eucrim OLAF Regulation (EU, Euratom) No „„Digital cooperation: ministers dis- 3/2020, 158–159), thereby targeting jus- 883/2013. It was published in the Offi- cussed ways to strengthen the digitalisa- tice-specific matters. Ministers shared cial Journal L 437 of 28 December 2020, tion of cross-border judicial cooperation, views on key elements of judicial in- pp. 49–73. The respective legislative based on the studies on cross-border dependence, efficiency and the fight proposal was presented by the Commis- digital criminal justice presented by against corruption. They broadly sup- sion in May 2018 (eucrim 1/2018, the Commission in September 2020 port the creation of a discussion forum 5–6). The new legislation pursues a (eucrim 3/2020, 165; see also the new for judges with the aim to reinforce com- threefold objective: Commission Communication “Digitali- mon ground in terms of legal culture. „„Adapting the operation of OLAF to sation of justice in the European Union The Commission informed the Jus- the establishment of the EPPO; – A toolbox of opportunities” that was tice ministers of the state of play of the „„Enhancing the effectiveness of released on 2 December 2020 news recent progresses on the implementation OLAF’s investigations; item under “Area of Freedom, Security of the EPPO Regulation. The German „„Clarifying and simplifying certain and Justice”). Presidency informed that it prepared a provisions of Regulation 883/2013. „„E-evidence: In the context of digi- comprehensive guidance report on EP- The new Arts. 12c–12g regulate the talisation of cooperation, the Justice PO’s relations with third countries and cooperation between OLAF and the ministers stressed the importance of with the Member States not participating EPPO, which includes the following: progressing with the legislative pro- in the enhanced cooperation (not public „„OLAF’s obligations to report crimi- posal on e-evidence (eucrim 1/2018, yet). (TW) nal conduct to the EPPO; 35–36), where, at the time of the conclu- „„Possibilities for OLAF to conduct sions, the European Parliament has still preliminary evaluations of allegations not entered into trilogue negotiations European Court of Justice (ECJ) and their effects on EPPO investigations; (eucrim 3/2020, 194). They stressed „„Discontinuance of ongoing OLAF in- that the regulation on an EU production Reform Reports Published vestigations where the EPPO is conduct- and preservation order should be subject On 21 December 2020, the Court of Jus- ing an investigation into the same acts; to mandatory judicial review, not least tice followed its obligation to monitor „„The EPPO’s obligation to provide rel- because of the recent CJEU case law on implementation of the reform it started evant information to OLAF with a view the independence of public prosecution in 2016 and sent two reports to the Eu- to taking appropriate administrative ac- services. ropean Parliament, the Council, and the tion if the EPPO has decided not to con- „„Victims of terrorism: the Presidency Commission. The reports assess the ef- duct an investigation or has dismissed a presented a comprehensive report on the fects of measures taken to increase the case; matter. Support of persons who felt vic- number of judges at the General Court, „„Clear rules on how OLAF supports tim of terrorism is advancing, however to increase its efficiency and the consist- the EPPO in accordance with Art. 101(3) coordination in cases with cross-border ency of its case law. of Regulation 2017/1939; implications must be improved. In sum, the reports find it too early to „„A framework enabling OLAF to con- „„European Arrest Warrant: ministers draw definite conclusions as to whether duct complementary investigations; endorsed Council conclusions on the way these reforms have had the expected im- OLAF and the EPPO are also to forward of the instrument (separate pact on the General Court’s efficiency. agree on formal working arrangements, news item, p. 290). Some positive trends can be observed, mainly setting out the exchange of in- „„Cumulative prosecution of foreign however, e.g., a reduction in the length of formation. Both the EPPO Regulation terrorist fighters: ministers considered proceedings, intensified investigation of and the new OLAF Regulation provide

276 | eucrim 4 / 2020 Institutions possibilities for the two bodies to con- ditions that apply to competent national by an investigation will, under certain sult their case management systems on a authorities; conditions, have access to the conclu- hit/no-hit basis, so that non-duplication „„The anti-fraud coordination services sions of OLAF’s investigations in cases of investigations and a smooth flow of in each EU Member State will have a in which the Office issues judicial rec- information can be ensured. Lastly, the more important role, enabling them to ommendations. new rules foresee an annual high-level support OLAF, for instance, in external The way forward: the new OLAF meeting between the Director-General and internal investigations as well as in Regulation requires the Commission to of OLAF and the European Chief Pros- coordination cases; evaluate the new rules no later than five ecutor to discuss matters of common in- „„The evidentiary value of OLAF re- years from the date of commencement terest. ports will be strengthened: in all pro- of the operational activities of the EPPO. As regards external investigations, ceedings before the CJEU, in proceed- On the basis of this evaluation report, Regulation 2020/2223 codifies CJEU ings of a non-criminal nature before the Commission must consider further case law by clarifying that Union law national courts, and in national admin- reform of the OLAF Regulation, includ- alone governs on-the-spot checks and istrative proceedings, OLAF reports and ing additional or more detailed rules on investigations carried out by OLAF if the evidence attached to them shall con- the setting up of the Office, its functions, the economic operator does not resist. stitute admissible evidence. In criminal or the procedures applicable to its activi- It also introduces a duty on the part of proceedings, the current rule remains, ties. (TW) economic operators to cooperate with i.e., OLAF reports are admissible in the OLAF, and OLAF will be able to re- same way as the reports of national ad- Operation between EU and UK Reveals quire economic operators to supply ministrative inspectors are; Excise Duty Fraud with Cigarettes relevant information if they may have „„OLAF will have the possibility to On 21 December 2020, OLAF and Eu- been involved in the matter under inves- set time limits in the recommendations ropol reported on a successful European- tigation or may hold such information. accompanying its final reports. Within wide joint operation against fraudulent The Regulation strengthens the rights of these limits, the competent authorities trade in cigarettes. The operation took economic operators, however, e.g., by of the Member States concerned, and, if place in November 2020 and involved 15 establishing the right to be assisted by applicable, the IBOAs must reply on the EU Member States and the UK. Europol a person of their choice, including ex- actions taken. Member States are also and OLAF facilitated the operation with ternal legal counsel, during on-the-spot obliged to send to OLAF the final deci- intelligence analyses, providing secure checks and inspections. sion of national courts on cases submit- channels for information exchange and As regards internal investigations, it ted by the Office. giving operational expertise. Law en- has been clarified that OLAF has access Alongside the strengthened rules on forcement authorities were able to detect to any relevant information held by in- OLAF investigations, the new Regula- a fraud scheme of excise duty evasion. A stitutions, bodies, offices, and agencies tion entails improvements in individu- network of fraudsters diverted cigarettes (IBOAs) and that such access is possi- als’ procedural safeguards. Accordingly, declared for export or intra-EU delivery ble irrespective of the type of medium an independent “controller of procedural into the black market. Under VAT and on which this information or data are guarantees” will be established. He/she excise suspension, the cigarettes were stored. In the course of internal inves- will be administratively attached to the distributed illegally without payment of tigations, OLAF will be able to request OLAF Supervisory Committee and ap- the taxes and duties. The operation re- access to information held on privately pointed by the Commission after con- sulted in the arrest of 17 suspects and the owned devices used for work purposes sultation with the European Parliament seizure of 67 million cigarettes and 2.6 in situations in which the Office has and the Council. The controller will tonnes of tobacco worth €35.82 million. reasonable grounds to suspect that their be tasked with reviewing complaints The most significant seizures were made content might be relevant for an inves- lodged by persons concerned regarding in Lithuania (28.75 million) and the UK tigation. OLAF is also empowered to OLAF’s compliance with procedural (9 million). In total, the potential tax loss inspect the accounts of IBOAs and, if guarantees and rules applicable to inves- was estimated at €30 million. (TW) necessary, assume custody of relevant tigations, in particular infringements of documents or data in this context. procedural requirements and fundamen- Long-Term Operation Dismantles Illegal Other provisions aiming to increase tal rights. The new regulation details the Cigarette Trade Scheme the effectiveness of investigations are as complaints mechanism in Art. 9b. On 21 December 2020, OLAF report- follows: Next to the new guarantees estab- ed that the final phase of a long-term „„OLAF will have access to bank ac- lished in the context of external investi- trans-European operation against ille- count information under the same con- gations (see above), the person affected gal cigarette smuggling and production

eucrim 4 / 2020 | 277 NEWS – European Union ended with raids in Romania, Hungary, The manufacturer produced the hand Successful Seizure of Illegal Cigarettes and Italy. The operation dubbed “Kha- sanitisers with unacceptably high lev- in Spain ron” started three years ago by targeting els of methanol, which can cause head- On 3 December 2020, the Spanish cus- the carriers of the precursors for illegal aches, blurred vision, nausea and vomit- toms authority was able to seize more cigarette production and their move- ing, loss of coordination, and decreased than 260,000 packs of contraband to- ments across the EU. During the entire levels of consciousness. OLAF Director- bacco, worth more than €1 million, in operation, coordinated by OLAF, over General Ville Itälä remarked that trade Barcelona. The cigarettes were smug- 200 persons were arrested or reported to in illicit medicine products in relation gled into the EU in containers from Chi- judicial authorities; the loss of approxi- to the COVID-19 pandemic is growing na declared as containing LED lights. mately €80 million in duties and taxes considerably, which is why effective Two smugglers were arrested. OLAF in five EU countries was prevented, nine teamwork between all law enforcement supported the operation by submitting illicit factories were dismantled, and 95 authorities at the EU and national levels targeted information to the Spanish of- million illegal cigarettes and 300 tonnes is crucial. (TW) ficials. (TW) of tobacco were seized. The action that took place in Roma- Joint Strike against Medicine Joint Action Day “Arktos 2” nia on 17 December 2020 was carried Trafficking Between 16 and 25 November 2020, law out by more than 160 officers and - tar On 10 December 2020, the public was enforcement authorities in the EU were geted 50 individuals suspected of being informed about Operation “Shield” car- able to seize, among others, 37 million part of a criminal organisation involved ried out between March and Septem- illegal cigarettes, over 1.8 tonnes of to- in cigarette smuggling and fiscal fraud. ber 2020. The operation resulted in the bacco, and more than 3.5 thousand litres Searches were conducted in parallel in seizure of medicine and doping sub- of illegal fuel. The seizures were carried Hungary and Italy. Ten EU Member stances all over Europe worth €73 mil- out within the framework of the Joint States (including the UK) were involved lion. Nearly 700 persons were arrested, Action Day “Arktos 2,” which was coor- throughout the course of the operation. 25 organised criminal groups disman- dinated by Frontex and the Finnish and OLAF supported the operation by not tled, 10 clandestine laboratories seized, Latvian authorities at selected border only coordinating cross-border inves- and over 450 websites shut down. The crossing points at the EU’s eastern land tigations but also by providing intel- operation was led by Finland, France, borders. The operation targeted excise ligence and analysing shipment move- Greece, and Italy and it was coordinat- fraud, in particular tobacco smuggling, ments. (TW) ed by Europol at the EU level. OLAF document fraud, and migrant smug- contributed by leading a targeted action gling. It was supported by OLAF, Euro- OLAF Hub for Seizure of Contaminated against counterfeit and substandard on- just, Europol, and Interpol and involved Hand Sanitisers cological medicines and hormonal sub- border guards and police and customs Thanks to OLAF, information about stances. The action uncovered 58 cases authorities from six EU Member States. contaminated hand sanitisers from a of various illegal activities. OLAF supported the operation by facili- manufacturer in Turkey could be spread Operation Shield also detected tating the exchange of information be- among EU law enforcement authorities COVID-19-related fakes, such as medi- tween the customs authorities involved and their shipment dismantled. In Au- cal devices (face masks, tests, diagnosis and by lending investigative expertise. gust 2020, Danish authorities first de- kits), chemicals and hygiene sanitisers. The operation was also designed to test tected the contaminated sanitisers and Europol confirmed that the operation re- cooperation between the different au- reported the contamination to OLAF. vealed new trends in trafficking of coun- thorities involved in the fight against The EU’s anti-fraud office immediately terfeit and misused medicines. It was a transnational crime under the EU’s EM- informed other national authorities and unified law enforcement response to- PACT platform. (TW) was able to uncover the business scheme wards ensuring public health involving of the Turkish manufacturer who also 19 EU Member States and eight non-EU OLAF Supports Seizure of Dangerous produced the contaminated goods on be- countries. Operation Shield followed Machine Components half of other manufacturers. Following up other, previously successful actions On 23 November 2020, OLAF and intervention by OLAF, Irish authorities against trafficking in counterfeit - medi the Italian Customs and Monopolies were able to seize shipments and con- cines and doping substances. Fraud and Agency (ADM) made public a success- signments of the illicit product. Accord- counterfeiting in relation to COVID-19 ful blow against counterfeit mechanical ing to OLAF on 15 December 2020, (including fraud of vaccines) is currently components (370kg of bearings), which almost 140,000 litres of hand sanitiser one of the major priorities of OLAF’s originated from China. Bearings are im- have meanwhile been seized in the EU. work. (TW) portant machine elements ensuring that

278 | eucrim 4 / 2020 Institutions machineries, e.g. motor engines or elec- need to strengthen Europol’s coopera- and approximately 160 additional po- tric fans, are moving properly. OLAF tion with the European Public Prosecu- sitions would be needed for the 2021– stressed that the seizure of the counter- tor’s Office (EPPO) as well as third 2027 period of the Multiannual Finan- feit components had not only prevented states. Europol’s role on research and in- cial Framework. financial losses to the national and EU novation, its data protection framework, The proposal for revising the cur- budget, but also secured the safety of and its parliamentary oversight will also rent Europol Regulation comes around citizens since counterfeit bearings entail be bolstered. one and a half years before the planned, considerable security risks. In addition, As regards enhanced cooperation thorough evaluation of the Agency’s im- the seizure detected intellectual prop- with private parties, the proposal sets pact, effectiveness, and efficiency and its erty infringements since the trademarks out rules for Europol to exchange per- working practices (Art. 68 of Regulation of well-known manufacturers had been sonal data with private parties (in order 2016/794). An adaptation of the sched- falsified. OLAF supported the Italian for the agency to be able to receive per- ule concerning review of the Europol authority by sharing intelligence. (TW) sonal data from them), to inform them Regulation was pushed by the Council about missing information, and to ask (JHA Council conclusions of Decem- Member States to request other private ber 2019) and other stakeholders, who Europol parties to share additional information. saw a pressing social need to enhance The rules also introduce the possibility Europol’s capabilities to fight serious Commission Proposes Europol Reform for Europol to act as a technical channel crime, in particular cybercrime and ter- On 9 December 2020, the Euro- for exchanges between Member States rorism. spot pean Commission published and private parties. In order to improve A commissioned consultant study on light a proposal for a Regulation crisis response, other rules will govern the exchange of personal data between amending Regulation (EU) 2016/794 as support to Member States in preventing Europol and private parties (eucrim regards Europol’s cooperation with pri- the large-scale dissemination of terrorist 3/2020, 170), a public consultation on vate parties, the processing of personal content via online platforms (related to the “inception impact assessment” of the data by Europol in support of criminal ongoing or recent events depicting harm early revision launched in May 2020, investigations, and Europol’s role on re- to life or physical integrity or calling for and a targeted stakeholder consultation search and innovation. Against the back- imminent harm to life or physical in- served the Commission in preparing its ground of evolving and increasingly tegrity). To be able to process large and proposal. (CR) complex cross-border security threats − complex datasets, the Commission in- with blurring boundaries between the tends to introduce the possibility to carry Report on Malicious Uses and Abuses physical and digital world as well as the out pre-analysis of personal data, with of Artificial Intelligence residual high threat of terrorism in Eu- the sole purpose of determining whether On 19 November 2020, Europol, the rope −, the European Commission pro- such data fall into the various categories United Nations Interregional Crime and poses strengthening Europol’s capaci- of data subjects. Justice Research Institute (UNICRI), ties, capabilities, and tools to support To effectively support criminal in- and Trend Micro (an IT company pro- Member States effectively in countering vestigations in Member States or by the viding cybersecurity solutions) pub- serious crime and terrorism. The pro- EPPO, in certain cases, Europol would lished a joint report on “Malicious Uses posal suggests addressing the key issues be rendered able to process data that na- and Abuses of Artificial Intelligence as follows: tional authorities or the EPPO obtained (AI)”. Looking at the present state and „„Enable Europol to cooperate effec- in the context of criminal investigations possible future scenarios of malicious tively with private parties; − in accordance with procedural require- uses and abuses of AI, the report identi- „„Enable Europol to support Member ments and safeguards applicable under fies a strong need to harness the poten- States with the analysis of large and national criminal law. To this end, Eu- tial of AI technology as a crime-fighting complex datasets (big data); ropol will be able to process (and store tool in order to future-proof the cyberse- „„Allow Europol to request the com- upon request) all data contained in an curity industry and cybersecurity polic- petent authorities of a Member State to investigative case file provided by the ing. Furthermore, it recommends further initiate, conduct, or coordinate the in- Member State or the EPPO for the dura- research in order to stimulate the devel- vestigation of a crime that affects a com- tion of the agency’s support for that spe- opment of defensive technology and to mon interest covered by a Union policy, cific criminal investigation. Ultimately, promote and develop secure AI design regardless of the cross-border dimension looking at budgetary implications, the frameworks. Politically loaded rhetoric of the crime. proposal estimates that an additional on the use of AI for cybersecurity pur- Moreover, the Commission sees a budget of approximately €180 million poses should be de-escalated. Lastly,

eucrim 4 / 2020 | 279 NEWS – European Union public-private partnerships should be Israel, Jordan, Lebanon, Morocco, Tu- virtual conference brought together ex- leveraged and multidisciplinary expert nisia, and Turkey. Such negotiations perts from border guard authorities who groups established. (CR) would pave the way for the conclusion are responsible for border management of Cooperation Agreements between in the EU and worldwide, EU policy- Eurojust and the competent authorities makers and agencies, and research and Eurojust for judicial cooperation in criminal mat- industry representatives. (CR) ters in these third States. (CR) Interparliamentary Committee Euro-Arab Technical Round Table Evaluation of Eurojust New National Member for Spain On 1 December 2020, Frontex and the On 1 December 2020 − for the first time At the end of November 2020, José de General Secretariat of the Arab Interior since the Eurojust Regulation became la Mata Amaya took up position as new Ministers’ Council co-organised the first applicable in December 2019 −, Mem- National Member for Spain at Eurojust. Euro-Arab Technical Roundtable on bers of the European Parliament and Before joining Eurojust, Mr de la Mata Border Management and Security. The national parliaments of the EU Member Amaya served as judge of the Central round table brought together representa- States convened (in a virtual meeting) Investigative Court No 5 of the Span- tives from 18 EU states and 14 Arab to evaluate the Eurojust’s activities. In ish National Court. Furthermore, he was states. Issues discussed at the virtual order to increase the transparency and contact point for Spain in the Network meeting included common challenges, democratic oversight of the agency, Eu- of National Experts on Joint Investiga- such as health at the borders, cross-bor- rojust Regulation 2018/1727 of 14 No- tion Teams (JITs).Mr de la Mata Amaya der crime (including migrant smuggling vember 2018 established a joint evalu- succeeds Francisco Jiménez-Villarejo and trafficking in human beings), and ation mechanism to assess Eurojust’s who had headed the Desk since Decem- other multi-dimensional threats. (CR) activities within the framework of an ber 2012. (CR) inter-parliamentary committee meeting. For the purpose of this first inter-parlia- Vice-President Elected mentary committee meeting, Eurojust On 17 November 2020, the College of Specific Areas of Crime / President Ladislav Hamran, Vice-Pres- Eurojust elected Boštjan Škrlec as its Substantive Criminal Law ident Klaus Meyer-Cabri, and the Liai- Vice-President for the next four years. son Prosecutor for the United States of Mr Škrlec has been National Member for Money Laundering America Rachel Miller Yasser explained Slovenia at Eurojust since 2017. (CR) Eurojust’s work and its current activi- EDPB Statement on EU’s Recent AML/ ties to the committee. Issues discussed New National Member for Cyprus CFT Action Plan included the following; On 16 November 2020, Eleni Kouzoupi On 15 December 2020, the European „„The outcome of Eurojust’s Annual took up her position as National Mem- Data Protection Board (EDPB) called on Report 2019; ber for Cyprus at Eurojust. Before join- the European legislator to review the re- „„Eurojust’s reaction to the Covid-19 ing Eurojust, Ms Kouzoupi served as lationship between anti-money launder- pandemic crisis; Counsellor on Justice and Home Affairs ing measures and the rights to privacy „„The need for digitalisation; matters at the Cypriot Permanent Repre- and data protection when it prepares „„Cooperation with the EPPO; sentation in Brussels. She succeeds Kat­ a new legal framework in the area of „„The added value of Eurojust’s inter- erina Loizou who held the position since money laundering and terrorist financ- national network in cross-border inves- 2005. (CR) ing. The adopted statement comes in tigations. (CR) response to the European Commission’s Action Plan for a comprehensive Union Further Cooperation between Eurojust Frontex policy on preventing money laundering and Third States and terrorist financing and the launch On 19 November 2020, the European Second International Conference of a public consultation in May 2020 Commission issued a Recommendation on Biometrics for Borders (eucrim 2/2020, 87). for a Council Decision to authorise the On 1–3 December 2020, Frontex held its As its predecessor, the Article 29 opening of negotiations for Agreements second International Conference on Bi- Working Party, the EDPB reiterates that between the EU and ten third States, in ometrics for Borders (ICBB), focussing currently applicable AML legislation, order to foster judicial cooperation with on the implementation of the Entry/Exit with its very broad and far-reaching due Eurojust. The States include Algeria, Ar- System (EES) that will start at the EU’s diligence and monitoring obligations on menia, Bosnia and Herzegovina, Egypt, external border in February 2022. The financial services providers and its long

280 | eucrim 4 / 2020 Specific Areas of Crime / Substantive Criminal Law

data retention periods, poses manifold „„Higher-income countries lose a lot rates of death, needlessly weak and cor- challenges for privacy and data protec- more tax than lower-income countries, rupt governments and public adminis- tion. The relevance and accuracy of the but the impact is far greater on the lat- trations. Only tax abusers and the very data collected play a paramount role for ter – in comparison to the amount of tax wealthy in tax havens win, at the cost of any future legislation, and a closer ar- they typically collect and to health ex- everyone else.” Against this background, ticulation between the two sets of rules penditure, they lose more proportional- the authors of the report make three key is needed. The EDPB calls on the Com- ly: whereas tax losses in higher-income recommendations to governments: mission to be consulted about any new countries are equal to 8% of their pub- „„Introduce an excess profits tax on AML legislation at the earliest stage lic health budgets, tax losses in lower- large multinational corporations, e.g., possible. (TW) income countries are equal to over half for digital tech giants, that is designed to their public health budgets (52%); cut through profit-shifting abuse; „„A regional comparison of tax losses „„Introduce a wealth tax to fund the Tax Evasion reveals the same pattern, i.e., less tax Covid-19 response, with punitive rates revenue is lost in North America and Eu- for opaquely owned offshore assets; Tax Justice: Report Documents Global rope, on the one side, whereas consider- „„Establishing an UN tax convention Tax Losses able tax revenue is lost in Latin America that sets international standards for cor- On 20 November 2020, the Tax Justice and Africa, on the other; porate taxation and for the necessary tax Network published the State of Tax Jus- „„The biggest tax losers are: (1) the cooperation between governments in a tice 2020 report. The report is the first United States, (2) the United Kingdom, transparent and democratic way. of its kind on tax evasion that compre- (3) Germany, (4) France, and (5) Brazil; The global community is called on hensively identifies the amount of tax „„Higher-income countries are respon- to get involved in a fundamental re- revenue each nation loses every year to sible for facilitating nearly all global tax programming of the global tax system, corporate and private tax abuse. The re- losses (98%), while lower-income coun- which requires comprehensive rewriting port also analyses what the loss in taxes tries are responsible for less than 2% of of international tax rules and tax trans- means for public health spending, in par- all global tax losses; parency measures. ticular in times of COVID-19. In addi- „„Over one third of lost tax revenue is The “State of Tax Justice 2020” re- tion, it provides an annual “snapshot” of enabled by jurisdictions that fall under port is based on OECD data, which ag- country-by-country rankings on the Tax the UK’s network of Overseas Terri- gregated country-by-country reports on Justice Network’s Corporate Tax Haven tories and Crown Dependencies, such multinational corporations’ profits and Index and Financial Secrecy Index. The as the Cayman Islands (this network, tax revenues (published in July 2020). countries’ vulnerability to illicit finan- which facilitates corporate and private The report analyses these data in a sys- cial flows is tracked by the Tax Justice tax abuse and has the City of London tematic way for the first time. Unlike Network’s vulnerability tracker. at its centre, is also called the UK’s spi- previous studies, it focuses on direct The report revealed that countries are der’s web); losses and singles out indirect losses losing a total of over $427 billion in tax „„Over half of global corporate tax from global corporate tax abuse, which revenue annually due to international, abuse is enabled by the UK (with its allows a clearer picture of tax loss esti- corporate tax abuse and private tax eva- Overseas Territories and Crown De- mates to be painted. sion. This is the equivalent of nearly pendencies), the Netherlands, Luxem- Alongside the report, the Tax Justice 34 million nurses’ annual salaries every bourg and Switzerland – labelled as the Network launched a publicly available year – or one nurse’s annual salary every “axis of tax avoidance”; online data portal that contains addition- second. Other key findings of the report „„EU-blacklisted jurisdictions cause al data, detailed estimates of lost tax rev- include: only 1.72% of global tax losses (costing enue on a country-by-country basis, data „„Of the $427 billion, nearly $245 bil- countries over $7 billion in lost tax reve- comparisons by regions, and a range of lion is lost because multinational corpo- nue annually), while EU Member States other issues discussed in the published rations shift profits into tax havens; cause 36% (costing countries over $154 report. „„The remaining $182 billion is lost billion in lost tax revenue annually). The report immediately triggered re- because wealthy individuals hide unde- The Tax Justice Network highlights actions from the European Parliament. clared assets and incomes offshore, be- that “(a)lmost every person in almost In a press release dated 20 November yond the reach of the law; every country in the world foots the bill 2020, the chair of the EP’s subcommit- „„On average, the world’s nations lose incurred by tax abusers. People suffer tee on tax matters, Paul Tang (S&D, the equivalent of 9.2% of their health needlessly poor public services, need- NL), said that the EP shares many of budgets to tax havens every year; lessly deep inequalities, needlessly high the concerns in the report regarding the

eucrim 4 / 2020 | 281 NEWS – European Union

EU’s record on tax avoidance. He added Ultimately, the resolution proposes Cybercrime that “some of the countries that seem re- that the listing process be formalised by sponsible for most of global tax losses means of a legally binding instrument. Commission Presents Cybersecurity are not on the blacklist of the European The EP should have an observer role in Package Union.” He called on the Council to jus- the Council’s Code of Conduct Group, On 16 December 2020, the Commission tify its removal of the Cayman Islands which currently decides on the black- published a cybersecurity package con- during the last update in October 2020. listing behind closed doors. Changes sisting of: He also announced an EP resolution on must ensure the impartiality, objectiv- „„A new EU cybersecurity strategy; the process of listing non-cooperative ju- ity, and accountability of the listing „„A proposal for revision of the Direc- risdictions for tax purposes (following process. tive on ensuring a high level of security news item). The resolution reacts to a recent re- of network and information systems (so- German MEP Sven Giegold (Greens/ port on global tax justice (previous called NIS Directive); EFA) voiced his disappointment over news item) revealing, inter alia, that the „„A proposal for a new Directive on the the fact that Germany and the UK had jurisdictions on the EU list of tax havens resilience of critical entities. refused to make public tax data on mul- only account for less than 2% of global The package is a further act imple- tinational companies. He demanded that tax losses whereas 36% of EU Member menting the EU Security Union Strat- large companies be obliged to disclose States do. Furthermore, the removal of egy presented in July 2020 (eucrim their profits per country as well as the the Cayman Islands from the list by the 2/2020, 71–72) and the Commission’s taxes paid on them. In a second step, a Council in October 2020 was met with objective to reach a digital transition as minimum tax rate for corporations must incomprehension by MEPs, considering outlined in the Communication “Shap- be established. (TW) that the Cayman Islands are presumed ing Europe’s Digital Future” submitted to be one of the jurisdictions most re- in February 2020. The new EU cyber- MEPs Call for Reform of EU List sponsible for other countries’ tax losses, security strategy includes numerous on Tax Havens according to the above-mentioned tax individual proposals for regulations, in- On 10 December 2020, the Economic justice report. Therefore, the EP’s sub- vestments, and policy initiatives in three and Monetary Affairs Committee adopt- committee on tax matters (FISC) pushed areas of action: ed a resolution demanding reform of the ahead preparation of the motion for a „„Promoting resilience, technological EU’s blacklisting of tax havens (43 votes resolution on reform of the EU’s list of sovereignty, and leadership; in favour, 6 against, and 5 abstentions). tax havens. (TW) „„Building operational capacities for MEPs call the current system “confusing prevention, deterrence, and response; and ineffective.” VAT Fraud Dismantled „„Advancing a global open cyberspace The criterion for judging whether a At the end of November 2020, Hungar- through increased cooperation. country’s tax system is fair or not needs ian authorities, supported by law en- More concretely, a cybersecurity to be widened to include more practices forcement authorities from Austria, the shield with the ability to detect early sig- and not just preferential tax rates. Ju- Czech Republic, the Slovak Republic, nals of impending cyberattacks is to be risdictions with a 0% corporate tax rate and by Eurojust, dismantled an Organ- built up through an EU-wide network of or with no taxes on companies’ profits ised Crime Group (OCG) involving so-called “Security Operation Centres.” should automatically be placed on the large-scale VAT fraud. The OCG had The Commission is also working on es- “list of non-cooperative jurisdictions for been operating a multi-level company tablishing a Joint Cyber Unit to strength- tax purposes.” Requirements for pos- network that managed to re-export items en cooperation between EU bodies and sible removals must be more stringent; several times and to defraud Hungarian Member State authorities responsible removals following minimal changes tax authorities by means of false docu- for preventing, deterring, and respond- or weak enforcement measures must be ments. The OCG also used bogus com- ing to cyberattacks, including civilian, avoided. pany managers and straw men pretend- law enforcement, diplomatic, and cyber All third countries must be treated and ing to run businesses for perfumes and defence communities. screened fairly and equally on the basis food supplements in order to hide its The EU will make efforts to advance of the same criteria, which does not seem real operations. The OCG succeeded in the security and stability of cyberspace at to be the case at the moment. EU Mem- avoiding the value added tax it owed the the international level while promoting ber States should also be screened to see Hungarian state, which amounted to ap- its core values. It will further strengthen whether they display any characteristics proximately EUR 8.5 million. The joint its EU Cyber Diplomacy Toolbox and of a tax haven, and those falling foul action resulted in the arrests of seven increase cyber capacity-building efforts should be regarded as tax havens, too. Hungarian suspects. (CR) towards third countries.

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The cybersecurity strategy also rein- „„Countering radicalisation in prisons; ellers against relevant databases at the forces the EU’s support for the envisaged „„Improving rehabilitation and reinte- external borders; digital transition with an unprecedented gration of radicalised inmates and ter- „„Issue alerts in the Schengen Informa- level of investment. This includes a high rorist offenders; tion System (SIS) on suspected foreign proportion of EU funding, which has „„Consolidating knowledge and sup- terrorist fighters; been allocated to projects in the next port as regards radicalisation, victims of „„Roll out the fingerprint search func- long-term EU budget (2021–2027), terrorism, lone actors, etc. tionality in the SIS Automated Finger- such as the Digital Europe Programme The Commission plans various print Identification System; and Horizon Europe as well as the Re- measures to this end, such as a proposal „„Swiftly implement the Entry-Exit covery Plan for Europe. Member States on a Digital Service Act and setting up System (EES), the European Travel are encouraged to make full use of the an EU Knowledge Hub for the preven- Information Authorisation System EU Recovery and Resilience Facility to tion of radicalisation. Member States (ETIAS), and the European Criminal boost cybersecurity and match EU-level shall be provided with guidance on Records Information System for Third investment. (TW) best practices, including guidance on Country Nationals (ECRIS-TCN) and foreign terrorist fighters and their fam- allow for the interoperability of these ily members. In addition, the Commis- large-scale IT systems; Terrorism sion urges the European Parliament and „„Strengthen chemical and bio-security. Council to adopt the pending Regula- (4) Response to terrorist attacks Commission: Counter-Terrorism Agenda tion addressing the dissemination of The Commission sees a key role for

spot On 9 December 2020, the Euro- terrorist content online. Europol and its European Counter-Ter- light pean Commission published a (3) Protection rorism Centre (ECTC); therefore, the Communication on the Counter- The Commission outlines the follow- Communication was accompanied by Terrorism Agenda of the EU. It sets out a ing priorities: a proposal on the revision of Europol’s four-pillar strategy to anticipate, pre- „„Protecting the public in public spaces; mandate (separate news item under vent, protect, and respond to terrorist „„Supporting cities in their efforts to “Europol”, p. 279). The Commission threats. provide urban security; further stresses the need to strengthen (1) Anticipation of terrorist threats „„Improving the resilience of critical law enforcement cooperation and in- The strategy underlines the impor- infrastructure; formation exchange. Improved support tance of the following: „„Developing measures to reinforce for investigations and prosecutions as „„Strategic intelligence; border security; well as victims of terrorism must be „„Threat assessment; „„Denying terrorists the means to at- achieved. Hence, the Commission plans „„Targeted risk assessments; tack. various measures, e.g.: „„Early detection capacities; To achieve these aims, the Commis- „„Revision of the Prüm Decisions; „„Modern detection technologies and sion sets out, inter alia, the following „„Creation of a network of counter-ter- AI solutions; key actions: rorism financial investigators to improve „„Structural integration of foresight in „„Proposal for a Schengen Strategy in cross-border financial investigations; the development of counter-terrorism 2021; „„Support for Member States to use bat- policies. „„Proposal for an EU Pledge on Urban tlefield information in order to identify, To achieve these aims the Com- Security and Resilience in order to pre- detect, and prosecute returning foreign mission sets out various key actions vent and counter radicalisation and to terrorists fighters; to develop and finance measures. -Fur reduce vulnerabilities in public spaces; „„Proposal for a mandate to negotiate a thermore, Member States are urged to „„Proposal for measures to enhance the cooperation agreement between the EU provide the EU Intelligence Analysis resilience of critical infrastructure; and Interpol; Centre (EU INTCEN) with the neces- „„Proposal for the revision of the Ad- „„Enhanced support for victims of ter- sary resources and high-quality input. vance Passenger Information Directive rorism, including through the EU Centre (2) Prevention (“API Directive”). of Expertise for Victims of Terrorism. There is a strong need to act in the Additionally, EU Member States are The European Parliament and Coun- following areas: urged to take action as follows: cil are urged to adopt the e-evidence „„Countering extremist ideologies on- „„Swiftly address gaps and shortcom- proposals to ensure speedy and reliable line; ings in the implementation of relevant access to e-evidence for authorities. „„Supporting local actors to build more legislation; Lastly, the Counter-Terrorism Agen- resilient communities; „„Ensure systematic checks of all trav- da sets out measures to reinforce inter-

eucrim 4 / 2020 | 283 NEWS – European Union national cooperation across all of these Several NGOs voiced concerns over Racism and Xenophobia four pillars by further strengthening the the new plans (Statewatch website). EU’s external counter-terrorism engage- They criticised that the proposed actions Council and EP Reach Political ment. The focus is on the Western Bal- would provoke discrimination, a mar- Agreement on Binding Rules to Fight kans, North Africa and the Middle East, ginalisation of fundamental rights, and Terrorist Content Online the Sahel region, the Horn of Africa, an expansion of surveillance. (CR) On 10 December 2020, the German other African countries where terror- Council Presidency and the negotiators ist activities are increasing, and on key 2019 Counter-Terrorism Report of the European Parliament reached Asian regions. The Commission and the by Eurojust political agreement on an EU Regula- High Representative of the Union for On 9 December 2020, Eurojust pub- tion on preventing the dissemination of Foreign Affairs and Security Policy en- lished its 2019 Report on Counter-Ter- terrorist content online. The Regulation visage various measures to step up inter- rorism presenting the Agency’s activities had been proposed by the Commission national counter-terrorism cooperation, in the area of counter-terrorism in the on 12 September 2018, following calls such as: year 2019. The report gives an overview by EU leaders and the European Parlia- „„Enhanced cooperation with Western of Eurojust’s casework on counter-ter- ment (eucrim 3/2018, 97–98; for a de- Balkan partners in the area of firearms; rorism and presents the main concepts/ tailed analysis of the proposal G. Rob­ „„Negotiation of international agree- principles of the newly developed Euro- inson, eucrim 4/2018, 234–240). The ments with Southern Neighbourhood pean Judicial Counter-Terrorism Regis- new legislation will introduce a number countries in order to exchange personal ter, which was launched on 1 September of measures to prevent misuse of Inter- data with Europol; 2019 (eucrim 3/2019, 167). net hosting services in the EU for the „„Reinforced engagement with interna- In 2019, Eurojust coordinated 222 dissemination of texts, images, sound tional organisations; terrorism cases; the agency registered 94 recordings, and videos that incite, so- „„Enhanced strategic and operational new coordination requests, which is an licit, or contribute to terrorist offences. cooperation with the above-mentioned increase of 16% compared to the previ- Already existing voluntary cooperation regions in Africa and Asia. ous year. 24 specific coordination meet- with these companies will continue, but The European Parliament and Coun- ings were held and eight Joint Investi- the EU Regulation is designed to es- cil are urged to authorise the opening of gation Teams conducted, of which two tablish binding, uniform rules that will, negotiations with Southern Neighbour- were newly established in 2019. Legal above all, ensure the swift removal of hood countries to allow cooperation and practical challenges identified con- terrorist content online. The main points with Eurojust. cerned the execution of requests based of the deal include: To pursue the implementation of the on mutual recognition instruments, mu- „„Clear, uniform definition of terrorist Counter-Terrorism Agenda, the Com- tual legal assistance (MLA) requests, content online, in line with EU funda- mission will appoint its own Counter- and establishment of the (best-placed) mental rights protection; Terrorism Coordinator. He/she will be jurisdiction to prosecute. „„Material disseminated for education- mandated with coordination of the vari- Ultimately, the report sets out the fol- al, journalistic, artistic, or research pur- ous aspects of EU policy and funding in lowing priority areas to enhance Euro- poses or intended to prevent or counter the area of counter-terrorism within the just’s counter-terrorism work: terrorism will not be considered terrorist Commission, including cooperation and „„Improving the efficient and timely content − this also includes content ex- coordination with the Member States. coordination of counter-terrorism inves- pressing polemic or controversial views This coordinator shall collaborate inten- tigations and prosecutions; in a public debate; sively with the Council’s EU Counter- „„Continuing the implementation of the „„Service providers must remove terror- Terrorism Coordinator, with the relevant European Judicial Counter-Terrorism ist content or disable access to it in all EU EU agencies, and with the European Register; Member States as soon as possible and in Parliament. „„Enhancing timely information shar- any event within one hour after they have The new Counter-Terrorism Agenda ing concerning judicial counter-terror- received a removal order from a compe- was announced as part of the EU’s Se- ism proceedings; tent authority of an EU Member State; curity Union Strategy, which was pre- „„Coordinating judicial cooperation to „„The competent authorities in the sented by the Commission in July 2020 provide support to victims of terrorism Member State in which the service pro- (eucrim 2/2020, 71–72). It brings to- and guarantee their rights; vider has its main establishment have gether existing and new strands of work „„Sharing experience and providing the right to scrutinise the removal order in a combined approach towards com- input to discussions at the EU level. and block its execution if they consider batting terrorism. (CR) it violates fundamental rights;

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„„Points of contact will facilitate the tion. It underlines the importance of conclusions set out priorities when ad- handling of removal orders; encryption for the purpose of protect- dressing risks related to privacy, infor- „„Hosting service providers exposed to ing individuals, civil society, critical mation security and cybersecurity. They terrorist content must take specific meas- infrastructure, the media and journalists, also aim to boost the global competitive- ures to address misuse of their services industry, and governments. At the same ness of the EU’s IoT industry by ensur- and to protect their services against the time, it stresses that law enforcement ing the highest standards of resilience, dissemination of terrorist content; needs access to encrypted data in order safety, and security. They, inter alia, „„The choice of measures is up to the for authorities to be able to exercise their highlight the importance of reinforc- companies; they will not be obliged to lawful power to investigate crime and ing resilient and secure infrastructure, monitor or filter content; bring to justice criminals who exploit products, and services for building trust „„Service providers must also publish the digital means. Access to electronic in the Digital Single Market and within annual transparency reports on action evidence can be essential, not only to be European society. The EU’s core values taken against the dissemination of ter- able to conduct successful investigations must be preserved, in particular privacy, rorist content; but also to protect victims and help en- security, equality, human dignity, rule of „„The Regulation will ensure that the sure security. law, and open internet. Priorities in the rights of ordinary users and businesses As a possible way out of the dilemma area of cybersecurity for connected de- will be respected; this includes effective described above, the Council advocates vices should be as follows: remedies for users whose content has an active discussion with members of „„Assess the need for horizontal legis- been removed and for service providers the technology industry, including the lation that addresses all cybersecurity to submit a complaint. close involvement of representatives aspects and that will also serve as the ba- The agreement will now be finalised from research, academia, industry, and sis for product placement on the market; at the technical level. Both the EP and civil society. A balance should be sought „„Elaborate additional certification the Council then have to adopt it for- between ensuring the continued use of schemes for connected devices, which mally. strong encryption technology. At the will also require the setting of cyberse- Member States have been applying same time, future work must guarantee curity norms, standards, and technical renewed pressure on the EP to final- the powers for law enforcement and the specifications; ise the rules swiftly, following terror- judiciary to operate on the same terms „„Support small and medium-sized en- ist attacks in Paris and Austria in 2020. digitally as in the offline world. Poten- terprises (SMEs), which should be an Alongside the proposal on e-evidence, tial technical solutions for gaining ac- essential building block of the European the Regulation on terrorist content on- cess to encrypted data must comply with cybersecurity ecosystem, in particular if line remains one of the most controver- the principles of legality, transparency, standardisations are developed. sially discussed legislative initiatives in necessity, and proportionality, including The cybersecurity policy comes in the area of internal security. Numerous the protection of personal data by design the wake of the EU’s efforts to the digital NGOs had previously called for changes and by default. transformation. It is one of the key pol- to the text in order to protect individual Further assessment could be devoted icy priorities of Commission President rights. (TW) to a common regulatory framework for Ursula van der Leyen and is also backed the EU that would allow law enforce- by the EU leaders. At the Special Euro- ment authorities to carry out their task pean Council Meeting on 1–2 October effectively while protecting privacy and 2020, the heads of state and government Procedural Criminal Law fundamental rights. (TW) confirmed their aspiration to acceler- ate digital transition and agreed that at Data Protection Council Conclusions on Cybersecurity least 20% of funds under the Recovery of Connected Devices and Resilience Facility would be made Council Conclusions on Encryption On 2 December 2020, the Council ap- available to achieve objectives such as: On 14 December 2020, the Council proved conclusions on the cybersecurity „„Fostering European development of agreed on a common position on the of connected devices. The Council high- the next generation of digital technolo- way forward regarding the encryption of lights that connected devices, including gies, including supercomputers, quan- communication and access to electronic the machines, sensors, and networks that tum computing, blockchain and human- evidence for law enforcement purposes. make up the Internet of Things (IoT), centric artificial intelligence; The Council resolution on encryption will continue to play a key role in shap- „„Accelerating the deployment of very highlights the need for security through ing Europe’s digital future. This also high-capacity and secure network infra- encryption and security despite encryp- entails numerous security issues. The structures (e.g., 5G) all over the EU;

eucrim 4 / 2020 | 285 NEWS – European Union

„„Enhancing the EUʼs ability to protect relying on, in the context of the specific of data protection officers (DPOs) of itself against cyber threats. (TW) data transfer; the 68 EU institutions and bodies on „„Identification and adoption of the 11 December 2020. Discussions dealt, EDPB Recommendations on Follow-Up supplementary measures necessary to for example, with practical consequenc- to Schrems II Judgment bring the level of protection of the data es for existing and new contracts, the On 10 November 2020, the European transferred up to the EU standard of es- ways to conduct Transfer Impact As- Data Protection Board (EDPB) adopted sential equivalence; sessments (TIAs), and the margin of recommendation 01/2020, which is de- „„Taking of any formal procedural manoeuvre with regard to the use of signed to help controllers and processers steps that the adoption of supplementary derogations or supplementary measures. who export data from EU private enti- measures may require; EDPS Wojciech Wiewiórowski reiterated ties or public authorities to third coun- „„Re-evaluation of the level of protec- that implementation of the Schrems II tries comply with the CJEU’s Schrems tion afforded to the data transferred to judgment is a complex task and neces- II judgment (eucrim 2/2020, 98–99). third countries at appropriate intervals. sitates joint efforts by all data controllers Above all, the CJEU stated that it is The EDPB stresses that the data pro- in EU institutions and bodies. (TW) up to the data exporters in the EU to ver- tection supervisory authorities can be ify, on a case-by-case basis and, where consulted for support on the implemen- EDPB: Update of European Essential appropriate, in collaboration with the tation of supplementary measures. They Guarantees for Surveillance Measures importer of the data, whether the law of will also monitor whether data transfers On 10 November 2020, the European the third country of destination ensures to third countries are permitted and en- Data Protection Board (EDPB) adopted an essentially equivalent level of pro- sure continued consistency with EU data Recommendation 02/2020 on the Eu- tection, under EU law, of personal data protection law in light of the Schrems II ropean Essential Guarantees (EEG) for transferred pursuant to standard data judgment. The recommendations may surveillance measures. The Recommen- protection clauses, by providing, where be further developed following a public dation updates a previous document on necessary, supplementary measures consultation that ended on 21 December the justification of interference with fun- to those offered by those clauses. The 2020. As for transfers of personal data damental rights to privacy and data pro- CJEU did not, however, further define carried out between public bodies, the tection through surveillance measures by how the assessment should be carried EDPB refers to its specific guidance third countries’ national security or law out and which supplementary measures in the Guidelines 2/2020 “on Articles enforcement authorities when transfer- are to be identified. 46 (2) (a) and 46 (3) (b) of Regulation ring personal data. This document was The EDPB recommendation includes 2016/679 for transfers of personal data issued by the Article 29 Working Party, a roadmap of the steps data exporters between EEA and non-EEA public au- the EDPB’s predecessor, following the must take to determine whether they thorities and bodies,” adopted in Febru- Schrems I judgment of 6 October 2015 need to put in place supplementary ary 2020. To support assessment of the (eucrim 3/2015, 85). The Recommen- measures in order to be able to transfer level of interference when it comes to dation takes into account recent CJEU data outside the EEA in accordance with surveillance measures by third countries’ and ECtHR case law on data protection, EU law. In addition, it provides exam- security and law enforcement authori- in particular the CJEU’s judgment of ples of supplementary measures and ties, the EDPB issued Recommendation 16 July 2020 in Schrems II (eucrim some of the conditions they would re- 02/2020 (also adopted on 10 November 2/2020, 98–99). quire to be effective as well as the sourc- 2020 following news item). The EEG help data exporters assess es of information by which to assess a In the aftermath of the Schrems II whether third country legislation en- third country. The roadmap includes the judgment of 16 July 2020, NGOs and sures a level of protection essentially following steps: public bodies worked on several guide- equivalent to that guaranteed within the „„Knowledge of transfer, which means lines to ensure compliance with the EU. It should not be confused with the that all transfers of personal data to third CJEU’s lines of argument (eucrim European Commission’s adequacy deci- countries should be mapped; 3/2020, 187). This work includes a sion in accordance with Art. 45 GDPR, „„Verification of transfer tools pursuant compliance strategy paper for EU insti- which would generally open the path for to Arts. 45, 46, 49 GDPR; tutions issued by the EDPS, who also data transfer to third countries from the „„Assessment of whether there is any- supported the preparation of the EDPB EU. However, the EEG are part of this thing in the law or practice of the third guidelines. The challenges and conse- assessment. country that may impinge on the effec- quences of the Schrems II judgment The Recommendation explains the tiveness of the appropriate safeguards of were also at the centre of the 48th meet- background and details of the four Euro- the transfer tools that data exporters are ing between the EDPS and the network pean Essential Guarantees:

