eucrim ISSUE / ÉDITION / AUSGABE 3–4 / 2006 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

SUCCESSOR TO AGON

Focus on EC Competences in Criminal Matters Dossier particulier sur les compétences de la CE en matière pénale Schwerpunktthema: Kompetenzen der EG für das Strafrecht

The European Community and Harmonization of the Criminal Law Enforcement of Community Policy Prof. John A.E. Vervaele

Case C-176/03 and Options for the Development of a Community Criminal Law Dr. Simone White

The Community Competence for a Directive on Criminal Law Protection of the Financial Interests Dr. Lothar Kuhl / Dr. Bernd-Roland Killmann, M.B.L.-HSG

Die Frage der Zulässigkeit der Einführung strafrechtlicher Verordnungen des Rates der EG zum Schutz der Finanzinteressen der Europäischen Gemeinschaft Dr. Ingo E. Fromm 3 –4 / 2006 ISSUE / ÉDITION / AUSGABE

Contents Index / Inhalt

Editorial News* Articles Actualités / Kurzmeldungen Articles / Artikel

European Union EC Competences in Criminal Matters Foundations 46 The Hague Programme Review 70 Customs Cooperation 87 The European Community and 48 Passerelle 72 Police Cooperation Harmonization of the Criminal Law 48 PNR Data 73 Judicial Cooperation Enforcement of Community Policy 73 European Arrest Warrant (EAW) Prof. John A.E. Vervaele Institutions 74 Confiscation Orders 49 Council 74 European Supervision Order 93 Case C-176/03 and Options for 49 OLAF 75 Transfer of Sentenced Persons the Development of a Community 50 Europol 76 Exchange of Information on Criminal Law 53 Eurojust Criminal Records Dr. Simone White 53 European Union Agency for 78 Crime Statistics Fundamental Rights 78 External Dimension 100 The Community Competence for a Directive on Criminal Law Protection Specific Areas of Crime / Substantive of the Financial Interests Criminal Law Council of Europe Dr. Lothar Kuhl / Dr. Bernd-Roland 55 Protection of Financial Interests Killmann, M.B.L.-HSG 58 VAT Foundations 59 Money Laundering 81 Relations between the Council of 104 Die Frage der Zulässigkeit der 60 Money Counterfeiting Europe and the European Union Einführung strafrechtlicher 60 Non-Cash Means of Payment 82 Reform of the European Court Verordnungen des Rates der EG 60 Counterfeiting and Piracy of Human Rights zum Schutz der Finanzinteressen 61 Insider Trading der Europäischen Gemeinschaft 61 Racism and Xenophobia Specific Areas of Crime Dr. Ingo E. Fromm 83 Corruption Procedural Criminal Law 84 Money Laundering 62 Procedural Safeguards 84 Counterfeiting Imprint / Impressum 63 Data Protection 64 Ne bis in idem Procedural Criminal Law 65 Taking Account of Convictions 85 Procedural Safeguards 66 Freezing of Assets 85 Justice Organisation

Cooperation Cooperation 68 Funding 68 Law Enforcement Cooperation Legislation

* News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. The news in this issue cover the second half of 2006 and extend to 28 February 2007 (the denomination of this issue as 2006 no. 3-4 is for administrative reasons alone). Editorial

Dear readers, dear friends,

I welcome Prof. Ulrich Sieber’s initiative in publishing this new The EU is one of the biggest journal, with the financial support of the European Commission’s donors in the world – it is, Anti-Fraud Office (OLAF). I am pleased for many reasons. more and more, a “global play- er”. Consequently, the Com- Eucrim, the successor to Agon, is the journal of the Associa- munity and its Member States tions of European Lawyers, whose members are experts in must, crucially, ensure “glo- the field of the protection of the Community’s financial inter- bal” protection of the Commu- ests and European criminal law. These experts will continue nity’s financial interests around to contribute to the development of the Community’s legal the world, by developing both framework in that field. Eucrim helps provide citizens with an administrative and criminal overview of what is going on at European level in this field. law instruments. We need to The information is clear and concise. Communicating the ob- improve our mechanisms to jectives and the mission of OLAF to the widest public is one of prevent and curb any kind of Franz-Hermann Brüner our important challenges, and eucrim will help to achieve this mismanagement, but also to quite difficult task. By bringing a “horizontal” approach to the be ready to tackle fraud, corruption, and other transnational analysis of European criminal law issues, eucrim fills a gap in criminal activities which may harm the EU budget. At EU and European publishing. For this reason, I am proud to co-finance international level, common standards in protecting the finan- such a journal under the Hercule Community programme. cial interests of the Community should be identified.

This issue is devoted to European Community’s competence I am convinced, indeed, that standards in this field identified in criminal law, and its impact on the protection of its financial at EU level by Community instruments, such as directives, interests. The debate has been fuelled by the judgment of the regulations and agreements, should serve as a tool for setting Court of Justice in Case C-176/03, and the contributions focus standards in international organisations and bodies which have on the consequences of that judgment at EU level. similar objectives. Standards such as those of the UN conven- tions against corruption, the World Bank, the OECD and oth- The issue of Community competence in criminal matters is of ers contribute to the development of principles in the field of primary importance. It is evident from OLAF’s daily work that good governance and ethical conduct, and help to endorse an administrative investigation into fraud or corruption often respect for open competition in award procedures for procure- has a “criminal” aspect. Criminal conduct needs to be prose- ment contracts and transparency in decision-making by public cuted. Effective protection of the Community’s financial inter- administrations. Therefore, I can only underline the impor- ests presupposes that administrative and criminal investigations tance, acknowledged by Vice-Presidents Kallas and Frattini, are complementary. Again, operational experience acquired at of the European Community’s participation in international EU level offers important input into thinking on how to shape fora that identify and shape such standards and principles, in- the Community‘s competence in criminal law. As the Director- cluding those for criminal law measures. Given not only the General of the European Anti-Fraud Office, I have learned the amount and value of the European Community’s spending, but lesson that the European Community, and the Commission, has also the political, economic and social dimension as perceived no choice other than to take the lead, together with the Member beyond the EU’s boundaries, it is evident that the protection States and international bodies, in developing standards in sec- of its financial interests is one major argument for giving the tors relevant to the fight against fraud, including in the field of Community effective competence in criminal law. judicial cooperation on criminal matters. The recent case law of the Court of Justice highlights the crim- The EU budget for 2007 is EUR 126.5 billion, not including inal law competence of the European Community. The Com- a variety of other financing instruments such as the European mission, and my Office, contribute to the development of rele- Investment Bank. This money is not used only within the EU’s vant criminal law standards. We appreciate your contributions. borders, for implementing policies aimed at sustaining eco- The Associations of European Lawyers for the protection of nomic growth, making Europe a safer place to live, and pro- the financial interests of the Community have led the way for tecting our natural resources. Increasingly, the budget is spent more than a decade in defending this idea. Please continue to outside Europe, helping potential members get closer to the do so. Eucrim is your forum. EU, working together with our neighbours for mutual prosper- ity and stability, and tackling poverty and the challenges of Franz-Hermann Brüner good governance in developing countries. Director General of OLAF

