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The European Criminal Law Associations' Forum 42020

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The European Criminal Law Associations' Forum 42020 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 Florentino­Gregorio 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 Florentino­Gregorio 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
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