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„„Processing should be based on clear, decision that the ne bis in idem princi- The AG discards a variety of coun- precise, and accessible rules; ple in relation to the specific charges in ter-arguments, e.g. that the present case „„Necessity and proportionality need to the red notice applies. Mere concerns on does not relate to the concept of “pros- be demonstrated with regard to the le- the applicability of the ne bis in idem ecution”, but rather to “precautionary gitimate objectives pursued; rule voiced by police authorities do not measures”; the solution found would „„An independent oversight mecha- suffice. If there are indications that the amount to an “extra-Schengen” appli- nism should exist; ne bis in idem principle is applicable, cation; and expansion of the scope of „„Effective remedies need to be avail- Member States should apply the proce- Art. 54 CISA would create an ad hoc able to the individual. dure foreseen in Art. 57 CISA. refusal ground in extradition law that Recommendation 02/2020 supple- In the present case, a German na- is not foreseen in bilateral international ments other guidelines and recommen- tional has brought an action against the extradition treaties. dations by the EDPB, which are to be Bundeskriminalamt (Federal Criminal As regards the second set of questions taken into account when proceeding with Police Office) on the ground that he con- put forward by the referring Administra- any assessment of lawful data transfers siders that a request for a search warrant tive Court of Wiesbaden, the AG con- to third countries. Assessments depend issued by the United States, which has cludes that further processing of the per- on the transfer tool to be used and on the been distributed via the Interpol sys- son’s data contained in a red notice is not necessity of providing appropriate safe- tem to all States affiliated to Interpol, precluded by Union law. It does, in prin- guards, including supplementary meas- infringes the Union-wide prohibition of ciple, not matter that the ne bis in idem ures if necessary (Recommendation double jeopardy. For details of the case principle were to apply to the charges 01/2020 analysed in previous news and the questions referred to eucrim in the red notice. In sum, the applica- item). (TW) 2/2019, 106–107. tion of the ne bis in idem principle does In the first place, the AG repeats the not entail, for the person concerned, the settled CJEU case law: a decision by right to request that his personal data be Ne bis in idem which a public prosecutor definitively erased. discontinues criminal proceedings, hav- Lastly, the AG proposes the CJEU not AG: Union Ne bis in idem Rules Shelter ing for effect that once the accused has answering the question which doubts the Union Citizens from Extraditions to satisfied certain conditions, any further adequacy of Interpol’s data protection, Third Countries prosecution is precluded under the na- because the question would have no Advocate General Bobek concludes in tional law (here: Germany), meets the bearing on the specific situation of the his Opinion in Case C-505/19 of 19 No- requirement of “finally disposed of” applicant. vember 2020 that the fundamental prin- enshrined in Art. 54 CISA/Art. 50 CFR. hhPut in focus: ciple of ne bis in idem, in conjunction In the second place, he finds that the The AG’s opinion must be seen in a with the right to free movement, pre- objective pursued by Art. 54 CISA, i.e. much wider context. It answers the gen- cludes Member States from implement- to move freely within one singe legal eral question whether the union-wide ing a red notice issued by Interpol at space, must also have consequences on transnational ne bis in idem guarantee – the request of a third country and from potential extraditions. He mainly argues: not to be prosecuted twice for the same restricting the freedom of movement „„One legal space means one legal act (Art. 54 CISA, Art. 50 CFR) – has of a citizen of the Union under Art. 21 space, internally as well as externally; extraterritorial effects. The former pre- TFEU. In the AG’s view, the prohibi- „„The rationale of Art. 54 CISA given by vailing opinion was that Art. 54 has only tion of double jeopardy enshrined in the CJEU also applies in the present case: “intra-Community effects”, but leaves Art. 50 of the Charter of Fundamental persons who, when prosecuted, have their the relationship between EU Member Rights, once a final decision has been cases finally disposed of have to be left States and third States, such as the US, issued by a competent authority, pre- undisturbed. They must be able to move untouched. This assumption was in fact cludes any further criminal prosecution freely without having to fear a fresh pros- shaken by the CJEU’s judgment in Pe­ by the Member States of the Convention ecution for the same acts in, and not only truhhin, which found that the right to Implementing the Schengen Agreement by, another Schengen State; free movement in Art. 21 TFEU has also (CISA). Temporary arrest in another „„A person that is subject to arrest or effects to extraditions of Union citizens member state for the purpose of possible temporary detention, in view of his or to countries outside the bloc (eucrim future extradition is also excluded. her extradition, despite being entitled to 3/2016, p. 131). In this context, AG Bobek The AG adds, however, that the ju- benefit from the ne bis in idem principle, emphasises that the Petruhhin logic does dicial authorities of the Member State is not left undisturbed or able to move not only apply if a Union citizen has made concerned must have adopted a final freely within the Union. use of his freedom, but also if he/she is

eucrim 4 / 2020 | 287 NEWS – European Union actually and genuinely seeking to make EU’s new legal instrument for judicial yyIdentification of the competent au- use of it (as in the present case). cooperation in the field of asset recov- thorities in the Member State of na- The AG’s opinion is generally in line ery. It explains the key elements of the tionality; with the recent decision of the Higher framework, such as its scope and con- yyResponsibilities for translation of the Regional Court of Frankfurt a.M. which tent, time limits, grounds for refusal, information and the bearing of trans- denied extradition of a Union citizen to and the introduction of new victims’ lation costs; the US who had already been tried for rights. (CR) yyDifferent practices relating to the re- the offence as referred to in the extra- quired information to be provided to dition request by the Italian authorities the Member State of nationality con- (eucrim 2/2020, 110). Relying on the cerning the extradition request; concept in Petruhhin, the court in Frank- Cooperation yyDifferent practices as regards the furt ruled that prosecution of an EU citi- time limits given for the prosecution zen in his home (EU) country must take Judicial Cooperation decision of the Member State of na- precedence over prosecutions in third tionality; countries. The AG shares this view when Follow-up to Petruhhin Doctrine: yyWhich judicial cooperation instru- he argues: “Once that decision [first de- Eurojust and EJN Map Problems ment to use, in particular if the thresh- cision on the subject matter by an EU In December 2020, Eurojust and the olds for issuing a national and/or Eu- Member State] has been taken, and if an European Judicial Network in criminal ropean arrest warrant are not met. extradition request has been refused, a matters released a report on the extradi- „„Tensions between obligations under Union citizen will benefit from a certain tion of EU citizens to third countries. It EU law, on the one hand, and bilateral ‘protective umbrella’ within the Union, details practical and legal challenges that and multilateral extradition treaties, on with that EU citizen being allowed to arose from the CJEU’s landmark judg- the other; move freely within the Union without ment in Petruhhin (eucrim 3/2016, „„Questionable results of the consulta- the fear of being prosecuted for the same 131). In this case − subsequently con- tion procedure, since most cases do not act(s).” firmed by other judgments – the CJEU lead to prosecution of the EU citizen However, AG Bobek’s opinion is established that an EU Member State concerned in his home country; somewhat contradictory to AG Hogan’s faced with an extradition request from „„The existence of several parallel opinion of 24 September 2020 in Case a third country concerning a citizen of channels used to inform and transmit C-398/19 (eucrim 3/2020, 190–191). another EU Member State is obliged to information between the Member States AG Hogan recommends the CJEU giv- initiate a consultation procedure with the involved, often leading to duplication of ing up the concept established in Petruh- Member State of nationality of the EU effort, uncertainty, and confusion. hin. He, inter alia, raises the question citizen, thus giving the latter the oppor- One of the main conclusions is that how far Union law can go in order to tunity to prosecute its citizen by means both Eurojust and the EJN play a key influence international treaty obligations of a European Arrest Warrant. The ap- role in facilitating and supporting the (in the case C-398/19: the 1957 Euro- plication of this case law has proven dif- consultation procedure and in solving pean Convention on Extradition). (TW) ficult in practice, and in June 2020, the the problems raised. The report also Council invited Eurojust and the EJN to states that procedural differences across analyse the reasons behind this develop- national legal systems and the specific Freezing of Assets ment. Eurojust and EJN have mapped a circumstances of each case call for more number of unclear issues and made rec- clarity and flexibility. Eurojust Note on New Freezing ommendations to resolve them, e.g.: The full, joint Eurojust/EJN report as and Confiscation Regulation „„Uncertainties as to the scope of the well as an one-page overview are avail- On 8 December 2002, Eurojust published CJEU’s case law, e.g., lack of clarity as able in English. The executive summary a Note on Regulation (EU) 2018/1805 to the extent of the requested Member of the report is available in all EU lan- on the mutual recognition of freezing State’s obligations in case of an extradi- guages. orders and confiscation orders. It applies tion request for execution of a custodial Whether the CJEU will stick to its since 19 December 2020 and replaces sentence and possible application of the case law remains to be seen. AG Hogan Framework Decisions 2003/577/JHA consultation mechanism in cases that do recently acknowledged the practical and on freezing property and evidence and not fulfil all the conditions of CJEU case legal problems of the Petruhhin judg- 2006/783/JHA on confiscation orders law; ment and recommended that it no longer (eucrim 4/2018, 201–202). The Note „„Difficulties concerning the consulta- be followed (opinion in case C-398/19 provides background information on the tion procedure, including: (BY – Generalstaatsanwaltschaft Ber­

288 | eucrim 4 / 2020 Cooperation lin concerning extradition to Ukraine; to the extradition of the Union citizen. dure and, if appropriate, carry out the eucrim 3/2020, 190–191). (TW/CR) For details on the facts of the case, the extradition. referred questions, and the AG’s opinion Third, the CJEU holds that Arts. CJEU Maintains Petruhhin Doctrine: eucrim 3/2020, 190–191. 18 and 21 TFEU must be interpreted Extradition of EU Citizens to Third hhFindings of the CJEU as meaning that the Member State to States Only in Agreement with Member The CJEU, sitting in Grand Cham- which a third State submits an extradi- State of Nationality ber, first confirmed that Arts. 18 and 21 tion request for the purpose of criminal On 17 December 2020, the CJEU ren- TFEU also apply in situations such as prosecution of a Union citizen who is a dered a decision in the extradition case those in the present case. It is only of national of another Member State is not of a Ukrainian-Romanian national relevance whether a national of one EU obliged to refuse extradition and to con- (Case C-398/19 (BY – Generalstaats­ Member State resides in the territory of duct a criminal prosecution itself where anwaltschaft Berlin). The Ukraine another EU Member State and whether its national law permits it to do so. Oth- sought the extradition from Germany, he/she is the subject of an extradition erwise, the requested EU Member State where the person concerned had moved request sent to the latter Member State could no longer exercise its discretion to to in 2012. The case gave the CJEU the by a third State. The fact that BY moved decide itself on the appropriateness of opportunity to specify the case law es- the centre of his interests to that other conducting prosecution – such an obli- tablished in the Petruhhin judgment Member State (here: Germany) at a time gation would be beyond EU law. (eucrim 3/2016, 131), in particular as at which he did not have Union citizen- hhPut in focus: to the conditions under which a Union ship has no effect in this regard. The judges in Luxembourg did not citizen may be extradited to a third coun- Second, the CJEU clarified the obli- heed the criticism that followed their Pe­ try. In the Petruhhin case – subsequent- gations incumbent to the requested EU truhhin concept. In the case at issue, AG ly confirmed by other judgments – the Member State as regards the exchanging Hogan detailed the numerous legal and CJEU established that an EU Member of information within the consultation practical challenges involving the con- State faced with an extradition request procedure as set out in Petruhhin. The sultation procedure and the preference from a third country concerning a citizen Member State of nationality (here: Ro- for criminal prosecution by the Member of another EU Member State is obliged mania) must be in a position to request State of nationality, although the crimes to initiate a consultation procedure with the surrender of the person concerned by at issue had been regularly committed the Member State of nationality of the means of an EAW. This means: on the territory of the third country re- EU citizen, thus giving the latter the „„The Member State of nationality must questing extradition of the perpetrator. opportunity to prosecute its citizen by be duly informed of all the elements of This criticism was also voiced by prac- means of a European Arrest Warrant. fact and law communicated by the third titioners in the recent joint report by Eu- hhBackground of the case State in the context of the extradition rojust and the EJN on extradition of EU The peculiarities of the case at issue request and of any changes in the situ- citizens to third countries. In this report, were that the defendant (BY) had never ation of the requested person that might Eurojust and the EJN map a number of resided in Romania and that the Roma- be relevant to the possibility of issuing problems that emerged after the Petruh- nian Ministry of Justice did not clearly an EAW; hin judgment, inter alia as regards diffi- answer the question by the Berlin Gen- „„Under EU law, neither of the EU culties in the application of the consula- eral Prosecutor’s Office as to whether Member States involved (here: Germa- tion procedure and different practices in Romania intend to take over criminal ny and Romania) are obliged to ask the the Member States handling the required prosecution of the person concerned. third State requesting extradition (here: information (news item at p. 288). The referring court was uncertain on the Ukraine) to send to them a copy of the The CJEU stresses, however, that conclusions to be drawn from the Pe­ criminal investigation file; EU law answers (and must answer) the truhhin judgment in this specific case. „„The requested Member State must question of “whether the requested (EU) It submitted to the Court questions con- impose a reasonable time limit (taking Member State is able to adopt a course of cerning the interpretation of Arts. 18 into account all circumstances of the action, with respect to that Union citizen, and 21 TFEU (relating to, respectively, case, in particular the extradition deten- which would be less prejudicial to the ex- the principle of non-discrimination on tion of the person and the complexity ercise of that citizen’s right to free move- grounds of nationality and the right of of the case) upon the Member State of ment and residence by considering that he Union citizens to move and reside free- nationality. If the Member State of na- or she should be surrendered to the Mem- ly within the territory of the Member tionality does not issue an EAW within ber State of which he or she is a national States) and concerning the obligations of the time limit, the requested EU Member rather than extradited to the third State Germany, as requested State, in relation State can continue the extradition proce- that is requesting extradition.” (TW)

eucrim 4 / 2020 | 289 NEWS – European Union

European Arrest Warrant „„Similar to the approach against inhu- (5) Strengthening EAW surrender man and degrading treatment, Member procedures in times of crisis, following Council Conclusions on Current States are called on to address deficien- experiences so far with the COVID-19 Challenges and Way Forward for cies in safeguarding fair trial proce- pandemic: European Arrest Warrant dures. They should additionally avoid „„A coordinated approach to streamlin- On 1 December 2020, the Council the risk of politicisation of cooperation ing the collection and distribution of in- agreed on conclusions how to meet the in criminal matters. The Commission, formation is essential. In the future, an current challenges and move forward in consultation with the FRA, should electronic platform (still to be created) regarding the European Arrest Warrant explore ways to improve practitioners’ should provide updated information on and extradition procedures. They set out access to information; judicial cooperation in times of crisis; how the effectiveness of the main instru- „„The executing judicial authority must „„The digitalisation of judicial coopera- ment of judicial cooperation within the rely on assurances by the issuing author- tion must be stepped up, whereby sev- EU on the basis of the principle of mu- ity that the person concerned will not eral aspects must be taken into account, tual recognition could be improved. The suffer a violation of his/her fundamental e.g., secure electronic communication, conclusions deal with five main topics rights if surrendered, barring any spe- the mutual recognition and use of elec- and include, inter alia: cific indications to the contrary. tronic signatures, and the possibilities to (1) Improving national transposition and (3) Addressing certain aspects transmit large data files. practical application of the European of the procedure in the issuing and The conclusions on the EAW had Arrest Warrant framework decision: in the executing Member States: been preceded by several discussions „„Member States should ensure cor- „„The FRA is invited to continue its on how judicial cooperation can be fur- rect transposition of the Framework studies on the practical effectiveness of ther improved within the EU. During the Decision (FD) on the EAW, taking due procedural rights in EAW proceedings, Austrian Presidency in 2018, the Coun- account of CJEU case law and recom- taking increasing account of the experi- cil adopted, for instance, conclusions mendations resulting from the Council’s ences of lawyers acting in surrender pro- on mutual recognition in criminal mat- mutual evaluation rounds; ceedings; ters (eucrim 4/2018, 202–203). Impe- „„Member States are encouraged to lay „„Member States should – to a greater tus came from the Commission’s latest down non-binding guidelines for appli- extent – consider accepting translations implementation report on the FD EAW cation of the EAW, in order to facilitate in one other/more other official EU (eucrim 2/2020, 110–111), the EP’s practical work with the instrument; language/s in order to simplify and ac- implementation assessment of the EAW „„The EU should establish a central- celerate the surrender procedure; (eucrim 2/2020, 111 plus the proce- ised portal that collects and continu- „„Plans for an EU legislative instru- dure file 2019/2207(INI)), and a vir- ously updates all relevant information ment on the transfer of proceedings and tual expert conference on 24 September on use of the EAW (possibly based on conflicts of jurisdiction should be fol- 2020 organised by the German Council an improvement of the existing EJN lowed through; Presidency. (TW) website). „„Increased use of alternatives to deten- (2) Supporting executing authorities tion or other judicial cooperation meas- CJEU: General Deficiencies of Judicial when dealing with fundamental rights ures next to the EAW should be consid- Independence Do Not Justify EAW evaluations: ered. Refusal Alone „„Member States are called on to take (4) Handling requests to extradite EU Member States may not impose a the necessary measures to ensure com- EU citizens to third countries: general ban on surrender, despite grow- pliance with existing instruments that „„On the basis of the joint Europol and ing doubts about the independence of protect against inhuman and degrading EJN report on the challenges of the Pe­ the Polish judiciary. The CJEU ruled on treatment, in particular the European truhhin judgment (separate news item 17 December 2020 that the execution of Prison Rules established by the CoE; under “Judicial Cooperation”, p. 288), a European Arrest Warrant (EAW) may „„It must be ensured that practition- the Council will further analyse whether still only be refused if the person con- ers have the necessary information to any follow-up action should be taken cerned runs a real risk of being subjected carry out the two-step assessment as set and, if so, in what way; to an unfair trial (Joined Cases C-354/20 out in the CJEU judgment in Arranyosi „„The Commission is encouraged to PPU and C-412/20 PPU, “L and P” / (eucrim 1/2016, 16). The Commission consider actions against unfounded, Openbaar Ministerie). This risk must may assist the evaluation by creating a abusive, and politically motivated be examined on a case-by-case basis. template by which to request supple- search and extradition requests from In this, the CJEU follows the opinion mentary information; third countries. of Advocate General Campos Sánchez-

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Bordona. For more background infor- the factual context in which the Europe- would amount to a general suspension mation on the case and the AG’s opin- an Arrest Warrant has been issued. With of the EAW mechanism, which would ion, eucrim 3/2020, 192–193. regard to the specific context of the two interfere with the procedure provided for hhBackground of the case: cases at issue, the CJEU does specify the in Art. 7(2) TEU. The Luxembourg judges uphold their impact of systemic and generalised defi- hhPut in focus: case law established in “LM” (eucrim ciencies on the assessment in the second It is of note that, in the refusal of 2/2018, 104–105). In this case, they es- step of the two-step test for both EAWs EAWs, nearly no argument has been tablished a two-step test, according to issued (for the purpose of prosecution successful to date before a Member which courts in the executing state may and for the purpose of execution of a State court against the independence reject EAWs on the grounds of viola- custodial sentence). of the judiciary in Poland following its tions of the right to a fair trial in the is- hhArguments of the CJEU: justice reforms. An exception is the de- suing state. In view of the reforms of the The main lines of argument of the cision of the Higher Regional Court of Polish judicial system, the Luxembourg judges in Luxembourg, upholding its Karlsruhe in Germany of 17 February judges made it clear at the time that there case law as established in LM, can be 2020 (eucrim 1/2020, 27–28). The was a risk that a requested person would summarised as follows: court applied the two-step procedure as not receive a fair trial in Poland. Howev- „„The concept of systemic or general- defined in LM and concluded a real risk er, an abstract-general examination was ised deficiencies affecting the judiciary’s of fair trial infringements in Poland in not sufficient: next to the assessment of independence cannot lead to the auto- the specific case. (TW) whether systemic and generalised defi- matic conclusion that all courts of the ciencies exist concerning the independ- affected Member State or every decision CJEU: Execution of an EAW in the Case ence of the issuing Member State’s ju- of these courts fail to be independent; of Judgments in Absentia diciary, the respective judicial authority „„Denial of the “issuing judicial author- On 17 December 2020, the CJEU ruled of the executing Member State must de- ity” status to all courts of the Member on the execution of a European Arrest termine to what extent such deficiencies State in question would lead to a general Warrant (EAW) based on a judgment are liable to have an actual impact on the exclusion of the Member State from the rendered in absentia (Case C-416/20 situation of the person concerned if he/ mutual recognition instrument; PPU (TR v Generalstaatsanwaltschaft she is surrendered to the judicial authori- „„The above would also imply that Hamburg)). The request for a prelimi- ties of that issuing state. the courts of the Member State at is- nary ruling was submitted by the Ham- On account of recent developments sue would no longer be able to submit burg Higher Regional Court. that have raised doubts about the inde- references for preliminary rulings to the hhFacts of the case and question pendence of the Polish judiciary, the re- CJEU, since the independence of courts referred: ferring court, the Rechtbank Amsterdam, and tribunals is inherent in the concept In the underlying case, TR, a Roma- essentially wanted to know from the of Art. 267 TFEU; nian national, was prosecuted in Ro- CJEU whether a case-by-case examina- „„Recent CJEU case law on the concept mania. As he had fled to Germany, the tion was still required at all – or whether of “issuing judicial authority” in relation proceedings concerning him, both at the finding that Poland no longer guar- to public prosecutor’s offices subordi- first instance and on appeal, took place antees the independence of its judiciary nate to the executive in certain Member in his absence. However, he had knowl- is sufficient in itself to justify a refusal States cannot be transferred to Member edge of at least one of these proceedings to execute an EAW issued by a Polish States’ courts (eucrim 1/2019, 31–33 and was represented there by lawyers court. and eucrim 4/2019, 242–245 and the of his choice in the first instance and by hhFindings of the CJEU: news item on the judgment in Case court-appointed lawyers in the appeal. The CJEU rejects this approach: the C-510/19); The hearings resulted in sentences of executing court must still be satisfied „„The existence of or increase in sys- two terms of imprisonment. The Roma- that there are substantial grounds for temic and generalised deficiencies con- nian authorities issued EAWs for their believing that, on account of these defi- cerning the independence of the judici- execution. TR defended himself against ciencies, the person concerned will run ary in the issuing state is indicative of a surrender by Germany, arguing that he a real risk of breach of his/her right to real risk of breach of the right to a fair had the right to a new trial (as guaran- a fair trial once he/she is surrendered to trial and the executing judicial authority teed, inter alia, by Art. 9 of Directive the authorities of the issuing state. The can exercise vigilance; however, it can- 343/2016), but Romania did not guaran- executing court must consider the indi- not dispense a specific and precise as- tee this. vidual situation of the person concerned, sessment of this risk; The referring court asks, in essence, the nature of the offence in question, and „„Dispensing such an assessment whether it is entitled to refuse surrender

eucrim 4 / 2020 | 291 NEWS – European Union if the issuing state does not fulfil the re- Ultimately, the CJEU draws on its CJEU: “Executing Judicial Authority” quirements of Directive 343/2016 on the case law in Tupikas (C-270/17 PPU Follows Same Criteria as “Issuing defendant’s right to be present at trial eucrim 3/2017/117–118): If the is- Judicial Authority” (in particular, Arts. 8 and 9 of the Direc- suing Member State has provided for On 24 November 2020, in its judgment tive). a criminal procedure involving several in Case C-510/19, the CJEU further de- hhFindings of the CJEU degrees of jurisdiction which may thus fined the notion “executing judicial au- The CJEU clarified that the Hamburg give rise to successive judicial deci- thority” pursuant to Art. 6(2) of Frame- court must decide whether surrender is sions, the concept of “trial resulting in work Decision (FD) 2002/584/JHA on inadmissible on the basis of the national the decision”, within the meaning of the European Arrest Warrant (EAW). provisions implementing Art. 4a FD Art. 4a(1) FD EAW, must be interpreted Accordingly, Dutch public prosecutors EAW. According to Art. 4a, the execut- as relating only to the instance at the end are not an “executing judicial authority,” ing judicial authority may refuse to ex- of which the decision is handed down as they may be subject to individual in- ecute an EAW issued for the purpose of which finally rules on the guilt of the structions from the Minister of Justice. enforcing a custodial sentence imposed person concerned and imposes a penalty The case at issue dealt with the ques- in the absence of the person concerned, on him. Therefore, it is up to the refer- tion of whether the Dutch public pros- unless one of the groups of cases ex- ring court to establish to its satisfaction ecutor was empowered to consent to an haustively listed therein applies. whether the characteristics set out in exception to the speciality rule (Art. 27 Art. 4a does not allow the execution Art. 4a FD EAW apply to a trial like the FD EAW), as a consequence of which of an EAW to be refused solely because appeal proceedings in the present case. a defendant could be prosecuted and the executing authority has not received At the same time, the CJEU stresses convicted for offences other than those assurance that the person’s right to a new that Art. 4a FD EAW is a facultative for which he had previously been sur- trial will be respected if he/she is surren- refusal ground. This means that the ex- rendered to Belgium (for the facts of the dered to the issuing State, even though ecuting judicial authority must also take case C-510/19 (AZ v Openbaar Ministe­ he/she fled to the executing Member into account the behaviour of the person rie and YU And ZV) and the opinion of State (thus preventing his personal sum- requested. It is not prevented from giv- AG Campos Sánchez-Bordona eucrim mons and appearance in person at the tri- ing green light to surrender, although it 2/2020, 112). al). By contrast, the fact that the person may conclude that surrender would be The CJEU followed the AG’s conclu- requested has given a mandate to a legal inadmissible if appeal proceedings were sions. It first states that, like the concept counsel appointed either by himself/her- to be held in absentia. of “issuing judicial authority,” the con- self or by the state, in knowledge of the hhPut in focus: cept of executing judicial authority as scheduled hearing and was actually de- With its judgment in TR v Gener­ defined in Art. 6(2) FD EAW requires an fended by this defence counsel, allows alstaatsanwaltschaft Hamburg, the autonomous interpretation of EU law. It the surrender to be declared admissible judges in Luxembourg reiterate that the is not restricted to designated judges or in accordance with Art. 4a(1b) FD EAW. grounds on which Member States may courts but also covers judicial authori- The judges in Luxembourg state that refuse to execute an EAW have been ex- ties which participate in the administra- the failure of the issuing Member State haustively enumerated and that the ex- tion of criminal justice in the Member to comply with the provisions of Direc- ecuting judicial authority may not make State concerned. This, however, requires tive 343/2016 guaranteeing the right to the execution of an EAW subject to that they act independently in the exer- a new trial cannot prevent the execu- other conditions. Art. 4a FD EAW must cise of their responsibilities and carry tion of an EAW; otherwise, the system be considered lex specialis in relation out their tasks under a procedure that established by the FD EAW would be to the provisions in Directive 343/2016 complies withthe requirements of effec- circumvented. This is without prejudice, on the right to be present. The national tive judicial protection. however, to the issuing Member State’s court that decided on the execution of a Therefore, the CJEU considers its obligation to comply with these provi- European Arrest Warrant only has a lim- case law on the concept of “issuing judi- sions. Therefore, to the extent that the ited right of review of the procedure in cial authority” to be transferable. Conse- Member State has not transposed the another EU Member State concerning quently, the same criteria apply in order Directive’s provisions within the time questions of a fair trial. If violations of to determine the content of the concept limit or has not transposed them prop- the rights stipulated in the EU’s proce- of “executing judicial authority.” The erly, the person concerned may rely on dural rights directives occur, the defend- CJEU justifies its conclusion by stat- the provisions having direct effect in the ant must raise his/her hand in the trial ing, inter alia, that, just as the issue of courts of that Member State in the event state; his/her surrender cannot be pre- an EAW, also the execution is capable of of surrender. vented. (TW) prejudicing the liberty of the requested

292 | eucrim 4 / 2020 Cooperation person. In addition, there is no dual level FCC: EU Charter is Review Standard in the specific case. It further held that of protection of fundamental rights if the for Poor Prison Conditions a review of the conditions in prisons in executing judicial authority intervenes, spot On 1 December 2020, the Ger- which the individual might be detained unlike the procedure for the issuing of light man Federal Constitutional at a later point in time is not necessary an EAW. Court (FCC) backed two consti- due to the principle of mutual trust be- Secondly, the Court holds that, irre- tutional complaints against surrender tween the EU Member States. spective of whether the judicial author- from Germany to Romania. The FCC hhFindings of the FCC: ity consenting to disapplying the rule of found that the ordinary courts failed to The FCC reminded both Higher Re- speciality must be the same as the au- sufficiently assess and clarify whether gional Courts that they have to apply the thority which executed the EAW, this there is a specific risk of inhuman and two-step procedure established by the consent cannot be given by the public degrading treatment due to the detention CJEU in Arranyosi and Căldăraru ex of­ prosecutor of a Member State. Even conditions in Romania once the com- ficio (eucrim 1/2016, 16) if they assess though the public prosecutor participates plainants have been surrendered. There- possible infringements of Art. 4 CFR in in the administration of justice – in exer- fore, the courts deciding on the surren- cases of alleged, insufficient detention cising his or her decision-making power der upon receipt of EAWs from Romania conditions: (1) identification of whether – he/she may receive an instruction from failed to recognise the significance and there are systemic or general deficien- the executive in a specific case. In order scope of the fundamental right not to re- cies with regard to detention conditions to give the consent concerned, the in- ceive inhuman treatment under Art. 4 of in the issuing Member State; (2) diligent tervention of an authority must satisfy the EU Charter of Fundamental Rights assessment of whether the requested the above-mentioned conditions of in- (CFR) and disregarded their duty to person would be at a real risk of inhu- dependence and judicial protection. The investigate (Bundesverfassungsgericht, man or degrading treatment within the CJEU reiterates that the decision is li- decision of 1 December 2020, 2 BvR meaning of Art. 4 CFR after his surren- able to prejudice the liability of the per- 1845/18, 2 BvR 2100/18; a press release der to the issuing State. son concerned since he/she may receive in English is also provided). The FCC calls to mind the differenti- a heavier sentence. hhFacts of the case(s): ated case law of the CJEU and ECtHR Since the Dutch public prosecutor In the first case, the Higher Regional regarding the space available for prison- may receive instructions from the Dutch Court of Berlin was satisfied with the ers and the required overall evaluation Minister of Justice in specific cases, he/ information given by the Romanian au- of detention conditions by the executing she does not constitute an “executing ju- thorities that the defendant – a Roma- judicial authority. dicial authority.” Therefore, the consent nian national sentenced to five years of Addressing the Higher Regional given by the Netherlands to disapply the imprisonment for attempted murder – Court of Berlin, the FCC clarified that it speciality rule is void. would have a minimum of 3m² of cell must not only take into account the per- This leads to the conclusion that the space; whether he would subsequently sonal space in prison cells (3m²) in the German Public Prosecutor’s Office, be transferred to semi-open detention case at hand but also other factors that which is also bound by instructions, with 2m² of non-shared personal space may be deficient and may fail to com- is not an executing judicial author- was deemed irrelevant. ply with Art. 4 CFR. In addition, the fact ity within the meaning of the FD EAW In the second case, the Higher Re- that the Berlin court could not negate (Joined Cases C-508/18 (OG) and gional Court of Celle/Lower Saxony or- probable later detention in a shared cell C-82/19 PPU (PI) = eucrim 1/2019, dered the surrender of an Iraqi national (with only 2m²) may also be incompat- 31–32). The public prosecutor’s of- who was prosecuted for aiding and abet- ible with Art. 4 CFR. fices in Lithuania (eucrim 1/2019, ting illegal immigration in Romania. The The FCC reproached the Higher Re- 33–34), France, Sweden, and Belgium Romanian judicial authorities informed gional Court of Celle, because the court (judgments delivered on 12 December only the German counterpart about had to set a specific time limit for the 2019 in Joined Cases C-556/19 PPU and the prison conditions in remand deten- Romanian authorities to provide the re- C-626/19 PPU, Case C-625/19 PPU, and tion. The court in Celle ignored a pend- quested supplementary information on Case C-627/19 PPU = eucrim 4/2019, ing request from the Public Prosecutor the detention conditions after conviction 242–245), however, are to be understood General’s Office to provide guarantees and defer any decision on the admis- as bodies independent of the executive in respect of the defendant’s detention sibility of the surrender until receipt of and as executing judicial authorities ac- following conviction and decided that that reply. If it had not received a reply cording to the case law of the CJEU. For surrender was admissible. It argued that within a reasonable time, the Celle court the status of public prosecutors in EIO a real risk of detention conditions vio- would have had to decide on the termi- cases, see below p. 294. (TW) lating human rights could be ruled out nation of the surrender proceedings.

eucrim 4 / 2020 | 293 NEWS – European Union hhPut in focus: protection as established by the CJEU Prosecutor’s Office, with the aim of Two aspects make the FCC’s decision in Arranyosi and Căldăraru and calls on obtaining account records of an Aus- of 1 December 2020 remarkable: the German ordinary courts to take this trian bank. In particular, the CJEU had Firstly, the FCC accepts for the first approach to heart. to deal with the question (referred to it time in relation to European criminal In sum, one could conclude that the by the Vienna Regional Court for crimi- law that the fundamental rights of the present FCC ruling now strikes a more nal matters) of whether its case law on German constitution (the Basic Law − conciliatory tone in the longstanding the European Arrest Warrant (EAW) Grundgesetz) are not the yardstick for battle for sovereignty when interpreting (cf. Joined Cases C-508/18 (OG) and examination but instead the fundamen- fundamental rights in Europe. It is much C-82/19 PPU (PI) = eucrim 1/2019, tal rights of the European Union (here: more “integration-friendly” than previ- 31–32), according to which the Ger- Art. 4 CFR). It argues that the matter ous FCC rulings. The relationship be- man Public Prosecutor’s Office was not at issue in the initial proceedings con- tween the judges in Karlsruhe and their considered sufficiently independent to cerns an area fully determined under EU colleagues in Luxembourg had cooled issue an EAW, should be applied to the law. Therefore, the fundamental rights noticeably after the FCC’s decision in interpretation of Directive 2014/41/EU of the Basic Law are not applicable as May 2020, which declared a CJEU rul- on the EIO. The CJEU denied this and the direct standard of review. In this, ing on the Public Sector Purchase Pro- justified its conclusion by clarifying the deciding Second Senate of the FCC gramme (PSPP) of the European Central essential differences between the FD aligns itself with a judgment of the First Bank “ultra vires” and thus not appli- EAW and the EIO Directive: Senate ruling in 2019 in relation to the cable in Germany. Advocate General „„The EIO Directive expressly speci- right to be forgotten in the area of data Tanchev bashed this ultra vires approach fies the concept of “issuing judicial au- protection law, namely that the domestic in a recent opinion that actually deals thority” where the public prosecutor is application of legislation that has been with the independence of the appoint- named next to the judge, court, or inves- fully harmonised by EU law must be re- ment procedure of judges to the Polish tigative judge entitled to issue EIOs. The viewed in the light of EU fundamental Supreme Court (Case C-824/18). Ac- public prosecutor is also one of the au- rights. cording to the AG, the FCC’s ultra vires thorities empowered to validate an EIO The Second Senate, however, clari- approach undermined the rule of law in stemming from other authorities that are fied, as follows: “When interpreting the the EU, which is a conditio sine qua non not a judge, court, investigative judge, or EU fundamental rights, it is necessary to integration. Whether the relationship prosecutor; to draw on both the human rights guar- between the FCC and the CJEU will „„The issuance and validation of an anteed by the European Convention on now be redefined remains to be seen. EIO and its execution are subject to dis- Human Rights and specified by the Eu- (TW) tinct procedures and guarantees that en- ropean Court of Human Rights, and the sure the fundamental rights protection of fundamental rights as reflected in com- the person concerned; mon constitutional traditions and shaped European Investigation Order „„The EIO and the EAW pursue differ- by the constitutional and supreme courts ent objectives. While an EAW strongly of the Member States.” CJEU: German Public Prosecutor’s interferes with the right to liberty of the Secondly, the FCC stated that, in the Office Considered “Issuing Judicial person concerned, an EIO’s investiga- present context, it is not necessary to limit Authority” in the EIO Context tive measures are less intrusive. the precedence of application of EU law The German public prosecutor‘s of- In the light of these differences, the through a review on the basis of consti- fices may issue European Investigation CJEU concluded that the criteria for the tutional identity, because the standards Orders (EIOs) despite being contin- independence of the issuing judicial au- applied by the CJEU when interpreting gent upon individual instructions from thority in the context of an EAW cannot Art. 4 CFR are in line with Art. 1 of the the executive. The Grand Chamber of be transferred to the EIO. By contrast, Basic Law (the right to human dignity) the CJEU came to this conclusion on the EIO also covers the public prosecu- when minimum requirements of de- 8 December 2020 in Case C-584/19 tor’s offices of a Member State, even tention conditions are assessed. Initial (Staatsanwaltschaft Wien v A. and Oth­ though they are in a relationship of legal comments classify this statement as a ers), following the opinion of Advocate subordination to the executive of that turning point when juxtaposed with the General Campos Sánchez-Bordona Member State, which exposes them to strong “identity review” judgment hand- (eucrim 2/2020, 113). the risk of being directly or indirectly ed down in December 2015 (eucrim The underlying case concerned an subject to orders or individual instruc- 1/2016, 17). The FCC now seems to ac- EIO from the Hamburg Public Pros- tions from the executive when adopting cept the concept of fundamental rights ecutor’s Office to the Vienna Public an EIO. (TW)

294 | eucrim 4 / 2020 Cooperation

Law Enforcement Cooperation The Commission is called on: Sippel (S&D/DE) on rules for cross- „„To duly take into account the value border access by law enforcement to Council Conclusions on Enhancing Law and success of local, regional, bi- and electronic evidence (the so-called e-Ev- Enforcement Cooperation multilateral cooperations between Mem- idence Package). A simultaneous deci- Alongside conclusions on internal se- ber States when assessing the options for sion was taken to start inter-institutional curity (separate news item under a European Police Cooperation Code, negotiations. This mandate is considered “Security Union”, p. 261), the Council which must also be in line with the EU adopted by the EP as of 16 December adopted conclusions pointing the ways principles of subsidiarity and propor- 2020. Trilogue negotiations were ex- towards enhancing cross-border law tionality; pected to start in January 2021 under the enforcement/police cooperation. The „„To consider consolidating the existing Portuguese Presidency. conclusions were adopted on 14 Decem- legal cooperation framework, in particu- The legislative proposals on e-ev- ber 2020 and included as Annex I after lar the CISA and the Prüm Decisions; idence – one for a Regulation on the the conclusions on internal security in „„To step up support for regional struc- European Production and Preservation Council Document 13083/1/20. They tures/forms of cooperation; Order and one for a Directive on the ap- underline that new criminal phenomena „„To contribute to enhancing law en- pointment of legal representatives of the and new technologies entail the need to forcement cooperation: IT companies –were tabled by the Com- adapt the mechanisms of law enforce- yyBy supporting the development of mission in April 2018 (eucrim 1/2018, ment cooperation. Cross-border cooper- swift and smooth information ex- 35–36) and were critically examined in ation should also be better aligned with change; the LIBE Committee (eucrim 1/2019, the objectives of the EU policy cycle yyBy promoting joint trainings, exer- 38–40). for organised and serious international cises, and workshops; The EP’s negotiating draft includes crime. At the same time, the Council yyBy reducing technical and language a series of amendments to the Com- prefers the improvement of already barriers; mission’s position that are designed to available instruments, rather than creat- yyBy producing updated manuals; better reflect the differences in criminal ing new forms of cooperation and places yyBy intensifying legal training. law between Member States and to in- demands on several entities. Europol is, inter alia, called on: crease fundamental rights protection. The Member States are called on: „„To further support Member States in The report merges the two Commission „„To strengthen operational cross- order to provide the agency with high- proposals (regulation and directive) into border law enforcement cooperation quality data; one regulation. Another clear difference by effectively implementing existing „„To explore technical solutions in or- to the Commission’s proposals and the instruments. Legislation should be con- der to allow for swift and secure com- Council’s position is that the EP pro- solidated, simplified, and extended in munication between field officers and vides for a notification procedure by the following fields: investigators. the executing state for all production yyJoint patrols, units, offices, and op- CEPOL should continue its assistance and preservation orders, in some cases erations; in training Member States’ law enforce- with suspensive effect. The issuing or yyCross-border surveillance; ment officers, in particular by enhancing validation of an order for the production yyHot pursuit; legal knowledge of cross-border coop- of traffic or content data must be carried yyPolice-customs cooperation. eration. out by a judge. If an order comes from „„To further enhance Single Points of Within its mandate, FRONTEX is a Member State against which proceed- Contact (SPOCs) and/or Police and Cus- called on to help the law enforcement ings have been initiated under Article 7 toms Cooperation Centres (PCCCs); authorities of EU Member States and of the EU Treaty, data may only be re- „„To improve the means of regular or Schengen associated countries manage leased after explicit confirmation by ad hoc information exchange and direct the external borders in order to provide a the executing state. The Commission is communication; high level of security for all EU citizens. further called on to establish a common „„To raise awareness among law en- (TW) European exchange system, with secure forcement authorities about existing channels for the handling of authorised tools and to facilitate the availability of E-Evidence Package: EP Paves Way cross-border communication, authen- information, e.g., by using web apps or for Trilogue Negotiations tication and transmission of the orders introducing standardised forms; On 7 December 2020, the European and of the requested data between the „„To continue developing a common Parliament’s Committee on Civil Liber- competent authorities and service pro- European culture for law enforcement ties (LIBE) voted in favour of the com- viders. authorities. promise proposal by rapporteur Birgit After the vote in the LIBE Commit-

eucrim 4 / 2020 | 295 NEWS – European Union tee, rapporteur Birgit Sippel remarked: the main issues at stake. Furthermore, SIRIUS: Contribution Agreement “In future negotiations both the Council the report explains the role of Single between Eurojust and Europol and the Commission will have to sub- Points of Contacts (SPoCs), i.e., units or On 23 December 2020, Eurojust and Eu- stantially move towards the Parliament’s groups of officials specialized in cross- ropol signed a contribution agreement to direction and accept that it is not only border access to electronic evidence in expand their cooperation under the SIR- about speeding up the access to electron- EU Member States. IUS project. The SIRIUS project, which ic information, but also to make sure that According to the report, the main is- Europol launched in 2017, aims to sup- fundamental rights and the rule of law sues identified by EU judicial authorities port Internet-based investigations by co- are fully protected.” in the field of electronic evidence mainly developing tools and solutions for EU The Council already adopted its posi- concern the retrieval of data in time-sen- law enforcement and judicial authorities tion in December 2018 (as regards the sitive situations. This, for instance, can (eucrim 3/2020, 194–195). Under the Regulation eucrim 4/2018, 206) and be due to lengthy procedures involving new contribution agreement, Eurojust in March 2019 (as regards the Directive non-EU OSPs. becomes a full partner of the project. eucrim 1/2019, 40). The e-Evidence EU law enforcement authorities con- The new agreement also paves the package has been met with fierce criti- tinue to find fault with the length of mu- way for the second phase of the SIRIUS cism from legal professional organisa- tual legal assistance procedures. They project, which focuses on cross-border tions, academics, and NGOs (previous are also critical of the lack of standardi- access to electronic evidence. To achieve eucrim issues) sation in company policies. this aim, the agreement foresees various Recently, the first results of the tri- OSPs reported an increase of 14.3% practical measures, e.g.: logue negotiations became known. A in requests for disclosure of data in 2019 „„Strengthening and speeding up direct first agreement was reached on the defi- compared to 2018. The volume of Emer- cooperation between law enforcement nition of service providers and data cat- gency Disclosure Requests submitted by authorities and online service providers egories. However, questions about noti- EU authorities even increased by 49.7% in order to improve access to e-evidence fication obligations remain unresolved. from 2018 to 2019. The overall success by exchanging experiences; Another sensitive issue are safeguard rate of requests increased from 65.9% to „„Exchanging best practices and pro- clauses for the rights of journalists and 68.4%. viding training for EU practitioners on lawyers. Here, the rapporteur for the Eu- The report recommends that the fol- applicable rules in the US related to the ropean Parliament, MEP Birgit Sippel, lowing measures be taken by the respec- mutual legal assistance procedure; had outlined red lines in her preliminary tive stakeholders: „„Expanding the geographical focus reports on the Commission proposal. „„EU judicial authorities are called on of SIRIUS to develop collaboration on Several non-governmental organisations to promote national initiatives aimed existing initiatives and projects with se- have also lobbied for strong safeguards at developing a clearer overview of the lected non-EU countries, based on the for groups that merit special protection. different procedures available to request interest of EU Member States. (CR) (TW). and obtain data; „„Stakeholders should strengthen the New Decryption Platform Launched SIRIUS EU Digital Evidence Situation interconnection and knowledge ex- At the end of December 2020, Europol Report change among EU judicial practitioners launched a new decryption platform. On 1 December 2020, Eurojust, Eu- in the field of electronic evidence; The initiative is available to the national ropol, and the European Judicial Net- „„EU law enforcement authorities are law enforcement authorities of all EU work (EJN) published the SIRIUS EU invited to make use of the SIRIUS plat- Member States to send lawfully obtained Digital Evidence Situation Report 2020. form in order to provide periodic train- evidence to Europol for decryption. The It provides an analysis of the access EU ing to officers dealing with cross-border platform, which was developed in coop- Member States currently have to elec- requests to OSPs; eration with the European Commission’s tronic evidence held by online service „„Member States that have not yet es- Joint Research Centre, is operated by providers (OSPs) as well as the use of tablished SPoCs for electronic evidence Europol’s European Cybercrime Centre electronic evidence in criminal cases in are called on to create them; (EC3). The launch of the new decryption 2019. „„OSPs are called on to provide up- platform marks a milestone in the fight The report presents the perspectives dates about policies, to report changes against organised crime and terrorism in of EU judicial authorities, EU law en- in procedures to EU authorities (also by Europe. Ylva Johansson, EU Commis- forcement, and OSPs on how data is means of the SIRIUS platform), and to sioner for Home Affairs also highlighted collected for the investigation and pros- publish periodic transparency reports on the importance for the fight against on- ecution of crime in the EU and addresses requests from EU authorities. (CR) line child sexual abuse. (CR)