eucrim 3–4 / 2006 | 45 News Actualités / Kurzmeldungen

European Union As regards the adoption process at the allow compiling “factsheets” for each EU level, the Commission considers the policy area. Afterwards, the Commis- Reported by Thomas Wahl achievements as being generally posi- sion would validate the information tive. It is pointed out that in FSJ mat- received and elaborate an “evaluation Foundations ters negotiated within the framework of report” consolidating and analysing the the EC Treaty (immigration policy, ju- information provided. This evaluation dicial cooperation in civil matters) and report would also include political rec- The Hague Programme Review not subject to the unanimity rule, the ommendations regarding the different progress can be regarded as success- policy areas addressed. Finally, specific The Area of Freedom, Security and ful. The Commission cites the Direc- “in-depth evaluation reports” in selected Justice – Implementation and Further tive on data retention as example for the areas would provide strategic analysis of Development of The Hague Programme good decision-making in this context. It a policy. In an annex, the paper lists indi- In June 2006, the Commission presented reiterates its view that the unanimity re- cators and evaluation questions for each a comprehensive package of four com- quirement causes overall slow progress instrument of the FSJ area. munications on the past and future im- in matters of Title VI EU Treaty (police The communication emphasises involv- plementation of The Hague Programme and justice cooperation). As regards the ing all stakeholders in the evaluation which defines the political priorities in national level, the report assesses the FSJ process, including the civil society, i.e. the area of freedom, security and justice policies’ implementation as being gener- the non-profit sector, as well as - indus (FSJ). The objective of the communica- ally insufficient both in quantitative and try. The evaluation mechanism aims at tions is threefold: (1) take stock of the qualitative terms. Harmonisation instru- building up good practice and providing progress made and assess the level of ments relevant to the fight against terror- greater accountability. It is in line with implementation at the EU as well as na- ism, for instance, are often transposed the overall Commission strategy for bet- tional level; (2) establish a coherent and with delay or incorrectly, according to ter regulation and more transparency of comprehensive evaluation mechanism the evaluation. EU activities. for all FSJ issues; (3) propose ways for-  eucrim ID=0603001  eucrim ID=0603002 ward to improve the functioning of this policy area. The communications are Evaluating the Area of Freedom, Secu- Evaluation Meeting summarised in the following, including rity and Justice The Justice, Liberty and Security Direc- relevant statements. The Action Plan implementing The torate General of the European Com- Hague Programme mandates the Com- mission deepened the discussion on the Report on the Implementation of The mission to establish a mechanism which evaluation of relevant EU policies at an Hague Programme for 2005 enables evaluation of the implementa- open conference in October 2006. Four In keeping with the evaluation of the tion as well as effects of all measures working groups exchanged – on the basis Tampere programme, the Commission in the area of freedom, security and of the aforementioned communication – continues to submit annual reports on justice. With its Communication on the views on the evaluation mechanism and how the measures foreseen in The Hague “evaluation of EU policies on freedom, methods in the following policy areas: Programme and the linked action plan security and justice”, the Commission External borders, visa policy, free move- have been implemented. The presented makes proposals for such a coherent and ment of persons, common immigration implementation report (“scoreboard”) comprehensive evaluation mechanism at and asylum policies (Working Group 1), is the first that refers to The Hague EU level. An evaluation goes beyond the Citizenship and fundamental rights Programme. In contrast to the previous above mentioned scoreboards. Whereas (Working Group 2), Law enforcement Tampere scoreboards, the presented re- the latter, to date, only monitor the im- cooperation and prevention of and fight port does not contain only a review of plementation of the EU policy, an evalu- against general organised crime (Work- the measures taken at the EU level (an- ation would assess the results, outcomes, ing Group 3) and Establishing a genuine nex 1), but also assesses for the first time and impacts of a policy area. European area of justice in criminal and whether and how they were implement- The Commission proposes a three-step civil matters (Working Group 4). The ed at the national level by the Member course of action: First, a system of gath- conference participants included EU and States (annex 2). ering and sharing information would Member State policy-makers, practition-

46 | eucrim 3–4 / 2006 NEWS ers and academics and were united in to improve the functioning of the FSJ or accelerated procedure need not be ob- the support of the Commission’s desire area by using the possibilities given in served. The paper also suggests that cas- to evaluate, warmly welcoming plans the existing treaties, in particular by us- es in which the emergency preliminary to provide fora for practitioners’ input. ing Art. 42 TEU. This aspect of the com- ruling procedure is requested would be The specific evaluation mechanisms de- munication was already presented in handled by a special chamber. veloped were analysed critically: in part eucrim 1-2/2006, pp. 4-5.  eucrim ID=0603006 ­rejected, modified or replaced. Much  eucrim ID=0603004 discussion was dedicated to the difficul- Presidency’s Review of The Hague ties of gaining useful, comparable data, Stronger Role for the ECJ in Justice and Programme of ensuring that work is not duplicated Home Affairs of the First Pillar The Finnish Presidency sought to give a and the fact that in-depth, qualitative The fourth communication also looks new impetus to the policies in the area studies will be essential. into the future. The Commission pleads of freedom, security and justice along By Dr. Marianne Wade for widening the powers for preliminary with the Commission. In its report on  eucrim ID=0603003 rulings of the European Court of Justice the review of The Hague Programme of (ECJ) in the field of visa, asylum, immi- 27 November 2006, the Presidency fol- View into the Future: Priority Actions of gration, and judicial cooperation in civil lows the Commission’s opinion that the The Hague Programme matters (Title IV TEC). To date, only current decision-making process under The Communication “Implementing a court or tribunal of a Member States the third pillar hampers progress in the The Hague Programme: the way for- against whose decisions there is no ju- area of freedom, security and justice. ward” identifies those domains in the dicial remedy under national law can The report further identifies those areas field of freedom, security and justice in request a preliminary ruling by the ECJ. in which special attention should be giv- which action and implementation shall The communication proposes applying en and where renewed efforts are need- be focused on before the expiry of The the general scheme of the EC Treaty ed during the second term of the Hague Hague Programme in 2009. It supple- (Art. 234) to the jurisdiction under Ti- Programme (2007–2009). ments the general Commission Com- tle IV TEC. This would also mean that  eucrim ID=0603007 munication on the future of the consti- courts or tribunals of the first instance or tutional treaty “A Citizens’ Agenda for ordinary appeal courts can refer the ques- Council Conclusions on the Hague Europe” (COM(2006) 211, see eucrim tion of the interpretation of acts in the Programme Review 1-2/2006, p. 4). Special attention in the above-mentioned areas to the European The Commission package and the EU’s future work ought to be paid, inter Court. Moreover, exclusion of jurisdic- Presidency report on The Hague Pro- alia, to the following: tion for certain measures as provided for gramme were discussed at the JHA Fundamental rights are to be promoted in Art. 68(2) TEC would be abolished. Council meeting on 4-5 December and the concept of EU citizenship de- The proposal is based on Art. 67(2), 2006. The Council concluded that in- veloped. The mutual recognition (MR) second indent, which allows the adap- sufficient progress was being made programme will be followed-up. In this tation of the provisions concerning the in certain areas of judicial coopera- context, the Commission stresses that jurisdiction of the Court of Justice after tion, particularly in criminal matters the principle of mutual recognition will a transitional period of five years. This and police cooperation. The Council continue to be the cornerstone of the Un- already expired on 1 May 2004. is considering focusing on the follow- ion’s policies. Facilitating the exchange  eucrim ID=0603005 ing issues until the expiry of the Hague of information between law enforcement Programme: mutual recognition in crim­ authorities, in particular by implement- European Court of Justice: Reflection inal and civil matters, the development ing the principle of availability, will be on Preliminary Rulings in AFSJ of a comprehensive EU migration pol- another focus. In parallel, a coherent In view of the conclusions of the Euro- icy, strengthening police cooperation data protection scheme for the area of pean Council of 4-5 November 2004 in through the principle of availability police and judicial cooperation has to which solutions for a speedier handling and more operational cooperation, the be finalised. As regards the fight against of preliminary rulings concerning the fight against terrorism and organised terrorism and organised crime, the Com- area of freedom, security and justice crime, the development of external mission stresses the continuation of its (AFSJ) were requested, and after the aspects of justice and home affairs, efforts to build a common policy at the above-mentioned Commission Com- setting up of a new generation of the EU level, including the development of munication in which the extension of Schengen Information System, and the an “Internal Security Strategy” (regard- the preliminary rulings under Title IV is enlargement of the Schengen area. Fur- ing the future role of Europol in this con- suggested, the Court of Justice presented thermore, the Council invited the Com- text, see below). Finally, priority will be a reflection paper with proposals for a mission and the incoming Presidencies given to the implementation of the strat- more expeditious procedure. The Court to update the Action Plan on the imple- egy for the external dimension of free- suggests the creation of an emergency mentation of the Hague Programme of dom, security and justice (see below). preliminary ruling procedure where June 2005. The Communication also explores ways time limits under the normal procedure  eucrim ID=0603008