296 | eucrim 4 / 2020 Specific Areas of Crime

tween MPs and third parties seeking to influence parliamentary proceedings; „„Introducing a system of public dec- larations on the financial and economic interests of MPs, including spouses and dependent family members; „„Promoting trainings and awareness- raising measures regarding the conduct Council of Europe expected from MPs as regards integrity Reported by Dr. András Csúri and the declaration of interests, includ- ing the possibility of confidential coun- selling for MPs on these matters. Specific Areas of Crime fluenced the balance between parliament As far as judges are concerned, the and government. Another important as- GRECO report recommends the follow- pect is the role of the prince, who is the ing: Corruption head of state. His powers were greatly „„Significantly increasing the role of strengthened after a constitutional re- the judiciary in the selection process of GRECO: Fourth Round Evaluation Report form in 2003, which the Venice Com- judges, with all respective vacancies to on Liechtenstein mission found objectionable, particu- be made public and more transparent; On 16 December 2020, GRECO pub- larly with regard to his veto power over „„Adopting, supervising, and making lished its fourth round evaluation report laws passed by parliament. publicly accessible a judicial code of on Liechtenstein. This evaluation round A peculiarity in the judiciary is that a conduct, including explanatory com- was launched in 2012 in order to assess large number of judges work part-time, ments and practical examples; how states address the prevention of additionally serving as barristers in lo- „„Carefully considering the issue of full corruption with respect to Members of cal law firms. Some even come from professionalisation of all judges and lim- Parliament (MPs), judges, and prosecu- neighbouring countries, e.g., Austria and iting the number of part-time judges; tors (for other reports eucrim 1/2018, Switzerland. These issues might lead to „„Introducing rules on conflicts of in- 39–40; 3/2019, 184; 3/2020, 196–197 real or perceived conflicts of interest. In terest regarding judges who also practise with further references). The assessment contrast, prosecutors occupy full-time as lawyers. includes ethical principles, rules of con- positions. With regard to prosecutors, GRECO duct and conflicts of interest, declara- The perception in the country ap- recommends developing a code of con- tions of assets, prohibition or restriction pears to be that corruption levels are duct, accompanied by explanatory com- of certain activities, enforcement of the low. There were virtually no corruption- ments and practical examples. Moreover,­ applicable rules, and public awareness. related practices in the country, hence Liechtenstein is called on to provide Liechtenstein is one of the smaller no cases reported in the judiciary and training on various topics related to eth- member states of GRECO. There are prosecution service so far. Against this ics and integrity, with the possibility of no civil society organisations work- background, GRECO recommends the confidential counselling. ing specifically on corruption, and the following for MPs: country is not covered by corruption „„Increasing the transparency of the GRECO: Fifth Round Evaluation Report perception indexes. Liechtenstein has legislative process as far as the par- on Germany made significant efforts to adapt its leg- liamentary commission’s preliminary On 15 December 2020, GRECO pub- islation to international requirements examination of draft legislation is con- lished its fifth round evaluation report on concerning various aspects of corrup- cerned; Germany. The focus of this evaluation tion and fully implemented GRECO’s „„Adopting a code of conduct for MPs round is on preventing corruption and recommendations from the third evalu- on various relevant integrity matters, ac- promoting integrity in central govern- ation round. Due to its size, however, companied by practical guidance and ac- ments (top executive functions) and law the country faces specific challenges. cessible to the public; enforcement agencies. The evaluation For many years, only two parties had a „„Introducing ad hoc disclosure if con- focuses particularly on issues of con- political impact, both in parliament and flicts emerge between specific private flicts of interest, the declaration ofas- in the government. This has changed in interests of MPs and a matter under con- sets, and accountability mechanisms (for recent years. Currently, there are five sideration in parliamentary proceedings; other reports on this evaluation round parties in parliament, which has also in- „„Establishing rules on contacts be- eucrim 4/2018, 208; 1/2019, 43–44;

eucrim 4 / 2020 | 297 NEWS – Council of Europe

3/2019, 182–184 and 1/2020, 30–32 and „„Identifying, documenting, and dis- GRECO: Fifth Round Evaluation Report the following report on Albania). closing substantial external input to leg- on Albania Germany was among the found- islative proposals; On 3 December 2020, GRECO pub- ing members of GRECO. The country „„Introducing detailed rules on the way lished its fifth round evaluation report implemented GRECO’s recommenda- in which persons with top executive func- on Albania. Albania has been a member tions to varying degrees in the first three tions interact with lobbyists and other of GRECO since 2001 and fully imple- evaluation rounds and is currently in parties seeking influence on the govern- mented most of the recommendations non-compliance proceedings in rela- ment’s legislative and other activities; of the first four evaluation rounds. That tion to the fourth evaluation round. It „„Disclosing sufficient information said, the level of corruption remains encountered particular difficulties in the about the purpose of these contacts; high in the country and is prevalent in implementation of the recommendations „„Ensuring the consistency and trans- many areas of public and business life. on corruption prevention with regard to parency of any employment decisions Importantly, the Council of the Euro- Members of Parliament (MPs). involving state secretaries and directors- pean Union decided to open accession In international surveys, Germany is general after their public service; negotiations with Albania on 25 March generally perceived to have low levels „„Considering the extension of the 2020. Among the requirements to be of corruption, and the police enjoys a “cooling-off period” and introducing fulfilled before the first intergovern- high level of trust among citizens. Nev- sanctions for failure to comply with any mental conference on this issue, Albania ertheless, a parliamentary committee of respective decisions; should inter alia ensure the transpar- inquiry was set up to look into the exten- „„Obliging persons with top executive ency of political funding, continue the sive hiring of consultants by the Minis- functions to declare their financial in- implementation of judicial reform, and ter of Defence in 2018. In recent years, terests publicly on a regular basis and further strengthen the fight against cor- increased attention has also been paid to taking into consideration that these dec- ruption and organised crime. Strong the close relationships between those in larations should also include financial awareness of these deficits and pressure top executive positions and businesses. information on spouses and dependent at the political level is evident regarding The lack of transparency of external family members. the importance of effectively addressing influences, including the influence of With regard to law enforcement agen- corruption in the country. GRECO ob- lobbyists who formerly held top execu- cies, GRECO recommends: served that the tense political situation tive positions has also become a matter „„Expanding the Anti-Corruption Code in Albania is not conducive to this, with of increasing concern. New rules were of Conduct to include standards of be- protest marches in 2019 to demand the therefore introduced in 2015 that restrict haviour for the Federal Criminal Police resignation of the government as well as the type of employment former federal Office and the Federal Police, - comple ongoing tensions between the govern- officials can take up after leaving office. mented by concrete examples and expla- ment and the president of the republic. There is also broad public support for nations; The latter cancelled and postponed the more transparency with regard to lob- „„Improving the tailoring of initial and June 2019 elections, exceeding his pow- bying. in-service trainings on integrity to the ers according to the Venice Commission. In this context, GRECO recommends different staff categories within the Fed- Moreover, the Constitutional Court still that the following be considered regard- eral Police; has not been established to date. ing central governments (top executive „„Strengthening the screening process- GRECO acknowledges a number of functions): es for new recruits in the Federal Police measures that have been taken in recent „„Adopting specific codes of conduct and repeating them at regular intervals; years to curb corruption in the country for persons with top executive functions, „„Publishing information on complaints under these circumstances. These in- complemented by appropriate guidance received, actions taken, and sanctions clude an entire series of laws adopted regarding conflicts of interest and other imposed by the Federal Criminal Police since 2011 to strengthen the integrity of integrity-related matters; Office. the public sector as well as a 2018–2020 „„Subjecting ministers and parliamenta- The GRECO report acknowledged action plan to implement the Inter-Sec- ry state secretaries to systematic briefings the internal and external channels avail- torial Strategy against corruption. Some on integrity issues at regular intervals; able to staff of the Federal Criminal high-ranking state officials have been „„Analysing the Freedom of Informa- Police Office and the Federal Police to convicted of corruption offences, and tion Act in an independent and thorough report misconduct confidentially. How- procedures to establish specialised anti- manner, with a particular focus on the ever, Germany should strengthen the corruption bodies have been completed. scope of exceptions and their application protection of whistleblowers beyond the However, GRECO considers the ju- in practice; mere protection of their identity. dicial reform to be complex and in need

298 | eucrim 4 / 2020 Procedural Criminal Law of acceleration so as not to weaken ju- any risk of corruption. Any donations of a questionnaire) and on support from dicial control over law enforcement. and sponsorships received should be CEPEJ’s national correspondents and As regards central governments (top published on a regular basis, indicating other specific actors. executive functions) the Inter-Sectorial the nature and value of the donation and The report evaluates the efficiency of Strategy against corruption and the Ac- the identity of the donor. An integrity justice systems based mainly on the fol- tion Plan for its implementation foresaw plan for the State Police should be im- lowing indicators: the adoption and implementation of an plemented as a matter of priority, and the „„The availability and allocation of re- integrity plan by each ministry, which ethical principles and rules of conduct in sources; have not been drafted yet. GRECO calls the State Police Regulation must include „„The situation of prosecutors and for a swift adoption of these plans, also a manual providing practical guidance. judges and their interrelationship; taking into account the specific integ- GRECO further lists the politicisa- „„The organisation of courts; rity risks of ministers and their political tion of the Albanian Police among its „„The performance of the judicial sys- advisers. The existing Ministerial Code concerns. This development needs to be tems. of Ethics should be complemented with counterbalanced by measures increas- The reference year for the evalua- concrete guidance for its implementa- ing the stability of top senior officials tion cycle was 2018, and the online data tion regarding conflicts of interest and in their positions, irrespective of politi- collection period officially lasted from other integrity-related matters (gifts, cal changes. Ultimately, explicit rules 1 March to 1 October 2019. Since then, lobbying, etc.). Members of the Council on post-employment restrictions should various states have undertaken funda- of Ministers and political advisors must also apply to police employees, and the mental institutional and legislative re- undergo systematic awareness raising effective implementation of the law on forms of their legal systems. For a more on integrity-related matters via regular whistleblowers must be ensured, in- detailed analysis, reference can be made training. In addition, the report recom- cluding by means of regular police staff to “CEPEJ-STAT,” a dynamic Internet mends publishing the names of political training. database containing all data collected by advisers online for the sake of transpar- CEPEJ since 2010. ency. Explicit rules on post-employment According to the report, the main restrictions should apply both to min- trends between 2010 and 2018 regarding isters and to political advisors. Lastly, Procedural Criminal Law courts were the following: as a matter of priority, GRECO recom- „„There was a decrease in the number mends the recruitment of prosecutorial CEPEJ: 8th Evaluation Report on of courts in Europe, both in terms of le- and technical staff for the office of the European Judicial Systems gal entities and geographical locations; Special Anti-Corruption Prosecutor pro- On 22 October 2020, CEPEJ published „„There was an increase in the speciali- vided with adequate human and techni- its eighth biennial evaluation report on sation of courts, from 21% to 26,7%; cal resources and with prosecutors who the efficiency and quality of justice in „„Small claims were only slightly af- benefit from highly specialised training. Europe. The 2020 report contains data fected by the above developments. As regards law enforcement agencies on the functioning of the judicial sys- In this context, the 2020 report espe- (police and border guard), one specific tems of 45 CoE Member States (Liech- cially highlights the following trends: concern is over current transitional vet- tenstein and San Marino were unable to hhBudgets allocated to justice: ting in the State Police, which is likely provide data) and three observer states The report defines adequate funding as to result in a significant number of quali- (Morocco, Israel, and Kazakhstan). necessary to enable courts and judges fied staff leaving the force. The vetting It describes major trends and, for the to comply with Art. 6 ECHR and na- process also does not adequately capture first time, it also contains country pro- tional constitutional standards − and to all possible integrity risks and should files. For the seventh evaluation report perform their duties with integrity and therefore be replaced with regular integ- eucrim 3/2018, 164. efficiency. As resources are limited, it rity checks over the course of the careers As with previous reports, CEPEJ is also important that they be used ef- of police staff members. highlighted the methodological difficul- ficiently. The budget allocations can be Other critical concerns relate to the ty of comparing significantly diverse le- summed up as follows: possibility of the State Police receiv- gal systems (like the various approaches „„In 2018, European states spent on av- ing private donations/sponsorship and to courts organisation or the different erage €72 per inhabitant per annum on it providing additional services in re- statistical classifications to evaluate the the legal system (i.e., €8 more than in turn for payment. Private donations and systems). The methodology therefore 2016) and 0,33% of the GDP. Although sponsorship need to be eliminated or at relied heavily on the CEPEJ Scheme for countries with a higher GDP per capita least strictly regulated in order to limit Evaluating Judicial Systems (in the form invested more per inhabitant in judicial

eucrim 4 / 2020 | 299 NEWS – Council of Europe systems, less wealthy countries had to the number of lawyers is still increasing changes between courts and all other allocate more budget as a percentage of in Europe (with significant differences parties. When striving to achieve the GDP, thereby showing a greater budget- between states), the profession remains required balance between technical and ary effort for their judicial systems; predominantly male. judicial components, the report notes „„65% of budgets were allocated to hhCourt users: that most states tend to consider both courts, 24% to prosecution authorities, The report stresses the importance of in- aspects equally relevant, with a slight and 11% to legal aid. The less wealthy cluding court users in the daily work of prevalence for the judicial element. As countries spent proportionately more on the judiciary and welcomes the fact that basic technologies are now generally their prosecution authorities, while states many states provide specific information fully deployed in Member States and en- with a higher GDP per capita invested to users, both on the judicial system in tities, analysis has focused on court and more in legal aid. The most significant general and on individual court proceed- case management tools, decision sup- budgetary increase, equal to 13% on ings. Many examples are given of states port tools, and tools for communication average, was recorded for courts, a de- addressing specific information and- ar between courts, professionals, and/or velopment which seems to be related not rangements to vulnerable categories court users, all of which show very high only to the wealth of a country but also of users, offering the possibility to file levels of application. However, CEPEJ to the number of courts it has; complaints as regards the functioning of cautions that the economic cost of such „„There is a growing trend towards out- justice, putting in place compensation innovation should be considered care- sourcing of certain services; systems, carrying out user satisfaction fully. This particularly affects the areas „„In accordance with the requirements surveys, and creating monitoring mech- of decision support, e-communication, of ECHR and ECtHR case law, almost anisms in respect of ECHR violations. and remote proceedings, which have led all states have put in place a legal aid In order to further improve social to an increasing need to monitor the im- mechanism for criminal and non-crim- responsibility and trust in the judicial pact of these tools on the principles of inal cases in order to ensure access to system, CEPEJ calls on Member States fairness, impartiality, and judicial inde- justice for all. to devote additional resources to better pendence. hhJustice professionals and the courts: communication with the users of justice. hhPerformance of legal systems: Trends and conclusions indicate that the Information technology enables states to A number of states and entities have un- number of professional judges has been better inform users, to adapt the avail- dergone or are currently undergoing sig- stable across the board. Significant dif- ability of information, and to create sus- nificant justice sector reforms that influ- ferences with regard to the number of tainable two-way communication with ence the performance of their systems. judges between the states and entities users. In addition, the analyses and use Monitoring of the results must be paired remain, which can be partly explained of data about the satisfaction of court us- with an understanding of the legal con- by the diversity of judicial organisa- ers increases the legitimacy of judicial text in order to gauge the effectiveness tions, use of occasional professional systems and helps advance the efficien- of these reforms. Second-instance courts judges and/or lay judges. There has been cy of justice. appear to be the most efficient when deal- a focus on increasing the percentage of hhInformation and communication ing with the case types analysed. Cases judges and prosecutors, in particular technology (ICT): involving asylum seekers and the right when recruiting and promoting them. The use of information systems is crucial of entry/right of residence for aliens con- The glass ceiling has remained firmly in the above-mentioned context, even tinue to have a strong impact on Euro- in place, however, for managerial posi- though respectful human interaction re- pean jurisdictions, which also results in tions. The salaries of judges vary widely mains central to ensuring fair decisions productivity problems for many states, between states and entities and between and building trust in the judiciary. ICT especially in Austria, Belgium, France, levels of jurisdiction. There are still sig- has become a constitutive part of justice Germany, Italy, Spain, and Sweden. For nificant disparities in the salary levels of service provision, and European judicial the purpose of the report, the percentage public prosecutors, but more and more systems are increasingly moving from of cases older than two years was avail- states are paying judges and prosecu- paper-based procedures to electronic able only for a limited number of states, tors identical salaries, at the beginning ones − both for activities carried out in but they showed that the percentage of and at the end of their careers. Although the courts and for communication ex- older cases was constant.

300 | eucrim 4 / 2020 Articles Articles / Aufsätze

Fil Rouge

Full implementation of EU legislation and thorough review the controversy surrounding respect for fundamental rights of CJEU decisions by the Member States are crucial to ef- protection within the framework of the EAW. The decision fective and continued development of the entire European can be considered a meaningful example of how the en- system, a system relying essentially on the principle of sin- gagement of national judges can trigger a very positive cere cooperation and an ever-growing set of shared com- dynamic towards improving common standards, to which petences. Review by the Member States is also essential national judges significantly contribute by “testing” CJEU for the effective functioning of European actors – an issue solutions in concrete cases, also taking into consideration that is tackled in the first two articles of this eucrim issue. the legal traditions of the Member States. Allegrezza demonstrates that the progressive setting up of Grimaldi deals with the new course pursued in the CJEU’s a network of national competent authorities – supporting recent jurisprudence (2019–2020) with respect to the notion the pivotal role gained by the ECB and enabling financial of “judicial authority” – now expressly requiring functional crime experts to cooperate directly with financial and bank- independence from the executive branch – and the signifi- ing regulators in accordance with the European principles cant impact on legal orders after conferring the role of issu- of loyal cooperation, good faith, and data protection – is ing authority mainly to public prosecutors. Since the CJEU the most suitable way to strengthen the effectiveness of does not exclude prosecution offices as a “judicial author- investigations and preventive measures against criminal ity” per se, the new approach may complicate the EAW conduct affecting the Union’s financial system. In contrast, mechanism, as the executing authority needs to assess the Lööf stresses that significant divergencies still existing independence of the issuing authority in each individual among the (participating) Member States, with respect to case. According to Ruiz Yamuza, the CJEU’s decision in AY both substantive and procedural conditions for the pros- of 25 July 2018 (C-268/17), which has not received much ecution of legal entities, can significantly shatter the imag- public attention yet, has had far-reaching consequences as ined, strengthened effectiveness of EPPO investigations to the execution of EAWs in the Member States. The CJEU in complex cases on the EU territory. Needless to say, full not only refreshed its jurisprudence on the ne bis in idem implementation, improvement, and review of the existing principle by introducing a subjective-driven interpretation legal instruments regulating the EPPO’s activity by the par- of this principle but also set standards for preliminary rul- ticipating Member States are key elements in overcoming ings in the EAW context, which are the cornerstone of inter- the many uncertainties surrounding the establishment of action between the CJEU and national judges. this new, investigative EU body. Last but not least, moving from the EU to the ECHR frame- Looking at the implementation process of many EU legal in- work, the review of ECtHR decisions by national judges struments adopted so far, the situation appears to be quite cannot be emphasized enough. Zaharova illustrates that deceiving. Directive 2010/64/EU on the right to interpretation recent legislative amendments in Bulgaria improving legal and translation in criminal proceedings is a patent example security, the predictability of judicial decisions, and equality of how very high expectations for significant improvement before the law followed the interpretation by the Bulgarian in rights protection all over the EU were ultimately disap- Supreme Court of Cassation in its follow-up decisions to the pointed. As described in the article by Kotzurek, the protec- ECtHR’s judgment in Tsonyo Tsonev v Bulgaria (Applica- tion accorded may even have been weakened with respect tion № 2376/03). More generally, this reading by the Supreme to some aspects of these rights. Court is indicative of its serious effort to develop an effec- Positive experiences should not be underestimated, how- tive mechanism in order to overcome existing legislative ever, especially with respect to review of the CJEU’s deci- loopholes and imperfections as regards the juxtaposition of sions. The European Arrest Warrant (EAW) is perhaps the criminal and administrative penal proceedings. most prominent example in the EU criminal justice area. Wahl analyses the situation with respect to the judgment Prof. Dr. Rosaria Sicurella, University of Catania/Italy, in “LM” of 25 July 2018 (C-216/18 PPU), which deals with Member of the eucrim Editorial Board

eucrim 4 / 2020 | 301 The Reception of European Legislation and Case Law in the Member States Information Exchange Between Administrative and Criminal Enforcement The Case of the ECB and National Investigative Agencies

Silvia Allegrezza*

The banking system is often at the epicentre of large-scale financial crimes. Recent scandals involving major European credit institutions questioned the role of banking regulators in supporting law enforcement agencies and revealed the weakness of the current interaction between the European Central Bank (ECB) and national actors. Despite its ostensible coherence, the Single Supervisory Mechanism legal framework can prove problematic in terms of efficiency and adequacy in facing global financial crime. This article explores the specific case of information exchange between banking supervisors and criminal investigative authorities at national level. After a descriptive overview of the ECB reporting duties of potential criminal of- fences, we examine the possibility of a more coherent information exchange system, where a direct channel of communication between the ECB and criminal law enforcement agencies could serve as a better integrated strategy.

I. Information Exchange as a Tool for Better Law enforcement (hereinafter, the “AML-CFT”),3 and the European Enforcement Public Prosecutor’s Office – becoming operative in 2021 as the first centralised criminal enforcement body for the investigation In recent years, the press has reported several fraudulent mis- and prosecution of Euro-fraud – will be a game changer.4 conducts in which prestigious European credit institutions were involved. No alarm was sounded by the European or na- In this rapidly evolving context, the European Central Bank tional regulators. Serious investigations led American regula- (hereinafter, the “ECB”) plays a special role as the main bank- tors to impose high fines for these transnational offences, while ing supervisory authority of the Eurozone.5 The establish- European criminal justice systems constantly proved their in- ment of the Single Supervisory Mechanism (hereinafter, the adequacy in facing global financial crime. Several factors con- “SSM”) as the main pillar of the Banking Union puts the ECB tributed to this failure.1 Among them is the inefficiency of the at the very heart of prudential supervision for the Eurozone. current system of information exchange between financial and Because of its role, the ECB collects crucial information re- banking regulators and criminal investigative agencies. lated to every significant credit institution in this area. Since the risk-based approach is evolving as the main preventive This article explores the specific case of information exchange strategy to keep the financial system from being affected by between banking supervisors and criminal justice agencies. criminal conduct and to effectively investigate such conduct, The topic has been neglected in the literature and is particu- it has become crucial to involve regulators in an effort to build larly challenging.2 It implies the understanding of a highly up an integrated strategy at the continental level. Due to the complex matrix of normative and factual components. Several current lack of a centralised criminal law enforcement body in levels of analysis are involved: the interplay not only occurs the EU,6 the most common interactions occur between Euro- between administrative and criminal enforcement level, but pean and national supervisors dealing with criminal investiga- also calls into play multiple actors (European and national su- tive authorities at national level. pervisors and investigating agencies), different targets (corpo- rations and individuals), and different normative frameworks Our analysis will start with the reporting duties of the ECB in (European and national as implementation of European law, cases in which data indicates potential criminal offences and together with purely national law). Last but not least, several will then explore the more general informational flow involv- forces responding to various needs are pushing the European ing criminal agencies at the national level. Two additional Union (hereinafter, the “EU”) to increase centralised law en- paragraphs will focus on specific crimes, such as the so-called forcement in certain areas of major “European crimes.” Re- “Euro-fraud,” money laundering, and terrorism financing, for cent reforms have radically changed financial crime strategies in which dedicated channels involving specialised EU agencies Europe: the European Banking Authority has become a crucial are provided. We will conclude with some suggestions for fu- actor in anti-money laundering and counter-terrorism financing ture improvement.

302 | eucrim 4 / 2020 Information Exchange Between Administrative and Criminal Enforcement

II. The ECB’s Duty to Report Criminal Offences crucial role in all of these cases. Consequently, law enforce- ment agencies might need to collect relevant information What happens when the ECB acquires evidence of facts from the regulators. potentially giving rise to a criminal offence in carrying out its supervisory function? The SSM Framework Regula- The second cluster concerns those crimes that protect fair tion (hereinafter, the “SSMFR”7) answers this question in banking as a Rechtsgut. We will refer to them as “banking su­ Art. 136: when “the ECB has reason to suspect that a crimi- pervision related offences.”10 The cluster includes the exercise nal offence may have been committed, it shall request the of banking activities without prior authorisation and the false relevant national competent authority (hereinafter, “NCA”) or incomplete disclosure of information to the supervisors. to refer the matter to the appropriate authorities for inves- tigation and possible criminal prosecution, in accordance Art. 136 SSMFR lacks any indication of this sort, clearly sug- with national law.” Several issues arise from this apparently gesting the will to leave the field open to any potential mis- straightforward provision. conduct. These criminal offences are not necessarily strictly related to banking supervision. And the need for an admin- First, we should note that no direct contact with criminal agen- istrative breach of prudential requirements is nowhere men- cies is provided for by the European Regulation. The ECB, in tioned. Evidence of a potential crime might emerge as a purely the exercise of its regulatory powers, decided to impose the accidental event. This would allow the supposition that even mediation of NCAs, instead of setting up a proper reporting money laundering or terrorist financing – formally excluded channel with the authorities competent for criminal enforce- from the competence of the SSM11 – is covered by this duty. ment. There are very good arguments behind criticism of this choice: direct contact with national prosecutors would have As for the legal basis upon which the ECB should determine made the exchange of information easier and perhaps enabled the existence of a potential crime, the existing European legal better coordination among the different enforcement tracks. framework on financial crimes could serve as such: in particu- However, we should consider that the lack of a previous har- lar, money laundering, terrorist financing, market abuse, and monisation of criminal offences in this field implies that na- insider trading as well as the crimes related to the protection tional law becomes the main and only normative reference by of the European financial interests.12 For these criminal of- which to define the potential criminal offence. The involve- fences a partial harmonisation has already been achieved, and ment of NCAs would allow them to filter the data flow in the national legislations are at least forced to criminalise certain light of relevant national provisions. misconduct.

Secondly, the wording of Art. 136 SSMFR seems to suggest For crimes that have not yet been harmonised, the ECB can- that the duty to report criminal offences is only related to not draw on any common European reference. In these cases, the facts discovered during the ECB’s supervisory activities. the above-mentioned incongruences between national sys- Here, the field seems to be limited to the common procedures tems might have a negative impact on the correct exercise or facts related to relevant banks over which the ECB has di- of reporting duties. In the absence of a European reference, rect supervisory powers. It would nevertheless be hardly ar- the criminal nature of the potential offence (detected during guable to exclude the ECB’s duty to report potential crimes the course of supervisory tasks) is determined by national committed by less significant credit institutions, if they catch law. This can be deduced from the wording of the SSMFR, the attention of the ECB. The need for sincere cooperation, of which indicates how reporting duties shall be exercised “in course, imposes that this communication takes place, even in accordance with national law.”13 According to this interpre- the absence of a duty on the part of the ECB. tation, the reference would not only state what the national procedural rules for the correct exercise of the reporting duty A third remark concerns the type of crimes that trigger the are once the NCAs have received the ECB’s notice; it would ECB’s duty to report. In order to identify the current inter- first and foremost indicate the legal framework by which to play between the SSM and criminal law, we should refer determine how the facts discovered during supervision might to traditional, pre-existing criminal offences and identify involve a criminal offence. two relevant clusters of crime. The first concerns financial crimes, such as market abuse, money laundering,8 terrorism Once the ECB reports to the NCAs, national rules on the financing, and insider trading. Harmonisation of these crimes transfer of information from the administrative to the criminal is well accomplished at the European level, and more is sure authorities apply.14 The ECB no longer has any duty, and it is to come with the implementation of the Directive on the pro- up to the NCAs to transmit the information to criminal agen- tection of the EU’s financial interests.9 Banks usually play a cies and ensure follow-up of the case.

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As has emerged from the comparative analysis, the picture at NCAs but rather inclusion of the prosecutors or other investi- the national level is highly fragmented.15 In the majority of gative agencies among those to whom the ECB may directly countries, the NCAs are under an obligation to report suspi- communicate. This clear reluctance to set up a direct channel cion of a crime that emerged during their supervisory activ- of communication should be transformed into a more efficient ity to the competent judicial authorities. In this case, the same communicating vessels system between the ECB and criminal duty shall apply to the facts reported by the ECB. Some other enforcement agencies. NCAs retain a margin of discretion as to whether to inform the judicial authorities.16 The consequences of such reporting might, however, differ according to the applicable national III. The ECB’s Duty to Disclose Information legislation. to Criminal Enforcement Agencies

The constant reference to national law reveals the need to The reluctance of the European supervisor to cooperate with define the domestic law that should be applied. The answer criminal law enforcement appears even clearer in the opposite to this question depends on several crucial aspects. National case, i.e., when the national authorities require the ECB to dis- law indeed determines the extent and level of constraint of close information related to its prudential supervisory tasks in reporting duties from the NCAs to the criminal enforcement the context of an ongoing criminal investigation. The original agencies. regulatory framework neither addressed this issue, nor is there any general European framework applicable to these cases. A first solution could be to rely on the nationality of the credit In June 2016, the ECB adopted ECB Decision 2016/1162 on institution that allegedly committed the breach. In case of a disclosure of confidential information in the context of crimi- corporation with branches in several countries – as is often nal investigations,18 regulating the conditions for cooperation the case with major banks ‒ this would not be the best option. between the ECB and the national criminal investigation au- Should the country in which the headquarters of the bank are thorities. The aforementioned Decision ascertains that these located be selected as the relevant one? Reporting to crimi- conditions are largely determined by national law,19 but it nal agencies located in a country other than the one where the stresses the need to protect “the general principles of sincere facts of the case occurred would imply their inability to in- cooperation, the principles of cooperation in good faith and vestigate for lack of jurisdiction. This cursory analysis reveals the obligation to exchange information within the SSM, the how distant the rationales of the different law enforcement obligation to protect personal data and the obligation of pro- systems are. Transnational banking crime is uncontrollable via fessional secrecy.”20 traditional criminal law, where the competence to investigate and adjudicate is still almost entirely nationally based, with The notion of information is broad. It includes all “informa- a few exceptions, such as the future European prosecutor for tion created or received in carrying out their supervisory tasks Euro-fraud.17 and responsibilities” and “confidential information related to monetary policy and other ESCB/Eurosystem-related tasks” Therefore, it seems a better option to focus on the locus com­ as well as “information held by an NCA when assisting the missi delicti as the traditional principle by which to allocate ECB in the exercise of the ECB’s tasks.”21 Conversely, there criminal jurisdiction among different States. This might im- is no freedom for the NCAs to set up a more lenient commu- ply a discrepancy between the nationality of the bank and the nication scheme or avoid the strict rules of this Decision. All location of the competent investigative authorities to whom information collected is under the control of the ECB. the ECB shall report. Considering how transnational financial crime has spread in the last few decades, a multi-level report- As for the concept of “confidential,” it refers to “information ing duty could be regarded as a good practice for the ECB by covered by data protection rules, by the obligation of profes- transferring information about a transnational criminal offence sional secrecy, by the professional secrecy rules contained in to all the NCAs of the countries potentially involved. It would Directive 2013/36/EU or documents classified as ‘ECB-CON- then be up to the national authorities to coordinate the investi- FIDENTIAL’ or ‘ECB-SECRET’ under the ECB’s confidenti- gation and cooperation among themselves, both at administra- ality regime, and excluding any information concerning per- tive and criminal levels. sons who have an employment relationship with the ECB or a direct or indirect contractual relationship with the ECB for the One could also go even further and suggest that the ECB use execution of works, the supply of products or the provision of its regulatory power to modify Art. 136 SSMFR, adding the services.”22 Information may be disclosed under the following possibility to directly contact the national investigative author- conditions: if it is due to an expressed obligation under Union ities in criminal matters. This would not mean exclusion of the or national law or if it is admissible under the relevant legal

304 | eucrim 4 / 2020 Information Exchange Between Administrative and Criminal Enforcement framework and “there are no overriding reasons for refusing” lent position of the SSM and the NCAs (including a duty to to do so, such as “the need to safeguard the interests of the report suspicion of crime to judicial authorities, if so provided Union or to avoid any interference with the functioning and at the national level), ensured by Art. 9 SSMR, is contradicted independence of the ECB, in particular by jeopardising the ac- by Decision 2016/1162, which leaves a questionable discre- complishment of its tasks.”23 tion to the ECB.30

In these cases, the competent NCA “commits to acting on be- Data on concrete enforcement of these rules are unfortu- half of the ECB in responding to such a request” and “com- nately not available, for obvious reasons of confidentiality. mits to asking the requesting national criminal investigation These rules are nevertheless a clear indicator of the banking authority to guarantee the protection from public disclosure of regulators’ tormented relationship with the criminal enforce- the confidential information provided.”24 ment agencies. They also show lack of trust toward those who should be in the frontline in the fight against economic crime, The Decision indeed stresses on several occasions that the i.e., prosecutors and judges. ECB will have no direct contact with national authorities: both the request to the ECB and the answer to the national investi- From the point of view of national prosecutors, the procedure gative authorities should be channelled via the NCAs. by which to request confidential information without being able to address a request directly to the ECB might be puz- The reporting obligations deriving from Decision 2016/1162 zling, especially in transnational cases. For the investigative appear inconsistent with the ECB’s reporting obligations de- authorities, modern financial crimes often entail the need to riving from Art. 9(1) SSMR, according to which the SSM collect confidential information held by a foreign credit insti- shall have all the powers and obligations that the competent tution from a regulator located in a different country. Usually, and designated authorities shall have under the relevant Union this would imply the use of mutual legal assistance tools, such law, unless otherwise provided for by the SSM Regulation. as a letter rogatory or, more recently, the issuing of a Euro- This latter consideration shows how unavoidable the clash pean investigation order, at least in the vast majority of the between European confidentiality and national rules imposing Eurozone countries. What happens when such a need involves the duty on national supervisors to cooperate with criminal in- information held by the ECB? Should the prosecutor address vestigative authorities seems. In several Member States, regu- it to its national competent authority, even though the latter lators must cooperate with national prosecutors and disclose is not the SSM ‘NCA’ of the relevant credit institution in the information. A breach of this duty – refusal to cooperate or light of the SSMR? Or should the prosecutor address the re- incomplete disclosure of relevant information – constitutes a quest to the foreign colleagues via the above-mentioned tools criminal offence.25 of judicial cooperation, asking them to turn to their NCA? And if this were the case, which country is relevant? That of the This clash between conflicting duties is even more problemat- credit institution or that in which the confidential information ic if the request by the investigative authorities concerns con- is located? fidential information that is at the disposal of the NCAs. This might be confidential information about the supervisory tasks Lastly, the current legal framework does not provide for any of the ECB or related to the supervisory powers of the NCAs form of communication from national criminal enforcement when less significant credit institutions are concerned. In these to the ECB. This lacuna prevents the latter from using that in- cases, Decision 2016/1162 strongly suggests that the NCAs formation productively in order to adopt supervisory measures – to use a euphemism26 – “consult the ECB, where possible, that could prevent further damages. A better enforcement strat- on how to respond to the request” in order for the latter “to egy aiming at the eradication of financial crime would seem advise as to whether the information in question may be dis- to suggest more efficient coordination and cooperation among closed.”27 When the confidential information is related to the enforcement agencies, built on mutual trust and common val- ECB’s supervisory tasks, the disclosure can be denied “where ues in terms of confidentiality and secrecy. there are overriding reasons relating to the need to safeguard the interests of the Union or to avoid any interference with the functioning and independence of the ECB for refusing to IV. The ECB and “Euro-fraud”: Disclosing Information disclose the confidential information concerned.”28 When it to OLAF and the Future of a Horizontal Multi-Regulatory concerns national supervisory powers, the ECB shall be in- Enforcement formed “where that NCA considers that the information re- quested is material, or that disclosure thereof has the potential The duty of the ECB to report criminal activities to the com- to adversely affect the reputation of the SSM.”29 The equiva- petent authorities also has a European horizontal dimension.

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The reference applies to the duty to disclose relevant infor- employee can transmit the information directly to OLAF.34 mation and to cooperate with the European Anti-Fraud Office As a form of protection, the persons involved may in no way (hereinafter, “OLAF”) when it comes to the protection of the suffer inequitable or discriminatory treatment as a result of EU’s financial interests. OLAF is the European administrative having communicated the information to their direct super- agency in charge of conducting administrative investigations visor or directly to OLAF.35 into fraud (so-called “internal investigations”) within the insti- tutions, bodies, offices, and agencies of the EU for the purpose A few restrictions are provided for when it comes to the com- of fighting fraud, corruption, and any other illegal activity af- munication of sensitive information, i.e., data that “could fecting the financial interests of the Union. OLAF investiga- seriously undermine the ECB’s functioning.” In these cases, tions might lead to disciplinary sanctions or, in the most seri- the decision on whether to grant OLAF access to such in- ous cases, to criminal proceedings before national authorities formation or to transmit such information to OLAF shall be to whom OLAF might report the breach. taken by the ECB Executive Board.36 The decision not to grant access should, where relevant, include the NCAs and In general terms, every institution, body, office, or agency of state the reasons for the refusal. The ban has a time limit of the EU shall adopt adequate rules in order to impose on its per- six months. sonnel a duty to cooperate and supply information to OLAF while ensuring the confidentiality of the internal investigation. In terms of its substantive impact, the present decision is limit- ed in its scope to fraud, corruption, and any other illegal activi- Due to sensitiveness of the data collected in the exercise of ties affecting the financial interests of the Union. It implies for its tasks, being it monetary policy or prudential supervision, the ECB the duty to register potential breaches affecting the the ECB has an intricate legal framework on confidentiality EU budget. In order to understand the material scope, it has to and professional secrecy.31 It was thus clear that the ECB, as be read in conjunction with the Directive on the protection of an institution of the Union, could not avoid cooperation with the EU’s financial interests,37 where a list of criminal offences OLAF and that this cooperation would need a specific legal presenting a direct link with the EU budget is provided for. framework. To this end, the ECB adopted Decision 2016/456 This Directive represents the legal basis by which to determine concerning the terms and conditions for the European Anti- the competence ratione materiae of the future European Pub- Fraud Office’s investigations of the ECB in relation to the lic Prosecutor. In this light, it indicates that, in the future, the prevention of fraud, corruption, and any other illegal activi- ECB will have a horizontal duty to report to a European cen- ties affecting the financial interests of the Union.32 This Deci- tralised agency dealing with criminal matters. The duty will be sion applies to the members of joint supervisory teams and twofold: first, via the reports to OLAF and secondly, via the on-site inspection teams that are not subject to the ECB’s duty to transmit to the future EPPO every criminal offence for conditions of employment. It also covers the staff members which the latter might be competent, according to Regulation of national competent authorities who are members of joint 2017/193938 and the 2018 Commission proposal on the revi- supervisory teams and on-site inspection teams. sion of the OLAF Regulation39.

According to Decision 2016/456, the ECB has the duty to “co- operate with and supply information to the Office, while en- V. Toward an Enhanced Cooperation: suring the confidentiality of an internal investigation.”33 The Exchange of Information on Money Laundering and Terrorist Financing The duty to cooperate is nevertheless not limited to internal investigations; rather, it covers so-called external investiga- In recent years, several systemic banks, supervised by the tions, the ones where suspicion of possible cases of fraud, ECB, were involved in huge money laundering scandals.40 corruption, or other illegal activity affecting the Union’s fi- These events brought into question the role of the ECB in nancial interests emerges. The ECB’s employees shall first supporting anti-money laundering enforcement agencies. inform their directs supervisors, then consult the manage- Traditionally reluctant to enter the arena of anti-money ment hierarchy up to the members of the Executive Board laundering enforcement, the ECB was nevertheless lacking or the President, if necessary. The latter shall transmit the a specific competence. At the time, compliance with and en- information to OLAF without delay. forcement of AML legislation was indeed entirely a national competence. Only the recent reform of December 2019 con- A specific procedure applies when the hierarchical report- ferred to the European Banking Authority additional coordi- ing proves to be problematic in the sense that it might com- nation powers and – embryonal – enforcement tools in the promise the correctness of the reporting, in which case the AML-CTF field.41

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However, the need for a better cooperation has become clear collected by the ECB on “business model and governance ar- over the past years. As Danièle Nouy confirmed in 2018, “a rangements gathered during the authorisation process or other more European approach to combatting money laundering information related to AML/CFT gathered for the purposes of should be considered, for example, through enhanced coop- the assessment of acquisitions of qualifying holdings and suit- eration and exchanges of information between supervisory ability of members of management bodies of the supervised and AML authorities.”42 Thanks to the amendments to the entities.”48 AML Directive that entered into force in 2018, the Multilateral Agreement (hereinafter, the “Agreement”) between the ECB The ECB should, in principle, transmit this information upon and the AML competent authorities (CAs) was signed in Janu- request or on its own initiative. The only limitation to this duty ary 2019, indicating the practical modalities for the exchange to cooperate is the respect for national and supranational legal- of information in the area of prevention of misuse of finan- ity. Both the ECB and the CAs can decline a request for in- cial systems for the purpose of money laundering and terrorist formation if (a) the request does not conform with the Agree- financing.43 ment or the applicable laws or (b) fulfilling the request would require the office “to act in a manner that would violate any The first remarkable step toward a more effective cooperation applicable laws.”49 The Multilateral Agreement indicates the is that the Agreement refers to a dialogue between the ECB need for all parties to keep the information received “confiden- and the CAs: “The exchange of information shall take place tial as required by applicable laws, and use or disclose it only between the CAs and the ECB, on request or on their own as permitted by applicable laws” and to act in compliance with initiative.” The exchange is, however, not limited to the duty data protection laws.50 to answer specific requests; still, it includes autonomous input from one agency to the other. The described mechanism represents the most advanced model of information exchange between the ECB and na- Several types of information might be “exchanged.” When the tional authorities in relation to a criminal offence. The pos- request comes from the ECB to the CAs, it might refer to “in- sibility for both participants to act on their own initiative formation, which is gathered or created by the CA in the exer- should be welcomed as a positive improvement in the field cise of its AML/CFT functions, that is relevant and necessary of inter-agency enforcement mechanisms. Nevertheless, the for the exercise of the ECB’s tasks under the SSM Regulation, information flow, as described in the Multilateral Agree- including prudential supervision on a consolidated basis.”44 It ment, does not necessarily imply a direct contact between may include AML/CFT sanctions or measures imposed on su- the banking regulator and criminal enforcement: the Agree- pervised entities and other information gathered from AML/ ment is intended to channel the flow to the CAs, i.e., “the au- CFT reports received in line with Art. 61(1) of the AMLD and thority or authorities designated as the competent authorities related to material weaknesses in the supervised entity’s AML/ for supervising and ensuring supervised entities’ compliance CFT governance, systems, and controls framework or its ex- with the requirements of AMLD.”51 These authorities may posure to significant AML/CFT risks.45 have different statutes and powers according to the specific context of the Member State. The national CAs are, in principle, obliged to transmit this in- formation to the ECB when the latter requests it. They can also act on their own initiative, providing “any other information, VI. Some Suggestions for the Future which they deem to be relevant and necessary for the exercise of the ECB’s tasks.”46 The endeavour to tackle financial crime as an EU priority requires rethinking traditional relations between financial As for the opposite, CAs “may submit a request to the ECB for regulation and criminal policies. It implies an innovative information gathered or created by the ECB in the exercise of regulatory framework in which administrative and criminal its direct supervisory tasks under the SSM Regulation that is enforcement actors are called on to cooperate at different relevant and necessary for the performance of their tasks in the levels.52 Major steps would require structural changes in the area of AML/CFT supervision.”47 Such a request may include current EU enforcement network, such as the introduction information on sanctions or measures imposed on supervised of specific authorities in the field of AML/CTF53 or the ex- entities by the ECB for shortcomings in their internal gover- pansion of the EPPO’s competences. Pragmatism and Re­ nance arrangements or notifications connected with the exer- alpolitik suggest the lowering of our expectations and the cise of the freedom of establishment and the freedom to pro- adoption of a more cautious approach: what can be done vide services or received by the ECB as part of breach reports. to improve the information exchange among the different This list is not exhaustive: CAs can ask for any information authorities?