eucrim 3–4 / 2006 | 47 NEWS

Advisory Group Set to Prepare Post- be adopted. Communitarisation of police Although the justice and home affairs Hague Programme and judicial cooperation should go hand ministers denied using the passerelle, At the informal Justice and Home Af- in hand with a right to scrutiny, especial- they agreed on the reinforcement of fairs Ministers meeting in Dresden/ ly as regards national parliaments. The making legislative instruments. Pro- Germany from 14 to 16 January 2007, EP also favours conferring more powers posals or initiatives should be prepared Germany’s Federal Minister of the Inte- to Eurojust and Europol. The resolution more carefully, in particular in line with rior, Dr. Wolfgang Schäuble, presented expresses concerns about a decrease in the principles of subsidiarity and pro- a plan to convene a high-level advisory the protection of fundamental rights, portionality and a more rigorous impact group whose task is to reflect on a new notably as regards the processing of per- assessment of new instruments should multi-year programme on home affairs sonal data. Another important item of be carried out in advance. The timely policy after the expiry of the Hague Pro- the resolution is that AFSJ-linked poli- and accurate implementation of the EU gramme in 2009. The group is to submit cies and measures are to be backed up by instrument in the Member States must a dossier with recommendations and human and financial resources. also be followed more efficiently. options by autumn 2008. This dossier  eucrim ID=0603010  eucrim ID=0603013 should give an impetus to the discus- The implementation of the Tampere and sions and serve as a basis for facilitating Hague Programme, as well as an assess- the negotiations in the Council towards ment of possible future achievements PNR Data setting new aims and guidelines regard- with a view to fostering European co- ing the EU’s home affairs policy as from operation and increasing efficiency and PNR Data – New Agreement 2010. The group should, for instance, democratic accountability of measures In eucrim 1-2/2006 (p. 3 et al.), it was identify the areas where more coopera- already adopted in the AFSJ, was the reported that the European Court of Jus- tion at the EU level is beneficial, where subject of a joint parliamentary meeting tice annulled the EU-US agreement on actions at the national level are suffi- on 2 and 3 October 2006. the transfer of passenger name records cient, and where existing EU regulations  eucrim ID=0603011 from airline carriers to US authorities, can be improved or simplified. However, but preserved the effects until 30 Sep- it was clarified that issues which touch tember 2006. On 19 October 2006, the upon primary EU law, decision-making, Passerelle EU and the US were able to conclude a or other matters that might affect the fur- new agreement, now based on the third ther treatment of the Treaty establishing Member States not Ready to Give up pillar (Art. 38 in connection with Art. 24 a Constitution for Europe must be left Veto Right TEU). Negotiations proved difficult be- aside. The group is made up of Com- Despite tireless efforts by the Finnish cause the US wanted to revise the previ- mission Vice-President Franco Frattini, Presidency and the Commission – espe- ous agreement. Now, the US Department the Ministers of Interior of the two trio cially at the informal JHA Council meet- of Homeland Security (DHS) is allowed Presidencies (Germany, Portugal, and ing in Tampere on 22 September 2006 to share PNR data with more US coun- Slovenia plus France, the Czech Repub- – the EU 25’s justice and home affairs ter-terrorism agencies and in a quicker lic, and Sweden), and research experts ministers could not be convinced to way. from individual Member States. abandon their right to veto decisions Beyond the Council Decision on the  eucrim ID=0603009 in the third pillar, especially relating to signing of the Agreement on behalf of combating organised crime and terror- the European Union and the Agreement European Parliament Resolution ism. At their meeting on 4-5 December, itself, the Undertakings provided by The European Parliament, on 30 Novem- they decided to take the issue of the use DHS on 11 May 2004 continue to be ap- ber 2006, adopted a motion for a resolu- of the “passerelle clause” (see eucrim plied. These Undertakings lay down in tion on the progress made in the EU in 1-2/2006, pp. 4-5) to the European Coun- more detail the processing of PNR data the Area of freedom, security and justice cil. The European Council, at its summit received by DHS. The interpretation (AFSJ). The motion was prepared by in June 2006, requested the exploration of the undertakings in view of the new French liberal Jean-Marie Cavada. The of possible ways to improve the func- agreement is set forth in a letter from the Parliament – in opposition to the Coun- tioning of freedom, security and justice DHS which was accepted by the EU. cil – calls on the Commission to submit policies by using the possibilities pro- Under the Agreement, the EU will en- to the Council in 2007 a draft decision vided for in the current treaties. Now, sure that air carriers operating passenger activating the passerelle (Art. 42 TEU) however, the EU leaders seem to have flights in foreign air transportation to or and bringing the provisions on police put an end to the discussion. In their from the US process PNR data contained and judicial cooperation in criminal mat- conclusions on the December summit, in their automated reservation systems ters into the Community sphere. A deci- they expressed their intention to pursue as required by the DHS. The air carriers sion based on Art. 67 para. 2 TEC with the Union’s policy in this area with the will continue to transfer 34 types of data regard to removing the restriction on existing veto-based regime and to make as previously set out in the attachment the powers of the Court of Justice in the no use of the “passerelle”. of the Undertakings. The US Adminis- context of Title IV TEC should likewise  eucrim ID=0603012 tration may electronically access PNR

48 | eucrim 3–4 / 2006 NEWS data from the air carriers’ reservation/ on combating racism and xenophobia ried out by the Austrian and Finnish departure control systems located within are to be resumed (see below). It is also presidencies in 2006, further care will the territory of the EU Member States intended to partially precise the prin- be taken that justice and home affairs (“pull” system). However, the intention ciple of mutual recognition of judicial is part of the EU’s foreign policy (see is to introduce a “push” system whereby decisions, e.g., relating to the list of of- below as to this so-called external di- the carriers pass over data in response to fences which makes verification of dou- mension of JHA). requests from the US. ble criminality dispensable.  eucrim ID=0603015 According to the Council Decision, the • Improving police cooperation: This competent authorities of the EU Mem- objective entails, above all, strengthen- ber States may suspend data flows to the ing the role of Europol and extending its OLAF DHS in order to protect individuals with capacity to share and analyse information regard to the processing of their personal (see below as to the future of Europol). Action of German Journalist against data where a competent US authority has • Ameliorating EU information systems: OLAF Unsuccessful determined that DHS is in breach of the Priority is to be given to the preparation On 4 October 2006, the Court of First applicable standards of protection or if of the Schengen Information System Instance (CFI) dismissed an action the processing of PNR data is not in ac- (SIS), so that the new Member States brought against the forwarding of infor- cordance with the standards of protec- can soon join the Schengen area and mation held by OLAF to Belgian and tion provided for in the Undertakings. internal border checks be lifted by the German judicial authorities by a Ger- A first row on the accordance with the end of 2007. The SIS is a central data- man journalist (Case T-193/04, “Tillack Undertakings meanwhile occurred when base in which police and border officials v Commission”). OLAF suspected the it emerged that DHS used PNR data in can search for certain persons or objects journalist of having received confiden- their “Automated Targeting System” – a (especially stolen cars); it is considered tial documents about irregularities in security screening system for the risk as- to be the major compensatory measure several Commission services by paying sessment of international travellers. after the abolishment of internal border money to an OLAF official. As a re- The new accord will expire on 31 July checks among the participating Member sult of investigations, OLAF forwarded 2007 and is to be replaced by a more States of the Schengen area. Another is- information concerning suspicions of permanent PNR system. The new legal sue is the modernization of the Customs breach of professional secrecy and brib- framework is currently being negotiated. Information System (CIS) which helps ery to the prosecutors in Brussels and  eucrim ID=0603014 customs administrations to exchange Hamburg. The journalist objected to this and disseminate information on breach- act with his application for annulment to es of customs and agriculture legislation the European court on the grounds that Institutions within the Community and on smug- the forwarding led to a search at the ap- gling activities. In general, it is aimed at plicant’s home and office and seizure of Council improving access to national databases professional documents and belongings in view of the development of the princi- by the Belgian police. Furthermore, he First Trio Presidency Programme in ple of availability. claimed it was necessary to award him Justice and Home Affairs • Improving customs cooperation: Op- compensation because actions taken by For the first time, three successive Coun- erational customs cooperation is to be OLAF in this case allegedly damaged his cil presidencies agreed on a coordinated boosted and the new Action Plan on professional reputation. In this context, joint working programme in order to en- Customs Cooperation 2007–2008 will it is important to point out that the ap- sure continuity and sustainability over be launched. Another task is the evalu- plicant also complained to the European the next 18 months. The programme ation of the Naples II Convention of Ombudsman who stated in 2003 that started with the German Presidency in 1997 which is the essential legal basis OLAF’s actions constituted an instance January 2007 and encompasses the sub- for mutual assistance and cooperation of maladministration. sequent presidencies of Portugal and between customs authorities (for more The CFI first declares the application Slovenia. The key objectives of the pro- information on customs cooperation, see for annulment inadmissible because it gramme of the trio presidency in Justice below). holds that the act of forwarding informa- and Home Affairs include: • Strengthening judicial cooperation: tion by OLAF to the national authori- • Strengthening citizens’ rights: The An important goal of the joint work pro- ties has no binding legal effect (see also presidency will focus on the finalisation gramme is the increased and better use Case T-309/03, “Camós Grau” in eucrim of the Framework Decision on proce- of IT technology in cross-border judicial 1-2/2006, p. 8). The legal position of the dural rights in criminal proceedings (see cooperation within Europe (e-Justice), applicant is only affected by the legal below). The conclusion of the Frame- e.g., the improvement of the exchange acts of the national authorities. They are work Decisions on the presumption of of information between criminal regis- free to decide how to proceed following innocence and on judgments rendered ters (see below). disclosure of the OLAF information, so in absentia is also envisaged. The frozen • Intensifying cooperation with third further measures lay in their sole and en- negotiations on the Framework Decision countries: Building upon the work car- tire responsibility. Furthermore, the CFI

eucrim 3–4 / 2006 | 49 NEWS dismisses the application for damages mittee, its composition and operation, Asia and then enter the Community as compensation for non-material injury and the excise of its powers. market. As a result, the UAE is also the with the argument that there is no direct  eucrim ID=0603018 place where – frequently – the true origin causal link between the forwarding of in- of goods is concealed in order to evade formation and the damage claimed. As far OLAF Investigations beyond Europe anti-dumping duties levied on products as other actions of OLAF are concerned As reported in eucrim 1-2/2006, OLAF from, e.g., China or India. Therefore, (press releases published), the Court is increasingly investigating fraud and OLAF is increasing cooperation with the found that a sufficiently serious breach of corruption beyond the EU borders. competent authorities in the Gulf state. a rule of law did not exist – a requirement Since the EU is one of the major provid- An arrangement with the Jebel Ali Free of the case law for the non-contractual ers of development and humanitarian Zone Authority (JAFZA) in Dubai, for liability of the Community. The CFI, in aid, OLAF is playing a more and more instance, intends to develop anti-fraud particular, stresses that the classification substantial role in foreclosing and de- structures in the so-called Jebel Ali Free as an “act of maladministration” by the tecting fraud against international aid Zone and also to establish a guide for Ombudsman does not mean, in itself, that and development funds. The evasion good practice in international trade for OLAF’s conduct constitutes a sufficiently of anti-dumping duties is another clas- the zone. The Jebel Ali Free Zone in Du- serious breach of a rule of law. sic key area of OLAF activities. To fa- bai is the largest free zone in the Middle  eucrim ID=0603016 cilitate anti-fraud work, OLAF started East / North Africa Region and prone to to improve cooperation and information being exploited for illicit operations. The Court of Auditors’ Opinion on OLAF exchange with international partners and cooperation between OLAF and the free Reform Proposal authorities. Some prominent cases and zone authority could become a paradigm On 6 December 2006, the European Court events are highlighted in the following. for similar agreements in other parts of of Auditors (ECA) adopted its opinion on the world. the Commission proposal for a reform of Fraud and Bribery in the Context of  eucrim ID=0603021 OLAF’s basic legal framework – Regu- Water Project in Lesotho lation 1073/1999 (COM(2006) 244 − see OLAF investigations detected bribery eucrim 1-2/2006, pp. 6-7). The Court, and fraud on a large scale in the context of Europol inter alia, welcomes the introduction of a significant water project in Lesotho, one the proposed Review Adviser, who is to of the biggest water projects in the world. Europol Cooperation with Australia, monitor ongoing investigations, particu- The project was supported by consider- China, Liechtenstein, and Montenegro larly in view of compliance with proce- able EU funds. Successful investigations On 20 February 2007, Europol signed dural rights, but takes the view that its led to convictions for bribery and the a strategic and operational cooperation role and responsibilities need to be ex- imposition of fines on companies from agreement with Australia. The agree- plicitly set out in the basic act, i.e., the Italy, France, and Germany by courts in ment aims at establishing a closer co- Regulation. The ECA also thinks that Lesotho. The companies were involved in operation in order to support Europol, the Review Adviser should not intervene bribe payments in order to obtain contacts the EU Member States, and Australia in once the results of an investigation have in the framework of the project. the combating of serious international been transmitted to the national authori-  eucrim ID=0603019 crime, particularly through the exchange ties. Furthermore, the ECA believes that of information. The agreement also con- the discretionary power of the Director- Investigations in Burundi stitutes the legal basis for the deploy- General regarding whether to submit a In Burundi, OLAF investigations brought ment of liaison officers. After Australia final report to the judicial authorities if to light fraudulent practices in the con- has completed its domestic procedures, he considers an internal procedure more text of the establishment of economic the agreement can enter into force. appropriate must be clearly defined. and social infrastructures under the Bu-  eucrim ID=0603022 Regarding the Community’s anti-fraud rundi Rehabilitation Programme, sup- The Council also authorised the Direc- legislation the Court advocates its sim- ported by Community resources. After tor of Europol to enter into negotiations plification and consolidation, especially OLAF submitted its investigative report, with China, Liechtenstein and Montene- with regard to Regulation 2185/96. the Burundi authorities affirmed their in- gro in order to conclude a cooperation  eucrim ID=0603017 tention to work together with the EU, to agreement. antagonize fraud and corruption, and to  eucrim ID=0603023 Rules of Procedure of OLAF Supervisory take follow-up actions. Committee  eucrim ID=0603020 Ratification of Protocols The new OLAF Supervisory Committee Since January 2006, an intensified dis- (see eucrim 1-2/2006, p. 6) adopted its OLAF Cooperation with the United Arab cussion on the future role of Europol has rules of procedure pursuant to Art. 11 Emirates been launched by the Austrian Presiden- para. 6 of Regulation 1073/1999. The The United Arab Emirates (UAE) is an cy. One issue was the ratification of the provisions deal with the role and re- important centre for transhipment, par- three Protocols amending the Europol sponsibilities of the Supervisory Com- ticularly for goods which come from Convention. They will enhance Europol’s