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First, setting up a direct channel of communication between the the purpose of criminal justice, without being detrimental to ECB and criminal law enforcement would be extremely benefi- the core mission of the ECB. The duty to report a potential cial. Member States of the Eurozone – or even the non-Euro- criminal offence, as provided for by Art. 136 SSMFR, could zone – could be asked to nominate one of their agencies as the be improved and include both national supervisors and prose- contact point for the ECB, which would be entitled to receive cutors of financial intelligence units already existing in several information and requests for information and transmit them to Member States.54 the law enforcement offices in charge. This network of national competent authorities already exists in the field of AML/CTF. Third, in a more advanced, integrated strategy, composite in- It would also be possible to involve pre-existing coordination vestigative units, in which financial crime experts might co- agencies in the field of criminal justice, such as Eurojust, whose operate directly with financial and banking regulators, could core mission is to build up synergies to fight supranational crime. be extremely beneficial and avoid information asymmetries. This would not mean diminishing the role of national banking Synergies in terms of knowledge, skills, and good practices supervisors, but rather conferring a European dimension to the develop when people with different expertise cooperate. potential criminal investigation, involving the competent agen- cies directly, bypassing potential national bias. There is no doubt that these proposals require time and some political bravery. They also imply the necessity for several ad- Second, it would be preferable to read Art. 136 SSMFR as a justments to rules of investigation and to defence rights – to real duty to report criminal offences to the competent authori- name but a few: access to the file, the right to silence, and the ties using the aforementioned network. A more developed risk duty to disclose self-incriminating reports. Good results are management could be extremely beneficial for crime preven- sure to come about if there is consensus among all actors to tion and repression, and regulators are the best placed to detect cooperate according to the European principles of loyal coop- suspicious operations. This privileged position can also serve eration, good faith, and data protection.

Regulation (EU) 2019/2175 of the European Parliament and of the Council of 18 December 2019. Prof. Dr. Silvia Allegrezza 4 Directorate-General for Internal Policies, ‘Towards a European Associate professor of Criminal Law and director of the Public Prosecutor’s Office (EPPO)’ (European Union, 2016): accessed 25 July 2020. 5 The Single Supervisory Mechanism was introduced by Council Regula- tion (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (hereinafter, the “SSMR”). The SSMR was completed by Regulation (EU) No 468/2014 of the ECB of 16 April 2014 establishing the framework for cooperation within the Single Supervisory * Parts of this essay have already been published in S. Allegrezza, The Mechanism between the European Central Bank and national competent Single Supervisory Mechanism: Institutional Design, Punitive Powers and authorities and with national designated authorities (SSM Framework the Interplay with Criminal Law, in Ead., The Enforcement Dimension of the Regulation – hereinafter, the “SSMFR”). Single Supervisory Mechanism, Kluwer, 2020, 3–48. 6 The EPPO is currently limited in scope and territorial jurisdiction; 1 See E. Herlin-Karnel, “Constructing Europe’s Area of Freedom, today, there are twenty-two participating Member States. See: European Security, and Justice through the Framework of “Regulation”: A Cascade Commission, ‘European Public Prosecutor’s Office’, accessed 25 July 2020. Criminal and Administrative Law Enforcement in the European Union?”, 7 See supra (n. 4). (2014) 5 New J. Eur. Crim. Law, 192–220, 194. 8 Money laundering represents a special case, analysed in section V. 2 On the complexity of inter-agency cooperation among criminal The drafters of the SSMR felt the need to mention money laundering in enforcement in the EU, see A. Weyembergh, I. Armada and C. Brière, The order to exclude any competence of the SSM in this field. According to Inter-agency Cooperation and Future Architecture of the EU Criminal Jus- Recital 26 SSMR, “the prevention of the use of the financial system for tice and Law Enforcement Area, Study for the LIBE Committee, November the purpose of money laundering and terrorist financing is not a super- 2014. visory task conferred to the ECB.” It is fixedly in the hands of national 3 See EBA Regulation (EU) No 1093/2010 of the European Parliament and authorities. Nevertheless, Recital 27 SSMR affirms that “the ECB should of the Council of 24 November 2010 establishing a European Supervisory cooperate, as appropriate, fully with the national authorities which are Authority (European Banking Authority), amending Decision No 716/2009/ competent to ensure a high level of consumer protection and the fight EC and repealing Commission Decision 2009/78/EC, as amended by against money laundering.”

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9 Directive (EU) 2017/1371 of the European Parliament and of the Council external investigations, see V. Covolo, L’emergence d’un droit penal en of 5 July 2017 on the fight against fraud to the Union financial interests reseau, Nomos, 2015. by means of criminal law, O.J. L 198, 28.7.2017, 29. See section IV on the 34 Art. 3(4) Decision (EU) 2016/456, op. cit. (n. 32). exchange of information between the ECB and OLAF. 35 Art. 3(1) Decision (EU) 2016/456, op. cit. (n. 32). 10 See G. Lasagni and I. Rodopoulos, “Comparative Study”, in S. Al- 36 Art. 4(1) Decision (EU) 2016/456, op. cit. (n. 32) defines the concept legrezza (ed.), The Enforcement Dimension of the Single Supervisory of sensitive information as follows: “information concerning monetary Mechanism – The Interplay Between Administrative and Criminal Law, policy decisions, or operations related to the management of foreign CEDAM 2019, pp. 575–613. reserves and interventions on foreign exchange markets, provided that 11 See Recitals 28–29 SSMR. such information is less than one year old; information concerning the 12 See infra, para. 13. tasks conferred upon the ECB by Regulation (EU) No 1024/2013; data 13 Art. 136 SSMFR. received by the ECB from the national competent authorities regarding 14 For a wider analysis of this issue, see M. Simonato, M. Luchtman and the stability of the financial system or individual credit institutions; and J. Vervaele (eds.), Exchange of information with EU and national enforce- information concerning the euro banknotes’ security features and techni- ment authorities ‒ Improving OLAF legislative framework through a com- cal specifications.” parison with other EU authorities (ECN/ESMA/ECB) (Utrecht University/ 37 Supra n. 9. RENFORCE, March 2018) accessed 25 July 2020. Prosecutor’s Office (‘the EPPO’), O.J. L 283, /31.10.2017, 1. 15 See G. Lasagni and I. Rodopoulos, Comparative Study, op. cit. (n. 10), 39 Proposal for a Regulation of the European Parliament and of the Coun- p. 621. cil amending Regulation (EU, Euratom) No 883/2013 concerning investiga- 16 Specific references in national reports (Part II). tions conducted by the European Anti-Fraud Office (OLAF) as regards 17 See section IV. cooperation with the European Public Prosecutor’s Office and the ef- 18 ECB Decision 2016/1162 of 30 June 2016 on disclosure of confidential fectiveness of OLAF investigations. For the latest developments, see the information in the context of criminal investigations (ECB/2016/19). European Anti-Fraud Office, “OLAF Regulation” accessed 25 July 2020. 20 ECB Decision 2016/1162, op. cit. (n. 18), Recital 3. 40 See, in particular, the ABLV Bank scandal, in which the credit institu- 21 ECB Decision 2016/1162, op. cit. (n. 18), Recitals 1 and 4. tion was sanctioned by American regulators for several money laundering 22 ECB Decision 2016/1162, op. cit. (n. 18), Art. 1(a). incidents. Members of the EU Parliament raised questions regarding the 23 ECB Decision 2016/1162, op. cit. (n. 18), Art. 1(a). ECB’s role in the information exchange between the detection of money 24 ECB Decision 2016/1162, op. cit. (n. 18), Art. 2(1). laundering risks and the integration of those risks in prudential supervi- 25 See G. Lasagni and I. Rodopoulos, “Comparative Study”, op. cit. sion; see the answer Danièle Nouy, Chair of the ECB Supervisory Board, (n. 10), p. 632. gave to Sven Giegold, Member of the European Parliament, of 3 May, 26 The wording is: “the ECB shall request the NCAs and NCBs to agree 2018 at accessed 25 July 2020. 2016/1162, op. cit. (n.18), Art. 3(1)(2). 41 See n. 3. 27 ECB Decision 2016/1162, op. cit. (n. 18), Art. 3(1). 42 Ibidem. 28 ECB Decision 2016/1162, op. cit. (n. 18), Art. 3(1). 43 Art. 57a(2) AMLD requires the ECB and the competent authorities to 29 ECB Decision 2016/1162, op. cit. (n. 18), Art. 3(2). conclude, with the support of the European supervisory authorities, an 30 G. Lasagni, Banking Supervision and Criminal Investigation. Compar- agreement on the practical modalities for the exchange of information. ing the EU and US Experience, Springer 2019, p. 221. 44 Information might be “relevant and necessary for the purposes of 31 As stated in the Preamble to Decision 2016/456. The ECB’s profes- the assessment of acquisitions of qualifying holdings, the authorisation sional duties and obligations, in particular the obligations relating to of supervised entities, notifications connected with the exercise of the professional conduct and professional secrecy, are laid down in (a) the freedom of establishment and the freedom to provide services and the Conditions of Employment for Staff of the European Central Bank, (b) assessment of the suitability of members of management bodies of the the European Central Bank Staff Rules, (c) Annex IIb to the Conditions of supervised entities” (Art. 3(2)(a) of the Multilateral Agreement). Employment concerning the Conditions of Short-Term Employment, and 45 Art. 3(2) of the Multilateral Agreement. (d) the European Central Bank Rules for Short-Term Employment, and 46 Art. 3(3) of the Multilateral Agreement. further guidance is given in (e) the Code of Conduct for the members of 47 Art. 3(4) of the Multilateral Agreement. the Governing Council (2), (f) the Supplementary Code of Ethics Criteria 48 Art. 3(5) of the Multilateral Agreement. for the members of the Executive Board of the European Central Bank (3), 49 Art. 6(3) of the Multilateral Agreement. and (g) the Code of Conduct for the members of the Supervisory Board of 50 Art. 7 of the Multilateral Agreement. the European Central Bank (4) (together, hereinafter, referred to as the 51 Art. 2(f) of the Multilateral Agreement. “ECB conditions of employment”). 52 E. Herlin-Karnell, (2015) German Law Journal, op. cit. (n. 1). 32 Decision (EU) 2016/456 of the European Central Bank of 4 March 2016 53 As suggested by Danièle Nouy in her Letter (see above n. 40): “As concerning the terms and conditions for European Anti-Fraud Office anti-money laundering concerns both the supervisory and criminal/ investigations of the European Central Bank, in relation to the prevention judicial spheres (…) establishing a European AML authority could bring of fraud, corruption and any other illegal activities affecting the financial about such a degree of improved cooperation.” interests of the Union (ECB/2016/3). 54 See G. Lasagni and I. Rodopoulos, “Comparative Study”, op. cit. 33 Art. 2 Decision (EU) 2016/456, op. cit. (n. 32). On OLAF’s internal and (n. 10), p. 623.

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The EPPO and the Corporate Suspect Jurisdictional Agnosticism and Legal Uncertainties

Robin Lööf*

The advent of the European Public Prosecutor’s Office (“EPPO”) has been broadly welcomed throughout the European legal community, including by legal entities operating in the single market and their advisors. Even so, considerable uncertainties remain for these economic actors on how the new enforcement regime will affect them. These uncertainties stem from the fact that the twenty-two jurisdictions in which the EPPO will operate have in some cases radically different approaches to issues such as the nature of and conditions for corporate criminal liability as well as the substantive and procedural frame- work governing corporate criminal investigations. The fluidity with which the EPPO will conduct investigations across the EU, combined with potential unpredictability of the locus of an ultimate resolution or trial, will mean that these substantive and procedural divergences are likely to raise considerable difficulties, particularly for legal entities. The EPPO should therefore quickly establish guidelines on how to approach multi-jurisdictional investigations and proceedings involving legal entities. The absence of such guidelines will not only unnecessarily reduce companies’ ability to manage their enforcement risk, but will also negatively impact the EPPO’s effectiveness in dealing with complex corporate investigations and proceedings.

I. Introduction: the EPPO’s Jurisdictional Agnosticism initiated and handled by a European Delegated Prosecutor from the Member State where the focus of the criminal activity is or, if sev- eral connected offences within the competences of the EPPO have The European Public Prosecutor’s Office (EPPO) is intended been committed, the Member State where the bulk of the offences to be a unitary body, seamlessly conducting investigations into has been committed. complex, cross-border fraud, corruption, and money launder- This general rule can, however, be deviated from. The second ing across the twenty-two participating EU Member States. It sentence of paragraph (4) provides for the possibility that an is to be hoped that this institutional innovation will represent EDP in another Member State may: a step change in the currently underwhelming enforcement of initiate or be instructed by the competent Permanent Chamber to economic and financial crime laws in the EU. However, par- initiate an investigation where a deviation from the rule set out in ticularly for legal entities operating across multiple jurisdic- the previous sentence is duly justified, taking into account the fol- tions in the single market, the EPPO’s very set-up creates a lowing criteria, in order of priority: (a) the place of the suspect’s or accused person’s habitual residence; new type of legal uncertainty. This is due to the fact that, un- (b) the nationality of the suspect or accused person; like investigations carried out by national prosecutors, EPPO (c) the place where the main financial damage has occurred. investigations are agnostic as to the jurisdictional locus of their ultimate resolution. In addition, paragraph (5) provides that until a decision has been taken “to bring a case to judgment” before a trial court in EPPO proceedings will be carried out day-to-day by Euro- a particular Member State pursuant to Art. 36, the Permanent pean Delegated Prosecutors (“EDPs”) operating within the Chamber responsible for the investigation may: jurisdiction of each participating Member State, supervised in a case concerning the jurisdiction of more than one Member State by the relevant national European Prosecutor (“EP”) based at and after consultation with the European Prosecutors and/or Euro- the EPPO’s central office in Luxembourg. Investigations are pean Delegated Prosecutors concerned, decide to: monitored by Permanent Chambers made up of several EPs to (a) reallocate the case to a European Delegated Prosecutor in an- other Member State; which cases are allocated on a random basis.1 For important (b) merge or split cases and, for each case choose the European procedural steps, EDPs and EPs require a decision from the Delegated Prosecutor handling it, monitoring Permanent Chamber. if such decisions are in the general interest of justice and in accord- ance with the criteria for the choice of the handling European Del- 3 The rules on competence as between EDPs are set out in egated Prosecutor in accordance with paragraph 4 of this Article. Art. 26 of Regulation 2017/1939 (hereinafter “the EPPO Reg- The reallocation, splitting, or merging of a case will lead to ulation”),2 with paragraph (4) setting out the general rule that changes in the supervising EP(s) and, possibly, the transfer of proceedings will be: the monitoring of the case to a different Permanent Chamber.4

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It is therefore clear that in many circumstances, an investiga- (a) a power of representation of the legal person; tion initiated and carried out at the behest of the EDP in one (b) an authority to take decisions on behalf of the legal person; or Member State may, wholly or in part, be resolved before the (c) an authority to exercise control within the legal person. courts of another Member State (with evidence obtained by EDPs in yet other Member States5). Art. 6(2) adds that legal persons should also be held liable “where the lack of supervision or control by a person [in a This potential uncertainty as to the eventual forum for the leading position] has made possible the commission, by a per- ultimate resolution of an investigation creates particular dif- son under its authority, of [a criminal offence set out in the ficulties for legal entities. As a starting point, the nature and Directive] for the benefit of that legal person.” extent of corporate criminal liability for the offences under the EPPO’s jurisdiction vary significantly across the 22 participat- Nevertheless, a quick survey of the various transposing meas- ing Member States. Further, there is little uniformity in the ures shows that great divergence persists. France, for instance, approach to legal privilege, a matter of great importance to appears to have taken the view that its pre-existing criterion how companies manage their legal exposure. Finally, legal and for corporate criminal liability based on acts on behalf of a procedural frameworks encouraging corporate cooperation legal entity by its “organs or representatives”9 was adequate. with criminal investigations are far from uniform or univer- In Italy, however, it appears that legal entities are responsible sally established. by virtue of the actions of a wider range of individuals than required by the PIF Directive,10 whereas Luxembourg’s trans- Following a closer look at each of these areas, this article will posing provisions adopt the exact criteria of the Directive.11 conclude that this level of uncertainty and unpredictability is unnecessarily detrimental not only to the ability of legal enti- The PIF Directive also leaves open the issue of penalties appli- ties to manage their enforcement risks, but also to the EPPO’s cable for legal entities where considerable differences between effectiveness in dealing with complex corporate investigations Member States exist.12 Its Art. 9 mandates that corporate sanc- and proceedings. tions should include “criminal or non-criminal fines,” but refrains from setting any reference level for the fines. Art. 9 also leaves it up to the Member States whether non-pecuniary II. Divergences in Material Risk sanctions such as exclusions from public tenders and public support, and judicial supervision or winding-up should be The basis for the EPPO’s material competence is Directive available.13 (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s finan- This leaves room for enormous disparity. By way of exam- cial interests by means of criminal law (the “PIF Directive”). ple, in France, for certain relevant offences, corporate fines The PIF Directive does not impose direct corporate criminal are determined by applying a multiplier to any profits derived liability for the offences it sets out. Rather, its Art. 6 states that from the offending conduct (particularly corruption), or to Member States have to ensure that legal entities can be “held the amounts involved (money laundering). In these latter cir- liable” for such offences carried out “for their benefit.”6 cumstances, there are no caps. By contrast, Germany, Luxem- bourg, and Italy are examples of jurisdictions where corporate While corporate criminal liability exists in many of the EPPO’s fines are capped at relatively low levels 14 (€10m , €3.75m15, jurisdictions, in some, such as Germany and Italy, it currently and €1.549m16 respectively).17 does not.7 On the fundamental point, therefore, of whether a legal entity can be held criminally liable – or merely civilly or Historically, EU reluctance to harmonise the nature and conse- administratively liable – the situation varies across the EPPO’s quences of corporate liability across Member States is rooted jurisdictions. 8 in the broader view of sanctions as instruments for ensuring the effective implementation of substantive policies by mem- Whether corporate liability is criminal, civil, or administra- ber states (without dictating the details of how implementation tive, there is the question of the criteria for that liability to should be achieved).18 However, in the context of the EPPO’s attach. Art. 6(1) of the PIF Directive sets out that legal persons application of laws transposing the PIF Directive, this instru- should be liable in respect of the criminal offences set out in mental view of corporate liability makes little sense: Given that the Directive where the offences are: the EPPO was created as an EU prosecutor specifically tasked

committed for their benefit by any person, acting either individually with enforcing the criminal law, the availability of specifically or as part of an organ of the legal person, and having a leading posi- criminal sanctions would appear to be the whole point. In this tion within the legal person, based on: context, harmonising the nature and consequences of corpo-

eucrim 4 / 2020 | 311 The Reception of European Legislation and Case Law in the Member States rate liability for legal persons, at least to the same extent as is Legal entities may therefore find themselves in the unenviable the case for natural persons, seems relatively uncontroversial. situation of having taken confidential advice in one jurisdic- The alternative would be to make it clear that (as in, e.g., Italy) tion, seeing that advice seized at the behest of the EDP in an- proceedings to hold legal entities liable – be that on a civil or other, less protective jurisdiction, and having the ultimate ad- administrative basis – for offences under the PIF Directive fall missibility of that advice considered in a third. This is hardly under the responsibility of the EPPO. compatible with legal certainty and may deter companies from seeking full and frank legal advice for the benefit of their oper- Be that as it may, currently, and as the examples above show, ations, thereby arguably undermining the rationale for lawyer- the jurisdiction before which the liability of a legal entity in- client confidentiality, as well as undercutting corporate good vestigated by the EPPO is ultimately to be decided will have an governance. enormous impact on the potential consequences of an adverse finding for that entity. Importantly, the jurisdictional allocation The example of EU competition law shows that it is possible of a case may have little or nothing to do with the status or to have a distinct privilege regime for substantive areas of position of the legal entity, or with its material involvement in EU law;23 even lawyers from the common law tradition have the alleged offending. learned to operate with the non-availability of legal privilege for in-house advice. It is therefore to be hoped that the EPPO in the short to medium term seek to provide as much operational III. Differing Concepts of Lawyer-Client Confidentiality clarity as possible in relation to its approach to the confiden- tiality of lawyer-client communications. In the long term, the Beyond the generally “strengthened protection to exchanges EPPO will hopefully provide an impetus for EU co-ordination between lawyers and their clients” afforded by Art. 8 of the or harmonisation of the applicable conflict rules. European Convention on Human Rights (ECHR),19 there is no conformity within the EU on the scope and extent of the pro- tection of the confidentiality of communications between law- IV. Approach to Corporate Cooperation with Criminal yers and their clients. Consequently, these rules differ across Investigations and the Availability of Out-of-Court the EU in myriad ways. Resolutions

At the level of the scope of the protection, and critically for Corporate criminal enforcement is an atypical branch of fraud companies, there is no consensus whether lawyer-client confi- enforcement. This is due to factors such as the dispersal of dentiality applies between in-house lawyers and their employ- knowledge within organisations, complex decision-making er and sole client. For instance, in France it does not,20 whereas structures, and a variety of fiduciary obligations. When a pros- in neighbouring Belgium it does.21 ecutor targets a corporate entity, in most instances those re- sponsible for representing the entity vis-à-vis the prosecutor At the level of the extent of the protection, the readiness of en- will have little or no knowledge of the specific conduct under forcement authorities to seize lawyer-client communications investigation. What is more, company management will be varies widely across the EU, not only as a result of different concerned to know as early as possible the potential impact of procedural rules but also (as we know from experience) dif- the investigation and any subsequent proceedings on the com- ferent traditions in respect of the interaction between defence pany. This is in order to reduce the uncertainties inherent in the counsel and enforcement authorities. investigation and to limit associated negative impacts on the company’s operations. At the same time, investigations into When organising the manner in which they obtain legal ad- complex economic offending often begin with the discovery vice, legal entities can and often do take into account the rules of potential wrongdoing by a company employee or official, in applicable in the relevant jurisdictions. Difficulties arise, how- the course of its internal processes. ever, when communications originally subject to the confiden- tiality regime of one jurisdiction become potentially relevant These factors have, in some jurisdictions, led to the adoption to an investigation in another, where their seizure or admis- of procedures whereby legal entities are incentivised to “self- sibility will need to be considered. This difficulty is not new, report” suspected, potentially criminal wrongdoing that is of course; similar challenges existed prior to the advent of the discovered within their organisations, leading to an important EPPO.22 The EPPO regime does, however, introduce a further source of intelligence for law enforcement. Part of the incen- layer of complexity in that the determination of the lawfulness tive is often the prospect of some form of out-of-court resolu- of seizure and the ultimate determination of admissibility may tion for criminal acts which the legal entity does not contest. well take place in two different jurisdictions. One notable advantage to avoiding a formal conviction is that

312 | eucrim 4 / 2020 The EPPO and the Corporate Suspect the company is spared automatic debarment from participation diction. As we have seen above, that certainty does not exist in public tenders, a consideration that will almost inevitably for a company faced with a potential EPPO investigation into be critical for companies targeted by the EPPO.24 The French suspected cross-border criminality. Given the potentially far- Convention judiciaire d‘intérêt publique25 is the best-known reaching implications for the scope and consequences of their example of this kind of procedure within the EPPO’s jurisdic- legal exposure, companies may well be concerned about “in- tion. ternal forum shopping” by the EPPO. A company that finds it- self the target of an investigation by the EPPO and potentially Although these derogatory procedures for companies are a “victim” of a transfer of the matter to a jurisdiction where its controversial, there is little doubt that they save scarce pub- legal risks are materially worse may argue against the transfer: lic resources and time, and often give prosecutors access to it will be possible to submit written arguments to the EDP as information otherwise inaccessible to them, or accessible well as the monitoring Permanent Chamber. The EPPO Deci- only with great difficulty. It is therefore hardly surprising that sion on the Permanent Chambers even contemplates the possi- there is a growing movement towards formalising procedures bility of “any other person” being invited to attend meetings of which incentivise companies to cooperate with enforcement the Permanent Chambers,28 a provision which would presum- authorities.26 We also know from practice that the ability to ably cover the representatives of a company under investiga- co-ordinate the settlement of cross-border investigations into tion making their case viva voce. A company that considers it- corporate misconduct is largely dependent on the availability self unreasonably penalised by a jurisdictional decision by the of such procedures, which provide the necessary procedural EPPO could seek judicial review of that decision, ultimately predictability for all parties involved. before the Court of Justice of the EU.29

All of these considerations are clearly highly relevant to the Even so, this level of legal uncertainty, due solely to the ulti- EPPO, and Art. 40 of the EPPO Regulation does indeed pro- mate choice of jurisdiction for the resolution of the investiga- vide for investigations to be closed by means of out-of- court tion and unrelated to the seriousness of the suspected miscon- resolutions if the law applicable to the handling EDP provides duct, is clearly undesirable. It is to be hoped that the EPPO for it. The EDPs operating in jurisdictions with such resolu- eventually provides clear guidance on its approach to jurisdic- tions for legal entities will therefore be able to use them. tional selection in relation to legal entities under investigation. Such clarity would enable the EPPO to maximise the potential The critical question for legal entities and their advisers is for corporate cooperation with its investigations. It would also what guarantees they would have that their active engagement be in the interests of justice. with, and assistance to, the EPPO will benefit them. In a re- cent interview, the Dutch EP Daniëlle Goudriaan suggested that companies should treat the EPPO as they would national prosecutors.27 However, this does not take into account the po- tentially drastic consequences for legal entities of the EPPO’s power to decide on the final jurisdiction for the resolution of Dr. Robin Lööf any given investigation of which they are a target. Companies Barrister (England & Wales), avocat (barreau that consider engaging with the EPPO on the assumption that de Paris); International Counsel, Debevoise & the handling EDP will be able to offer them a non-conviction Plimpton, London/Paris. resolution as well as credit for co-operation will have legiti- mate concerns that these benefits from co-operating are at risk of being lost with the transfer of the case to an EDP in a juris- diction where such benefits are not available. In such circum- stances, we may well find that companies prove reluctant to engage actively with the EPPO. For the reasons set out above, * This article represents the personal views of the author. The author thanks Jesse Hope for his assistance. this would be detrimental to the EPPO’s effectiveness. 1 The organisation of the Permanent Chambers is set out in EPPO College Decision 015/2020 of 25 November 2020, available at: accessed on 2 February 2021. V. Conclusion 2 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Pros- Until recently, companies operating in the single market had ecutor’s Office (‘the EPPO’), O.J. L 283, 31.10.2017, 1. 3 Paragraph (7) further states that the Permanent Chamber must take the certainty that engaging with the prosecutor in one juris- into account the current state of the investigation when making decisions diction would engage the procedures applicable in that juris- under paragraph (6).

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4 See Articles 50(2), 19(4), 20(3), and 51 of the Internal Rules of Pro- 20 On 22 January 2021, the general assembly of the French bar associa- cedure (EPPO College Decision 003/2020 of 12 October 2020). This will tions rejected by a large majority a government proposal to trial a system occur in particular where the new supervising European Prosecutor is a of in-house lawyers enjoying a similar status to avocats; see accessed on 2 February 2021. 5 Art. 31(1) of the EPPO Regulation. 21 The distinct profession of juriste d‘entreprise was created by the Law 6 Recital (14): “Insofar as the Union’s financial interests can be dam- of 1 March 2000, but lawyers (avocats) are also able to be temporarily em- aged or threatened by conduct attributable to legal persons, legal ployed by a company (see Title IV, chapter 11 of the Code de déontologie persons should be liable for the criminal offences, as defined in this de l‘avocat (Ordre des barreaux francophones et germanophone)). Directive, which are committed on their behalf.” 22 For an interesting discussion in the French context, see J-C. Jaïs, 7 See generally, P. Lewisch, “Corporate criminal liability for foreign C. Cavicchioli and A. de Mazières, “La confidentialité des correspon- bribery: perspectives from civil law jurisdictions within the European dances internationales des avocats et juristes en entreprise – la question Union”, (2018), 12:1, Law and Financial Markets Review, 31. A proposal du droit applicable” (4 October 2020), n° 4, October 2020, var. 8, Journal du for the institution of corporate criminal liability in Germany is currently droit international (Clunet). under consideration. 23 See Case C-550-07, Akzo Nobel Chemicals Ltd v European Commission. 8 See, e.g., D. Benito Sanchez, “The Directive on the Fight against Fraud 24 See the debarment provisions in Directive 2014/24/EU of the European to the Union’s Financial Interests and its Transposition into the Spanish Parliament and of the Council of 26 February 2014 on public procurement Law”, (2019), vol. 11(3), Perspectives on Federalism, E-122. and repealing Directive 2004/18/EC. 9 Art. 121-12 French Code pénal (“organes ou représentants”). 25 Instituted by Art. 22 Loi 2016-1691 du 9 décembre 2016 relative à la 10 Art. 5(1) of Decr. Leg. No. 231 of 8 June 2001. transparence, à la lutte contre la corruption, et à la modernisation de la vie 11 Art. 34 of the Luxembourg Code pénal. économique (“Sapin II”). See also the Guidelines on the implementation 12 As noted in H. Christodoulou, “Spécialisation de la justice ou montée of the CJIP, issued jointly by the National Financial Prosecutor (PNF) and en puissance des procureurs ?” (7 January 2021), Dalloz actualité. the Anti-Corruption Agency (AFA) on 26 June 2019 (available at: accessed on 2 February 2021). 14 § 30, Gesetz über Ordnungswidrigkeiten (OWiG). 26 See, e.g., the report by the IBA Anti-Corruption Committee, Structured 15 Arts 36 and 37 of the Code pénal. Criminal Settlements Subcommittee (Akinwa and Søreide (eds.), Struc- 16 Art. 10 of Decr. Leg. No. 231 of 8 June 2001. tured Settlements for Corruption Offences Towards Global Standards? 17 Note, however, that in certain jurisdictions legal entities may, sepa- (December 2018). rately to any fine imposed, be ordered to forfeit an amount correspond- 27 J. Thomas, “European Prosecutor: Treat EPPO like national enforce- ing to profits derived from the offending. ment agencies”, (6 November 2021), Global Investigations Review, 18 For an overview in the corporate context, see V. Franssen, “The EU’s accessed on Potential”, (2018) vol. 19(5), German Law Journal, 1221. 26 January 2021. 19 See ECtHR, 6 December 2012, Michaud v France, Appl. No. 12323/11, 28 Art. 8(2) of EPPO College Decision 015/2020, op. cit. (n. 1). para. 118. 29 Art. 42 of the EPPO Regulation.

Die Richtlinie 2010/64/EU zum Dolmetschen und Übersetzen in Strafverfahren – Neues Qualitätssiegel oder verpasste Chance? Zur Umsetzung in Deutschland, Polen und Spanien

Magdalena Kotzurek

About ten years ago, the European Parliament and the Council of the European Union adopted Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. The Directive initially inspired high hopes, mainly because it explicitly addressed the issue of quality in interpretation and translation services. Its implementation in the EU Member States, however, has tended to be disheartening. Some even fear that current standards may be inferior to those that prevailed before the Directive was implemented. This article analyses the implementation of the Directive in Germany, Poland and Spain, and –

314 | eucrim 4 / 2020 Die Richtlinie 2010/64/EU zum Dolmetschen und Übersetzen in Strafverfahren taking the changes made to the relevant national legislation in 2013 (Germany and Poland) and 2015 (Spain) as a starting point – sheds light on early tendencies in the judicial interpretation of domestic law. It concludes that up to this day, neither Ger- many nor Poland nor Spain has fully complied with the Directive’s quality standards for interpretation services. With respect to translation – especially the translation of judgments – it concludes that a rather restrictive interpretation of the amended national laws appears to be taking root.

Gerichtsverfahren, an denen Dolmetscher und Übersetzer be- Niedergelegt ist dieses Recht unter anderem in der Europä- teiligt sind, sind in der EU juristischer Alltag. Gerichtsdolmet- ischen Menschenrechtskonvention (EMRK), dem Internati- scher und übersetzer, deren Berufsbild sich in den Nürnberger onalen Pakt über bürgerliche und politische Rechte (IPbpR) Prozessen konturierte, sind nicht mehr aus Gerichtssälen und und der EU-Grundrechtecharta (GRCh). Der europäische Polizeistationen wegzudenken. Keine andere zwischenstaatli- Prozess zur Vereinheitlichung der Strafverfahrensstandards che Einrichtung nutzt annähernd so viele Amtssprachen wie in den EU-Mitgliedsstaaten hatte 1999 mit den Schlussfol- die EU1 (nämlich 24), und gesprochen werden in der EU heute gerungen von Tampere und dem darauf aufbauenden Stock- sogar um die 450 Sprachen. Kaum jemand stellt ernsthaft in- holmer Programm an Fahrt aufgenommen. Dazu gehörte frage, dass die EU so multilingual ist wie nie zuvor. Mehrspra- ein 2009 angenommener Fahrplan zur Stärkung der Verfah- chigkeit gehört zu den Grundprinzipien der Union und betrifft rensrechte im Strafverfahren, der 2010 bis 2016 schrittweise natürlich auch Strafverfahren: Es ist selbstverständlich, dass durch insgesamt sechs Richtlinien umgesetzt werden sollte.5 jede beschuldigte Person verstehen muss, was ihr vorgewor- Als erstes wurde im Oktober 2010 die Richtlinie 2010/64/EU fen wird – und zwar egal, in welchem Mitgliedsstaat sie sich über das Recht auf Dolmetschleistungen und Übersetzungen befindet. Die flächendeckende, effektive Durchsetzung dieses in Strafverfahren verabschiedet. Sie fordert neben der Kos- Rechts begegnet jedoch vielfältigen Herausforderungen. Im tenübernahme von Dolmetsch- und Übersetzungsleistungen Oktober 2010 verabschiedeten das Europäische Parlament und für das gesamte Strafverfahren auch die Sicherstellung von der Rat die Richtlinie 2010/64/EU über das Recht auf Dol- ausreichender Qualität, um faire Verfahren zu garantieren. metschleistungen und Übersetzungen in Strafverfahren.2 Es Ferner betont sie die Wichtigkeit von Fortbildungen für war der erste Versuch, auf EU-Ebene für Mindeststandards im Richter, Staatsanwälte und Justizbedienstete mit Augenmerk Strafverfahren zu sorgen.3 Zudem bezog man sich – auch das auf das Dolmetschen, damit die Kommunikation effizienter war ein Novum – explizit auf die Qualität von Dolmetsch- und und wirksamer gestaltet werden kann. Zudem unterstreicht Übersetzungsleistungen in Strafverfahren. Dieser Artikel un- sie die Bedeutung von offiziellen Registern für Dolmetscher tersucht die Umsetzung der Richtlinie in Deutschland, Polen und Übersetzer, wie sie aktuell bereits in 17 EU-Mitglied- und Spanien und zeigt – ausgehend von den 2013 bzw. 2015 staaten existieren.6 veränderten Gesetzesartikeln in diesen Ländern – erste Ten- denzen in der Rechtsprechung auf. Es wird deutlich, dass die drei Länder den Qualitätsansprüchen der Richtlinie in punc- II. Dolmetscher- und Übersetzergesetze und staatliche to Dolmetschen bis heute nicht gerecht werden und sich bei Prüfungen in Deutschland, Polen und Spanien Übersetzungen – vor allem Urteilsübersetzungen – eine rest- riktivere Auslegung der novellierten Gesetzestexte zu etablie- Der Beruf des Gerichtsdolmetschers und/oder -übersetzers ist ren scheint. bis heute überraschend unbekannt. Im allgemeinen Sprachge- brauch und teils auch in der Fachsprache verschwimmen die Grenzen, obwohl sich die Tätigkeiten von Dolmetschern und I. Hintergründe Übersetzern stark unterscheiden,7 und auch unterschiedliche Ausbildungen und Fähigkeiten erfordern. Während Dolmet- Zu Beginn der 2000er Jahre hatten Nachforschungen der scher im Simultan- oder Konsekutivmodus (mit Kopfhörern EU-Kommission ergeben, dass sich die Mitgliedstaaten ihrer in der Kabine oder mit gezücktem Block und Stift neben dem Pflicht zur unentgeltlichen Beiziehung von Dolmetschern und Redner) quasi „live“ und unter höchstem Zeitdruck mündliche Übersetzern in Strafverfahren zwar theoretisch bewusst sind, Aussagen sinngetreu in andere Sprachen übertragen, arbeiten sie in der Realität aber nicht ausreichend erfüllen. Gründe wa- Übersetzer mit fixierten, schriftlich festgehalten Texten, die ren Kosten, Bürokratie und die komplexeren Organisationsan- sie bis zur Abgabe überarbeiten, kontrollieren und korrigieren forderungen im Falle von selteneren Sprachen.4 Dabei bekräf- können. Da die Berufsbezeichnungen weltweit kaum geschützt tigten internationale und europäische Übereinkünfte zu diesem sind, können auch Quereinsteiger bzw. Laien mit Fremdspra- Zeitpunkt schon seit etwa fünfzig Jahren, dass jede Person, die chenkenntnissen als Dolmetscher/Übersetzer tätig sein. Dies die Sprache ihres Strafverfahrens nicht versteht, unentgeltlich hält die Branche einerseits jung und dynamisch, lässt sie aber durch Dolmetscher und Übersetzer unterstützt werden muss. auch oft an Grenzen stoßen.

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Die gesetzlichen Berufsregelungen sahen in Deutschland, qualifiziert ist.13 Ein spanischer Investigativjournalist berich- Polen und Spanien zum Zeitpunkt der Verabschiedung der tete 2016, wie er sich ohne jegliche Arabischkenntnisse als Richtlinie sehr unterschiedlich aus. In Deutschland existie- Arabisch­dolmetscher bei einer Madrider Agentur bewarb und ren aktuell nur auf der Ebene der Bundesländer Übersetzer- schon am nächsten Tag einen Dolmetschauftrag vor einem und Dolmetschergesetze. Der Bund hat jedoch im Zuge der Gericht bekam, da die Agentur seine Sprachkenntnisse nicht Modernisierung des Strafverfahrens Ende 2019 das Gesetz weiter geprüft hatte.14 über die allgemeine Beeidigung von gerichtlichen Dolmet- schern (Gerichtsdolmetschergesetz – GDolmG) erlassen, wel- Inwiefern die Richtlinie 2010/64/EU etwas an dieser Situa­ ches am 1. Juli 2021 in Kraft tritt.8 Allerdings wird es, wie tion verändert hat, wird kontrovers diskutiert. Anfangs weckte der Titel verrät, nur für Dolmetscher gelten. In Polen wurde der siebenseitige Text große Hoffnungen. Viele europäische schon 2004 ein fortschrittliches Gesetz (Ustawa o zawodzie Berufsverbände von Juristen, Dolmetschern und Übersetzern tłumacza przysięgłego) verabschiedet, das teils als das bes- engagierten sich bei der Ausarbeitung und setzten sich auch te Dolmetscher- und Übersetzergesetz Europas bezeichnet nach der Verabschiedung für eine umfassende Umsetzung in wird,9 jedoch aufgrund mangelnder gesetzlicher Verankerung die nationalen Gesetzestexte ein. Diese ging im gesamteuro- in der polnischen Strafprozessordnung (Kodeks postępowania päischen Kontext allerdings eher schleppend voran. Das Er- karnego, Kpk) und im Gerichtsverfassungsgesetz (Prawo gebnis blieb für viele „unbefriedigend“,15 wird teils sogar als o ustroju sądów powszechnych) nicht effektiv greifen kann. „misslungen“16 bzw. als verpasste Chance gewertet. In Spanien gibt es bis heute weder Dolmetscher- und/oder Übersetzergesetze auf nationaler noch auf Ebene der auto- nomen Regionen und auch keine umfassende Regelung der III. Die Umsetzung der Richtlinie in Deutschland, Berufe. Das verwundert, weil es in den letzten zwanzig Jah- Polen und Spanien ren einen großen Anstieg an Verfahren mit Beteiligung von Dolmetschern und Übersetzern in Spanien gegeben hat.10 Für Nach der Richtlinie sollte die Umsetzung durch die Mit- Verdolmetschungen können Gerichte in allen drei Ländern gliedsstaaten bis zum 27. Oktober 2013 abgeschlossen sein.17 letztendlich jede Person heranziehen, die über die nötigen Ein Jahr später, am 27. Oktober 2014, sollte ein Bericht der Sprachkenntnisse verfügt – wobei die Gesetzestexte kaum de- Europäischen Kommission zum Status quo vorliegen.18 Der finieren, welche Kenntnisse genau gemeint sind und auch kein Prozess verzögerte sich jedoch stark und erst Ende 2018 bestimmtes Sprachniveau festgelegen. Strengere Kriterien folgte der Bericht der Kommission, deren Fazit zwar nüch- gelten jedoch für Übersetzungen: In allen drei Ländern dürfen tern, aber insgesamt positiv ausfiel.19 Menschenrechtsorga- nur beeidigte Übersetzer den Beglaubigungsstempel verwen- nisationen kritisierten, dass die Umsetzung der Richtlinie den, der die Richtigkeit von Übersetzungen für Gerichte und in den Mitgliedstaaten sehr unterschiedlich ausgefallen sei Behörden bescheinigt. und die juristische und behördliche Praxis selbst bei vorbild­ licher legislativer Umsetzung in nationales Recht teils stark Zum Beruf des Gerichtsdolmetschers und/oder -übersetzers hinterherhinke: Im Arbeitsalltag von Polizisten und Juristen gibt es verschiedenste Wege. In vielen EU-Ländern werden kämen schließlich erschwerende finanzielle, bürokratische staatliche Prüfungen angeboten, die ausreichende Sprach- und berufspraktische Faktoren hinzu.20 Die Menschenrechts- kompetenzen, Dolmetsch- und/oder Übersetzungsfertigkeiten organisationen forderten gesetzliche, prozessrechtliche und und – je nach Prüfungsort in unterschiedlichem Maße – auch behördliche Verbesserungen. Kenntnisse in der Rechtssprache bescheinigen. Erst nach be- standener Prüfung darf ein Eid abgelegt und der Titel getra- Deutschland, Polen und Spanien werden den Forderungen der gen werden, der die Beeidigung11 bestätigt. Anders als eini- Richtlinie derzeit nur teilweise gerecht. Schaut man auf die ge nationale Behörden bzw. Ministerien und auch der EuGH Frage, ob die Verpflichtungen erfüllt worden sind, gibt es zwi- verfügen die Gerichte in Ländern wie Deutschland und Polen schen den drei Ländern auffällig viele Überschneidungen: So über keine eigenen Sprachendienste,12 weshalb die dortigen wurde überall der Anspruch auf kostenfreie Dolmetsch- und Gerichtsdolmetscher und -übersetzer meist Freiberufler sind Übersetzungsleistungen verankert (gefordert in Art. 2 Abs. 1 und über die offiziell eingerichteten Datenbanken kontaktiert/ und Abs. 2 sowie Art. 4 der Richtlinie 2010/64/EU), wobei in geladen werden müssen. Dies gestaltet sich etwas mühsam Polen teils weiterhin diskutiert wird, ab wann dieser greift21 und wird in allen untersuchten Ländern gerne an Agenturen und wie es mit der Kostenübernahme im Fall von Verurtei- übertragen. Solch ein Schritt birgt jedoch nicht nur finanzi- lungen aussieht.22 Auf die Wichtigkeit der Vertraulichkeit von elles Konfliktpotenzial, da Agenturen einen Teil der im EU- Dolmetschern und Übersetzern (gefordert in Art. 5 Abs. 3 der Vergleich nicht besonders üppigen Honorare einbehalten, son- Richtlinie 2010/64/EU) wurde in den Gesetzestexten aller drei dern erschwert zudem die Kontrolle, ob eine Person wirklich Länder eingegangen.

316 | eucrim 4 / 2020 Die Richtlinie 2010/64/EU zum Dolmetschen und Übersetzen in Strafverfahren

IV. Zur Umsetzung der Richtlinie veränderte (Art. 2 Abs. 8; Art. 3 Abs. 9; Art. 5 Abs. 1 RL 2010/64/EU).29 Gesetzesartikel in Deutschland, Polen und Spanien Art. 196 Abs. 3 Kpk bietet die Grundlage für die Anfechtung mangelhafter bzw. nicht geleisteter Übersetzungen/Verdol- In Deutschland wurde zur Umsetzung der Richtlinie am 2. metschungen. Laut Art. 143, Art. 147 und Art. 205 Abs. 3 Kpk Juli 2013 das Gesetz zur Stärkung der Verfahrensrechte von besteht für Verdolmetschungen/Übersetzungen Dokumentati- Beschuldigten im Strafverfahren verabschiedet. Die größ- onspflicht (gefordert in Art. 7 RL 2010/64/EU). Eine offizielle ten Veränderungen wurden bei § 187 GVG vorgenommen. Datenbank für beeidigte Dolmetscher/Übersetzer gibt es seit Abs. 1 setzt die Forderung nach kostenfreien Dolmetsch- 2004, sie wird vom Justizministerium in Warschau verwal- und Übersetzungsleistungen für das gesamte Strafverfahren tet.30 Zur Umsetzung der Richtlinie wurden 2013 einige Arti- um, wobei die Kostenübernahme unabhängig vom Ausgang kel des Kpk novelliert: Art. 72 zum Recht auf Hinzuziehung des Verfahrens erfolgt. Abs. 2 regelt die Erforderlichkeit eines Dolmetschers/Übersetzers, Art. 195 zur Pflicht zur Er- der schriftlichen Übersetzung strafprozessualer Entschei- füllung der Tätigkeiten eines Sachverständigen, Art. 196 zum dungen. Abs. 3 geht auf die Forderung der Richtlinie nach Ausschluss von Sachverständigen und Art. 205 zum Eid, den der vollen Kenntnis der Folgen im Fall eines Verzichts ein. vor Gericht erscheinende Fachkundige zu leisten haben.31 In Für Kontroversen sorgt insbesondere Abs. 2. Es stellt sich Polen gibt es jedoch bis heute kein effektives Vorranggebot für die Frage, ob durch die Umsetzung den Gerichten und Be- beeidigte Dolmetscher,32 was auch immer wieder gerichtlich hörden nicht mehr Spielraum eingeräumt worden ist als bestätigt wird – zuletzt durch das Berufungsgericht Katowi- durch die EU-Richtlinie intendiert. In Art. 3 der Richtlinie ce in einem Entscheid vom 13. September 2011.33 Die hohen heißt es, dass alle wesentlichen Unterlagen übersetzt werden Qualitätsstandards, die 2004 eingeführt wurden, sind somit müssen und schriftliche Übersetzungen nur ausnahmsweise keineswegs juristischer Alltag. durch mündliche Übersetzungen oder Zusammenfassungen ersetzt werden können, unter der Bedingung, dass dies „ei- Spanien verabschiedete zur Umsetzung der Richtlinie am 28. nem fairen Verfahren nicht entgegensteht“. Dagegen heißt es April 2015 die Ley Orgánica (LO) 5/2015, mit der das Recht in § 187 Abs. 2 GVG, dass Übersetzungen „in der Regel“ auf Dolmetsch- und Übersetzungsleistungen vor Gericht und erforderlich sind. Kritiker bemängeln an diesem Wortlaut, bei Behörden umfangreich ausgeweitet wurde und deren ers- dass „erhebliche Zweifel an einer ordnungsgemäßen Umset- ter Artikel die spanischen Strafprozessordnung (Ley de Enjui­ zung der Richtlinie [aufkommen]“.23 ciamiento Criminal, kurz LeCrim) um das neue Kapitel „Vom Recht auf Übersetzung und Verdolmetschung“ (Del derecho a Ähnliches lässt sich zu der Häufigkeit von Stegreifüberset- la traducción e interpretación) ergänzte. Es besteht aus fünf zungen (spontan verdolmetschten schriftlichen Texten) sa- Artikeln: 123, 124, 125, 126 und 127 LeCrim. Art. 123 ent- gen: Während in Art. 3 der Richtlinie von Ausnahmefällen spricht u.a. den Forderungen der Richtlinie nach kostenfrei- gesprochen wird, in denen „mündliche Übersetzungen oder en Dolmetschleistungen für das gesamte Strafverfahren und Zusammenfassungen“ möglich sind, fällt diese Einschrän- der kostenfreien Übersetzung aller wesentlichen Unterlagen. kung in § 187 Abs. 2 GVG größtenteils weg, wenn Beschul- Art. 123 regelt ebenfalls die Dokumentationspflicht, während digte einen Verteidiger haben. Kritiker sprechen hier von Art. 124 auf das geforderte Register für Dolmetscher und Über- einer „Durchbrechung des Regel-Ausnahme-Prinzips“24 und setzer eingeht. Art. 126 regelt die Belehrung im Falle eines zeigen Schwachstellen bei der Kostenübernahme auf.25 Trotz Verzichts auf Dolmetsch- und Übersetzungsleistungen. Zwar dieser Kritik wird § 187 GVG von den deutschen Gerichten stehen die genannten Vorschrift formal für eine vollständige als richtlinienkonform eingestuft.26 Ein offizielles Register Umsetzung der Richtlinie; dies muss jedoch mit einem Fra- für Dolmetscher und Übersetzer (gefordert in Art. 5 Abs. 2 gezeichen versehen werden. Denn die Ausweitung der Rechte RL 2010/64/EU) existierte bereits drei Jahre vor Ablauf der ging nicht mit einem zusätzlichen Budget einher: In der Ersten Frist. Die bundesweite, vom Bundesland Hessen im Auftrag Zusatzbestimmung der LO 5/2015 hieß es ausdrücklich, dass der Länder geführte „Datenbank für beeidigte, öffentlich be- „die in dieser Rechtsnorm enthaltenen Maßnahmen sich weder stellte bzw. allgemein ermächtigte Dolmetscherinnen und auf zusätzliche Mittel für Personal, höhere Gehälter noch auf Dolmetscher sowie Übersetzerinnen und Übersetzer“ ist seit sonstige Personalkosten stützen können“. Jahresbeginn 2010 online.27 Unklarheiten bestehen in allen drei Ländern in Bezug auf die In Polen ist die Situation widersprüchlich. Das Land verfügte, Anfechtung fehlender bzw. mangelhafter Dolmetsch- und wie oben erwähnt, bereits sechs Jahre vor der Verabschiedung Übersetzungsleistungen (gefordert in Art. 2 Abs. 5, Art. 3 der Richtlinie über ein modernes Dolmetscher-/Übersetzer- Abs. 5 RL 2010/64/EU).34 Obwohl das Recht auf Anfech- gesetz28 und erfüllte von vorneherein viele Forderungen der tung theoretisch in den entsprechenden Gesetzestexten an- Richtlinie, unter anderem jene nach ausreichender Qualität gelegt ist,35 stellt sich die Frage, wie die Bereitstellung bzw.

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Qualität von Dolmetsch- und Übersetzungsleistungen wirk- V. Erste Tendenzen in der Auslegung der novellierten lich überprüft und ggf. angefochten werden soll. Dolmet- Gesetzestexte scher sind in mehrsprachigen Gerichtsverfahren schließlich meist die einzigen im Gerichtssaal, die den Beschuldigten In den ersten Jahren, die seit der Umsetzung der Richtlinie in verstehen, und Äußerungen in der Fremdsprache werden Deutschland, Polen und Spanien vergangen sind, scheint sich nicht mit ins Protokoll aufgenommen. Richter, Staatsanwälte bei Übersetzungen, vor allem Urteilsübersetzungen, eine res- oder Justizbedienstete können sich oft nur indirekt ein Bild triktive Auslegung der veränderten Gesetzestexte etabliert zu von ihrer Leistung machen, denn sie verfügen über wenig haben. In allen drei Ländern lässt sich die Praxis beobachten, Hintergrundwissen zum Dolmetschen oder BestPracticeBei- dass Beschuldigte, die während der Verhandlung durch einen spiele zur Überprüfung von Sprachkenntnissen bzw. Sprach- Verteidiger und einen Dolmetscher unterstützt werden, keine verständnis. Manche plädieren dafür, zur Qualitätssicherung Übersetzungen bekommen – teils sogar, wenn Übersetzungen immer zwei Dolmetscher einzusetzen, die sich gegenseitig ausdrücklich beantragt wurden. Auch die bisherige Recht- kontrollieren und ggf. korrigieren können.36 Andere fordern, sprechung des EuGH zur Auslegung der Richtlinie fördert audiovisuelle Aufnahmen zum Standard zu machen.37 kein Umdenken.41 Bisher wurden zwei Fälle vor dem EuGH verhandelt und sie endeten mit der Schlussfolgerung, dass Unerfüllt blieben überall die in der Richtlinie enthaltene For- Gerichte in der EU grundsätzlich selbst entscheiden dürfen, derungen nach ausreichender Qualität von Dolmetsch- und welche Dokumente wesentlich sind – abgesehen von den ex- Übersetzungsleistungen und nach Weiterbildungen für an plizit in Art. 3 der Richtlinie erwähnten Dokumenten (Anord- Strafverfahren beteiligte Richter, Staatsanwälte und Justiz- nungen freiheitsentziehender Maßnahmen, Anklageschriften, bedienstete mit Augenmerk auf das Dolmetschen (Art. 6 Urteile).42 Diese Linie wurde kritisch gesehen.43 Doch auch RL 2010/64/EU). Weder in Deutschland noch in Polen noch in der Eindruck, dass die Umsetzung der Richtlinie im Kontext Spanien gibt es momentan ein Vorranggebot für qualifizierte der Wirtschaftslage nach der globalen Finanzkrise „knausri- Dolmetscher, wodurch Ad-hoc-Beeidungen leider eher an der ger“ verlief, als es zu einem anderen Zeitpunkt der Fall gewe- Tagesordnung als Ausnahme sind. So kann nicht sichergestellt sen sein könnte,44 manifestiert sich in Bezug auf Deutschland, werden, dass nur qualifizierte Dolmetscher vor Gerichten und Polen und Spanien, wenn man die Rechtsprechung der letzten in Behörden tätig sind, und es gilt weiterhin, was schon vor Jahre analysiert. über sechzig Jahren kritisiert wurde: In Wirklichkeit ist es [...] so, dass die Öffentlichkeit in gar keiner In Deutschland schränkten Gerichte den Anspruch auf Urteils- Weise eine Gewähr dafür hat, dass jeder, der seine beruflichen übersetzung in ihrer Auslegung von § 187 GVG immer deut- Dienste und Leistungen als Dolmetscher und Übersetzer anbietet, licher ein.45 Die BGH-Urteile vom 22. Januar 2018 und vom die erforderliche Eignung besitzt. Vielfältige Erfahrungen der letz- 46 ten Jahre haben umgekehrt gezeigt, dass zahlreiche Personen sich 13. September 2018 haben gezeigt, dass es zum Regelfall als Dolmetscher und Übersetzer bezeichnen, die nicht einmal die geworden ist, Urteilsübersetzungen durch Verdolmetschungen Mindestvoraussetzungen für die Ausübung dieses Berufes erfüllen. oder mündliche Zusammenfassungen zu ersetzen, obwohl Ur- [...] Die Hauptursache dieses Übelstandes ist die bisher völlig freie teile an sich zu den Dokumenten gehören, die Art. 3 der Richt- und ungehinderte Verwendung der Berufsbezeichnungen [...].38 linie als wesentlich einstufte. Manche befürchten sogar eine Darüber hinaus bestehen in den Ländern weitere Defizite. In Unterschreitung der Standards der EMRK.47 Polen wurde der Verzicht auf Dolmetsch- und Übersetzungs- leistungen durch Beschuldigte nicht gesetzlich geregelt. In Polen beschäftigten sich Gerichte nach 2013 auffallend oft Spanien wiederum ist der Forderung nach der Einrichtung mit der Frage, wieviel Polnischkenntnisse nötig sind, um ein einer offiziellen Datenbank für Dolmetscher und Übersetzer Strafverfahren ohne Dolmetsch- bzw. Übersetzungsleistungen bis heute nicht nachgekommen.39 APTIJ, der spanische Ver- zu bestreiten, und ab welchem Sprachniveau der Anspruch band der Gerichtsübersetzer und -dolmetscher und beeidig- darauf nicht mehr gilt.48 Auffällig ist die große Anzahl an Be- ten Übersetzer und Dolmetscher (Asociación Profesional de rufungsverfahren.49 Ein Grund dafür könnte die mangelnde Traductores e Intérpretes Judiciales e Jurados) weist dar- gesetzliche Regelung des Verzichts auf Übersetzungs-/Dol- auf hin, dass Länder ohne offizielles Register grundsätzlich metschleistungen sein: Oft und vor allem bei Muttersprach- auf Agenturen angewiesen sind, „die weder die geeignete lern slawischer Sprachen wird indirekt auf einen Verzicht Ausbildung der beauftragten Übersetzer und Dolmetscher geschlossen, der zu einem späteren Zeitpunkt nicht mehr an- gewährleisten, noch in vielen Fällen die Vertraulichkeit der fechtbar ist.50 Ob sich diese Tendenz in den nächsten Jahren Gerichtsakten wahren und obendrein den Übersetzern und fortführt, bleibt abzuwarten. Dolmetschern ein unangemessenes Gehalt zahlen“.40 APTIJ fordert deshalb, die Auftragsvergabe an Agenturen grund- In Spanien wurde der Anspruch auf die Übersetzung wesent- sätzlich zu verbieten. licher Dokumente durch ein jüngeres Urteil des Obersten Ge-

318 | eucrim 4 / 2020 Die Richtlinie 2010/64/EU zum Dolmetschen und Übersetzen in Strafverfahren richtshofs (Tribunal Supremo) geschwächt.51 Zudem stellte der Publikationen zum Thema beweisen, ist von einer wirklichen Gerichtshof in einer Grundsatzentscheidung klar, dass Fehler Verzahnung der Interessen und gebündelten Anstrengungen in Verdolmetschungen akzeptiert werden, bis die Verteidigung noch wenig zu spüren. beweisen kann, dass dies dem Angeklagten Nachteile verur- sacht hat – was sich in der Realität schwierig gestalten dürf- Damit hochqualitative Dolmetschleistungen in Zukunft Nor- te.52 Auch vor den spanischen Provinzgerichten (Audiencias malität in Gerichtssälen werden, braucht es einen intensiven, Provinciales) zeichnet sich seit 2015 immer mehr die Praxis interdisziplinären Dialog, effiziente Weiterbildungen für alle ab, dass Übersetzungen gesondert beantragt werden müssen, Beteiligten und Mechanismen zur Qualitätskontrolle. In die- auch, wenn es sich um wesentliche Dokumente handelt.53 sem Kontext muss auch ein EU-weiter Berufskodex für Dol- Zudem werden Übersetzungen teils durch kreative Lösungen metscher im Justizbereich und die regelmäßige Überprüfung ersetzt, zum Beispiel Video-Aufnahmen von Stegreifüberset- der Kompetenzen der in offiziellen Datenbanken geführten zungen.54 Dies wird als ein Anzeichen dafür gesehen, dass das Dolmetscher und Übersetzer diskutiert werden. Letzteres ist Recht auf Übersetzung wesentlicher Dokumente in Zukunft derzeit in Österreich, den Niederlanden und in Griechenland weiter eingeschränkt werden wird.55 der Fall.57 In puncto Kosten bieten das vieldiskutierte (und auf lange Sicht unvermeidliche) Remote-Dolmetschen – die Hin- zuziehung von Dolmetschern per Audio- und/oder Videoüber- VI. Ausblick tragung58 – großes Potenzial, um kurzfristig und unabhängig vom Verfahrensort für qualifizierte Gerichtsdolmetschleistun- Das in der Richtlinie 2010/64/EU formulierte Ziel, EU- gen zu sorgen. Dies setzt zwar die entsprechende Technik und Mindeststandards für Dolmetsch-/Übersetzungsleistungen in kurzfristig zusätzliche Ausgaben voraus, könnte aber unter Strafverfahren zu etablieren, wurde zumindest in Teilen ver- Einhaltung bestimmter Standards59 nicht nur die Qualität si- fehlt, vor allem in Bezug auf das Herzstück der Richtlinie: chern und für angemessene Arbeitsbedingungen sorgen, son- Qualität. In allen drei hier untersuchten Ländern (Deutsch- dern auch Kosten einsparen.60 land, Polen, Spanien) zogen Dolmetscher, Übersetzer und Ju- risten nach den Implementierungen der Richtlinie 2013 bzw. Vor allem ist jedoch wichtig, dass Informationen zum Thema 2015 das Fazit, dass sich nach der Umsetzung nur wenig ver- in die Branche und in die Öffentlichkeit getragen werden. An- ändert habe.56 Obwohl die juristische Auseinandersetzung mit gesichts einer Situation, die noch lange nicht zufriedenstellend dem Thema Dolmetschen und Übersetzen in Strafverfahren ist, bleibt zu hoffen, dass sowohl Juristen als auch -Dolmet seit 2010 durchaus an Fahrt aufgenommen hat, was die euro- scher und Übersetzer sie aufmerksam verfolgen und besten- päische und nationalstaatliche Rechtsprechung und die vielen falls in Zukunft gemeinsam mitgestalten werden.

1 R. Müller, „Übersetzung als fester Bestandteil der EU-Rechtssetzung“, in: R. Hoffmann, D. Mallon und N. Keßler (Hrsg.), Sprache und Recht, 2017, S. 92. 2 Richtlinie 2010/64/EU über das Recht auf Dolmetschleistungen und Magdalena Kotzurek, M.A. Übersetzungen in Strafverfahren, ABl. L 280, 20.10.2010, 1. Übersetzerin und Dolmetscherin 3 Dänemark beteiligte sich nicht an der Annahme der Richtlinie, weshalb das Land weder durch sie gebunden noch zu ihrer Annahme verpflichtet ist. 4 T. Spronken und M. Attinger, Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union, 2005, S. 11. 5 T. Wahl, „Fair trial and defence rights“, in: R. Sicurella, V. Mitsilegas, R. Parizot und A. Lucifora (eds.), General principles for a common criminal law framework in the EU. A guide for legal practitioners, 2017, S. 106. 6 Agency for Fundamental Rights, Rights of suspected and accused per- tigung“ bzw. „öffentliche Bestellung“ oder „Vereidigung“. Das Gerichts­ sons across the EU: translation, interpretation and information, 2016, S. 46. dolmetschergesetz wird hier eine Vereinheitlichung herbeiführen. 7 Vgl. O. Kade, Zufall und Gesetzmäßigkeiten in der Übersetzung, 1968. 12 S. Olschner, „Das Recht auf Verstehen“, (2018) Legal Tribune Online 8 BGBl 2019 I, Nr. 46, S. 2124. (LTO) abgerufen am 7.10.2020. 2010/64/EU“, in: M. Czyżewska und A. Matulewska (Hrsg.), Przyszłość za- 13 M. Blasco Mayor, “Quality of Interpreting in criminal proceedings wodu tłumacza przysięgłego i specjalistycznego – współczesne wyzwania, in Spain under European Directive 2010/64/EU”, (2013) Cuadernos de 2016, S. 171. ALDEEU, 165, 170. 10 Ministerio de Asuntos Exteriores, Libro Blanco de la traducción y la 14 D. Placer, “Los juzgados me contrataron como traductor de árabe interpretación institucional, 2011, S. 62. aunque no sé ni una palabra”, Economía Digital

eucrim 4 / 2020 | 319 The Reception of European Legislation and Case Law in the Member States

traductor-de-arabe-aunque-no-se-ni-una-palabra_183818_102.html> recht: Die strafrechtliche Verantwortlichkeit der Dolmetscher und Über- abgerufen am 7.10.2020. setzer, 2007, S. 21. 15 C. Schlüter-Ellner, „Der Countdown läuft“, (2013) 2 MDÜ, 50, 53. 39 Seit 2009 existiert ein vom spanischen Ministerium für Auswärtige 16 Deutscher Anwaltverein, „Stellungnahme des Deutschen Anwaltver- Angelegenheiten und Kooperation (Ministerio de Asuntos Exteriores y eins durch den Ausschuss Strafrecht zum Gesetzentwurf zur Stärkung der de Cooperación) verwaltetes Pdf, das öffentlich zugänglich und nach Verfahrensrechte von Beschuldigten im Strafverfahren (BR-Drs. 816/12)“, Sprachen sortiert ist. Allerdings wird in ihm nicht zwischen Dolmetschern Stellungnahme Nr.: 11/2013, S. 3. und Übersetzern unterschieden und das über 1500 Seiten lange Dokument 17 Art. 9 Abs. 1 Richtlinie 2010/64/EU. hat keine Filterfunktion: Ministerio de Asuntos Exteriores y de Cooper- 18 Art. 10 Richtlinie 2010/64/EU. ación, Lista actualizada de traductores/asintérpretes jurados/as nomb- 19 Europäische Kommission, „Bericht der Kommission an das Europäi- rados por el Ministerio de Asuntos Exteriores y de Cooperación, abgerufen am 7.10.2020. das Recht auf Dolmetschleistungen und Übersetzungen in Strafverfahren“, 40 Asociación Profesional de Traductores e Intérpretes Judiciales y Jura- COM(2018) 857 final. dos, „Die häufigsten Probleme im Alltag eines Gerichtsübersetzers und 20 E. LloydCape, Inside Police Custody 2. An empirical study of suspects’ -dolmetschers“ abgerufen rights at the investigative stage of the criminal process in nine EU coun- am 7.10.2020. tries, December 2018, S. 11 (abrufbar unter: https://www.fairtrials.org/ 41 B. Vidal Fernández, “Interpretación y aplicación del derecho a la tra- sites/default/files/publication_pdf/Inside-Police-Custody-2-JUSTICIA- ducción de documentos esenciales por los tribunales penales en España”, Comparative-Report.pdf). (2019) 1 Revista de Estudios Europeos, 79, 86. 21 Vgl. A. Wiltos, „Prawo do korzystania z bezpłatnej pomocy tłumacza 42 EuGH, 15. Oktober 2015, Rs. C216/14, Gavril Covaci; EuGH, 12. Oktober w postępowaniu karnym. Wybrane zagadnienia“, (2013) 92 Przegląd Prawa 2017, Rs. C278/16, Frank Sleutjes. i Administracji, 129, 142; E. Lloyd-Cape, op. cit. (n. 20), S. 20; M. Jachimo- 43 Vgl. T. Wahl und A. Oppers, op. cit. (n. 26), S. 22. wicz, „Tłumacz w regulacjach procesowych i jego karnomaterialna och- 44 C. Arangüena Fanego, „La elaboración de un estatus procesal del rona“, (2019) 34 Kwartalnik Krajowej Szkoły Sądownictwa i Prokuratury, 27, investigado/ acusado en la Unión Europea. Balance del plan de trabajo 43. del Consejo ocho años después”, in: C. Arangüena Fanego, M. De Hoyo 22 A. Wiltos, (2013) 92 Przegląd Prawa i Administracji, op. cit. (n. 21), Sancho und B. Vidal Fernández (Hrsg.): Garantías Procesales de Inves- 129, 142. tigados y Acusados: Situación Actual en el Ámbito de la Unión Europea, 23 Ü. Yalçιn, „Das Stigma des Finanzierungsvorbehalts – Stärkung der 2018, S. 21, 26. Beschuldigtenrechte im Strafverfahren“, (2013) 4 Zeitschrift für Rechts­ 45 OLG Braunschweig, 11. Mai 2016, 1 Ws 82/16; OLG Hamm, 26. Jan- politik, 104, 106. uar 2016, 1 Ws 8/16; OLG Hamm, 11. März 2014, 2 Ws 40/14; OLG Stutt- 24 Ü. Yalçιn, (2013) 4 Zeitschrift für Rechtspolitik, op. cit. (n. 23), 104, 106. gart, 9. Januar 2014, 6–2 StE 2/12; OLG Hamburg, 6. Dezember 2013, 25 Deutscher Anwaltverein Stellungnahme Nr.: 11/2013, op. cit. (n. 16), 2Ws 253/13-1 OBL 88/13. S. 10. 46 BGH, 22. Januar 2018, 4StR 506/17; BGH, 13. September 2018, 1 StR 26 T. Wahl und A. Oppers, “Country reports on Germany”, in: R. Panizza 320/17. (Hrsg.), Criminal procedural laws across the European Union – A compara- 47 J. Bockemühl, „Übersetzungspflicht von Unterlagen nach § 187 Abs. 2 tive analysis of selected main differences and the impact they have over GVG – Anmerkung zu OLG Stuttgart – 6-2 StE 2/12 – vom 9.1.2014; OLG the development of EU legislation. Annex I – Country reports, 2018, S. 4, 20. Hamburg – 2 Ws 253/13 – vom 6.12.2013 und OLG Hamm – 2 Ws 40/14 – vom 27 Hessisches Ministerium der Justiz, Dolmetscher- und Übersetzer- 11.3.2014“, (2014) 9 Strafverteidiger, 537–539. datenbank, abgerufen am 7.10.2020. 48 Oberster Gerichtshof (Sąd Najwyższy), 7 Juni 2017, III KK 101/17; 28 Die polnische Sprache verwendet das Wort tłumacz sowohl für Berufungsgericht Warschau (Sąd Apelacyjny w Warszawie), 7. März 2016, Dolmetscher als auch für Übersetzer. Tłumacz ist die männliche, tłumaczka II AKa 3/16; Berufungsgericht Rzeszów (Sąd Apelacyjny w Rzeszowie), die weibliche Form. Zur Unterscheidung dient nur der Zusatz ustny/ustna 16. Juni 2014, II AKa 111/13; Berufungsgericht Zamość (Sąd Apelacyjny w (mündlich) und pisemny/pisemna (schriftlich). Dies wird im Folgenden Zamościu), 30. September 2013, II Ka 625/13. Fast alle Gerichte orienti- durch die Bezeichnungen „Dolmetscher/Übersetzer“ bzw. Verdolmet- erten sich an einer Grundsatzentscheidung des Obersten Gerichtshofs schungen/Übersetzungen markiert. (Sąd Najwyższy) vom 22. April 1970 (KR 45/70), in der es heißt: „Das Nicht­ 29 K. Nartowska, „Ustawa o zawodzie tłumacza przysięgłego a beherrschen einer Sprache [...] ist selbstverständlich nicht damit gleich- tłumaczenie sądowe w Polsce”, (2018) 13 Rocznik Przekładoznawczy, 171. zusetzen, dass die vernommene Person sie überhaupt nicht versteht, 30 Ministerstwo Sprawiedliwości, „Lista tłumaczy przysięgłych”. sondern gilt in Situationen, in denen sie die ihr gestellten Fragen nicht in abgerufen am 7.10.2020. nisse [...] ihre Gedanken zum Gegenstand der Befragung nicht ausdrücken 31 Legal Experts Advisory Panel, The Quality of Interpretation in Criminal kann.“ (Übersetzung von der Autorin). Proceedings. Leap Survey Report, 2016, S. 19. 49 Oberster Gerichtshof (Sąd Najwyższy), 7. Juni 2017, III KK 101/17); 32 Jachimowicz, (2019) 34 Kwartalnik Krajowej Szkoły Sądownictwa i Berufungsgericht Warschau (Sąd Apelacyjny w Warszawie), 7. März 2016, Prokuratury, op. cit. (n. 21), 27, 43. II AKa 3/16; Berufungsgericht Rzeszów (Sąd Apelacyjny w Rzeszowie), 33 Berufungsgericht Katowice (Sąd Apelacyjny w Katowicach), 13. Sep- 16. Juni 2014, II AKa 111/13; Berufungsgericht Zamość (Sąd Apelacyjny w tember 2011, II AKa 210/11, KZS 2012, nr 1, poz. 65. Zamościu), 30. September 2013, II Ka 625/13. 34 E. LloydCape, op. cit. (n. 20), S. 26 50 Legal Experts Advisory Panel, op. cit. (n. 31), S. 19. 35 Deutschland: § 185 Abs. 1 GVG; Polen: Art. 196 Abs. 3 Kpk; Spanien: 51 Oberster Gerichtshof (Tribunal Supremo), 29. Juni 2017, 489/2017. Art. 123 Abs. 6 und Art. 124 Abs. 3 LeCrim. 52 Oberster Gerichtshof (Tribunal Supremo), 26. Januar 2016, 516/2015. 36 C. Kranjčić, „... dass er treu und gewissenhaft übertragen werde“, 53 Provinzgericht Balearische Inseln (Audiencia Provincial Illes Balears), 2010, S. 217–220. 18. Januar 2018, 28/2018; Provinzgericht Barcelona (Audiencia Provincial 37 Vgl. B. Vidal Fernández, „Derecho a una interpretación y traducción Barcelona), 7. Juni 2017, 471/2017; Provinzgericht Madrid (Audiencia fidedigna y de calidad. Artículos 8 y 9 de la Propuesta de Decisión Marco Provincial Madrid), 13. Dezember 2016, 750/2016. sobre las garantías procesales de los inculpados en procesos penales en 54 Provinzgericht Barcelona (Audiencia Provincial Barcelona), la Unión Europea”, in: A. Arangüena Fanego (Hrsg.), Garantías procesales 24. März 2017, 28/2017. en los procesos penales en la Unión Europea, 2007, 214–231; M. J. Blasco 55 B. Vidal Fernández (2019) 1 Revista de Estudios Europeos, op. cit. Mayor und M. Del Pozo Triviño, “La interpretación judicial en España en (n. 41), 79, 94. un momento de cambio”, (2015) 7 MonTI. Monografías de Traducción e 56 Deutschland: vgl. T. Wahl, A. Oppers, op. cit. (n. 26); Spanien: vgl. Interpretación, 9–40. C. Valero Garcés, B. Schnell, N. Rodríguez und F. Cuñado, “Estudio prelimi- 38 MDÜ, (1958) 4 MDÜ, 2. Zitiert nach: M. Cebulla, Sprachmittlerstraf­ nar sobre el ejercicio de la interpretación y traducción judicial en España”,

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(2015) 26 Sendebar, 137–166; Polen: K. Nartowska, (2018) 13 Rocznik 59 Internationaler Verband der Konferenzdolmetscher, „Leitlinien der Przekładoznawczy, op. cit. (n. 29). AIIC für das Ferndolmetschen (Distance Interpreting). (Version 1.0)“ 57 K. Nartowska, (2018) 13 Rocznik Przekładoznawczy, op. cit. (n. 29), 171, abgerufen am 7.10.2020. 58 Verband der Konferenzdolmetscher im Bundesverband der Dol­ 60 Vgl. A. Rojo Chacón, „La transposición al derecho nacional de la Direc­ metscher und Übersetzer, „Remote Interpreting – Leitlinie für Auftrag­ tiva Europea 2010/64/UE en España, Francia, Bélgica y Luxemburgo: ‚Lost geber“ in transposition‘“, (2015) 2 FITISPos international Journal: Public Service abgerufen am 7.10.2020. Interpreting and Translation, 94–109.

Refusal of European Arrest Warrants

Due to Fair Trial Infringements Review of the CJEU’s Judgment in “LM” by National Courts in Europe

Thomas Wahl

One of the most controversially discussed and unresolved issues in extradition law, namely whether extradition can be denied because elements of a fair trial will not be ensured in the requesting (issuing) State, gained new momentum after the CJEU’s judgment in “LM” of 25 July 2018 (C-216/18 PPU). This judgment relates to the framework of the European Arrest Warrant – the surrender system established in the EU in 2002. After briefly classifying the problem doctrinally and discussing the approach taken by the ECtHR, the article explains the CJEU’s line of arguments in LM. The analysis focuses, in particular, on the neces- sary test phases that the executing judicial authority must carry out in order to find out possible fundamental rights breaches in the issuing EU Member State. The article then analyses the reviews of this judgment by national courts. The follow-up decision of the referring Irish court is compared with court decisions addressing, in detail, this specific problem of fair trial infringe- ments in the United Kingdom, Germany, and the Netherlands. In doing so, the practical challenges that are encountered by the national courts in applying the CJEU’s required test are also identified.

I. Background: The Human Rights Exception of fundamental rights protection for the sake of achieving ef- in European Extradition Law fectiveness in the cross-border fight against crime and foster- ing the mutual trust inherent to international cooperation in One of the most controversially discussed but unresolved is- criminal matters. Therefore, courts have developed a formula sues in extradition law is the question of whether – and, if so, that strives to strike a balance between the interests of inter- to what extent – an extradition request can be denied by the national justice and the individual’s interest in having his/her authorities of the requested State if certain fundamental rights fundamental rights protected in the extradition scheme. This is standards are not upheld in the requesting State. In legal doc- especially true when the defence argues that certain procedural trine, this issue is dealt with under the catchphrases “human safeguards will not be maintained in the requesting State fol- rights exception/clause” or “public policy/order reservation” lowing surrender, as a consequence of which the right to a fair or “ordre public.”1 Although scholars often advocate the full trial would be breached. These safeguards include the right to application of fundamental rights protection in transnational be tried before an independent and impartial judge, the right to situations,2 it can be discerned from the case law of national be heard, the right to be present at trial, the right not to incrimi- and European courts that the protection of fundamental rights nate oneself, the right to an effective legal remedy, the right to (as ensured by the system in domestic cases) should not and have access to a lawyer of one’s own choice, etc. cannot be transferred to transnational cases. This holds true for extradition cases, in particular, as the most prominent form In view of these counterarguments, the European Court of of international cooperation in criminal matters.3 Courts admit Human Rights (ECtHR) established the “flagrant denial of that it is necessary to lower one’s sights concerning the level justice” concept in its landmark judgment in Soering in 1989

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and further clarified it in Othman in 2012. Accordingly, a re- „„In general, presumption that all EU Member States comply quested CoE Member State must refrain from extraditing if with the fundamental rights recognised by EU law. “the circumstances lead the fugitive to suffer or risk suffering „„As a rule, no fundamental rights check in a specific case by a flagrant denial of a fair trial in the requesting country.”4 This other Member States; requires “a breach of the principles of fair trial guaranteed by „„Refusal only on the grounds for non-execution expressly Article 6 ECHR which is so fundamental as to amount to a and exhaustively listed in Arts. 3, 4, 4a, and 5 of the FD nullification, or destruction of the very essence, of the right EAW. guaranteed by that Article.”5 The judges in Luxembourg accept, however, that limitations The CJEU only had occasion to establish its concept in re- to these principles may be placed in “exceptional circum- lation to potential breaches of the Charter of Fundamental stances,” i.e., on the grounds of non-respect for fundamental Rights of the European Union (CFR) in 2018. The case is rights on the basis of the general fundamental rights clause in officially referred to as LM but has also been dubbed the Art. 1(3) FD EAW.12 The CJEU admits first that not only the “Celmer case,” referring to the person in surrender proceed- fundamental rights embodied in Art. 4 CFR but also those laid ings in Ireland. Surrender of the person had been requested down in Art. 47(2) CFR are suitable for enabling the executing by Poland on the basis of a European Arrest Warrant for the authority to refrain from executing an EAW. The main reasons purpose of conducting criminal prosecutions, inter alia, for are as follows: trafficking in narcotics and psychotropic substances. In con- „„A simplified surrender system involving only judicial au- trast to ECtHR case law at the time, which predominantly thorities can only work if the independence of the authori- dealt with extraditions involving a CoE Member State and a ties in the issuing State is guaranteed; third country (e.g., the USA), the CJEU was concerned with „„The high level of mutual trust between Member States is the question of fair trial infringements within the Union’s founded only on the premise that the criminal courts of the “new” surrender scheme, which is based on Framework De- other Members States meet the requirements of effective cision 2002/584/JHA on the European arrest warrant and the judicial protection, particularly including the independence surrender procedures between Member States6 (hereafter FD and impartiality of these courts. EAW). The alarming structural reforms of the Polish judi- cial system that impinge on the independence and legitima- Second, the CJEU largely extends the application of the cy of constitutional review as well as on the independence “Aranyosi & Căldăraru test” to the right to a fair trial, i.e., a of the ordinary judiciary,7 prompted the Irish High Court to two-step assessment is necessary:13 seek guidance as to which requirements Union law poses „„First step: Based on objective, reliable, specific, and prop- for the test to deny surrender on the grounds of possible erly updated material concerning the operation of the sys- fair trial infringements in the requesting (= issuing) State.8 tem of justice in the issuing Member State, the executing The response of the CJEU’s Grand Chamber9 (detailed in authority must assess whether there is a real risk of the the following section) was mainly driven by its previous fundamental right to a fair trial being breached that is con- groundbreaking judgment in Aranyosi and Căldăraru.10 In nected to a lack of independence of the courts in the issuing this judgment, for the first time, the judges in Luxembourg Member State, on account of systemic or generalised defi- accepted possible fundamental rights refusals of EAWs due ciencies there.14 In other words, the executing court must be to infringements of the absolutely protected prohibition of convinced that an danger to the fundamental rights of the torture and inhuman or degrading treatment or punishment, individual exists in abstracto (as standardised in Art. 47(2) as enshrined in Art. 4 CFR (due to insufficient detention CFR). conditions in certain EU Member States). „„Second step: The executing authority must specifically and precisely assess whether, in the particular case, there are substantial grounds for believing that the requested suspect II. The Approach of the CJEU in LM will run the real risk of being subject to a breach of the es­ sence of his fundamental right to a fair trial, as laid down in 1. Main parameters of the decision Art. 47 CFR.15 In other words, the executing authority must examine whether there is a probability that the danger will In its judgment of 25 July 2018, the CJEU first reiterates the be realised in concreto. cornerstones of its previous case law on the meaning of funda- mental rights in the context of judicial cooperation in criminal In contrast to Aranyosi & Căldăraru, where the CJEU only matters in the EU, based on the principles of mutual trust and required the national judge to ascertain the presence of an in- mutual recognition:11 dividualised risk, the test in LM requires the national judge

322 | eucrim 4 / 2020 Refusal of European Arrest Warrants Due to Fair Trial Infringements to consider all the individual circumstances of the case and The latter concept is certainly shared by the ECtHR. How- obliges the judge to carry out two sub-steps:16 ever, the reasoning followed by the CJEU for a concrete test is „„Asking first whether the risk established in the first step different, due to peculiarities in Union law. First, in the view applies at the level of the court with jurisdiction over the of the judges in Luxembourg, exceptions to the principles of criminal proceedings to which the requested person (extra- mutual recognition and trust (even those not clearly stipulated ditee) will be subject; in the underlying legal act, such as the human rights exception „„Asking secondly whether the risk exists in the case of the in the FD EAW) must be construed narrowly. requested person himself/herself, having regard to his/her personal situation, as well as to the nature of the crime for Second, the founders of the FD EAW already anticipated a which he/she is being prosecuted. possible conflict between general rule-of-law deficiencies in an EU country and application of the EAW. In Recital 10 of As set out in Aranyosi & Căldăraru, the CJEU further estab- the FD EAW, they took account of the sanctioning mechanism lishes the necessity of a dialogue between the executing State in Article 7 TEU (introduced 5 years before by the (1997) Am- and the issuing State: Pursuant to Art. 15(2) FD EAW, the ex- sterdam Treaty) if an EU country is at risk of breaching the ecuting judicial authority must request from the issuing judi- bloc’s core values. According to the founders of the EAW, only cial authority any supplementary information that it considers the second step of this Article 7 procedure should have effects necessary for assessing whether there is such a risk. The issu- on the EAW, i.e., the implementation of the EAW can general- ing authority should particularly have the task to provide any ly be suspended if the European Council determined a serious objective material on any changes concerning the conditions and persistent breach of the Member State concerned of the for protecting the guarantee of judicial independence in the principles set out in Art. 2 TEU (with the consequences set out issuing State, material which may rule out the existence of that in Art. 7(2) TEU). By insisting on a concrete assessment, the risk for the individual concerned.17 CJEU wishes to avoid blurring the boundaries between a gen- eral suspension of the EAW scheme vis-à-vis a particular EU Member State (following the Article 7 procedure as set out in 2. Interim conclusion Recital 10) and fundamental rights protection (as grounded in Art. 1(3) FD EAW). With regard to the different competencies For the first time, the CJEU explicitly admits that rights which of the CJEU and the Council in the envisaged Article 7 proce- are not also absolute in nature are capable of limiting the op- dure, it is already not deemed compatible to create a blanket erativeness of mutual recognition. From this point of view, the approach to surrender refusals.21 The CJEU concedes that a CJEU’s judgment in LM can indeed be considered a “genu- Commission proposal addressed to the Council to determine inely ground-breaking decision, a new milestone leading to a a “clear risk of serious breach” of EU values by the accused turning point in the jurisprudence of the CJEU in the matter country as set out in Art. 7(1) TEU could indicate the fulfil- [of having the technical possibility to refuse an EAW on the ment of the “systemic and generalised deficiencies.”22 grounds of a hazard for procedural rights].”18 On closer inspec- tion, the judgment reveals some parallels to the approach of the Everything considered, one can formulate an “as-long-as res- ECtHR briefly described above: It resembles the­ECtHR’s rul- ervation:” As long as the European Council does not decide ings in that fundamental rights can only limit surrender in ex- that there has been a “serious and persistent” breach of the rule ceptional circumstances.19 Both the ECtHR and the CJEU rule of law as the second step of the Article 7 procedure, execution out the refusal of extradition in case of mere irregularities or of an EAW can only be refused in exceptional circumstances, lack of safeguards in the trial procedures such as might result namely if the executing authority acknowledges a real risk of in a breach of Art. 6 ECHR / Art. 47 CFR if occurring within violation of the essence of the right to a fair trial on account the State itself.20 In addition, both courts established that gen- of a specific and precise examination of the individual case. eral irregularities in the judicial system of the requesting State do not suffice for a refusal. Instead they established the “real risk doctrine:” A specific and precise individual assessment as III. Follow-Up to the LM Judgment by National Courts to the existence of a real risk is necessary. In LM, the CJEU clarified that there must be a substantial link between the gen- The CJEU’s judgment in LM seems to have been received eral deficiencies of (judicial) independence/disregard for fair differently in the jurisdictions of the EU Member States. In trial standards and the denial of fair trial rights in the concrete some jurisdictions the case has seemingly not experienced criminal proceedings. Therefore, a case-orientated analysis by much – or even any – attention in court cases,23 whereas, in the national judge deciding on the execution of an EAW is other jurisdictions, arguments like those in LM were often indispensable. put forward, and courts delivered several follow-up deci-

eucrim 4 / 2020 | 323 The Reception of European Legislation and Case Law in the Member States sions. In most of the latter jurisdictions, test cases were se- 1. Commonalities lected, which served as orientation for subsequent decisions a) Standard of fundamental rights examination on EAW cases in the respective country. The following gives an overview of the court decisions that are subsequently ana- All examined court decisions implement the two-step test es- lysed in detail: tablished in LM. Hence, there is no fragmentation in the sense „„In Ireland, the Irish High Court (which, as the referring that some executing judicial authorities apply the test but court, was the main addressee of the CJEU’s judgment) ren- others do not. For Germany, in particular, this is not a mat- dered its follow-up decision on the extradition of Celmer on ter of course, since the Federal Constitutional Court (based 19 November 2018 (hereinafter IEHC in Celmer).24 in Karlsruhe) took a different stance as the CJEU in its 2015 „„This decision referred to a large extent also the judg- “identity control decision.”35 Accordingly, German courts are ment of the High Court of Justice of England and Wales obliged to refuse the execution of an EAW if there are sufficient of 31 October 2018 in the extradition proceedings of Lis, grounds to believe that the essential fundamental rights guar- Lange and Chmielewski (hereinafter EWHC in Lis).25 The antees embodied in Art. 1 (human dignity) and Art. 20 (rule of EWHC (based in London) resumed extradition proceed- law) of the German Constitution – the principles resistant to ings in which the defence claimed the discontinuance of the any integration compromise – are not ensured in the issuing defendant’s surrender to Poland in light of the preliminary (requesting) EU Member State. This approach differs in vari- ruling put forward by the Irish court. ous aspects to the one taken by the CJEU a bit later in Aranyosi „„In Scotland, a basic decision was taken by the Sheriff Court & Căldăraru (II. above),36 which left the judges at the German of Lothian and Borders in Edinburgh in the case of Maciejec Higher Regional Courts sitting between two chairs (and hav- who was also being sought by Polish authorities by means ing to reconcile obligations put forward by the highest court of an EAW (hereinafter SC Edinburgh in Maciejec).26 of their own jurisdiction in Karlsruhe and the leading court in „„The LM judgment was raised in a number of cases be- Luxembourg when interpreting Union law).37 It also triggered fore the Rechtbank Amsterdam (the central court instance the question of whether the threshold for refusing EAWs on that decides on the execution of all incoming EAWs in the the grounds of fundamental rights violations (ordre public “à Netherlands).27 The Rechtbank Amsterdam took leading la facon allemande”) is lower than the thresholds established decisions on 16 August 201828 and 4 October 2018,29 by by the CJEU in Aranyosi & Căldăraru and LM, respectively.38 which surrenders to Poland were suspended for the time being. In July 2020, the Rechtbank Amsterdam again de- b) Results of the concrete test cided to refer two EAW cases to the CJEU, seeking clarifi- cation of the CJEU’s approach in LM in the light of recent All courts confirmed the abstract danger to the right to an inde- developments involving the deterioration of Poland’s rule pendent tribunal and thus to the right to a fair trial in Poland, of law.30 as a consequence of which the first requirement of theLM test „„As a neighbouring country to Poland, the issues of the LM was considered fulfilled. Courts base their decisions on various judgment have also frequently been dealt with by Ger- sources; the main source here is the Commission’s Reasoned man courts. Since there is no central instance in Germany Proposal for a Decision of the Council on the determination of for extradition cases, several decisions have been handed a clear risk of a serious breach by the Republic of Poland of down by various Higher Regional Courts (Oberlandesg­ the rule of law, which was issued on 20 December 2017 in the erichte).31 The following will discuss, in particular, the framework of the Article 7 TEU procedure.39 Therefore, the path taken by the Higher Regional Court of Karlsruhe decisive and most critical stage for all courts was the second (hereafter HRC of Karlsruhe). In several subsequent deci- step of the test. It entailed the necessity to carry out an assess- sions, the court intensively and thoroughly dealt with the ment of whether the systemic and generalised deficiencies in argumentation given by the CJEU in LM.32 According to the independence of the Polish judiciary have an impact on the current state of knowledge, it is the only court to date the extraditee’s individual situation. The courts executing the that confirmed a concrete individualised danger to the es- Polish EAWs agree that it is a stringent test with rather narrow sence of fair trial by Poland on the basis of the standards criteria and often highlight that refusal can only be admitted in established by the CJEU in LM. Its decisions of February exceptional circumstances.40 202033 and November 202034 therefore actually led to the refusal of surrender. Except for the HRC of Karlsruhe in the recent judgments cited above, all courts have so far negated the fulfilment of the re- The following will not re-narrate one judgment after another quirements of the second stage, i.e., they refused to assume but instead discuss commonalities and differences between the realisation of a concrete danger of fair trial infringements said decisions as a follow-up to LM at the national level. towards the requested person once he/she is surrendered to