50 | eucrim 3–4 / 2006 NEWS role as the central European police of- ernments as it is now. In this context, the as well as with third countries and or- fice. After notifications were completed proposal tries to meet the demands of the ganisations outside the EU. With re- by the end of 2006, the protocols can fi- European Parliament on more account- spect to OLAF, the new legal framework nally enter into force on 29 March 2007 ability of Europol to the EP. The insti- would also allow the exchange of per- (1st and 2nd Protocol) and 18 April 2007 tutional change would mean, inter alia, sonal data; this is not possible under the (3rd Protocol) that Regulation No. 1073/1999 concern- present administrative agreement which The first of the protocols extends the ing investigations conducted by OLAF only allows the exchange of strategic competence of Europol to money laun- would apply to Europol. Europol em- and technical information. The draft also dering, regardless of the type of offence ployees would become proper EU staff, clearly states that Europol may directly from which the laundered proceeds orig- so that EU Staff Regulations as well as exchange information with OLAF in the inate (2000 Protocol). The second pro- the Protocol on Privileges and Immuni- same way that authorities of the Member tocol clarifies certain powers in relation ties of the European Communities would States do according to Art. 7(2) of the to participation in Joint Investigation be applicable. second Protocol to the Convention on Teams by members of Europol as well The proposal entails the following main the protection of the ECs’ financial inter- as the privileges and immunity applying changes: ests. Furthermore, Regulation 1073/99 to members of Europol (2002 Protocol). • The mandate of Europol is broadened. shall apply to Europol which would con- The third protocol streamlines the inter- Europol would be empowered not only fer upon OLAF the power to conduct in- nal workings of Europol, particularly in to deal with crimes strictly related to vestigations within the European police relation to liaison procedures and analy- organised crime and terrorism, but all office. sis and processing of data. It will also fa- forms of serious crime. These forms of • The standard of data protection shall cilitate the participation of the so-called serious crimes correspond to those de- be governed by the Framework Deci- third partners in Europol’s analytical scribed by Art. 2(2) of the EAW Frame- sion on the protection of personal data work (“Danish protocol” of 2003). work Decision. processed within the framework of po-  eucrim ID=0603024 • It is envisaged that not only Europol’s lice and judicial cooperation in criminal efficiency of repressive measures, but matters (see below). A Data Protection Europol’s New Footing: Draft Council also the field of crime prevention be Officer is to be established in order to Decision strengthened: Europol is to assist Mem- ensure, in an independent manner, law- Beyond the issue of the ratification of the ber States which organise “major interna- fulness and compliance with Europol’s three protocols, there is a broad discus- tional events with a public order policing new legal framework when personal sion on a new legal framework for Euro­ impact”, such as international football data are processed. pol. At its meeting on 1-2 June 2006, matches and other sports events. The Council intends to reach a politi- the JHA Council called upon replacing • Europol’s data processing systems will cal agreement on the Council Decision the current Europol Convention, which be improved, while it is intended that a on Europol by the end of the German governs the tasks and work of Europol, high level of protection of personal data presidency. The new legal framework by a Council Decision as foreseen in be ensured. The two main tools remain the is planned to be in force by 1 January Art. 34(2)lit. c TEU. A Council Decision information system and the analysis files. 2008. It is contentious whether a proto- would allow the avoidance of lengthy However, the proposal offers the possibil- col is a legal prerequisite to abrogation ratification procedures, but would, how- ity of creating ad hoc databases, which of the Europol Convention. While the ever, circumvent parliamentary powers. could deal, for instance, with high-risk Council legal service took the view that It is aimed at adapting Europol to new internet sites or terrorist groups. In con- a new legal framework for Europol can security challenges, such as terrorism, trast to the existing Europol Convention, only be adopted after a protocol repeal- and improving the sharing of informa- national units shall have direct and full ing the Europol Convention, the Com- tion by the new legal framework. This access to the information system, without mission disagrees. The Council, at its new legal framework is to be discussed having the obligation to prove a need for meeting in December 2006, concurred in the coming months on the basis of a a specific enquiry. The proposal also pre- with the Commission’s opinion that the Commission Proposal for a Council De- pares Europol for the smooth exchange of Europol Convention can be directly con- cision establishing the European Police information, provided for by future EU verted into a decision. Office (Europol) of 20 December 2006 legislation (e.g., with respect to the prin-  eucrim ID=0603025 (COM(2006) 817). The proposal takes ciple of availability), since it foresees that into account the changes made by the Europol’s data processing system needs European Data Protection Supervisor three protocols (see above) and the op- to be interoperable with the data process- Opinion on Draft Council Decision tions paper from the Friends of the Presi- ing systems in the Member States and On 16 February 2007, the European Data dency Group (see below). Europol shall the bloc’s central databases, such as the Protection Supervisor (EDPS) delivered be turned from an international organi- Schengen or Visa Information System. its opinion on the Commission Proposal sation into a proper EU agency financed • A single chapter deals with the rela- for a Council Decision establishing Eu- directly from the EU budget rather than tions of Europol with other Community ropol (see aforementioned news). The by contributions from the national gov- or Union-related bodies and agencies EDPS particularly examines the conse-

eucrim 3–4 / 2006 | 51 NEWS quences on the processing, use, and pro- Friends of the Presidency’s Report to the feiting of the Euro. However, extending tection of data as to substantive changes Future of Europol Europol’s mandate would raise problems for Europol due to the new legislation, A core item for the discussion on the of how judicial control could be ensured the applicability of a general framework future of Europol is a report from the and for whom Europol works, particular- on data protection, and the growing simi- Friends of the Presidency Group (FOP), ly in the absence of an Office of the Eu- larities between Europol and Community drafted in May 2006. This report presents ropean Public Prosecutor (an issue which bodies. The EDPS makes several recom- the results of the discussions held during was tackled in the January JHA Council mendations. the Austrian Presidency on a Europol re- meeting). He pleads, inter alia, for the inclusion of form. The paper outlines the issues un- Improvement of the exchange of infor- specific conditions and limitations with der discussion (e.g. mandate and tasks mation was another important issue dis- regard to the supply of data by private of Europol, information processing, the cussed. In this context, Europol should entities, in the context of which he es- role of Europol in the implementation also be able to exchange information pecially sees problems in relation to the of the principle of availability, data pro- with countries that do not have the same data protection principles of accuracy and tection rules, etc.) and indicates differ- data protection standards as those that lawfulness. Likewise, he suggests further ent options for the further development are applicable within the EU. The sec- conditions and guarantees when the inter- of Europol. The paper distinguishes ond session addressed the development linking of databases is put in place. The between options which can be imple- of Europol’s operational work where it EDPS also criticizes the limitations to mented immediately, without additional was felt that Europol is called upon to one of the individual’s basic data protec- preparatory work and without changing deal with “transborder serious crime”. tion rights laid down in the Commission the Europol Convention (“quick wins”) The third session looked into a new ar- proposal, i.e., the right of access. and those which would require changes chitecture of the internal structures of The EDPS recommends that the present to Europol’s main legal instrument. Europol and talked about the potential draft Council Decision should not be FOP groups are ad hoc groups which can value of cooperation via Europol. The adopted prior to the Framework Deci- be called into being whenever the Presi- ideas of the High Level Conference were sion on the protection of personal data dency needs help with a specific issue. taken up afterwards by the Friends of the processed within the framework of po- They are usually composed of experts Presidency Group (see above). lice and judicial cooperation in crimi- from the Member States, the General  eucrim ID=0603028 nal matters (see below). In this context, Secretariat of the Council, and the Com- the EDPS advocates that the new legal mission (plus experts from other institu- Parliamentary Discussions on Current framework for Europol also respects two tions possibly involved, such as Europol and Future Challenges of Europol major elements of the said Framework in this case). FOP groups are playing an The EP tackled the future development Decision as proposed by the Commis- increasing role in the development of the of Europol and the role of parliaments sion, namely the distinction between EU’s justice and home affairs policy. therein several times. In this context, two data based on opinions and data based  eucrim ID=0603027 major meetings should be mentioned. on facts (“soft and hard data”) as well as On the occasion of the joint parliamen- the distinction between data of catego- Conference on the Future of Europol un- tary meeting “From Tampere to The ries of persons, based on their involve- der Austrian Presidency Hague: Moving Forward? Progress and ment in a criminal offence. In the context of the future development Shortcomings in the Area of Freedom, The opinion of the EDPS also address- of Europol, two conferences deserve Security and Justice” on 2 and 3 Octo- es the applicability of Regulation No. mention: ber 2006, a session on “What Future for 45/2001 – the basic legislation concern- A so-called “High Level Conference on Europol?” had a look at parliamentary ing the protection of personal data proc- the Future of Europol” was held in Vien- supervision over Europol and Europol’s essed within EU institutions and bodies, na on 23/24 February. It aimed at contin- accountability. Hubert Haenel (Chair- and establishing and defining the tasks of uing the discussion on Europol which had man of the European Union Delegation the EDPS. This question is especially rel- been stimulated by the Austrian Presiden- of the French Senate) discussed whether evant when Europol communicates with cy at the informal JHA Council meeting a committee of national and European Community bodies. In this context, the in January 2006. Three working sessions parliamentarians should be created to EDPS also assesses the provisions which were held. In the first session, delegates scrutinise Europol. Max-Peter Ratzel, regulate the exchange of data with OLAF. discussed the role of Europol in the area Director of Europol, pointed out in the He clarifies that Reg. No. 45/2001 applies of freedom, security and justice. They context of the discussion that Europol to the activities of OLAF as carried out suggested carefully widening Europol’s already has several control mechanisms, in connection with Europol. Last but not mandate, the result of which would be such as the Management Board, and least, the EDPS calls on an improvement more operational powers, meaning that stressed that Europol’s role is to facili- of the rights of the individual when his Europol could more directly support joint tate data exchange between the Member data are communicated to Europol by investigation teams and deal with crimes States and not to ask for coercive powers Community bodies. of a particular European nature, such as in the Member States.  eucrim ID=0603026 trafficking in human beings or counter-  eucrim ID=0603029