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Poland. In Celmer, Justice Donnelly clarified that, although judgment of 19 November 2019, in which doubts were raised the Minister of Justice had replaced the presidents of each of as to the independence and impartiality of the new Discipli- the Polish courts in which the defendant would stand trial if nary Chamber at the Polish Supreme Court.42 It also took into surrendered, all other indications of fair trial rights in Poland consideration other (pending) infringement actions against the remain intact.41 Therefore, the essence of the right to a fair trial reform referred to the CJEU by the European Commission. of Mr Celmer was not at risk. The SC Edinburgh in Maciejec Against this background, an unfair trial due to a lack of judges’ strongly resorted to expert witness statements from defence independence is no longer an abstract danger, because the new lawyers practising extradition law in Poland and from NGO disciplinary regime has foreseen repercussions for the entire lawyers. The SC stated that the witnesses were all critical of judiciary, including for judges at the competent criminal court the changes in Polish law and in Poland’s judicial structure, deciding on the offense for which the EAW was issued. In its but they could not point to a proven instance of an unfair trial. decision of 27 November 2020, the HRC of Karlsruhe indi- From the case law to date, we can therefore conclude the fol- cated that − in view of the status of the judicial reform and lowing: the continuing struggle between EU institutions and the Polish „„It did not suffice that the requested persons referred to government to respect the EU’s core rule-of-law value of an changes at the ordinary courts, which were brought about independent judiciary − non-extradition to Poland is principal- by the judicial reforms, and to disciplinary power of the ly to be assumed for the moment, unless a different result can Polish Minister of Justice over the Presidents of the Courts be concluded after comprehensive investigation of the facts/ as well as the chilling effect it has had on the administration situation. of justice; „„It did not suffice that the requested persons referred to state- c) Burden of proof ments made by Polish justice officials in the media against them, thus leaving doubts as to the presumption of inno- Notwithstanding this new case law development in Germany, cence; which has seemingly not taken been up in other EU jurisdic- „„It did not suffice that evidence given by witnesses (even tions so far (see also 2. below as regards the new reference by Polish judges) was in the defendants’ favour in voicing for a preliminary ruling by the Rechtbank Amsterdam), the serious concerns over the independence of Polish judges, approach towards the burden of proof still remains a major because the statements at the same time pointed out that obstacle for the defendant: For the assessment, the courts nor- judges try to perform their obligations to the best of their mally consider the information provided by the requested per- abilities to administer justice impartially and free from son, i.e. the defendant is placed to substantiate that the fair pressure. trial infringement would concretely affect his/her case.43 It can be observed that most cases have failed, because the defence In its first follow-up decision of January 2019, the HRC of counsel of the requested person could not provide substantial Karlsruhe shared these lines of argument, stressing that the grounds for believing that fair trial standards are not being up- changes at the “supreme level” of the Polish judiciary – in- held in the client’s concrete trial case. In other words, the fail- cluding the introduction of the “exceptional appeal” that has ure at step 2, substep 2 demonstrates that the threshold of the enabled the Polish Supreme Court to adjudicate on the case, test for the requested person is nearly not achievable. even though no application was made by the parties to the pro- ceedings – have not affected the capabilities of the ordinary d) Nature of the offense courts to decide on criminal cases in an independent and im- partial manner. The deteriorations in the rule of law, however, Another important issue in the argumentation of the courts is that occurred after the so-called “muzzle law” took effect on the nature of the offence at issue. It plays a decisive role in the 14 February 2020 were the turning point for the HRC. The law applicability of the test. The EWHC properly put it by saying particularly resulted in a tightening of the disciplinary respon- that “run-of-the mill criminal allegations,” such as drug traf- sibilities of judges, also at the ordinary court level. ficking, tax evasion, and sexual abuse without a political con- notation, can hardly justify an individualised real risk of fair In its groundbreaking decision of 17 February 2020, the HRC trial infringement.44 The EWHC but also the SC Edinburgh, of Karlsruhe produced excerpts from the translation of the German HRCs, and especially the Rechtbank Amsterdam new law and stressed that the elements enabling disciplinary stress the nature of the offence and the factual context as im- proceedings against judges are far-reaching and not delimited. portant elements of the second sub-step in LM. Therefore, the The court also took into account developments against the Pol- result may be different if the requested person demonstrates a ish reform at the EU level that occurred after the CJEU’s judg- political or special government interest in his/her punishment/ ment in LM. The HRC paid particular attention to the CJEU’s prosecution or the probability of discriminatory treatment for

eucrim 4 / 2020 | 325 The Reception of European Legislation and Case Law in the Member States social or ethnic reasons. The HRC of Karlsruhe additionally b) Consequences of systemic and generalised deficiencies stressed the aspect of whether the defendant deliberately ab- in judicial independence sented himself for his/her trial or is willing to stand trial in the executing Member State, if necessary.45 In the cases Celmer and Lis, the IEHC and EWHC also had to discuss the question of whether the establishment of systemic e) Purpose of EAWs or generalised deficiencies in the independence of the Polish courts would (more or less automatically) amount to a flagrant Lastly, courts have stated that a distinction must be made be- denial of justice and whether this is sufficient to refuse an tween EAWs issued for the purpose of conducting a criminal EAW from Poland. This may sound surprising, since the CJEU prosecution and EAWs issued for the purpose of enforcing a made clear in LM that the mere conclusion of systemic and custodial sentence (see also Art. 1(1) FD EAW). The HRC of generalised deficiencies in itself does not justify the refusal of Bremen stressed that it is nearly impossible to establish a real an EAW. The defence counsels before the IEHC and EWHC risk of an unfair trial at the extradition stage of proceedings, argued, however, that independence of judicial authorities is when EAWs issued for the purpose of enforcing sentences, be- so fundamental, that a lack of independence would distort the cause it is not clear whether it will actually come to further foundation upon which the EAW mechanism functions and, court decisions. Similarly, the SC Edinburgh in Maciejec and therefore, the Polish court issuing an EAW can no longer be the EWHC in Lis argued that, in execution cases, there is ei- considered a judicial authority within the meaning of the FD ther a court decision on early release (if there is a conviction EAW. for a single charge) or a disaggregation hearing (if a cumulo sentence is imposed after multiple convictions). Both prospec- Interestingly, the Rechtbank Amsterdam argued similarly when tive procedures must be assumed to be within the guarantees it put forward its reference for a preliminary ruling in July/Sep- of Art. 6 ECHR and Arts. 47, 48 CFR, however, unless the tember 2020 (see above). However, the Amsterdam court took hearings are particularly sensitive or political in nature. up the latest developments concerning judicial reforms in Po- land (see above III.1.b). Against this backdrop, the Rechtbank Amsterdam argued that the reforms aggravating rule-of-law 2. Differences compatibility now affect all Polish courts and, consequently, the a) “Flagrancy” or “essence” test? right of all individuals in Poland to an independent tribunal is no longer ensured.47 The CJEU was asked whether this finding is Parties before the IEHC and the EWHC raised the question sufficient in itself to deny the status of “issuing judicial author- as to which threshold exactly needs to be observed, since the ity” to the court that issued the EAW and to presume that there CJEU in LM has not explicitly aligned its case law to that of are substantial grounds for believing that the requested person the ECtHR. This conclusion stems particularly from the fact will run a real risk of breach of his/her fundamental right to a that the CJEU referred in LM to a breach of the essence of fair trial − without there being any need to examine the impact the fundamental right to a fair trial. The CJEU avoided using of deficiencies in the particular circumstances of the case.48 In the phrase “flagrant denial of justice,” although AG Tanchev its reply of 17 December 2020, the CJEU completely upheld its recommended that the judge’s bench follow suit with the fla- approach taken in LM. National courts must pay regard to the grancy test, as established by the ECtHR in Soering (I. above). individual situation of the person concerned and be convinced Parties before the IEHC and the EWHC therefore wondered that the concrete danger of the deficiencies is likely to be real- whether the CJEU’s approach means a lower threshold for ised in the proceedings against that person. Denial of the status denying the execution of EAWs than the refusal ground for “issuing judicial authorities” to all courts of the Member State in extraditions in the remit of the ECHR. In the affirmative, this question, due to the assumption of systemic and generalised de- would also have altered the evidentiary standards required to ficiencies in the independence of judges (even if the seriousness establish a breach on the part of the defence. This question was of the deficiencies increased), would lead to a general exclusion not discussed by the German and Dutch courts and was even of the Member State from the mutual recognition instrument.49 skipped (SC Edinburgh). Both the IRHC and the EWHC con- The existence of or increase in the systemic and generalised cluded, however, that the “flagrancy” and “essence” tests are deficiencies can only be indicative. Furthermore, dispensing a the same. They are of the opinion that the CJEU did not amend specific and precise assessment would mean a general suspen- the test of a “flagrant denial of justice.”46 One of their lines of sion of the EAW mechanism, which would blur the lines of the argumentation is remarkable: if the Luxembourg Court were procedure provided for in Article 7(2) TEU.50 seeking to differ from the often-repeated formulation of a fla- grant denial of justice of the Strasbourg Court, it would have This standpoint was also taken by the IEHC and EWHC in said so. their preceding decisions. Objecting to the counter-arguments

326 | eucrim 4 / 2020 Refusal of European Arrest Warrants Due to Fair Trial Infringements by the defence counsel, the courts in Dublin and London ad- fore, the court did not submit any supplementary information, vocated that the flagrant denial test requires something more because they were only to underpin general deficiencies that than the mere establishment of a lack of independence, be it were already clearly evidenced by the Reasoned Opinion of systemic or generalised. The court must be convinced of ex- the Commission in the Article 7 procedure as well as other ceptional circumstances. In conclusion, it is therefore neces- supporting material from public bodies, NGOs, and expert sary to point to specific concerns about the lack of impartiality witnesses. In contrast, the IEHC considered the additional in- and independence, as this is what may affect the individual formation necessary to support its findings. requested person. d) Safety net and assurances c) Evidentiary basis At the end of its ruling of January 2019 (first follow-up deci- A large difference exists as regards the evidence adduced by sion), the HRC of Karlsruhe posed the question of whether an the courts that forms the basis of their rulings. The different additional safety net, established by means of assurances or by traditions between common law and civil law cultures are re- setting conditions, is needed if no real risk of breach of funda- sponsible for the differences when deciding extradition cases: mental rights to an independent tribunal is determined in the Whereas continental European courts heavily rely on the sup- concrete case. In Celmer, Justice Donnelly contemplated this plementary information sought officially from requesting/issu- option only in the reverse, i.e., if she had admitted in the spe- ing authorities, common law courts extensively rely on expert cific and precise assessment that there are substantial grounds witnesses. The latter invite neutral legal experts from the is- for believing that Celmer would be at real risk of breach of suing State, who are not involved parties of the case, to give his fundamental rights to an independent tribunal, the Polish a statement on the legal situation in their country and their authorities would have to give assurances that he would not. position on the controversial issues of the case. This not only The other courts that are the subject of the present analysis do includes written statements but also the presence of experts not even mention the problem or the possibility of assurances. at oral hearings before the British, Scottish, and Irish courts, Insofar, the HRC of Karlsruhe stands out: In its decision of where they are also cross-examined.51 Supplementary infor- January 2019 – which, in principal, backs the surrender of the mation from the official Polish authorities is only used to con- requested person to Poland – it stated that the issuing authority tribute to the overall court assessment, i.e., as a basis to be was unable to give the requested binding assurance (that the properly informed. The parties to the extradition proceedings, deciding judges would not be subject to disciplinary proceed- including the defendant, have the opportunity to participate ings). However, in order to rule out that a political or improper intensively in drafting the questions for submission to the is- influence governs the proceedings at issue, the surrender is to suing judicial authority. be granted under the condition that the German ambassador in Poland or his representative can take part in the trial against In contrast, the German courts and the Rechtbank Amsterdam the requested person and visit the person in jail if he is convict- considered supplementary information essential and it there- ed. This reflects the stance that the executing authorities have fore serves as the main basis for their surrender decisions.52 a certain duty of care towards the requested person (regard- The Rechtbank Amsterdam emphasised that the dialogue less of his/her nationality) and must proactively take measures launched by requesting supplementary information in accord- against possible fair trial infringements – an approach that has ance with Art. 15 para. 2 FD EAW is an important basis for ob- seemingly not been followed by any other court. In reaction to jective information about changes in the issuing State or about this stance, the HRC of Cologne bluntly rejected the inclusion conditions for the protection of the individual’s fundamental of any condition in the admissibility decision by arguing that rights. As a result, both the HRC of Karlsruhe and the Rech- there is no factual basis for assuming unfairness in the trial tbank Amsterdam submitted a long list of detailed questions to proceedings of the defendant in Poland.54 the Polish District Court, which had issued the EAW.53 Both courts placed weight on the answers from their colleagues in Poland in order to dispel doubts about whether the requested IV. Final Remarks person does or does not run a concrete risk of being subject to an unfair trial. The majority of national courts has come to the same con- clusions, i.e., that the reforms of the judiciary in Poland have The evidentiary value of the additional information from the not yet affected the fundamental rights position of the person issuing country in the second step of the LM test is, inciden- concerned in the concrete criminal trial proceedings. The tally, viewed differently. The EWHC held that it is impossible analyses in this article showed that this finding was reached to give information on the second prong of the test. There- via different routes and approaches. They also demonstrated

eucrim 4 / 2020 | 327 The Reception of European Legislation and Case Law in the Member States that the test established in LM is a very stringent – and, in the mutual recognition, on the one hand, and doubts over mutual end, too narrowly construed – test, one which has produced trust, on the other)?57 much paperwork but has hardly led to any added value for the „„Is the request for supplementary information expedient and person concerned (extraditee).55 From the perspective of de- are the answers received trustworthy? fence lawyers, the test is rather disappointing: they must invest „„Which more mitigating efforts can be taken instead of re- too much effort to provide the respective material evidencing fusal (e.g., the request for assurances or the setting of condi- potential fair trial violations against the client in the issuing tions vis-à-vis the issuing authority)? State, with little effects. Against this backdrop, the LM judg- „„What are the consequences if there is no indication of sys- ment might be considered a Pyrrhic victory only. temic and generalised deficiencies in relation to fair trial guar- antees in an EU Member State but if the guarantee is likely not Although the CJEU in LM reached the long overdue clarifica- to be maintained in a specific case (e.g., in the case of a politi- tion that human rights can and must play a role in surrender cally motivated criminal trial in Member State X)?58 proceedings, thereby acknowledging that the EAW is not a black box that must be automatically recognized,56 the door Notwithstanding, the HRC of Karlsruhe demonstrated in its for refusing EAWs on fundamental rights grounds is merely recent jurisprudence (decisions of February and November ajar. In practice, the approach triggers a number of challenges 2020) that the diverging extradition interests can also be ad- and questions for national judges, e.g.: equately reconciled within the framework of the established „„How can the judge reconcile serious concerns put forward LM test. The court showed that the CJEU’s approach includes by the individual within the tight time limits for taking surren- a certain amount of leeway for interpretation by the national der decisions foreseen in the FD EAW? authorities examining the execution of EAWs from countries „„Which type of evidence is suitable for the different steps of in which shadows lie over the rule of law. If well founded, the the test, in the end proving the specific circumstances of the second prong of the test can be affirmed, especially when con- person concerned? sidering the recent, most alarming rule-of-law developments „„Which questions can be addressed within the framework in the respective Member State. It would be a positive devel- of the required dialogue with the issuing judicial authority opment if other courts in the EU took greater account of this (bearing in mind the tension between the Damocles sword of courageous approach.

ing the Area of Freedom, Security and Justice after LM”, (2019) 15 European Constitutional Law Review, 17, 47; A. Frąckowiak-Adamska, “Drawing Red Thomas Wahl Lines With No (Significant) Bite – Why an Individual Test Is Not Appropriate Senior Researcher, Max Planck Institute in the LM Case”, Verfassungsblog (30 July 2018), accessed 21 January 2021. For the Department of Public Law, Freiburg/Germany approach of the German Federal Constitutional Court, cf. BVerfG, Official Case Reports E 75, 1, 16, entitled by Vogel as “restriktive Einheits- und Misch- formel” (literally translated: “restrictive omnium and mixing formula”) – see J. Vogel, “IRG, § 73”, mn. 51, in: Grützner/Pötz/Kreß/Gazeas, Internationaler Rechtshilfeverkehr in Strafsachen, op. cit. (n. 1). 4 ECtHR, Soering, op. cit. (n. 3), para. 113. 5 ECtHR, 17 January 2012, Othman [Abu Qatada] v United Kingdom, Ap- plic. no. 8139/09, paras. 259/260. In the case at issue, the ECtHR confirmed 1 S. Maffei, Extradition Law and Practice, 2019, p. 24; S. Gleß/T. Wahl/ a “flagrant denial of justice” because it was well founded that evidence F. Zimmermann, HT I, “§ 73 Grenzen der Rechtshilfe”, mn. 1, in: Schomburg/ obtained by means of torture would be used at retrial in the request- Lagodny, Internationale Rechtshilfe in Strafsachen, 6th ed. 2020; J. Vogel/ ing state (Jordan) against the person concerned. The ECtHR also gives C. Burchard, “IRG, Vor § 1”, mn. 229, in: Grützner/Pötz/Kreß/Gazeas (eds.), examples of other cases having the potential of a flagrant denial of the Internationaler Rechtshilfeverkehr in Strafsachen, 3rd ed. guarantees enshrined in Art. 6 ECHR. For subsequent ECtHR case law see 2 O. Lagodny, Die Rechtsstellung in der Bundesrepublik Deutschland, also Advocate General Tanchev, Opinion of 28 June 2018 in Case C-216/18 1987, p. 256; Gleß/Wahl/Zimmermann, op. cit. (n. 1), mn. 14 et seq. PPU, LM, para. 84. 3 Cf. ECtHR, 7 July 1989, Soering v United Kingdom, Applic. no. 14038/88, 6 O.J. L 190, 18.7.2002, 1. para. 89 stressing that the establishment of safe havens would endanger 7 As detailed by the European Commission in its Reasoned Proposal of the foundations of extradition. Analyses of the CJEU’s case law allow a 20 December 2020 on Art. 7 TEU requesting the Council to determine that similar approach to be concluded: compare the LM judgment discussed in there is a clear risk of a serious beach by the Republic of Poland of the rule this article and the CJEU’s judgment of 27 February 2018 in Case C-64/16, of law, COM(2017) 835 final. Associação Sindical dos Juízes Portugueses (cf. A. Torres Pérez, “From 8 [2018] IEHC 153. Portugal to Poland: The Court of Justice of the European Union as a 9 CJEU, 25 July 2018, Case C-216/18 PPU, LM; see also T. Wahl, “CJEU: watchdog of judicial independence”, (2020) 27 MJ, 105; M. Wendel, “Mutu- Refusal of EAW in Case of Fair Trial Infringements Possible as Exception“, al Trust, Essence and Federalism – Between Consolidating and Fragment- (2018) eucrim, 104.

328 | eucrim 4 / 2020 Refusal of European Arrest Warrants Due to Fair Trial Infringements

10 CJEU, 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU, see also 34 HRC of Karlsruhe, Decision of 27 November 2020, Ausl 301 AR 104/19, T. Wahl, “CJEU Strives to Balance Human Rights and Mutual Recognition“, BeckRS 2020, 36266. (2016) eucrim, 16. 35 Federal Constitutional Court, Order of 15 December 2015. An English 11 CJEU, LM, op. cit. (n. 9), para. 36. summary is provided by the press release available at accessed 21 January 2021. 13 See also P. Bárd and W. van Ballegoij, “The CJEU in the Celmer case: 36 H. Satzger, “Mutual Recognition in Times of Crisis – Mutual Recogni- One Step Forward, Two Steps Back for Upholding the Rule of Law Within tion in Crisis? An Analysis of the New Jurisprudence on the European the EU”, Verfassungsblog, 29 July 2018, , accessed 23 January 2021; Between tradition and innovation“, in: E. Sellier and A. Weyembergh M. Payandeh, “Europäischer Haftbefehl und Grundrecht auf ein faires (eds.), Criminal Procedures and Cross-Border Cooperation in the EU Area Verfahren”, (2018) Juristische Schulung (JuS), 919, 920. of Criminal Justice, 2020, pp. 54, 104. 14 CJEU, LM, op. cit. (n. 9), para. 61; CJEU, Aranyosi & Căldăraru, op. cit. 38 T. Wahl, “Federal Constitutional Court Invokes Identity Review in EAW (n. 10), para. 92. Case“, (2016) eucrim, 17. 15 CJEU, LM, op. cit. (n. 9), para. 68; CJEU, Aranyosi & Căldăraru, op. cit. 39 COM(2017) 835 final, op. cit. (n. 7). (n. 10), para. 94. 40 IEHC in Celmer, mn. 71; EWHC in Lis, mn. 71; HRC of Karlsruhe, Decision 16 CJEU, LM, op. cit. (n. 9), para. 74 et seq.; M. A. Simonelli, “’… And of 27 November 2020, mn. 43. Justice for All?’ The right to an independent tribunal after the ruling of the 41 IEHC in Celmer, mn. 105 Court of Justice in LM”, 10 (2019) New Journal of European Criminal Law 42 Joined Cases C-585/18, C-624/18, and C-625/18; see details in eucrim (NJECL), 1, 7 ; A. Martufi/D. Gigengack, “Exploring mutual trust through 3/2019, pp. 155–156. the lens of an executing authority: The practice of the Court of Amsterdam 43 For the approach by the Rechtbank Amsterdam, see Martufi/Gigen­ in EAW proceedings”, 11 (2020), NJECL, 282, 288. gack, op. cit. (n. 16), 11 (2020) NJECL, 295. See also R. Kert, “Grund­rechts­ 17 CJEU, LM, op. cit. (n. 9), paras, 76, 77. schutz und gegenseitige Anerkennung strafrechtlicher Entscheidungen 18 F-G. Ruiz Yamuza, “LM case, a new horizon in shielding fundamental in einem Raum der Freiheit, der Sicherheit und des Rechts”, (2020) ÖJZ, rights within cooperation based on mutual recognition. Flying in the coffin 719, 728, who is critical to the CJEU’s approach to expect the defendant to corner”, 20 (2020) ERA Forum, 371, 388. prove repercussions of deficiencies in his/her individual case. 19 Cf. ECtHR, Othman, op. cit. (n. 5), para. 258; ECtHR, Soering, op. cit. 44 This was also the main argument by the HRC of Brandenburg (op. cit., (n. 3), para. 113. n. 31): A (general) extradition ban cannot be accepted if the defendant is 20 Cf. the formulation in Othman, ibid. accused of “common criminal offences”, such as breach of maintenance 21 J. Geneuss/A. Werkmeister, “Faire Strafverfahren vor systemisch obligation. abhängigen Gerichten?”, 132 (2020) ZStW, 102, 113; M. Krajewski, “Who is 45 Decision of 27 November 2020, mn. 41. Afraid of the European Council? The Court of Justice’s Cautious Approach to 46 After Brexit (i.e., from 1 January 2021 onwards), UK courts must the Independence of Domestic Judges”, 14 (2019) European Const. Law Rev., decide, however, to which test they feel inclined in extradition cases with 792, 805; D. Sarmiento, “A comment on the CJEU’s judgment in LM”, (2018) 25 EU countries, since they are no longer bound to the EU’s mutual recogni- MJ, 385 − all stressing the “Article 7 dilemma“ implied in the FD EAW. Payan- tion instruments and the CFR (see the questions raised in Sheriff Court deh ((2018) JuS, op. cit. (n. 13), 921) criticizes the CJEU’s approach, because it (Edinburgh), judgment of 21 December 2020, [2020] 12 WLUK 457, Lord makes a judicial question dependent on a political mechanism. Advocate v Zagajewska & Others). Notwithstanding, the “essence” of the 22 CJEU, LM, op. cit. (n. 9), para, 61. fundamental right to a fair trial is difficult to define (cf. M. Wendel, (2019) 23 This conclusion results from desk research and replies that the author 15 Europ Const L Rev, op. cit. (n. 3), 27; in general, K. Gutmann, “The Es- received from foreign experts of the International Extradition Group in sence of the Fundamental Right to an Effective Remedy and to a Fair Trial September 2019. The International Extradition Group was initiated by Prof. in the Case-Law of the Court of Justice of the European Union: The Best is Dr. Stefano Maffei/University of Parma in 2016 and is a forum for extradi- Yet to Come?” (2019) 20 German Law Journal, 884). tion lawyers and scholars all over the world. More information on the 47 Using similar arguments, the EWHC granted permission to appeal group is available at . against an extradition to Poland (cf. [2020] EWHC 1459 (Admin), Wozniak v 24 [2018] IEHC 639. Poland). 25 [2018] EWHC 2848 (Admin). 48 Cf. CJEU, 17 December 2020, Joined Cases C-354/20 PPU and C-412/20 26 [2019] SC EDIN 37. PPU, “L and P”, para. 33. 27 See the overview at Martufi/Gigengack, op. cit. (n. 16), 11 (2020) 49 CJEU, “L and P“, op. cit. (n. 48), para. 43. NJECL, 294 et seq. 50 CJEU, “L and P“, op. cit. (n. 48), para. 59; some authors share the 28 ECLI:NL:RBAMS:2018:5925. CJEU’s approach: M. Bonelli, “Intermezzo in the Rule of Law Play: The 29 ECLI:NL:RBAMS:2018:7032; see also T. Wahl, “Fair Trial Violation: Court of Justice’s LM Case”, in: A. von Bogdandy et al. (eds.), Defending Amsterdam Court Refuses Surrender to Poland”, (2019) eucrim, 159. Checks and Balances in EU Member States, 2021, p. 455; L. Bachmaier 30 Joined Cases C-354/20 PPU and C-412/20 PPU, “L and P”/Openbaar Winter, “Judicial independence in the Member States of the Council of Ministerie. Europe and the EU: evaluation and action”, (2019) ERA Forum 20, 113, 125. 31 Decisions in Germany that can be considered as a follow-up to LM 51 The SC Edinburgh judgment in Maciejec is instructive in this sense. are, for instance: HRC of Brandenburg, Decision of 18 August 2020 – 2 AR In the Celmer case before the IEHC, the Irish Human Rights and Equality 16/20; HRC of Berlin, Decision of 3 April 2020 – (4) 151 AuslA 201/19 Commission – an NGO − was invited amicus curiae; it assisted in the as- (234/19); HRC of Düsseldorf, Decision of 14 June 2019 – 4 AR 38/19; HRC sessment of evidence. of Cologne, Decision of 15 January 2019 – 6 AuslA 115/18 – 80; HRC of 52 For the approach of the Amsterdam court emphasing the dialogue with Bremen, Decision of 7 September 2018 – 1 Ausl. A 31/18. the Polish authorities, see Martufi/Gigengack, op. cit. (n. 16), 11 (2020) 32 Cf. the decisions of the HRC of Karlsruhe in case Ausl 301 AR 95/18, in NJECL, 282. particular the decision of 7 January 2019. This decision is commented in 53 The length of the list of questions seeking supplementary informa- English by A. Oehmichen at . pliance with the duty of sincere cooperation and cannot lead to a “stand- 33 HRC of Karlsruhe, Decision of 17 February 2020, Ausl 301 AR 156/19. still” of the cooperation instrument (CJEU, 25 July 2018, Case C-220/18 This decision is summarised in English by T. Wahl, “Fair Trial Concerns: PPU, ML/Generalstaatsanwaltschaft Bremen, paras. 103–104). German Court Suspends Execution of Polish EAW“, (2020) eucrim, 54 HRC of Cologne, op. cit. (n. 31). 27–28. 55 The CJEU’s too narrowly designed test and the difficulty of perform-

eucrim 4 / 2020 | 329 The Reception of European Legislation and Case Law in the Member States

ing the test in practice are also the major points of criticism in the legal 56 This is a longstanding call by German practitioners and academics. Cf. literature. See, for instance, P. Bárd and W. van Ballegoij, “Judicial T. Wahl, “The perception of the principle of mutual recognition of judicial Independence as a precondition for mutual trust? The CJEU in Minister for decisions in criminal matters in Germany,” in: G. Vernimmen-Van Tiggelen, Justice and Equality v LM”, (2019) NJECL, 353, 360; N. Šubic, “Executing L. Surano and A. Weyembergh (eds.), The future of mutual recognition in a European Arrest Warrant in the Middle of the Rule of Law Crisis: Case criminal matters in the European Union, 2009, p. 115, 121. C-216/18 PPU Minister for Justice and Equality (LM/Celmer)”, (2018) 21 57 Cf. CJEU, 25 July 2018, C-220/18, ML, para. 103. Irish Journal of European Law, 98; Simonelli, op. cit. (n. 16), 1; Krajewski, 58 For an example, see the case [2020] EWHC 2709 (Admin), Adamescu v op. cit. (n. 21), 811; Geneuss/Werkmeister, op. cit. (n. 21), 102. Romania.

Independence of Public Prosecutors’ Offices Recent Case Law of the CJEU on the European Arrest Warrant and its Impact on the EU Criminal Justice System

Giuseppe Ruben Grimaldi*

The independence of the judiciary has been a recurrent issue in the case law of the Court of Justice of the European Union in recent years. In particular, in 2019 and 2020, in a series of new cases concerning the status of national public prosecutors, the Court examined the level of independence necessary for public prosecutors to fall within the concept of an “issuing judicial authority” within the meaning of Article 6(1) of the Framework Decision on the European Arrest Warrant. After an exposition of these cases, this article seeks to investigate the impact of this case law on the EU criminal justice system. Crucially, it is argued that the new case law is likely to change the EAW dynamics that the Member States, especially those that have conferred upon their public prosecutors’ offices the power to issue EAWs, have been relying on so far and, as a consequence, the EU criminal justice system as a whole. This new framework gives rise to several practical difficulties for the executing judicial authorities that may entail, inter alia, a longer deprivation of liberty of the requested persons. A deeper reflection on this outcome is therefore also needed at the legislative level.

While the Court of Justice of the European Union (“CJEU” or being driven by private interests. The simplicity of this general “the Court”) has regularly provided clarification on the scope definition clashes, however, – as in all aspects of life, when it of various provisions of the Framework Decision on the Eu- comes to applying a general principle in practice – with the ropean Arrest Warrant (FD EAW)1 since its entry into force, complexity of the multifaceted reality, as will be shown in the never had it had the chance to interpret the notion of “judicial next paragraphs dedicated to the status of national public pros- authority”, referred to in Art. 6 of the FD EAW, as extensively ecutors in various Member States with regard to the FD EAW. as it was asked to do in a series of cases in 2019 and 2020, notably as regards national public prosecutors. In particular, the Court was asked to establish criteria for determining the I. The Concept of an ‘Issuing Judicial Authority’ within level of independence necessary for public prosecutors to be the Meaning of Art. 6(1) of the FD EAW regarded as judicial authorities capable of issuing, and execut- ing, an EAW. Art. 6(1) FD EAW provides that “[t]he issuing judicial author- ity shall be the judicial authority of the issuing Member State The issue of judicial independence has undoubtedly been a which is competent to issue [an EAW] by virtue of the law of Leitmotiv of the Court’s case law in recent years. In this re- that State.” Behind this tautological text is the lack of a real gard, we cannot but recall, for instance, the importance of the definition of the concept in question – a fact which has given Court’s findings in the judgments on the “Polish rule-of-law rise to doubts in the national practice, leading several States crisis.”2 In general terms, judicial independence can be defined to seek guidance from the CJEU to interpret that provision. as the ability of the judiciary to execute its duties free from the The resulting case law of the Court, which in certain cases has influence of, in particular, the executive power,3 and without caused strong reactions in the Member States, provides clari-

330 | eucrim 4 / 2020 Independence of Public Prosecutors’ Offices fication as to the concept of an “issuing judicial authority.” ity” must be understood as designating not only the judges or However, the Court’s clarification is not without consequenc- courts of a given Member State, but also, in a broader way, the es: as will be exposed in section III of this article, it could en- authorities participating in the administration of criminal jus- tail deep changes in the national law of some Member States. tice in that Member State, as long as they do not belong to the executive.10 It found that this first requirement was satisfied by In fact, this case law first began to take shape with the rulings the German prosecutors in question, given their essential role of 10 November 2016 in Poltorak, Kovalkovas and Özçelik.4 in the conduct of criminal proceedings. In these cases, the CJEU clarified, in the first place, that the concept of an “issuing judicial authority” is an autonomous However, in order to be regarded as a judicial authority, the concept of EU law; accordingly, it cannot be left to the assess- authority responsible for issuing an EAW must also, as a sec- ment of the Member States.5 In the second place, the Court ond requirement, act independently in the execution of its ruled that police services and ministries of justice cannot be re- functions and, accordingly, must not be exposed to any risk garded as “issuing judicial authorities” in the sense of Art. 6(1) of being subject to an instruction in a specific case from the FD EAW.6 Indeed, in accordance with the principle of the sep- executive. In that regard, the Court recalled the dual level of aration of powers, the judiciary must be distinguished from protection of procedural and fundamental rights that the per- the executive; therefore, administrative authorities or police son against whom an EAW has been issued must enjoy – that authorities, which are placed under the hierarchy of the execu- is, protection of these rights both when a national decision tive, or a ministry of justice, which is an organ of the execu- is adopted and when an EAW is issued.11 Where this judicial tive, are not covered by the concept of judicial authority.7 protection 12 is carried out by entities that are not courts or judges, it can only be guaranteed by an institution that acts independently, without being exposed to an external power II. Recent Case Law of the CJEU on the Status of of instruction, in particular from the executive.13 Further- National Prosecutors more, the decision taken by such an entity to issue an EAW, and the proportionality of that decision, “must be capable of As mentioned above, in 2019 and 2020, the Court of Justice being the subject … of court proceedings which meet in full was confronted with a number of requests from several Mem- the requirements inherent in effective judicial protection.”14 ber States for a preliminary ruling about the interpretation of the concept of a “judicial authority” under Art. 6 FD EAW. In this case, notwithstanding the safeguards provided by This time, however, the issues raised in these cases specifically German law to circumscribe the power of instruction en- concerned the status of national public prosecutors and their joyed by the Minister for Justice to extremely rare situa- level of independence. tions, the possibility that a decision by a public prosecutor’s office to issue or not to issue an EAW may be influenced by the external power of such a minister cannot be ruled out. 1. Joined Cases C-508/18 and C-82/19 PPU (Public Thus, since that second requirement is not satisfied, German Prosecutors’ Offices in Lübeck and Zwickau, Germany) public prosecutors do not fall within the concept of an “issu- ing judicial authority.” The landmark judgment of 27 May 2019 in the joined cases C-508/18 (Public Prosecutor’s Office in Lübeck) and C-82/19 PPU (Public Prosecutor’s Office in Zwickau),8 delivered by 2. Case C-509/18 PF (Prosecutor General of Lithuania) the Grand Chamber of the CJEU, ushered in the case law at issue. The referring courts – in the context of two EAWs is- The same day of the judgment analysed above, the Grand sued by two German public prosecutors’ offices – asked the Chamber of the CJEU, in its judgment in the similar case CJEU whether those German prosecutors could be regarded as C-509/18,15 found, by contrast, that the Prosecutor General of “issuing judicial authorities” within the meaning of Art. 6(1) Lithuania fell within the concept of an “issuing judicial au- FD EAW, insofar as they are hierarchically subordinate to the thority” under Art. 6(1) FD EAW. Indeed, that prosecutor’s Minister for Justice of the relevant Land, who may exercise, in office participates in the administration of criminal justice relation to those prosecutors, directly or indirectly, an “exter- in Lithuania16 and satisfies the independence requirement as, nal” power of supervision and direction, or even instruction, in whilst institutionally independent from the judiciary, its legal connection with the adoption of a decision to issue an EAW.9 position in Lithuania affords it a guarantee of independence from the executive in connection with the issuing of an EAW, The Court, building on its previous findings in Poltorak and allowing it to act free of any external influence in exercising Kovalkovas, reiterated that the concept of a “judicial author- its functions.17

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3. Opinions of Advocate General Campos Sánchez-Bordona dependence requirement set out in the judgments in Public Prosecutors’ Offices in Lübeck and Zwickau and Prosecutor Advocate General Sánchez-Bordona’s position in the two cas- General of Lithuania. In particular, questions were asked in re- es above was somewhat more “radical” than the one of the spect of the Court’s finding, at paragraph 75 of the first of these Court and is consistent with his position expressed in previous judgments, that the decision to issue an EAW “must be capable cases, notably Özçelik,18 of which it constitutes a sort of con- of being the subject … of court proceedings which meet in full tinuation. In his Opinions, not only did the Advocate General, the requirements inherent in effective judicial protection.” like the Court, exclude that the German prosecutors’ offices be considered judicial authorities with the ability to issue judicial In joined cases C-556/19 PPU and C-626/19 PPU,26 the refer- decisions such as EAWs, but he concluded that “the term ‘is- ring courts had doubts as to whether French public prosecutors suing judicial authority’ does not include the institution of the may be regarded as “issuing judicial authorities,” insofar as, Public Prosecutor’s Office,”19 implying that only judges and whilst independent from the executive, they are hierarchically courts are capable of issuing EAWs.20 As a result, and unlike subordinate to the Principal Public Prosecutor, who has the the Court in its subsequent findings, the AG concluded that power to direct them. They also had doubts as to whether the the Prosecutor General’s Office of Lithuania could not be re- fact that a court monitors compliance with the conditions for garded as an “issuing judicial authority” either. issuing an EAW, in particular its proportionality, before the actual decision of the prosecutor to issue such a warrant is In the AG’s view, only courts stricto sensu can ensure a suffi- adopted, satisfies the second level of judicial protection, as set ciently high degree of independence in decisions regarding the out above in the analysis of the Public Prosecutors’ Offices in deprivation of liberty of the person concerned for a significant Lübeck and Zwickau case. amount of time21 – as may be the case with an EAW – and are “capable of properly assessing the proportionality of issuing As to the first question, the CJEU clarified that internal in- an EAW.”22 A public prosecutor’s office, for its part, does not structions given to public prosecutors by their hierarchical administer justice and lacks by its very nature “judicial inde- superiors, who are themselves public prosecutors, do not run pendence” even if it is recognised in national law as having the contrary to the independence requirement, which prohibits status of an independent body,23 since only external instructions, in particular from the executive.27 [i]n a State governed by the rule of law, this role is the exclusive responsibility of judges and courts and not of other authorities, As to the second question, the Court recalled that, where the including those which participate in the administration of justice, such as the Public Prosecutor’s Office. The latter are not, like the decision to issue an EAW is taken by an entity which, whilst judge, subject only to the law, are not independent to the same de- participating in the administration of justice in the Member gree as judges, and, moreover, are always subject to the final deci- State, is not a court or judge, the decision and the proportional- sion of the court.24 ity thereof must be capable of being the subject of court pro- This fundamental distinction between legal entities that ad- ceedings that ensure their compliance with the requirements minister justice (ius dicunt) and those that participate in its inherent in effective judicial protection.28 In that regard, it is administration (such as the public prosecutor’s office) or sim- for the Member States to decide which measures to apply to ply collaborate in its execution (such as the police or, in cer- ensure that level of protection. tain cases, private individuals) is specific to criminal law. It is thus important to define the limits within which these entities The Court found that the French system meets those require- can act and, more importantly, to differentiate the contexts in ments of effective judicial protection, as it provides for pro- which they act: the AG observes, for instance, that a public cedural rules that guarantee that the conditions for issuing an prosecutor’s office may have a judicial nature in certain areas EAW and the proportionality of the EAW are subject to judi- of criminal law cooperation, such as the taking of evidence, cial review. Therefore, French public prosecutors fall within but this does not imply that it enjoys the same judicial nature the notion of “issuing judicial authorities.” in other matters, such as the issuing of an EAW, an act which may lead to long periods of detention.25 5. Case C-625/19 PPU (Swedish Prosecution Authority)

4. Joined Cases C-566/19 PPU and C-626/19 PPU (French In case C-625/19 PPU,29 the referring court asked the CJEU Public Prosecutor’s Office) whether a public prosecutor’s office, such as the Swedish Pros- ecution Authority, which acts independently from the execu- It did not take long before other national courts referred ques- tive and has issued an EAW, may be regarded as an “issuing tions to the CJEU to seek clarifications concerning the in- judicial authority” if the conditions for issuing an EAW (i.e.

332 | eucrim 4 / 2020 Independence of Public Prosecutors’ Offices the issuance of a provisional national arrest warrant), and the its case law on the concept of an “issuing judicial authority” proportionality thereof, have been assessed by a judge before can apply to the concept of an “executing judicial authority,” the actual decision of that public prosecutor to issue the EAW. since the status and nature of those authorities are identical. On this premise, it held that public prosecutors in the Netherlands­ The Court found that the Swedish system meets the require- cannot be regarded as “executing judicial authorities” within ments of effective judicial protection, as it guarantees that the the meaning of the FD EAW, because they may be subject to conditions for issuing an EAW, and its proportionality, are instructions from the Netherlands Minister for Justice relating subject to judicial review. Indeed, according to the Swedish to the exercise of their functions and powers. law, the decision to issue an EAW must be based on a decision ordering the provisional detention of the person in question. The latter decision is made by a court, which must assess the III. The Recent Case Law in Context: Critical Aspects proportionality of future measures, such as an EAW. In addi- and Impact on the EU Criminal Justice System tion, the requested person is entitled to challenge the decision ordering his provisional detention and, in the event this deci- Considering the unequivocal answer of the Court in Public sion is annulled, the EAW based on it is automatically invali- Prosecutors’ Offices in Lübeck and Zwickau, the judgment dated. Therefore, the Swedish Prosecution Authority also falls in these joined cases had an immediate and direct impact.33 within the notion of “issuing judicial authorities.” The effects of the judgment were immediately the subject of discussions at the Council, within the Working Party on Co- operation in Criminal Matters (COPEN), to ascertain whether 6. Case C-627/19 PPU (Belgian Public Prosecutor’s Office) Member States were considering adopting legislative changes and whether the judgment could cause the release of requested In case C-627/19 PPU,30 the national court asked the CJEU persons in those States. whether a public prosecutor, such as the Belgian Public Pros- ecutor’s Office, who acts independently from the executive Since the vast majority of EAWs in Germany were issued and has issued an EAW, may be regarded as an “issuing ju- by public prosecutors, that State, in particular, had to find a dicial authority” if the legislation of that Member State does quick legal solution in order to remedy the fact that a large not provide a separate judicial remedy to challenge the public number of EAWs had suddenly become invalid. In a note, the prosecutor’s decision to issue the EAW. German delegation stated at first that, acting on the basis of the Court’s judgment, Germany would adjust its procedures As in the last two judgments above, the Court found that the for issuing EAWs, which “[f]rom now on … will only be Belgian system meets the requirements of effective judicial issued by the courts … without [the need to change] the ex- protection. However, the case at issue, unlike those referred to isting laws.”34 The German Ministry of Justice added, a few above, concerned an EAW issued for the purposes of execut- days later, that 5,300 existing EAWs were to be replaced by ing a custodial sentence, not of conducting criminal proceed- new warrants issued by courts.35 This short-term choice was ings. The EAW was therefore based on an earlier enforceable rather predictable, since the alternative solution – namely, a final judgment, which suggests that the person concerned had radical reorganisation of the hierarchical structure of German already had the benefit of effective judicial protection. public prosecution offices, in which the instruction power of the executive would be suppressed and, accordingly, the en- The Court, departing from the Advocate General’s Opinion,31 tire balance of powers reformed – would have taken a much concluded that the FD EAW does not preclude Member States longer time.36 Other Member States followed Germany in from having legislation that does not provide for a separate describing, through notes, the status of their public prosecu- judicial remedy to challenge the decision of a public prosecu- tors’ offices.37 tor to issue an EAW for the purposes of executing a sentence. The case law at issue also has an impact in those Member States in which, although the public prosecutor’s office is fully 7. Case C-510/19 (Openbaar Ministerie) independent, the national law does not provide for adequate legal remedies allowing the prosecutor’s decision to issue an In its recent judgment of 24 November 2020 in case C510/19,32 EAW to be challenged before a court. Such States will have the Court dealt, this time, with the question of whether a na- to introduce legislative changes in that regard, on the under- tional public prosecutor, namely the Public Prosecutor for the standing that, in accordance with the principle of procedural Amsterdam District, may be regarded as an “executing judi- autonomy, they can choose how to ensure effective judicial cial authority” under Art. 6(2) FD EAW. The Court found that protection.38

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This new case law of the Court relating to the status of national dence, but the specific and exclusive “judicial” independence public prosecutors is thus likely to change the EAW dynamics of the entity. on which the Member States – namely, those that have con- ferred upon their public prosecutors’ offices the power to is- Moreover, according to the AG, when it comes to assessing the sue EAWs – have relied to this point and, as a consequence, independence of a public prosecutor, not only the executive’s the EU criminal justice system as a whole. A closer explora- power to give specific instructions, but also its power to give tion of this case law, however, inevitably raises the question general instructions is relevant,41 as is the hierarchical subor- of whether the stringent interpretation of Art. 6(1) FD EAW dination of public prosecutors to their superiors. In addition, given by the Court actually does provide greater protection of he maintained that a person requested under an EAW issued by the fundamental rights of the requested person. a public prosecutor must be able to challenge that EAW before a judge or court in the issuing Member State, without having The two-level protection required by the CJEU would prima to wait until he/she is surrendered.42 facie suggest an affirmative answer to this question, as the is- suing Member State must ensure that, even though a national The Court did not specifically address the issue raised by the arrest warrant has been issued by a court, the subsequent EAW Advocate General about the difference between functional will be issued by a fully independent entity able to guarantee independence and judicial independence, and it confirmed its effective judicial protection of the person concerned.39 This broader interpretation of the notion of a “judicial authority,” in rigorous two-level test, which requires the issuing authori- line with its previous jurisprudence (see Poltorak). ties to assess the proportionality of the EAW and fulfil precise criteria, seems therefore to provide stronger protection of the In sum, whereas the Court “simply” requires that an author- person’s fundamental rights. ity participating in the administration of criminal justice, such as a public prosecutor’s office, be functionally independent Yet, on the other hand, and despite the consistency of the juris- from the executive branch in order to be regarded as a judicial prudence developed so far by the Court in the matter, relevant authority competent to issue an EAW, the Advocate General practical difficulties may arise for the executing authorities. takes the view that account must be taken not only of the exis- In this respect, as stated above, these authorities now have to tence of a “vertical” dependency relationship, but especially of assess whether the criteria elaborated by the Court (in rela- the judicial function of the authority in question. tion to the status of the issuing State’s public prosecutors) are satisfied; that is, they must ensure that a proportionality as- While the CJEU is certainly not required to expressly refute sessment has taken place in the issuing Member State, that its AGs’ reasoning, it would have been interesting if it had jus- public prosecutor’s office is independent, etc. Not only does tified in greater detail its more extensive approach, whereby this evaluation require more time, thus potentially delaying entities participating in the administration of criminal justice, surrender,40 but it is also difficult for an authority of another if functionally independent from the executive, are included in Member State to carry out. As a result, the requested person’s the notion of an “issuing judicial authority.” fundamental rights may, paradoxically, be less protected and the deprivation of his liberty even longer. The difficulties explained above could also have the effect of increasing the number of references for a preliminary ruling to In this respect, it is worth recalling the astute legal arguments the Court of Justice where executing authorities do not man- advanced by Advocate General Campos Sánchez-Bordona in age to determine whether the prosecution authority of a Mem- his above-mentioned Opinions in cases C508/18, C82/19 PPU, ber State is sufficiently independent to constitute a judicial and C-509/18, according to which only judges and courts ad- authority. Such cases would entail an even longer delay to the minister justice (ius dicunt) and may guarantee the level of surrender decision and, notably, a longer deprivation of liberty independence necessary to adopt an act, such as an EAW, of the requested person. Admittedly, conferring the power to capable of depriving a person of his liberty for a significant issue EAWs only upon courts, as is the case in some countries, amount of time. This approach implies that, although in cer- could be less problematic in practice. It has the advantage that tain Member States, as in Lithuania, the Public Prosecutor’s executing judicial authorities can presume – by relying on the Office is not subject to directions or instructions from the ex- principle of mutual trust – that the issuing authority is suffi- ecutive and is, in this sense, fully independent from hierarchi- ciently independent, without the need to conduct an examina- cal constraint, such an entity does not have, by its own nature, tion in each individual case. the level of independence required to issue an EAW; thus, it cannot be considered de plano an “issuing judicial authority.” Furthermore, the EAW system still suffers from flaws that the In other words, what matters is not the “functional” indepen- recent case law of the Court is not, per se, able to solve. One

334 | eucrim 4 / 2020 Independence of Public Prosecutors’ Offices issue, for example, is the lack of effective implementation, in several Member States, of EU procedural rights provided for by acts of EU law, such as the right for a requested person to Giuseppe Ruben Grimaldi have access to legal assistance before surrender.43 It is thus es- Lawyer Linguist, Court of Justice sential that the European institutions strictly monitor Member of the European Union States’ implementation of those acts, in order to ensure that requested persons are not deprived of their liberty any longer than necessary, and that their procedural rights do not remain a dead letter.

bos, “The German Public Prosecutor as (no) judicial authority within the meaning of the European Arrest Warrant: A case note on the CJEU’s judg- * The views expressed in this article are solely those of the author and do ment in OG (C-508/18) and PI (C-82/19 PPU)”, (2019) 10(4), New Journal not necessarily reflect the views of his employer. of European Criminal Law, 399, 401. In reality, this is not a contradiction: 1 Council Framework Decision 2002/584/JHA of 13 June 2002 on the those statements of the Court must be read as simply requiring that a European arrest warrant and the surrender procedures between Member judge or court intervene at least at the first level, and, where the authority States, O.J. L 190, 18.7.2002, 1, as amended by Council Framework Deci- competent to issue the subsequent EAW (second level) is not a judge but sion 2009/299/JHA of 26 February 2009, O.J. L 81, 21.3.2009, 24. a prosecutor, this authority has to be fully independent and ensure that 2 Inter alia: CJEU, 24 June 2019, case C‑619/18, Independence of the the decision to issue an EAW is proportionate. The proportionality of Supreme Court; 5 November 2019, case C‑192/18, Independence of the that decision, as will be explained in the following cases, could also be Ordinary Courts; 19 November 2019, joined cases C‑585/18, C‑624/18 and reviewed, before the decision itself is finalised, by the court that adopted C‑625/18, Independence of the Disciplinary Chamber of the Supreme Court. the national arrest warrant, while a subsequent and separate remedy is This article will not deal specifically with this series of cases, which would just one of the options Member States can provide for in their national law. require a separate and thorough analysis. 13 The fact that, as is the case in Germany, a national arrest warrant is 3 The theory of the “separation of powers” is notoriously associated with issued by a judge (first level), and thus the subsequent EAW is based on the figure of the Baron de Montesquieu, and in particular with his famous a national decision that has already been “checked” by an independent treatise “The Spirit of Laws,” published in 1748. institution, does not suffice to satisfy the independence requirement, as, 4 CJEU, 10 November 2016, case C-452/16 PPU, Poltorak; 10 November at the second level, the judicial authority must assess the proportionality 2016, case C-477/16 PPU, Kovalkovas; 10 November 2016, case C-453/16 of the decision to issue an EAW, which requires that the authority in ques- PPU, Özçelik. tion be fully independent; see Public Prosecutors’ Offices in Lübeck and 5 See, for example, Poltorak, op. cit. (n. 4), paras 31 and 32. Zwickau, op. cit. (n. 8), paras 71-73. See also C. Heimrich, “European arrest 6 See Poltorak, op. cit. (n. 4), paras 35 and 46, and Opinion of AG Sánchez- warrants and the independence of the issuing judicial authority – How Bordona in the same case, para. 39; Kovalkovas, op. cit. (n. 4), paras 35 and much independence is required? (Case note on joined cases C-508/18 and 45, and Opinion of AG Sánchez-Bordona in that case, para. 34. C-82/19 PPU OG and PI)”, (2019), 10(4), NJECL, 389, 397. 7 Accordingly, an EAW issued by them cannot be considered a “judicial 14 Public Prosecutors’ Offices in Lübeck and Zwickau, op. cit. (n. 8), decision” within the meaning of Art. 1(1) FD EAW. Nevertheless, the para. 75. confirmation by a public prosecutor’s office of a national arrest warrant 15 CJEU, 27 May 2019, case C-509/18, PF (Lithuanian Prosecutor General’s that had previously been issued by a police authority may be considered a Office). “judicial decision” within the meaning of Art. 8(1)(c): see Özçelik, op. cit. 16 Ibid., paras 40-42. (n. 4), operative part. 17 Ibid., para. 55 and operative part. 8 CJEU, 27 May 2019, joined cases C‑508/18, OG, and C‑82/19 PPU, PI 18 CJEU, 19 October 2016, Opinion of AG Sánchez-Bordona in case (“Public Prosecutors’ Offices in Lübeck and Zwickau”). C-453/16 PPU, Özçelik. 9 Under Section 147 of the Gerichtsverfassungsgesetz (German Courts 19 See AG Sánchez-Bordona, Opinion of 30 April 2019 in case C-508/18, Constitution Act), “[t]he right of supervision and direction shall lie with: Public Prosecutors’ Offices in Lübeck and Zwickau, conclusion. 1. the Federal Minister of Justice in respect of the Federal Prosecutor 20 See ibid., para. 57. General and the federal prosecutors; 2. the Land agency for the admin- 21 Ibid., paras 61 and 84. The AG, recalling his opinion in Özcelik, op. cit. istration of justice in respect of all the officials of the public prosecution (n. 18), stated that a public prosecutor may, when they adopt a national office of the Land concerned; 3. the highest-ranking official of the public arrest warrant, be regarded nevertheless as an authority that issues prosecution office at the Higher Regional Courts and the Regional Courts a “judicial decision” for the purpose of Art. 8(1)(c) of the Framework in respect of all the officials of the public prosecution office of the given Decision, insofar as the prosecutor’s decision in the given case will be court’s district.” checked and reviewed by a judge or court within a very short period of 10 Public Prosecutors’ Offices in Lübeck and Zwickau, op. cit. (n. 8), para. 50. time (see, in particular, ibid., paras 50 and 62). In the specific case at 11 “… since, in addition to the judicial protection provided at the first issue, however, since German public prosecutors are not even entitled level, at which a national decision, such as a national arrest warrant, is to issue national arrest warrants (which can be issued only by courts), adopted, there is the protection that must be afforded at the second level, it is the view of the AG that it would be paradoxical to allow these public at which a European arrest warrant is issued, which may occur, depending prosecutors to issue an EAW, which could entail a much longer depriva- on the circumstances, shortly after the adoption of the national judicial tion of liberty (see para. 76). decision”, ibid., para 67; see also CJEU, 1 June 2016, case C-241/15, Bob- 22 Ibid. para 71. The AG referred in this respect to the Opinion of AG Bot Dogi, para. 55. of 3 March 2016 in case C-404/15, Aranyosi and Căldăraru, paras 137 et 12 It was noted that the Court, stating in paragraph 72 that judicial seq. protection has to be ensured also at the second level, “backtrack[ed] 23 AG Sánchez-Bordona, Opinion of 30 April 2019 in case C-509/18, Lithu- somewhat from its previous statement (para 68),” according to which the anian Prosecutor General’s Office, paras 21 and 22. requirements inherent in effective judicial protection should be adopted 24 Opinion in Public Prosecutors’ Offices in Lübeck and Zwickau, op. cit. at least at one of the two levels of that protection: see in this sense K. Am- (n. 19), para. 67.

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25 Ibid. paras 39­–44. tions from the executive and that, therefore, their competence to issue 26 CJEU, 12 December 2019, joined cases C-566/19 PPU and C-626/19 EAWs is not affected by the Court’s ruling in Public Prosecutors’ Offices PPU, French Prosecutor’s Office. in Lübeck and Zwickau. These notes are available at: and 28 Ibid., paras 63 and 64. (accessed on 24 January 2021). It is also worth mentioning the Authority. “Questionnaire on the CJEU’s judgments in relation to the independence 30 CJEU, 12 December 2019, case C-627/19 PPU, Belgian Public Prosecu- of issuing judicial authorities and effective judicial protection” drafted tor’s Office. by Eurojust to illustrate the current legal situation in each Member State, 31 According to AG Sánchez-Bordona, “in order to issue an EAW, the available at: (accessed on 24 January 2021). the issue of the EAW should not be disproportionate. And the examination of 38 See, in that regard, 53rd Plenary meeting of the European Judicial proportionality is a matter for the courts …”; accordingly, “[EAWs] issued Network - Conclusions on current developments on the application of the by the Prosecution Authority for the purposes of enforcing a custodial EAW, p. 9, available at: (accessed on 24 January 2021). the subject of court proceedings similar to those that apply in the case of 39 The effects of the two arrest warrants are indeed different: an EAW [EAWs] issued for the purposes of conducting a criminal prosecution”, see may result in the person’s surrender to a Member State with which that AG Sánchez-Bordona, Opinion of 26 November 2019 in case C-627/19 PPU, person usually has no links of any kind, whereas a national arrest warrant Belgian Public Prosecutor’s Office, paras 24, 26 and conclusion. does not entail such a surrender. Accordingly, the assessments behind 32 CJEU, 24 November 2020, case C-510/19, Openbaar Ministerie. these acts are not the same. 33 See also T. Wahl, “CJEU: German Public Prosecution Office is not a 40 See T. Wahl, “Lithuanian Prosecutor General Included in the Concept “Judicial Authority” in the EAW Context”, (2019) eucrim, 31, 33. of “Judicial Authority” in the FD EAW”, (2019) eucrim, 34. 34 The text of this note is available at: (accessed on 24 January 2018, case C-216/18 PPU, Minister for Justice and Equality), according to 2021). which an issuing judicial authority “exercises its functions wholly autono- 35 See (accessed on 24 January 2021). nated to any other body and without taking orders or instructions from any 36 A draft law to strengthen the independence of the public prosecutor’s source whatsoever” (LM, para. 63); see AG Sánchez-Bordona, Opinion of office Gesetzentwurf:( Entwurf eines Gesetzes zur Stärkung der Unabhän- 26 November 2019 in joined cases C-566/19 PPU and C-626/19 PPU, French gigkeit der Staatsanwaltschaft (Drucksache 19/11095)) is currently being Prosecutor’s Office, para 37. discussed by the German Bundestag. 42 Ibid., conclusion. 37 For example, Italy stated that the Italian Constitution “excludes Public 43 L. Baudrihaye-Gérard, “Can Belgian, French and Swedish prosecutors Prosecutors from the sphere of influence of the executive power” and that issue European Arrest Warrants? The CJEU clarifies the requirement for they enjoy maximum independence, in compliance with the principle of independent public prosecutors”, EU Law Analysis; available at: (accessed on 24 January 2021).

The AY Case Construing EAW ne bis in idem within the Boundaries of the Preliminary Ruling Reference

Florentino-Gregorio Ruiz Yamuza

This article analyses and comments on the opinion of the Advocate General and the ECJ judgment in case C-268/17 (European arrest warrant against AY). Interestingly, the case has remained somewhat unnoticed, the literature on it being scarce. How- ever, it addresses some quite appealing issues. First, the case poses interesting questions on the admissibility of the reference for a preliminary ruling. Here, the Advocate General’s and the Court’s views disagree, which opens a general debate around the preliminary ruling reference mechanism. Second, the case deals with the obligation of the executing authority to decide on each incoming EAW, even if an earlier one relating to the same person and the same facts had already been refused. Third, the ECJ had the opportunity, for the first time, to specify its case law on the provisions reflecting the ne bis in idem principle in the Framework Decision on the European Arrest Warrant (Arts. 3(2) and 4(3)). This article stresses that the ECJ lays down the foundation of a neatly subjective ne bis in idem principle, which primarily refers to the requested person rather than to the offence that was the subject of criminal proceedings.

336 | eucrim 4 / 2020 The AY Case

“…it is, first and foremost, for the executing Member State to trust the actions of the issuing Member State. However, the issuing Member State must also trust the actions of the executing Member State when the latter relies on grounds of refusal of execution of an EAW.” (Opinion of Advocate General Szpunar, Case C-268/17, AY, paragraph 32)

I. Context of the AY Case: Facts and Questions Referred or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which In 2011, the Croatian Office for Suppression of Corruption and prevents further proceedings.” Organised Crime (USKOK) requested Hungarian authorities to interview AY as a suspect in the context of a corruption- In addition, the referring court asked whether Art. 1(2) FD related investigation carried out in Croatia. Hungary declined EAW – the obligation of Member States to execute any EAW the request on the grounds of national interest but opened an on the basis of the principle mutual recognition – must be in- investigation on the same facts, interviewing AY as a witness. terpreted as requiring the executing authority to adopt a deci- This investigation was closed by the Hungarian National Bu- sion on any EAW forwarded to it, even when a ruling in that reau of Investigation (HNBI) in 2012. The Croatian investi- Member State had already been made on a previous EAW gation was also suspended in December 2012. In 2013, the concerning the same person and the same acts, but the second USKOK issued a European Arrest Warrant (EAW) against EAW was issued by a different authority on account of the AY over the same facts. The Budapest High Court refused it, requested person’s indictment (question 5). claiming that criminal proceedings had already been brought before the court in Hungary for the same acts and that these proceedings had been stopped. After said decision, AY moved II. The Admissibility Question: Reference to Germany and Austria, where authorities also refused to take by the Issuing Authority? action on the Interpol notice, as its execution could infringe the ne bis in idem principle − taking into account the Hungar- 1. The Advocate General’s Opinion ian refusal of the EAW. In 2015, after an indictment against AY in Croatia, a new EAW was issued, this time by the Za- In his opinion of 16 May 2018, Advocate General (AG) Szpu­ greb County Court. This EAW was not executed by Hungary nar distinguishes two groups of questions for the preliminary either. In 2017, the EAW was reissued, stating that circum- ruling: (1) questions 1 to 4, which he considers outside of the stances had changed and criminal that proceedings against AY CJEU’s jurisdiction and (2) question 5, which he considers the had been brought before the court. After not having received only admissible one.1 any answer from the Hungarian authorities, the Zagreb court contacted the authorities via Eurojust in order to know their Regarding questions 1 to 4, the AG underlines that the pre- position; the Hungarian authorities replied that the case had liminary reference is somewhat unusual. The answer pro- already been decided and, therefore, they were not obliged to vided by the Court would only concern the executing au- act on the EAW. thorities, who are generally responsible for seeking clarity to ascertain whether they may or may not execute an EAW. Essentially, the referring court asked whether Arts. 3(2) and In this case, the reference was made by the issuing authority 4(3) FD EAW must be interpreted as meaning that a decision (i.e., the Zagreb County Court), and it seems that the Zagreb by the public prosecutor’s office, terminating an investiga- court’s subsequent action would depend on the decision of tion against an unknown person, in which the individual was the ECJ: If the ECJ determines that grounds for refusal are merely interviewed as a witness, may be relied on to refuse to sound, the EAW should be withdrawn. Concerning questions execute an EAW under either of these provisions (questions 1 1 to 4, the AG not only discards the admissibility of the re- to 4). Calling to mind, Art. 3(2) FD EAW includes among the quest for a preliminary ruling but even denies the jurisdiction mandatory grounds for refusal of EAWs the case in which a of the ECJ.2 The AG’s analysis is primarily based on the lack Member State has finally judged the requested person “in re- of necessity of the Court’s reply on the procedure before the spect of the same acts provided that, where there has been sen- referring court, because there is no link between the EAW tence, the sentence has been served or is currently being served withdrawal and the existence of non-execution grounds. or may no longer be executed under the law of the sentencing Should the ECJ hold that Hungarian authorities can rely on Member State.” And Art. 4(3) lists as an optional ground for Arts. 3(2) or 4(3) FD EAW to refuse the EAW, the referring refusal the situation where “the judicial authorities of the ex- court could maintain or withdraw the EAW. Ultimately, ques- ecuting Member State have decided either not to prosecute for tions 1 to 4 referred for preliminary ruling concern interpre- the offence on which the EAW is based or to halt proceedings, tation of Hungarian law in the light of the FD EAW, and only

eucrim 4 / 2020 | 337 The Reception of European Legislation and Case Law in the Member States the Hungarian authorities, not the referring court, would be The ECJ’s rationale, which holds that the EAW affects the re- bound by the ECJ’s decision.3 quested person’s liberty is of undeniable general validity, but it should be carefully scrutinised in this case, since AY was On the contrary, the AG finds the ECJ competent to deal with free, and Hungary had already denied his surrender. In other the fifth question, considering it pertinent to answer this ques- words, as far as Hungary was concerned, there was no risk tion: It is necessary for the authorities of the executing Mem- that the Croatian decision to maintain or withdraw the EAW ber State but also necessary for the referring court “to know would affectAY’s liberty. We should also bear in mind that the whether it can legally expect a response from the executing request for surrender had been indirectly refused in Germany judicial authority. This will enable the referring court to estab- and Austria at the police level. As a consequence, the climate lish whether it should withdraw the second EAW or not. Ques- was unfavourable to AY’s surrender, and there was little to no tion 5 is the only one which does not require any interpretation arrest risk for him in any of the States linked to this matter. of Hungarian law by the referring court.”4 On the other hand, the AG’s view, with which I basically agree, shows a divergent position that may appear as somehow 2. The Approach of the European Court of Justice inconsistent; his line of argument varies, without a clear expla- nation for such a different approach. Regarding questions 1 to The ECJ does not address the matter of the admissibility of 4 (interpretation of Arts. 3 (2) and 4 (3) FD EAW), he holds the reference from the perspective of jurisdiction but rather that the ECJ does not have jurisdiction to deal with them. By from that of the admissibility of the preliminary ruling.5 The contrast, concerning the fifth question (interpretation of Art. 1 inadmissibility of references on the basis of Art. 267 TFEU is (2) FD EAW), he concedes that it can influence the EAW’s an exception, the Court being obliged to rule if the questions withdrawal by the Croatian authorities. Therefore, he is in fa- raised refer to the interpretation of Union law.6 Such obliga- vour of an ECJ’s decision on the merits of the case. tion only lapses in three situations: „„If it is evident that the interpretation of EU law being sought I do not aim to dive into the discussion between inadmissi- is unrelated to the facts of the main action or its object; bility of the preliminary ruling reference and the ECJ’s lack „„If the problem is hypothetical; of jurisdiction, which the AG addresses. However, the word- „„If the Court does not have before it the factual or legal ma- ing of Art. 267 TFEU links the scope of application of the terial necessary to provide a useful answer to the questions reference for a preliminary ruling with a situation in which a submitted. decision on the question is necessary to enable the referring Court to render judgment. Here, two questions arise: First, can The Court underlines that the present case does not corre- we construe the decision to maintain or withdraw the EAW spond to any of these situations. The Zagreb County Court is as equivalent to “judgment” in this context? Second, can we dealing with both a trial in absentia against AY and the EAW assume for this purpose that the case the referring authority proceedings and maintains that the withdrawal of the EAW is dealing with does not just involve the criminal proceed- depends on the ECJ’s responses. Although the issues raised ings but could also be the very EAW under consideration? mainly refer to the obligations of the executing judicial au- In the present case, there was an ongoing criminal proceed- thority, the issuance of the EAW may lead to the arrest of ing in absentia against AY in Croatia in addition to the EAW the requested person, affecting his freedom. The Court held, request for his surrender. Hence, it is questionable whether inter alia, in Piotrowski that the observance of fundamental the criminal proceeding depended on the response of the ECJ rights in EAW proceedings primarily falls within the respon- in the preliminary ruling reference or whether just the EAW sibility of the issuing Member State.7 depended on it.

The questions posed to the ECJ seem rather not aim to elucidate 3. The controversy between the AG and the ECJ a doubt emerged to the Croatian part, but instead to validate the actions of the Hungarian authorities, eminently applying The ECJ’s judgment triggers an exciting debate, establishing Hungarian law. Taken further, the third question in the prelimi- a doctrine of Art. 267 TFEU that will likely expand our under- nary ruling reference (i.e. whether the decision to terminate an standing of the boundaries of the preliminary ruling reference. investigation, in which the requested person was merely inter- For his part, the AG’s reading of Art. 267 draws different con- viewed as a witness, constitutes, for the other Member States, clusions despite being in line with the Court’s recommenda- a ground not to act on the EAW under Art. 3(2) FD EAW?) is, tions about the initiation of preliminary ruling proceedings and in my view, highly hypothetical, as it does not concern Hun- with the binding effect that ECJ decisions in this field have. gary’s actions but the involvement of a third Member State.

338 | eucrim 4 / 2020 The AY Case

However, we can assume that the controversy has been defi- Upon closer inspection, we can therefore observe that the ob- nitely settled by the ECJ’s ruling in AY and the recent Gaza­ ligation to reach a decision on an EAW arises unconditionally nozov case. In Gazanozov, the Court decided on a prelimi- by its mere reception and regardless of the new circumstances nary ruling reference from the issuing authority of a European if it is a kind of “reissuance” of a previous request. The sur- Investigation Order (EIO). The ECJ faced questions on the render of the requested person might be granted or refused but, compatibility of the referring authority’s national law with the in any event, the executing authority has to decide on the EAW EIO Directive. Although the Court neither broaches this time it received. We can conclude from the judgment that it is not the issue of the admissibility of a preliminary ruling reference the analysis of the nature of the change in circumstances that coming from the issuing authorities nor refers to the AY case, is important but rather the obligation to decide on any EAW it implicitly reiterates its position in favour of the admissibility received; the validity of this obligation is separate from an in- of such references. quiry in terms of any impact that the new circumstances might have on application of the ne bis in idem principle. In other words, should none of the circumstances have changed, the III. The Executing Authority’s Obligation to Adopt obligation to decide on the EAW would still exist. a Decision on the EAW

The fifth question referred to the ECJ asks whether Art. 1(2) IV. The Concept of ne bis in idem in the EAW Context FD EAW must be interpreted as requiring the executing au- thority to adopt a decision on any EAW forwarded to it, “... The core of the preliminary ruling reference lies on questions even when, in that Member State, a ruling has already been 1 to 4. These questions revolve around four issues: made on a previous EAW concerning the same person and (1) Regarding Art. 4(3) FD EAW: Is the decision by the ex- the same acts, but the second EAW has been issued only ecuting state not to prosecute or stop criminal proceedings for on account of the indictment, in the issuing Member State, the offence on which the EAW is based, related only to the of the requested person.” In answering this question, both offence itself or must it also refer to the person sought as a the AG8 and the Court9 agree that the Hungarian executing suspect or accused person in these proceedings? authority was obliged to decide on the surrender request re- (2) Can Art. 4(3) FD EAW be invoked as a ground for refusal ceived, despite the fact that it had previously refused anoth- if the requested person is merely a witness and not a suspect or er EAW issued in the same proceedings and relating to the accused person in the criminal proceedings? same person. The AG’s opinion is unclear as to whether the (3) Regarding Art. 3(2) FD EAW: Can the decision to termi- issuance of the second EAW by another judicial authority nate an investigation if the requested person is only questioned or AY’s indictment is the relevant event that triggers such an as a witness be invoked as a refusal ground by a third Member obligation.10 At first glance, the ECJ seems to link the exe- State for surrender under that provision?14 cuting authority’s obligation to adopt a decision on the EAW (4) How can the mandatory and optional grounds for refusal with a change in the circumstances, especially the indict- set out respectively in Art. 3(2) (“the executing judicial au- ment of the requested person in the issuing Member State.11 thority is informed that the requested person has been finally However, the Court underlines the absolute nature of the judged by a Member State in respect of the same acts”) and obligation to decide.12 It reiterates that, from the wording Art. 4(3), in fine, (“a final judgment has been passed upon the of Art. 1(2) FD EAW and based on the principle of mutual requested person in a Member State, in respect of the same recognition, and unless there are exceptional circumstances, acts, which prevents further proceedings”) be articulated? the EAW refusal may only rely on the exhaustively listed non-execution grounds provided for by Arts. 3, 4 and 4a FD It is worth making some clarifications on these four issues: EAW. 13 The ECJ also argues that, in any case, pursuant to The first and second questions, which refer to Art. 4(3) EAW Arts. 15(1), 17(1) and (6) and 22 FD EAW, the executing FD, correspond to non-identical scenarios with different el- judicial authority must decide, within the time limits and ements: a) a decision not to prosecute or stop criminal pro- under the conditions defined in the instrument, on the re- ceedings was adopted; b) such a decision was taken before the quested person’s surrender. Should any ground for refusal be criminal proceedings have been started or once they were in applicable, it shall be detailed in the pertinent decision to be progress; c) the person sought played the role of investigated/ notified to the issuing authority. Consequently, if the execut- accused or was just a witness in these criminal proceedings. ing judicial authority fails to respond to an EAW forwarded The institution of criminal proceedings is a conditio sine qua to it and fails to communicate its decision to the issuing au- non requirement for a person to acquire the status of inves- thority, it would breach its obligations under the provisions tigated or accused person or even to give evidence in those of the FD EAW. proceedings as a witness. In this sense, the first question is

eucrim 4 / 2020 | 339 The Reception of European Legislation and Case Law in the Member States crucial and goes straight to the core of the debate: Is the ne by a Member State in respect of the same acts provided that, bis in idem an objective or subjective notion? Is it connected where there has been sentence, the sentence has been served or to the criminal proceedings or the persons concerned by the is currently being served or may no longer be executed under proceedings? On the one hand, the decision not to prosecute or the law of the sentencing Member State.” stop criminal proceedings is linked with a fact or set of facts and also with a specific investigated or accused person. On the AG Szpunar points out that the ECJ has not given a clear other hand, the fact that criminal proceedings are not brought answer on the matter; nonetheless, its case law supports his against a specific person at a given moment does not imply opinion that Art. 3(2) of the FD EAW is not applicable to AY’s that such a person might not qualify as an accused or person situation: under investigation at a later stage. Merely being a witness in „„In Mantello, the ECJ interpreted the concept of “finally a criminal case is a neutral situation that, in principle, does not judged” broadly and – by transposing its case law on Art. 54 indicate any connection between the person who testifies and of the Convention Implementing the Schengen Agreement the crime, apart from the information he or she can provide. – concluded that the person sought is considered finally judged if, as a result of the proceedings, the public action The second question complements the first one by delimiting was definitively extinguished or the accused person was de- the scope of the problem, which makes it pertinent as well. finitively acquitted.16 In the same judgment, it stated that However, it refers to a hypothetical situation that would hard- the fact that a person has been definitively judged for the ly occur in practice, which is finding the pair: a decision not purposes of Art. 3(2) FD EAW has to be determined under to prosecute and an individual who has reached the personal the law of the executing State. status of investigated/accused or witness. If a decision not to „„In Turansky, the ECJ held that the ne bis in idem principle prosecute, as not to initiate proceedings is taken, no person does not apply to a situation where the authority of a Mem- can get the status of investigated/accused or witness. Hence, ber State examines the merits of the case and suspends the the only way to make sense out of the wording of the ques- criminal proceedings before a suspected person is accused tion would be considering that the decision not to prosecute is and where such decision neither bars further prosecution adopted concerning a particular person within ongoing crimi- nor precludes new criminal proceedings, in respect of the nal proceedings. same acts, in that State under its national law.17 „„In Kossowski, it was established that a prosecutor’s resolu- The third question underlines that Croatian authorities were tion “terminating criminal proceedings and finally closing not asking the CJEU about the Hungarian position. They rath- the investigation procedure against a person could not be er indicate what would be the influence of the situation for EU characterised as a final decision when it is clear that the Member States other the issuing State. The question implicitly procedure was closed without a detailed investigation hav- reflect the attitude of Germany and Austria, those EU Member ing been carried out.”18 States that rejected acting on the EAW at the police level by taking into account the Hungarian decision. On the one hand, the AG concedes that, based on the relevant documentation provided in the case at issue, it was not pos- sible to determine whether such an in-depth investigation had 1. The Advocate General’s Opinion been performed in Hungary; however, following the principle of mutual trust, it must be presumed, since the Croatian court a) Interpretation of Art. 3(2) FD EAW was unable to rebut that presumption, which is not an easy task for the referring court. On the other hand, the AG stresses that Regarding the interpretation of Art. 3(2) FD EAW,15 the AG these considerations are hypothetical, given that AY had never first points out that the language versions differ as regards the been an accused at a certain stage in the proceedings. Thus, phrase “finally judged”. This problem (which is also present contrary to the views of the Hungarian government and AY, in Art. 4(3) FD EAW) should not be underestimated, since a the situation of the requested person does not fall within the consistent translation is crucial to achieving a uniform legal category of a person “finally judged” according to the meaning understanding throughout the EU, not only from a linguistic of Art. 3(2) FD EAW. but also from a conceptual point of view. The term “finally judged” seems to refer to a judgment handed down as the b) Interpretation of Art. 4(3) FD EAW conclusion of criminal proceedings. The wording of Art. 3(2) contemplates explicitly only the event of a conviction by es- Regarding Art. 4(3) FD EAW, the AG calls to mind that the tablishing the situation where “the executing judicial authority ECJ has not yet interpreted this provision, although it estab- is informed that the requested person has been finally judged lished in Poplawski19 that the executing authority has a margin

340 | eucrim 4 / 2020 The AY Case of discretion to refuse surrender a priori. The AG also stresses Hungarian prosecutor’s decision to terminate an investigation that the scope of Art. 4(3) is partly wider than Art. 3(2) FD in which AY had merely been interviewed as a witness cannot EAW, because it refers to the offence rather than to the person be relied on to refuse the EAW under said Art. 3(2). sought, and the provision has an optional nature, meaning that ne bis in idem cannot limit or curtail it. Nonetheless, the first b) Interpretation of Art. 4(3) FD EAW limb of Art. 4(3), which is at stake in the present case, is a manifestation of the ne bis in idem principle, like Art. 3(2). Regarding Art. 4(3) FD EAW, the judges in Luxembourg un- Although it is not apparent from the wording of Art. 4(3) that derline that the provision is broken down into three optional the proceedings must be directed against the requested per- sub-grounds for refusal, devoting separate considerations to son, it would be too excessive to interpret this provision as each of them: The first and third sub-grounds are not appli- being applicable if the facts were the same, but the persons cable to the present scenario. The first sub-ground justifies concerned were different. On the contrary, a more restrictive refusal if the executing authorities decide not to prosecute interpretation aligns with national legislations establishing for the offence. Obviously, such circumstances do not match first investigations in rem and then in personam; it is not pos- those in the AY case in which Hungary opened a case based sible to conclude that a crime has been committed from the on the same facts, and the HNBI’s decision does not concern investigation in rem. the discontinuance of criminal proceedings. Analogously, the case does not fall within the scope of the third sub-ground for According to the AG, the decision not to initiate or to conclude refusal either, as it requires a third EU Member State’s final criminal proceedings must refer to the requested person. Yet, it decision preventing further proceedings. is not necessary that such person has been formally classified as an accused person or a suspect. The decisive factor is “... Conversely, pursuant to the second sub-ground in Art. 4(3), the possibility that the sought person committed the offence in the enforcement of an EAW may be refused when the execut- question has been examined.” Nonetheless, Art. 4(3) FD EAW ing judicial authorities have decided to halt proceedings in would not apply to the present situation since Hungarian au- respect of the offence on which the EAW is based. The bulk thorities have concluded the proceedings without AY having of the ECJ’s reasoning and the most illuminating part of its been accused or investigated and without having examined interpretation of the ne bis in idem revolve around this matter, the possibility that he has committed the offence on which the which leans decidedly towards a subjective conception of such EAW issued by Croatian authorities is based.” principle. The judgment follows two lines of argumentation:26

First, the ECJ observes that the wording of the second sub- 2. The Decision of the European Court of Justice ground refers solely to the offence, not to the requested person. However, pursuant to Art. 1(1) FD EAW, the EAW is a judicial a) Interpretation of Art. 3(2) FD EAW decision issued for an offence against a specific person. Sharing the Commission’s argumentation, the Court concludes that an The ECJ concurs with the AG’s opinion20 but adds some useful interpretation of this second sub-ground, according to which the remarks that elucidate a number of specific interpretative is- execution of an EAW could be refused “where that warrant con- sues.21 The term “judgment” might not only refer to a court de- cerns the same acts as those that have already been the subject cision but also to other decisions from judicial authorities such of a previous decision, without the identity of the person against as decisions of a prosecutor to definitely discontinue criminal whom criminal proceedings are brought being considered rel- proceedings.22 According to its doctrine in Mantello, the per- evant would be manifestly too broad...” In the present case, an son sought is deemed to have been finally judged in respect of investigation was conducted against an unknown person; there- the same facts, “when, as a result of criminal proceedings, fur- fore, the decision which terminated that investigation was not ther prosecution is definitively barred or when the judicial au- taken in respect of AY, who was not involved in the criminal thorities of a Member State have adopted a decision by which proceedings in the sense of the first paragraph of Art. 4(3) FD the accused is finally acquitted in respect of the alleged acts.”23 EAW. This means that no decision not to prosecute or halt pro- ceedings has been taken in relation to him.”27 The term “final judgment” in Art. 3(2) FD EAW presupposes the existence of criminal proceedings initiated against the re- Second, the Court makes supplementary considerations that quested person.24 The ne bis in idem principle applies only to relate to the insertion of the provision in the mutual coop- persons who have been definitively tried in a Member State, eration system within the AFSJ. The Court has continuously not to those who have only been called as witnesses.25 Techni- held that the grounds for non-execution provided for in the cally, AY had not been judged in this regard. In conclusion, the FD EAW must be interpreted strictly.28 Following the doctrine

eucrim 4 / 2020 | 341 The Reception of European Legislation and Case Law in the Member States in Kossowski, the ground for refusal provided for in Art. 4(3) second situation is related to Art. 4(3) FD EAW, where the is not intended to prevent a person from having to submit to ne bis in idem principle is articulated if the executing State successive investigations for the same acts in several Mem- decided not to prosecute or to halt proceedings. However, this ber States. In conclusion, the refusal of the EAW cannot rely approach (i.e., not strictly requiring the person sought to have on the second sub-ground for non-execution laid down in been accused or investigated) only applies to the first and sec- Art. 4(3) FD EAW. ond sub-grounds of Art. 4(3) FD EAW, where decisions not to prosecute or to halt proceedings have been adopted. As for the third sub-ground, where a final judgment has been passed, 3. Comparison between the Views of the AG and the ECJ the consistent construction should be equivalent to that for Art. 3(2) FD EAW, i.e., to require the person sought to have AG Spunzar’s opinion and the final judgment of the ECJ in AY the status of accused because otherwise, it would not be pos- triggers some interesting discussion points: sible to deliver a final judgment concerning him or her.

First, the AG’s opinion gives a divergent interpretation of the Second, the AG’s view does not appear to match the ECJ’s provisions at issue. As regards Art. 3(2) FD EAW, it submits judgment as to the subjective spectrum of ne bis in idem: that it does not apply to AY since his participation in the pro- While the AG admits that Art. 4(3) FD EAW could apply even ceedings was solely as a witness. The AG, therefore, advocates if the requested person has not been investigated or accused, a subjective concept of the ne bis in idem principle (within the position of the judges in Luxembourg seems to be con- the meaning of Art. 3(2)), which can be characterised as not trary. For application of the second sub-ground for refusal of being broad enough to include the position of an individual Art. 4(3), the ECJ is more restrictive in this regard. The Court neither investigated nor accused in the criminal proceedings does not explicitly require that the requested person has been as giving rise to the EAW. As regards Art.4(3) FD EAW, the investigated or accused in the proceedings motivating the AG concludes that the essential issue for application of this EAW issuance. However, the judgment states that application article is not the investigation or accusation of the person con- of this provision requires that the EAW concern the same acts cerned but rather his/her possible connection with the offence as those that had already been the subject of a previous deci- examined in detail in these proceedings. This latter interpreta- sion and that the identity of the person against whom crimi- tion introduces an important nuance, without departing from nal proceedings are being brought are considered relevant. a subjective perspective on the construction of the ne bis in Although both positions are not so far apart, the ECJ’s position idem principle.29 is more restrictive. The ECJ declares Art. 4 (3) inapplicable if AY was interviewed as a witness only, without criminal pro- We should bear in mind that the nature of the grounds for re- ceedings having been brought against him and if the decision fusal in both articles is different. On the one hand, Art. 3(2) terminating the investigation was not taken in respect of that FD EAW is a mandatory ground for refusal; it concerns the person. Conversely, the position of AY in the criminal proceed- requested person, depends on the action of a third EU Member ings should have been similar, if not identical, to that of an State, and is linked to the termination of criminal proceedings investigated or accused person in order to make Art. 4(3) FD by a final decision. On the other hand, the first and second sub- EAW applicable. grounds for refusal in Art. 4(3) FD EAW are optional; they relate to the offence and not to the person, are dependent on the actions of the executing State itself, and are linked to the V. Concluding Remarks decision not to prosecute or halt proceedings for the offence on which the EAW is based. Nevertheless, the third ground in this The ECJ’s judgment in AY (case C-268/17) is important in provision, despite also being optional, is close to Art. 3(2) FD several ways: EAW, since the factual assumption is that a Member State has „„It outlines the vast scope of the preliminary ruling refer- passed a final decision on the requested person concerning the ence, conceding that the reference may be raised by the is- same acts, thus preventing further proceedings. suing authority of a European Arrest Warrant, even when much of its content may refer to application of the law of Therefore, we could argue that the most logical way of giv- the executing Member State. ing sense to the AG’s approach is the differentiation of two „„It unequivocally establishes the obligation of an EU Mem- situations. The first situation is foreseen in Art. 3(2) FD EAW, ber State to rule on an EAW received. whose application necessarily requires that the requested per- „„It clearly defines an openly “subjective ne bis in idem” ap- son has the status of an accused person, because, without it, proach. Key elements to be assessed are the nature of in- he/she could hardly have been finally judged. In contrast, the serting the requested person into the proceedings that give

342 | eucrim 4 / 2020 The AY Case

rise to an EAW and determining his/her possible link to the committed offence in the proceedings. Dr. Florentino-Gregorio Ruiz Yamuza „„The case fueled a wider debate in which the positions of the Senior Judge of the Appeal Court of Huelva AG and the judges in Luxembourg clashed as well as com- (Spain). Member of the Spanish Judicial plemented and enriched each other, opening up an interest- Network for International Cooperation (REJUE), ing field of study in the area of ne bis in idem. Criminal Division

However, the reader should bear in mind: AY was, in fact, nev- er surrendered to Croatia.30 This brings us back to the question of the weakening of the principles of mutual recognition and mutual trust and it leads to the question of the way forward in tic law, the executing judicial authority must, nevertheless, have a margin terms of strengthening cross-border cooperation mechanisms of discretion as to whether or not it is appropriate to refuse to execute the EAW. In that regard, that authority must take into consideration the objec- within the AFSJ. tive of the ground for optional non-execution set out in that provision…” 20 As the AG, the ECJ starts with answering the questions on the inter- pretation of Art. 3(2) FD EAW. Cf. ECJ, 25.7.2018, C-268/17, op. cit. (n. 5), paras. 37–46. 21 For a holistic overview, see D. Sarmiento, “Ne Bis in Idem in the Case 1 Opinion of Advocate General Szpunar, delivered on 16 May 2018, Case Law of the European Court of Justice”, in B. van Bockel (ed.), Ne Bis in C-268/17, Ured za suzbijanje korupcije i organiziranog kriminaliteta v AY, Idem in EU Law, Cambridge University Press, 2016, pp. 103 et seq. paras. 22–33. 22 This follows from the ECJ’s decision in Kossowski, op. cit. (n. 20), 2 Citing AG opinions in C-497/12, case Gullotta y Farmacia di Gullotta para. 39 and case law cited there. Judicial authority and judicial decision Davide & C; C-165/14 and C-304/14, case Rendón Marín and CS; see also are autonomous concepts of EU law, the first one including, under certain C. Naômé, Le renvoi préjudiciel en droit européen-Guide pratique, 2nd edi- circumstances, the prosecutors; therefore, the decisions resolving a case tion, 2010, pp. 85 and 86. and emanating from them might well be considered judicial decisions. 3 Opinion of Advocate General Szpunar, op. cit. (n. 1), paras. 30, 31. Cf., among others, ECJ, 29.05.2019, Case C509/18, PF; ECJ, 12.12.2019, 4 Opinion of Advocate General Szpunar, op. cit. (n. 1), para. 34. Case C-625/19 PPU, XD; ECJ, 12.12.2019, Case C-627-19 PPU, ZB; ECJ, 5 ECJ, judgment of 25 July 2018, Case C-268/17, AY, paras. 24–30. 12.12.2019, Joined Cases C-566/19 PPU and C-626/19 PPU, JR-YC. 6 Reference is made to ECJ, 12.10.17, case C‑278/16, Sleutjes (para. 22 23 ECJ, Mantello, op. cit. (n. 16), para. 45 with further references to the and case law cited there). ECJ’s case law. 7 ECJ, 23.01.2018, case C-367/16, Piotrowski, para. 50. 24 ECJ, 05.06.2014, case C-398/12, M. 8 Opinion of Advocate General Szpunar, op. cit. (n. 1), paras. 35 to 39. 25 ECJ, 28.09.2006, case C-467/04, Gasparini. 9 ECJ, 25.7.2018, C-268/17, op. cit. (n. 5), paras. 33 to 36. 26 ECJ, 25.7.2018, C-268/17, op. cit. (n. 5), paras. 50–60. 10 Opinion of Advocate General Szpunar, op. cit. (n. 1), para. 39 in fine. 27 The Court bases this interpretation on the antecedent of the first part 11 ECJ, 25.7.2018, C-268/17, op. cit. (n. 5), para. 32. of Art. 4(3), which is Art. 9 of the European Convention on Extradition 12 Ibid., paras. 33 to 36. signed in Paris on 13 December 1957. According to this provision, it allows 13 The ECJ reiterated in several judgments that grounds for refusal “extradition refusal when the authorities of the requested Party have of EAWs shall be interpreted in a restrictive way. See, among others, decided either not to institute or to terminate proceedings in respect of the judgments of 10.08. 2017, case C‑270/17 PPU, Tupikas or 25.07.2018, case same offence or offences. The explanatory report to the Convention states C-216/18 PPU LM. that the provision covers the case of a person ‘in regard to whom’ a decision 14 The original wording of the third question was as follows: “Does the has been taken precluding proceedings or terminating them.” decision to terminate an investigation in which the requested person did 28 ECJ, 23.01.2018, case C‑367/16, Piotrowski, para. 48 and the case law not have the status of a suspect but was interviewed as a witness consti- cited there. tute, for the other Member States, a ground not to act on the [EAW] which 29 In this context, the AG’s opinion follows the subjective approach but has been issued in accordance with Article 3(2) of Framework Decision not necessarily requiring that the person has acquired the formal status [2002/584]?” The terminology is worth clarifying here: An investigation of accused or investigated. Contrarywise, according to the AG’s position, carried out by the police or directed by the prosecutor is not equivalent to it would be enough for invoking the ne bis in idem, as reflected in Art. 4(3) criminal proceedings. EAW FD, if the involvement of the person in the crime committed has been 15 The AG reverses the order of the questions and starts his examination scrutinised in depth. with questions 3 and 4, which refer to Art. 3 (2) FD EAW. 30 In September 2018, the Hungarian Ministry of Justice informed the 16 ECJ, 16.11.2010, case C-261/09, Mantello. Zagreb county court that the EAW had been refused based on the ECJ’s 17 ECJ, 22.12.2008, case C-491/07, Turanský. doctrine in case C-216/18 PPU, LM, because his fundamental rights being 18 ECJ, 29.06.2016, case C-486/2014, Kossowski. endangered if surrendered to Croatia. The Ministry also reported that 19 ECJ, 29.06.2017, case C-579/15, Poplawski, point 21 “…where a Mem- Art. 4(3) FD EAW was applicable to criminal proceedings being conducted ber State chose to transpose that provision [Art. 4(6) FD EAW] into domes- in Hungary against AY as an accused person.

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The ECtHR Judgment in Tsonyo Tsonev and Its Influence in Bulgaria The Application of the ne bis in idem Principle in Bulgaria in Cases of Administrative and Criminal Proceedings for the Same Illegal Act

Galina Zaharova

This case annotation on the judgment of the European Court of Human Rights of 14 January 2010 in Tsonyo Tsonev v. Bulgaria (No. 2 – application No. 2376/03) reveals that the case entails several significant and sensitive issues of fundamental impor- tance, greatly exceeding the dimensions of the specific legal dispute:  The enforcement of the final judgments of the European Court of Human Rights (ECtHR) against Bulgaria;  The application of the ne bis in idem rule;  The interplay between criminal and administrative penal liability of the same person for the same act;  The role of the interpretative activity of the General Assembly of the Criminal Chambers (GACC) of the Supreme Court of Cas- sation (SCC) of the Republic of Bulgaria. This article discusses these items and introduces the reader to the mechanisms in Bulgaria for following up ECtHR judgments, as well as a new approach to the application of the ne bis in idem principle in cases of duplicative administrative and criminal proceedings.

I. Facts of the Case charges against him and the defendant Mr D.M. as his accom- plice for causing average bodily injury to Mr G.I. in the form The applicant, Tsonyo Tsonev, was born in 1977 and lived in of the loss of two teeth as a result of the fight on 11 November the town of Gabrovo, Republic of Bulgaria. On the evening of 1999 – a crime under Art. 129, para. 1 of the Criminal Code 11 November 1999, he and his friend, Mr D.M., after consum- of the Republic of Bulgaria, as well as for using force to en- ing alcoholic beverages, went to Mr G.I.’s apartment with the ter the victim’s home – a crime under Art. 170, para. 2 of the intention of collecting Mr D.M.’s ex-girlfriend’s belongings Criminal Code. that were left in Mr G.I.’s home. A fight ensued, in which the victim G.I. lost two teeth. Neighbours alerted the police about Based on the indictment filed against the applicant, court pro- the quarrel, and the applicant and Mr D.M. were arrested. ceedings were initiated before the Gabrovo District Court. By judgment of 14 November 2001, the court found the defend- On 12 November 1999, a police officer prepared a report on ant Tsonev guilty of causing average bodily harm to Mr G.I. the events of the previous night. Based on the information and sentenced him to eighteen months imprisonment; he was contained in the report, the mayor of the town of Gabrovo acquitted of the offences of acting in complicity with the de- recognized that the applicant, Mr Tsonev, had violated Art. 2, fendant Mr D.M. and using force to enter the victim’s home para. 1 of Ordinance No. 3 for the preservation of public order (the offence under Art. 170(2) Criminal Code). The applicant on the territory of the municipality of Gabrovo, and issued an appealed this sentence before the Gabrovo Regional Court, administrative penal decree (dated 19 November 1999), which which upheld the first-instance judgment by decision of 9 imposed a fine of BGN 50 (an amount equal to USD 26.28 April 2002. Upon appeal by the defendant Tsonev, a cassa- at the then applicable exchange rate1). The penal decree was tion proceeding was instituted and conducted before the SCC, motivated by considerations that the applicant’s actions in which also upheld the decision of the district court by decision breaking down the door of Mr G.I.’s apartment and the assault of 22 October 2002. constituted a breach of public order and a clear manifestation of disrespect for society, for which reason the applicant had to Tsonev lodged an application before the ECtHR alleging a face an administrative sanction. violation of his right to a fair trial due to the SCC’s refusal to appoint ex officio counsel and a violation of the ne bis in Following the entry into force of the administrative penal de- idem rule, as criminal proceedings had been instituted and cree issued against Tsonev, the prosecution service brought conducted against him after he had already been sanctioned

344 | eucrim 4 / 2020 The ECtHR Judgment in Tsonyo Tsonev and Its Influence in Bulgaria for the same act as a result of an administrative proceeding. another requirement limiting the scope of international agree- The Strasbourg Court upheld both objections and concluded ments that could be integrated into the domestic legal order violations of Art. 6(1) and (3) lit. c) ECHR, and of Art. 4 of without an act of transposition.3 Protocol No. 7 to the ECHR. The Convention for the Protection of Human Rights and Fun- With regard to the violation of Art. 4 of Protocol No. 7 to the damental Freedoms (ECHR) was signed by Bulgaria on 7 May ECHR, the ECtHR held in particular that, by its nature, the act, 1992 and ratified by a statute adopted by the National Assem- for which an administrative sanction (the fine of BGN 50 by bly on 31 July 1992.4 It has been in force since 7 September the mayor of Gabrovo on the basis of Ordinance No. 3 for the 1992 and was promulgated in the State Gazette, issue 80 of preservation of public order in the Gabrovo municipality) had 2 October 1992. Consequently, the Convention forms part of been imposed upon the applicant, falls within the scope of the Bulgarian national law, as its provisions prevail over conflict- term “criminal proceedings” within the meaning of Art. 4 of ing domestic legislation. With the ratification of the Conven- Protocol No. 7 (§ 50 of the ECtHR judgment). The applicant tion by the national parliament, the mandatory jurisdiction of had been “convicted” in an administrative proceeding, which the European Court of Human Rights in Strasbourg was ex- could be compared to a “criminal proceeding” in the autono- pressly recognized. Protocol No. 7 to the ECHR was signed mous sense of the term under the Convention, according to by Bulgaria (without reservations) on 3 November 1993 and the criteria set out in the judgments of the Court in Sergey ratified by a statute adopted by the National Assembly on Zolotukhin v. Russia, Lauko v. Slovakia, Kadubec v. Slovakia, 12 October 2000.5 It has been in force since 1 February 2001 Öztürk v. Germany, and Lutz v. Germany. Accordingly, the and was promulgated in the State Gazette, issue 76 of 30 Sep- criminal proceedings against the applicant were initiated and tember 2011. Pursuant to Art. 5, para. 4 of the Constitution, conducted for acts factually identical to those for which he the Protocol also forms part of domestic law and prevails over had already been sanctioned by a valid decision of the admin- conflicting domestic provisions. istrative sanctioning body (the mayor of the municipality of Gabrovo), which constituted a violation of the ne bis in idem The constitutionally determined relationship between interna- rule, enshrined in Art. 4(1) of Protocol No. 7 to the ECHR. tional and domestic law shows unequivocally the importance the Bulgarian Constitutional Court gives to international com- mitments, especially in the field of human rights protection. II. Mechanisms for the Effective Application This further proves the pan-European and civilizational sig- of the ECHR in Bulgaria nificance of the Convention for the national legal order. The interpretation of constitutional norms in the field of human At the time the decision convicting Tsonyo Tsonev was issued, rights should be in line with the highest human rights stand- Bulgaria had mechanisms in place for the actual and effective ards of the ECHR. In turn, the approach taken by the Con- application of the Convention’s provisions. stitutional Court strongly encourages and stimulates national courts to take into account the original meaning of the provi- sions of the Convention and to comply with ECtHR decisions. 1. The position of the ECHR in the Bulgarian legal order In addition to the direct repercussions of ECtHR decisions in the field of public international law, the ECtHR’s interpreta- Art. 5, para. 4 of the Constitution places the Republic of Bul- tive acts are directly applicable, have immediate effect, and are garia among the states that recognize the primacy of interna- mandatory, as the Convention is an integral part of Bulgarian tional legal norms over national ones and thus contributes to domestic law. The direct applicability of the provisions of the reinforcing the role of international law. Accordingly, inter- Convention is indisputable, and especially since the 1990s, the national treaties ratified in accordance with the Constitution Constitutional Court has had ample reason to uphold this un- and promulgated and entered into force on the territory of the derstanding in a number of its judgments.6 Republic of Bulgaria, form an integral part of national law and prevail over conflicting provisions of the domestic legislation. This means that not all sources of international obligations 2. The enforcement of ECtHR decisions in Bulgaria into which Bulgaria has entered are integrated into the nation- al legislation. Only if international treaties have been ratified The binding nature of the decisions of the ECtHR with regard and entered into force can they become part of domestic law to the convicted State also requires unconditional implementa- without the need to adopt a special act for their implemen- tion of its final decisions. It is common ground that the ECtHR tation. By an interpretative decision in 1992,2 the Bulgarian does not rule on the substance of the domestic law dispute Constitutional Court introduced the need for promulgation as in the context of which the infringement was committed. If a

eucrim 4 / 2020 | 345 The Reception of European Legislation and Case Law in the Member States violation is found, the convicted State is obliged to remedy the prohibition under Art. 4 of Protocol No. 7 to double prosecu- defective legal relationship under national law by: tion, trial, and punishment in respect only of criminal proceed- „„Terminating the wrongful conduct; ings and criminal offenses in accordance with the relevant na- „„Restoring the situation that existed before the violation; tional legislation. „„Compensating for all consequences of the violation; and „„Providing compensation and guarantees against repetition Also important is the fact that when the established violation of the violation. concerns a procedural rule that clearly contravenes the Con- vention, the proper synchronization with the requirements of It is well known that the ECHR’s principle of subsidiarity con- the Convention is usually a primarily legislative task. In these fers on the State the responsibility to ensure the effective ex- cases, the judiciary often has limited leeway to apply the man- ercise of the rights and freedoms enshrined in the Convention, datory principles laid down by the ECtHR. The imperative na- giving the State sovereign competence to decide how to imple- ture of the procedural rules calls for their strict implementation ment the guarantees of the Convention in its own legal system. due to the risk of distorting the proceedings from a procedural perspective. Therefore, the obligation to repeal or amend the The principle contained in Art. 46 ECHR obliges Member States rule in accordance with the Convention, or to fill gaps in the to take all necessary measures to comply with and enforce the relevant procedural provisions, is assigned to the legislature ECtHR’s final judgments against them. This obligation is by no for fear of another conviction by the ECtHR. means limited only to the payment of the awarded compensation and costs to the individual applicant. In the event of a violation However, the ECtHR has skilfully identified another ground of the Convention, the State also has an obligation which contributed to the violation of the ne bis in idem rule, in

“to select, subject to supervision by the Committee of Ministers, the particular with regard to the applicant, Mr Tsonev. In § 55 of general and/or, if appropriate, individual measures to be adopted in its judgment, the Court noted: their domestic legal order to put an end to the violation found by the “…It is obvious that the courts could not terminate the criminal pro- Court and to redress so far as possible the effects. Subject to moni- ceedings against him [the applicant] due to the existence of a previ- toring by the Committee of Ministers, the respondent State remains ous sanction in the administrative proceedings, as, according to a free to choose the means by which it will discharge its legal obligation binding interpretative decision of the former Supreme Court and under Article 46 of the Convention, provided that such means are com- the consistent jurisprudence of the Supreme Court of Cassation, the 7 patible with the conclusions set out in the Court’s judgment.” prohibition on repeating proceedings does not apply with regard to With regard to the obligation of the Republic of Bulgaria to administrative proceedings.” take general measures to implement the final decisions of the With this remark, the Court practically discreetly suggested to ECtHR against Bulgaria, the Committee of Ministers held on the Bulgarian judiciary a way to eliminate the violation even 30 November 2010 at its 1100th meeting that, in the case of without legislative intervention. A means for this is the inter- Tsonyo Tsonev v. Bulgaria, the Bulgarian authorities were in- pretative activity of the SCC, which is outlined in the follow- vited to “submit an action plan / report on the implementation ing section. of this decision.”8 Despite the reminder, effective measures to implement the decision in Tsonev were not taken until more than five years after its date of issuance. IV. The Interpretative Activity of the Bulgarian Supreme Court of Cassation

III. Bulgaria’s Inaction in Implementing the Tsonev The interpretative activity of the Supreme Court of Cassation Judgment is a unique and specific feature of the Bulgarian legal order, intended for radically overcoming the contradictions and in- The reasons for the continuous inaction in the enforcement of correct application of the laws by the courts. In addition to the conviction decision are multifaceted. Above all, they are their direct judicial function, the supreme courts (Supreme rooted in the nature of the extremely sensitive issue raised in Court of Cassation and Supreme Administrative Court) are en- the case – the duplication of administrative and criminal pro- trusted with the exclusive power to exercise supreme judicial ceedings and the cumulation of administrative and criminal supervision over the “accurate and uniform application of the sanctions. Although Bulgaria (like other Contracting Parties) law” by all courts (Art. 124 of the Constitution). The accurate attaches great importance to administrative sanctions, which and uniform application of legal norms guarantees the prin- are characterised by their efficiency and speed, there is a tradi- ciple of legal certainty of the citizens, which is an element of tional understanding in Bulgaria that heavier criminal liability the criteria for rule of law. The essential aspect of the inter- has absolute primacy over administrative liability. Therefore, pretative activity of the SCC is detailed in the Judiciary Act there is an understandable tendency to limit the scope of the (Chapter Four, Section X, Art. 124 – Art. 131a). Interpretative

346 | eucrim 4 / 2020 The ECtHR Judgment in Tsonyo Tsonev and Its Influence in Bulgaria decisions are binding for all bodies of the judiciary and the ex- not barring the opening of criminal proceedings in respect ecutive, for the bodies of local government, and for all bodies of persons who have already been punished in administra- that issue administrative acts (Art. 130, para. 2 of the Judici- tive proceedings.9 Hence, the Bulgarian courts consistently ary Act). Characteristic of this activity is that the respective accepted that a finally completed administrative proceeding competent General Assemblies of the departments of the SCC is not a legal obstacle for a subsequent trial for the same act do not carry out judicial activity in considering and resolving if it refers to the attributes of a crime, as provided in the a specific legal dispute, but interpret legal norms in the event Criminal Code. of contradictory or incorrect jurisprudence. The function of the supreme courts under Art. 124 of the Constitution to ensure the uniform application of the laws by all courts through VI. The New Approach of the Bulgarian Supreme Court their obligatory interpretative activity is not legislative. The of Cassation relevant interpretation does not create, replace, or change the interpreted legal norm. The interpretative decision of the On 22 December 2015, the General Assembly of the Crimi- SCC contains legal conclusions and conclusions regarding the nal Chambers of the Supreme Court of Cassation pronounced exact meaning of the respective legal norm. The interpretation Interpretative Decision No. 3/2015, which radically redefined overcomes contradictions and errors in the administration of the prevailing conception that, according to Bulgarian law, justice, aiming to achieve uniform and accurate application of the prohibition on repetition of proceedings does not apply to the law by all courts in the country and in general. It contributes administrative proceedings. The argumentation of the oppo- to an effective harmonized legal system. site thesis developed in this Interpretative Decision is based on the unambiguous ECtHR case-law related to the problem discussed above: When there is a conclusion that the alleged V. Bulgaria’s Past Approach to the Duplication administrative violation possesses the characteristics of a of Administrative and Criminal Proceedings criminal matter, the administrative procedure shall be equated with “criminal proceedings” within the meaning of Art. 4(1) The Bulgarian penal procedure system does not permit one and of Protocol No. 7. In these cases, the administrative procedure the same act to be the subject of two separate criminal proceed- conducted against the perpetrator has a ne bis in idem effect; ings or of two administrative proceedings toward the same in- therefore, the second penal procedure instituted toward him/ dividual. The provisions of Art. 17 of the Administrative Vio- her for the same act is inadmissible. lations and Penalties Act state that it is forbidden for a person to be penalized for an administrative offence for which the same The content of the decision reveals an approach tending to ap- individual has already been punished by a penal decree which ply in practice the provisions of Art. 5, para. 4 of the Bulgarian has entered into force or by a judgment of the court. Similarly, Constitution, and clearly illustrates what exactly it means to according to Art. 24, para. 1, (6) of the Penal Procedure Code, incorporate the regulations of an international treaty into the a criminal proceeding must not be instituted, and the already national law system. The matrix of the Interpretative Decision instituted criminal proceeding shall be discontinued, if toward is an example of the simultaneous manifestation of the sub- the same person for the same criminal act there is either a pen- sidiarity and the direct applicability of the provisions of the dent criminal proceeding, a verdict of the court that has entered Convention to national law. into force, a decree of the prosecutor, or a discontinuance ruling of the court for termination of the case. Until 2017, neither On the basis of the concept that Protocol No. 7 is an integral the Administrative Violations and Penalties Act nor the Pe- part of the national law of the Republic of Bulgaria, the deci- nal Procedure Code addressed the scenario in which a finally sion of the GACC comprises an extensive review of the rel- concluded administrative proceeding is conducted before the evant ECtHR case-law on the application of the ne bis in idem initiation or the termination of the penal proceeding toward the rule. Conclusions are drawn on the important aspects related same person for the same criminal act. There was no regulated to the core and meaning of the ne bis in idem principle; the legal procedure for the protection of the perpetrator in the case intensity of the protection of the right granted by Protocol of a penal procedure instituted in violation of the ne bis in No. 7; the main determinants of the applicability of the prin- idem principle toward a person who has already been the sub- ciple to procedures with a “criminal” nature according to the ject of an administrative proceeding for the same act. ECtHR and the Engel’s test; the requirements for establishing the identical nature of the subject of the two penal proceed- The former Supreme Court – in a binding interpretative deci- ings; the final character of the legal act delivered first in time; sion –, and later the Supreme Court of Cassation, have solved and the assessment of the notions “the same act” and “finally this legal loophole by construing that the Bulgarian law is acquitted/convicted” – the elements idem and bis.

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The core principles for the interpretation of the Convention’s the ECtHR always performs an independent verification of the provisions, including Art. 4 of Protocol No. 7, as established characteristics of the procedures (regardless of the contract- by the ECtHR, are entangled in the interpretation of the related ing countries involved) to reveal their nature in the sense of national procedural provisions. As a result of this complex ap- Art. 6(1) ECHR. It applies the so-called “Engel criteria”: proach, the GACC has extracted a procedural mechanism to „„The legal characterisation of the offence according to the prevent and overcome violations of the ne bis in idem princi- national law; ple in cases of the accumulation of procedures and sanctions „„The character and essence of the violation; and with a criminal character related to the same person for one „„The degree of severity of the stipulated punishment. and the same act. In fact, it is not a novelty for Bulgarian jurisprudence to use Of particular importance for judicial activity are the clarifica- the notions defined in the Convention and the case-law of the tions of the GACC as to what is related to the notion “criminal ECtHR, as well as to apply the Engel criteria to determine the charge.” The ne bis in idem principle manifests its effect sole- character of procedures. Apart from the case of Tsonyo Tsonev, ly in the penal procedure. The classification of the duplicate the ECtHR has dealt with the matter of the criminal nature procedures as “criminal” is, therefore, of high importance for of other finalised procedures conducted by Bulgarian national the application of the principle. It was precisely the misun- authorities in numerous other Bulgarian cases.11 derstanding (or disregard) of the principle of autonomy in the interpretation and application of the provisions of the ECHR Since the adoption of Interpretative Decision No. 3/15 of the that was the primary reason for the numerous violations of the GACC, the Engel criteria have become an established algo- prohibition on “be[ing] tried or punished again” in Bulgaria rithm for verification in the Bulgarian case-law. They have up until 2015. been consistently examined in cases of dispute, in order to de- termine the criminal nature of the accusation according to the It is known that the legal notions “criminal accusation,” spirit of the Convention in each specific case. “criminal procedure,” “criminal sanction,” etc. used by the Convention do not refer to the strict meaning of the terms In legal reality, the examination made in Interpretative Deci- under the national law. They have their own independent sion No. 3/15 of the GACC applies in cases of the duplication signification. According to the principle of autonomy, these of a criminal and an administrative penal liability – cases in terms must be perceived only in the light of the established which the ne bis in idem principle may be of consequence. principles in the case-law of the ECtHR and according to the The Interpretative Decision of the GACC contains instructions interpretation given by the Court, regardless of the meaning that the ne bis in idem consequences of the second criminal incorporated in them by the national law, which may be dif- prosecution of a person for the same act for which there is ferent. In this sense, the ECtHR consistently maintains that already a concluded administrative penal proceeding may be the terms “criminal proceedings,” “criminal sanction,” and overcome by revoking any judicial acts already carried out as “penal procedure” in the text of the provisions of the Con- part of the second, uncompleted penal proceeding and by ter- vention and the Protocols to the Convention shall be per- minating the second proceeding in accordance with Art. 4(1) ceived in correspondence with the meaning of the notions of Protocol No. 7 and the order of Art. 24, para. 1, item 6 of “criminal charge,” ”criminal offence,” and “punishment” the Penal Procedure Code. In the presence of the provided as stipulated in Art. 6 and Art. 7 ECHR. The Court repeat- legal grounds, the finalised administrative procedure with a edly points out in its judgments that the legal characterisa- penal character in the sense of the Convention could be re- tion of the procedure under national law cannot be the sole established (reopened), the enacted acts be repealed and the criterion of relevance for the applicability of the principle administrative procedure be discontinued (terminated). After of ne bis in idem under Art. 4(1) of Protocol No. 7. the elimination of any procedural obstacle to conducting the criminal procedure, it could be re-established (as an admis- An approach that defines the legal notions according to the sible exception according to Art. 4(2) of Protocol No. 7) and sole will of the contracting countries would lead to results that successfully finalised. are not compatible with the essence and goals of the Conven- tion. The possibility that national legislation could classify After the pronouncement of Interpretative Decision No. 3/15, procedures as administrative, disciplinary, fiscal, or “mixed,” this sequence of procedural steps, although complicated and instead of penal, as well as the potential for the prosecution of prolonged, was the only option for compensating for the harm- perpetrators by the applicable specific national order in each ful effects of violations of the ne bis in idem principle that country, would subjugate the effect of the fundamental require- was in line with the actual Penal Procedure Code and feasible ments to each country’s own will.10 Against this background, without any legislative intervention. The GACC had, there-

348 | eucrim 4 / 2020 The ECtHR Judgment in Tsonyo Tsonev and Its Influence in Bulgaria fore, prescribed a possible mechanism for overcoming viola- administratively as stipulated in the special part of the Penal tions of Art. 4(1) of Protocol No. 7. It simultaneously fulfilled Code, or if it represents an administrative offence under a law the requirements of the ECHR and complied with the estab- or decree. lished limitations of the actual procedural norms in Bulgarian national law. The described amendments successfully resolve the ne bis in idem conflict by taking into account the priority of criminal over administrative liability, and also by removing barriers to VII. Legislative Amendments in 2017 the possible direct imposition of an administrative punishment on the perpetrator in cases where it is established that the act is In 2017, the Bulgarian Parliament adopted amendments to the not a crime but an administrative offence. Penal Procedure Code and the Administrative Violations and Penalties Act.12 It established a scheme to overcome and pre- vent violations of the ne bis in idem principle in the event of VIII. Conclusion duplications of penal and administrative charges against the same person for the same illegal act. The amendments intro- Despite the prolonged period of uncertainty, inactivity, and duce new competences for the prosecutor and the court, and disputes, the judgment of the ECtHR in the case Tsonyo Tsonev provide a new legal basis for suspension and discontinuation (No. 2) has provoked complex legislative amendments which, of the penal procedure and for the reopening of the admin- without a doubt, favourably contribute to the guarantees of istrative proceedings. In short, the penal proceeding shall be legal security, predictability of judicial decisions, and equal- suspended in the event that there is a finally concluded penal ity before the law. The result was achieved by the interpreta- administrative proceeding for the same act. In these cases, the tive function of the Supreme Court of Cassation, fulfilling its prosecutor may submit within one month a proposal for the mission to develop an effective mechanism to overcome the reopening of the administrative proceedings. If the prosecutor existing legislative loopholes and imperfections as regards the does not submit a proposal for the renewal of the proceed- juxtaposition of criminal and administrative penal proceed- ings within the stated term, or if the proposal is rejected, the ings. The final outcome illustrates that the execution of ECtHR penal proceeding shall be discontinued. If the court establishes judgments is a common obligation of the State represented by during the trial that the violation is not a crime, the question all its authorities, demanding cooperation and coordination of whether the act constitutes an administrative violation is between these authorities. The inaction of any authority in the examined. In these cases, the court shall dismiss the crimi- implementation of the obligations undertaken by the State un- nal charges against the defendant and impose an administra- der Art. 46 ECHR neither presupposes nor exonerates the pas- tive sanction on him if the illegal behaviour is to be penalised sivity of the others.

1 For comparison: according to CMD (Council of Ministers Decree) No. 132 / 25.06.1999, the minimum wage in the Republic of Bulgaria amounted to BGN 67, or approximately USD 35. Galina Zaharova, LL.M. 2 Constitutional Court of the Republic of Bulgaria, Interpretative Decision Vice-President of the Supreme Court No. 7 of 2 July 1992 in constitutional case No. 6 of 1992, published in the of Cassation of the Republic of Bulgaria State Gazette No. 56 of 10 July 1992. 3 International treaties not published in the State Gazette, even if they and Head of the Criminal Department have been ratified and have entered into force, are not part of domestic law unless they were adopted and ratified before the current Constitution of 1991 and promulgation/publication in the State Gazette was not manda- tory pursuant to the then applicable ratification procedure. 4 State Gazette, issue 66 of 1992. 5 State Gazette, issue 87 of 2000. 8 1997 in constitutional case No. 13/97; Decision No. 29 of 11 November 1998 accessed 18 January 2021. in constitutional case No. 28 from 1998, etc. Since 2000, the Constitutional 9 тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/1960 г., ОСНК на ВС; Court has traditionally and consistently taken into account the interpreta- реш. № 348 от 29 май 1998 г. по н. д. № 180/1998 г., ВКС, II н. о.; и реш. № 564 tion of the ECtHR. от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о. – cited in the ECtHR’s 7 ECtHR (GC), 22 June 2004, Broniowski v. Poland (application no. judgment in Tsonev at para. 24. 31443/96), para. 192. See also ECtHR (GC), 13 July 2000, Scozzari et Giunta 10 ECtHR, 9 October 2003, Ezeh and Connors v. the UK (applications nos. v. Italie (applications nos. 39221/98 and 41963/98), para. 249; ECtHR (GC), 39665/98 and 40086/98); ECtHR (GC), 10 February 2009, Sergey Zolotukhin 29 March 2006, Scordino v. Italy (application no. 36813/97), para. 233. v. Russia (application no. 14939/03); ECtHR, 14 January 2014, Muslija v.

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Bosnia and Herzegovina (application no. 32042/11); ECtHR, 13 December no. 36760/06). Guided by the reasoning of the ECtHR, the Constitutional 2005, Nilsson v. Sweden (application no. 73661/01); ECtHR, 20 May 2014, Court applied the Engel’s test in its Decision No. 3 of 4 May 2011 in con- Nykänen v. Finland (application no. 11828/11); ECtHR, 20 May 2014, Häkkä stitutional case no. 19/2010, concluding that the dangerous act to society v. Finland (application no. 758/11). classified as “petty” (minor) hooliganism represents a “criminal charge” 11 For example: ECtHR, 21 December 2006, Borisova v. Bulgaria (applica- in the sense of the Convention. tion no. 56891/00); ECtHR, 23 April 2009, Kamburov v. Bulgaria (application 12 State Gazette, issue 63 of 2017; the amendments entered into force on no. 31001/02); ECtHR (GC), 17 January 2012, Stanev v. Bulgaria (application 5 November 2017.

Report

The Statute of Limitations as a Challenge for Cross-Border Cooperation in Criminal Matters – Development of a Harmonisation Proposal Die Verjährung als Herausforderung der grenzüberschreitenden Zusammenarbeit in Strafsachen – Entwicklung eines Harmonisierungsvorschlags

Bericht zur Projekttagung vom 17. bis 18. September 2020

Criminal law experts from 14 countries met to discuss the harmonisation of statute of limitations in the European Union at the project conference “The Statute of Limitations as a Challenge for Cross-Border Cooperation in Criminal Matters – Development of a Harmonisation Proposal” on 17 and 18 September 2020 in Frankfurt (Oder), Germany. The conference was part of a three-year project funded by the German Research Foundation (DFG) and led by Prof. Dr. Gudrun Hochmayr, European University Viadrina Frankfurt (Oder), and Prof. Dr. Walter Gropp, Justus Liebig University Gießen. It was held as a hybrid event, allowing attendance both on site and online. The aim was to discuss the draft of a proposal for harmonisation of the statute of limitations in criminal law within the European Union. After guest lectures by Prof. Dr. Helmut Satzger and Prof. Dr. Robert Esser, the national experts were given the opportunity to comment on the proposal from the perspective of their legal system. The harmonisation proposal is expected to be published in English and German as part of a collective book on the project in 2021.

Die Projekttagung „Die Verjährung als Herausforderung Danach präsentierte Prof. Dr. Robert Esser (Universität der grenzüberschreitenden Zusammenarbeit in Strafsa- Passau) seine Überlegungen zur Frage, ob sich ein Men- chen – Entwicklung eines Harmonisierungsvorschlags“ schenrecht auf Verjährung der Strafverfolgung begründen war der bisherige Höhepunkt des gleichnamigen, dreijäh- lässt. Ein denkbarer Ansatzpunkt sei Art. 6 EMRK (faires rigen DFG-geförderten Forschungsprojekts, das sich mit Verfahren). Ein Anspruch auf ein Ende der Strafverfolgung der Möglichkeit einer Harmonisierung der strafrechtlichen ließe sich eventuell darauf stützen, dass zeitbedingt keine Verjährung innerhalb der Europäischen Union beschäftigt. effektive Verteidigung mehr möglich sei. Es sei jedoch zu Geleitet wird es von Prof. Dr. Gudrun Hochmayr, Europa- bezweifeln, ob die gebotene Einzelfallbetrachtung sich mit Universität-Viadrina Frankfurt (Oder), und Prof. Dr. Walter starren Verjährungsregelungen vertrage. Danach widmete Gropp, Justus-Liebig-Universität Gießen, die Umsetzung sich Esser Art. 7 EMRK und der Frage, ob die Verjährung vom erfolgt in Zusammenarbeit mit dem Internationalen Arbeits- Rückwirkungsverbot erfasst ist. Hervorzuheben seien in den kreis Strafrecht sowie Landesreferentinnen und -referen- letzten Jahren ergangene „beachtliche Sondervoten“ des ten aus 14 verschiedenen Rechtsordnungen. portugiesischen Richters Paulo Pinto de Albuquerque, wel- cher die Frage der Verjährung als im Gesetzlichkeitsprinzip des Art. 7 EMRK verortet ansehe. Sollte diese Meinung sich I. in Zukunft durchsetzen, dürfte nach Esser auch die Verlän- Im Eröffnungsvortrag betonte Prof. Dr. Helmut Satzger (Lud- gerung von laufenden Verjährungsfristen grundsätzlich nicht wig-Maximilian-Universität München) die Aktualität und mehr mit Art. 7 EMRK vereinbar sein. Zuletzt warf Esser die Relevanz des Projektvorhabens. Satzger teilte den Befund, Frage auf, ob Art. 8 EMRK dazu zwinge, der Möglichkeit ei- dass der EU-Rechtsrahmen de lege lata eine umfassende ner Strafverfolgung zu einem bestimmten Zeitpunkt ein Ende Harmonisierung der Verjährungssysteme nicht erlaube, und zu setzen, um nicht unverhältnismäßig in das Privat- und Fa- bezeichnete den gewählten Weg einer Modellregelung, an milienleben des Tatverdächtigen einzugreifen. der sich die Mitgliedstaaten freiwillig orientieren können, als In der anschließenden Diskussion ging es unter anderem interessante Idee, die gedanklichen Freiraum schaffe und um Parallelen des Projektvorhabens zu einem kürzlich abge- kreative Lösungen ermögliche. Die Unverbindlichkeit der schlossenen Forschungsprojekt von Helmut Satzger (H. Satz- Regelung mache es umso dringlicher, eine hohe Akzeptanz ger [Hrsg.], Harmonisierung strafrechtlicher Sanktionen in bei den adressierten Staaten zu erreichen, weshalb diesen der Europäischen Union, 2020) sowie die Frage einer europa­ aus der neuen Regelung zumindest keine Nachteile entste- weiten ne bis in idem-Wirkung nationaler verfahrensbeen- hen dürften. dender Entscheidungen wegen Verjährung. Die EuGH-Ent-

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scheidung in der Rechtssache Gasparini (Urt. v. 28.9.2006 – Rs. Prof. Dr. Stephen Thaman (Universität St. Louis, USA) erläu- C-467/04) zeige, dass ein wegen Verjährung ergangener Frei- terte, dass mit Ausnahme von vier Bundesstaaten die USA spruch bereits vor Ablauf der in anderen Staaten geltenden eine lange Tradition an Verjährungssystemen aufweise. Die Verjährungsfristen dortige Strafverfahren verhindern könne. vergleichsweise kurzen Fristen seien möglicherweise damit zu erklären, dass in einem kontradiktorisch ausgestalteten II. Strafverfahren der zeitbedingte Schwund von (Entlastungs-) Prof. Dr. Gudrun Hochmayr präsentierte die wichtigsten Er- Beweisen eine gravierende Schwächung der Verteidigungs- kenntnisse ihrer rechtsvergleichenden Analyse der Landes- position bedeute. Dennoch registrierte Thaman den Trend, berichte aller 14 beteiligten Staaten. Sie identifizierte trotz Verjährungsfristen zu verlängern und die Unverjährbarkeit vieler Unterschiede auch bedeutende Gemeinsamkeiten auszuweiten. Eine Besonderheit stelle zudem die Möglich- zwischen den Verjährungssystemen, die als Ausgangspunkt keit dar, durch die Anklage eines unbekannten Täters (sog. für einen Harmonisierungsvorschlag in Betracht kämen. Das John Doe-Fälle) oder sogar durch die Anklage einer nicht divergierende Verständnis der Rechtsnatur der Verjährung zugeordneten DNA-Spur ein Ruhen der Verjährung herbei- stehe einer Rechtsangleichung nicht entgegen, da die an- zuführen. genommene Rechtsnatur nur geringen Einfluss auf die Aus- Prof. Dr. Zsolt Szomora (Universität Szeged, Ungarn) richtete gestaltung der Verjährung habe. Zu beachten seien aber die sein Augenmerk auf die Rechtssicherheit als den in Ungarn Wechselwirkungen zwischen den Verjährungsregelungen vorherrschenden Legitimationsgrund für die Verjährung. Er und dem Prozessrecht, wie der Geltung des Opportunitäts- wies darauf hin, dass bei einer Beschränkung auf diesen prinzips. Begründungsansatz kein Raum für eine – in Ungarn jedoch Im Anschluss beleuchtete ihre Mitarbeiterin Magdalena existierende – Unverjährbarkeit von Straftaten verbliebe. Pierzchlewicz, wie trotz nationaler Unterschiede bei den Die Rechtssicherheit könne nur einen von vielen Legitimati- Strafdrohungen eine möglichst einheitliche Zuordnung zu onsaspekten darstellen; die ihr im ungarischen Strafrecht für den Friststufen eines unionsweiten Verjährungsmodells er- die Verjährung zugeschriebene Bedeutung sei überdimensi- folgen könnte. oniert. Prof. Dr. Walter Gropp berichtete vom methodischen Vor- Prof. Dr. Arndt Sinn (Universität Osnabrück) beschäftigte gehen bei der Erarbeitung des Harmonisierungsvorschlags. sich mit der Unverjährbarkeitsregelung des Entwurfs. Er Die verschiedenen – in den Landesberichten und dem sah große Akzeptanzprobleme darin, dass aufgrund der ab- rechtsvergleichenden Querschnitt zu Tage getretenen – Re- schließenden Natur der Regelung bei deren Umsetzung in gelungsoptionen waren mit Blick darauf gegeneinander ab- einigen Staaten bestehende Unverjährbarkeitsregelungen gewogen worden, inwiefern sie sich mit drei entwickelten zurückgenommen werden müssten. Durch die Aufnahme Kernkriterien für ein akzeptables Verjährungsmodell vertra- des Wortes „mindestens“ könne man dem entgegenwirken gen. Im Vordergrund zu stehen hätten die Transparenz und und voraussichtlich die Akzeptanz des Vorschlags erhöhen. Vorhersehbarkeit des Modells bzw. des Verjährungseintritts, Das erörterte Problem beträfe wohl am stärksten die Nie- eine möglichst breite Verwurzelung in den bestehenden Sys- derlande. Prof. Dr. Michael G. Faure (Universität Maastricht, temen und die Vereinbarkeit mit den Legitimationstheorien Niederlande) berichtete von einigen tiefgreifenden Geset- zur Verjährung. zesänderungen Anfang des 21. Jahrhunderts, welche die Sein Mitarbeiter Thomas Kolb präsentierte schließlich den unter die Unverjährbarkeit fallenden Straftaten massiv aus- auf der Tagung zur Diskussion stehenden Entwurf des Harmo- dehnten. Faure kritisierte dies als Symbolpolitik. Nach seiner nisierungsvorschlags. Neben Regelungen zur Unverjährbar- Ansicht sei es bei den Reformen nur um die Entlastung poli- keit, den Verjährungsfristen und dem Verjährungsbeginn ent­­ tisch Verantwortlicher und nicht darum gegangen, tatsäch- hielt der Entwurf drei Optionen, wie eine laufende Frist durch lich mehr Ermittlungen durchführen zu können. die Strafverfolgungsbehörden modifiziert werden könnte. In der folgenden Diskussion wurde bezweifelt, dass die Aus- Im Folgenden wurde diskutiert, auf welchem Weg der Har- dehnung der Unverjährbarkeit überhaupt geeignet sei, ein zu monisierungsvorschlag den EU-Staaten unterbreitet werden ihrer Begründung angeführtes gesellschaftliches Bedürfnis könne. nach Strafe zu befriedigen, da viele Verfahren in lang zurück- liegenden Fällen mit niedrigen Strafen endeten oder sogar III. aus Mangel an Beweisen eingestellt werden müssten. Auch Anschließend stellten die Landesreferentinnen und -referen- aus DNA-Spuren könnten nur sehr begrenzt Rückschlüsse ten Besonderheiten ihrer Verjährungssysteme vor und nah- auf das tatsächliche Tatgeschehen gezogen werden. men zum Entwurf des Harmonisierungsvorschlags Stellung. Prof. Dr. Samantha Halliday (Universität Durham, UK) schil- IV. derte, dass in England und Wales gemäß der dort geltenden Die letzten drei Vorträge des ersten Tages beschäftigten Maxime nullum tempus occurit regi zumindest grundsätzlich sich mit dem Verjährungsbeginn. Ass.-Prof. Dr. Theodoros keine Regelungen zur Verjährung existieren. Das Fehlen von Papakyriakou (Universität Thessaloniki, Griechenland) erör- Verjährungsfristen habe im Kontext der “MeToo-Bewegung“ terte, dass der Verjährungsbeginn in Griechenland an den die Verfolgung lange zurückliegender Sexualstraftaten er- Abschluss des tatbestandsmäßigen Verhaltens durch den möglicht. Halliday begrüßte daher das Vorhaben, bestimm- Täter anknüpfe. Taten könnten daher noch vor Erfolgseintritt ten Sexualstraftaten gegenüber Minderjährigen auch im verjähren. Für Bauregelverstöße, die erst nach Jahrzehnten Harmonisierungsvorschlag eine Sonderrolle zukommen zu den Tod oder die Verletzung eines Menschen bewirkten, lassen. gebe es daher die Sonderregelung, dass in solchen Fällen

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die Verjährung erst mit Schadenseintritt beginne. Um das Ein vergleichbares Modell gibt es in Schweden. Wie Prof. Prinzip der Verjährbarkeit nicht vollkommen auszuhöhlen, Dr. Rita Haverkamp (Universität Tübingen) ausführte, ist der trete jedoch spätestens 30 Jahre nach dem Täterverhalten Abbruch der Verjährung dort jedoch an die Verhaftung des Verjährung ein. Papakyriakou sprach sich für eine absolute Täters oder die Zustellung der Anklage, also einen tendenzi­ Frist bei Spätschadensfällen auch im Harmonisierungs­ ell späteren Zeitpunkt, geknüpft. Dies berge das Risiko, dass vorschlag aus. ein den Behörden bereits bekannter Täter einen Abbruch Ass.-Prof. Dr. Dr. Julien Walther (Universität Metz, Frank­ der Verjährung verhindern könne, indem er sich einer Zu­ reich) berichtete von der französischen Sonderregelung für stellung der Anklage entziehe. den Verjährungsbeginn bei verborgenen und versteckten Prof. Dr. Renzo Orlandi (Universität Bologna, Italien) stellte Straftaten. In diesen Fällen sei nicht die Tatbegehung, son­ schließlich die italienische Rechtslage und aktuelle Geset­ dern die Entdeckung der Straftat maßgebend für den Verjäh­ zesreformen vor, bevor Prof. Dr. Luigi Foffani (Universität rungsbeginn, der maximal um 12 Jahre bei Vergehen und um Modena, Italien) auf die berühmten Taricco-Entscheidungen 30 Jahre bei Verbrechen verschoben werden könne. des EuGH (Urt. v. 8.9.2015, Rs. C-105/14 u. Urt. v. 5.12.2017, Prof. Dr. Lyane Sautner (Universität Linz, Österreich) legte Rs. C-42/17) einging. Die beiden Landesreferenten erläuter­ dar, dass der österreichische Gesetzgeber einen Mittel­ ten, dass Italien zwar viele Verlängerungsmöglichkeiten für weg bei der Festlegung des Verjährungsbeginns wählt. Im die Verjährungsfrist kenne, die Verlängerung jedoch zeitlich Grundsatz werde an den Abschluss des mit Strafe bedrohten begrenzt sei. Dass es in der Vergangenheit zu zahlreichen Verhaltens angeknüpft. Der Fristablauf sei jedoch gehemmt, Verfahrensbeendigungen wegen Verjährung sogar nach ei­ bis entweder auch seit Erfolgseintritt die Frist verstrichen ner erstinstanzlichen Verurteilung gekommen war, sei einer oder seit Verjährungsbeginn das 1,5-fache der Frist, min­ der Auslöser für die aktuellen Reformen gewesen. destens aber 3 Jahre, verstrichen seien. Sautner warf die GStA Dr. Andres Parmas (Generalstaatsanwaltschaft Tallinn, Frage auf, ob die in der Union verbreitete und auch im Har­ Estland) und Prof. Dr. Jaan Sootak (Universität Tartu, Estland) monisierungsvorschlag gewählte strikte Anknüpfung an die berichteten vom estnischen Verjährungssystem mit relativ Deliktsvollendung bei Spätschadensfällen (unter spezialprä­ niedrigen Grundverjährungsfristen. Parmas bemerkte, dass ventiven Gesichtspunkten) nicht zu unbilligen Ergebnissen diese trotz existierender Verlängerungsmöglichkeiten für die führen würde. meisten Wirtschaftsstraftaten zu kurz seien. In der anschließenden Diskussion wurde eine Sonderrege­ In der anschließenden Diskussion wurde den Möglichkei­ lung nach dem französischen Modell für den Harmonisie­ ten einer Verjährungsverlängerung übereinstimmend die rungsvorschlag einstimmig abgelehnt. Es sei der Verjährung Funktion zugeschrieben, ein Verfahren ohne Zeitdruck zum gerade immanent, dass sie dann eintrete, wenn eine Straftat Abschluss bringen zu können. Die Möglichkeit einer miss­ bis zum Ablauf der Verjährungsfrist nicht entdeckt worden bräuchlichen Verhinderung der Verlängerung, wie sie in ist. Die Aufnahme einer Sonderregelung für Spätschadens­ Schweden bestehe, sei für den Harmonisierungsvorschlag fälle wurde kontroverser diskutiert, im Ergebnis jedoch ebenso auszuschließen wie ein Verjährungseintritt im lau­ ebenfalls verworfen. fenden Verfahren oder sogar im Rechtsmittelverfahren wie früher in Italien. V. Am zweiten Tag ging es um Modifikationsmöglichkeiten VI. einer laufenden Verjährungsfrist. Zu Beginn wurden das Zum Abschluss der Tagung wurden im Plenum die einzelnen schweizerische und polnische Modell vorgestellt. Beide Komponenten des Entwurfs diskutiert und zur Abstimmung Staaten kennen lange Grundverjährungsfristen, die jedoch gebracht. Der Harmonisierungsvorschlag soll nach Einarbei­ nicht (Schweiz) oder nur einmalig (Polen) verlängert werden tung der Ergebnisse im kommenden Jahr in deutscher und können. englischer Sprache veröffentlicht werden. Prof. Dr. Victor Gómez Martín (Universität Barcelona, Spa­ nien) präsentierte das spanische Modell. Der Lauf der dort Thomas Kolb geltenden – im europäischen Vergleich mittellangen – Ver­ Wissenschaftlicher Mitarbeiter des Projekts „Die Verjährung jährungsfristen wird vorläufig abgebrochen, sobald ein Ver­ als Herausforderung der grenzüberschreitenden Zusam­ fahren gegen die betreffende Person eingeleitet wird, und menarbeit in Strafsachen – Entwicklung eines Harmonisie­ beginnt erst dann erneut zu laufen, wenn das Verfahren rungsvorschlags“, Franz von Liszt Institut für internationales stillsteht oder ohne Verurteilung endet. Ein Verjährungsein­ Recht und Rechtsvergleichung (Prof. i.R. Dr. Walter Gropp) tritt im laufenden Verfahren ist hiernach grundsätzlich nicht an der Justus-Liebig-Universität Gießen. möglich.

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