52 | eucrim 3–4 / 2006 NEWS

Another conference in the Parliament ture of Eurojust and the European Judi- by means of direct access to information which addressed the main challenges cial Network. A number of presentations and joint investigation teams should be of Europol was the joint parliamentary focussed upon the development and the set up in the long run. meeting entitled “Improving Parlia- strengths and weaknesses of Eurojust (3) New legislative instruments are to mentary Scrutiny of Judicial and Police and the EJN. The successful work carried be adopted which change the legal ba- Cooperation in Europe” in Brussels on out by both institutions was emphasised sis of the operation of Eurojust. Eurojust 17 and 18 October 2005. Presentations and some paths for further improvement should have access to and receive infor- mainly addressed Europol’s mission suggested. In particular, uneven imple- mation and have direct contact with na- and objectives, the lack of parliamen- mentation of the relevant provisions by tional authorities at all levels, be party to tary supervision and judicial review of Member States was pinpointed as a ma- Europol’s analytical work files, and have Europol, the obstacles to ratifications of jor obstacle to effective work in some a seat on the Europol board. Eurojust Europol protocols, and the role assigned cases. Beyond that, there were calls to should be able to initiate investigations to the parliaments to improve police co- focus pragmatically upon the problems and prosecutions. Further proposals in- operation throughout Europe. currently facing the institutions rather clude the linking of Eurojust and Eu-  eucrim ID=0603030 than those arising from political propos- ropol databases, lending Eurojust pow- als. A general discussion followed as well ers to issue European Arrest Warrants, as discussions in two working groups fo- and judicial control over Eurojust. Eurojust cussing on the powers of Eurojust on the (4) A fourth premise is the establishment one hand and gathering, managing, and of the European Public Prosecutor. Cooperation Agreement Eurojust – USA exchanging information on the other. By Dr. Marianne Wade / Sarah Kiesel The EU and the USA agreed on a coop- Conference participants and additional  eucrim ID=0603032 eration agreement which enables Euro- speakers presented ideas ranging from just to exchange information with the calls to preserve the flexibility of the Talk about the Role of Eurojust in the competent US authorities in terrorist and current system − in particular ensuring European Parliament other cross-border cases. The agreement that practitioners are aware of Eurojust The European Parliament also discussed will also facilitate the cooperation be- and the EJN and that these two institu- current difficulties and the potential fu- tween the prosecutors. Both parties can, tions are able to work at full capacity −, ture of Eurojust in the above-mentioned for example, arrange common meetings to clarify responsibility between the two joint parliamentary meeting on 17/18 Oc- at which data on cases under investiga- institutions, and to give Eurojust opera- tober 2005. Jean-Marie Cavada, Chair of tion can be considered. National mem- tive powers subject to legal control. The the EP Civil Liberties Committee, said bers of Eurojust are allowed to partici- seminar raised many questions relating that Eurojust should have a more central pate in meetings arranged by the US Eurojust’s role in particular to the politi- role in judicial cooperation. Michael G. authorities, and, vice versa, US national cal question as to what kind of European Kennedy, President of Eurojust, pointed authorities may participate in meetings Union the institution should serve. out recent successes, but he regretted arranged by Eurojust. The US will sec- The Presidency’s report on the semi- that lack of transposition of the Euro- ond a liaison prosecutor who operates on nar lists four different premises for the just decision in Member States hindered Eurojust premises. Specific provisions strengthening of Eurojust: the activity of Eurojust. Hubert Haenel, on data protection are another important (1) No changes are to be made to the Chairman of the EU delegation at the point of the agreement. They seem to go acquis. In this case, the evaluation of French Senate, called for the creation beyond existing cooperation agreements Eurojust’s work must continue. Closer of a new European Public Prosecutor to between EU institutions and the USA. cooperation with Europol and OLAF and reinforce Eurojust. The following link Further information on the cooperation the possibility of the creation of national leads to documentation of the meeting: between Eurojust and non-EU countries is Eurojust offices within the framework of  eucrim ID=0603033 contained in the news in the category “Co- the EJN should be considered. operation – External Dimension” below. (2) New legislative instruments are to be  eucrim ID=0603031 adopted, but no changes need be made to European Union Agency for Funda- the legal basis for the operation of Euro- ­mental Rights The Future of Eurojust – Seminar with just. EU legislative instruments guiding By Julia Macke 2020 Vision national implementation are to be adopt- Besides discussions on Europol, discus- ed as well as those on the minimum pow- EU Agency for Fundamental Rights sions are also going on with regard to ers of national members. Conflicts relat- Started the future of Eurojust. In this context, a ing to Eurojust jurisdiction should be For a long time, it was not clear if the seminar convened in Vienna at the end solved and a European documentation planned European Union Agency for of September 2006 encompassing repre- and clearinghouse for judicial coopera- Fundamental Rights could begin its work sentatives from Eurojust, EJN, Europol, tion should be created. Eurojust is to be by the intended date of January 2007 be- EJTN, CoE and the UN, senior officials provided with community financing and cause it was controversial whether po- and expert academics to discuss the fu- a long-term budget. Better cooperation lice and judicial matters which fall un-

eucrim 3–4 / 2006 | 53 NEWS der the EU’s third pillar on justice and Human Rights. A cooperation agreement Council of Europe Recommendation on home affairs would be within the scope between the EU agency and the Council the Agency of the new watchdog. But the last Jus- of Europe is envisaged to ensure good The Recommendation 1744 “Follow- tice and Home Affairs Council of the relations in the future. up to the Third Summit: the Council Finnish Presidency on 4 and 5 Decem- The idea for an EU Fundamental Rights of Europe and the Fundamental Rights ber 2006 in Brussels reached a general Agency was first proposed by Member Agency of the European Union”, which agreement on its establishment. At the States in December 2003 in order to an- the Parliamentary Assembly adopted on JHA meeting in Brussels on 15 February alyse and collect data on how each EU 13 April 2006, summarized previous 2007, the Council, now under the Ger- Member State adheres to the basic rights concerns regarding an EU body for Hu- man Presidency, finally approved the enshrined in the EU’s treaties. Then, the man Rights, inter alia: possible duplica- Regulation establishing the European European Commission adopted a propos- tion of activities already undertaken by Union Agency for Fundamental Rights, al for a regulation establishing a European the Council of Europe which has already enabling the Agency to take up its work Union Agency for Fundamental Rights on developed a complete range of instru- from 1 March 2007 onwards. The man- 30 June 2005. The proposal followed the ments and mechanisms for promoting date of the Agency in the fields of police decision of the Heads of State and Gov- and protecting human rights, possible and judicial cooperation in criminal mat- ernment, taken in December 2003, to ex- “forum shopping” by countries, waste of ters is now based on voluntary consulta- tend the mandate of the European Union public money, creation of new dividing tion. However, the Council is committed Monitoring Centre on Racism and Xeno- lines in Europe, and insufficient con- to reviewing the Agency’s mandate in phobia, based in Vienna, by converting it sideration of national parliaments’ posi- these areas by the end of 2011. into a Fundamental Rights Agency. tions. The Agency should therefore be The Agency will be an independent cen-  eucrim ID=0603034 explicitly limited and required to refer tre of expertise on fundamental rights in its work to the principal human rights issues through data collection, analysis, Council of Europe Position instruments of the Council of Europe. and networking, which currently does not In the past, the representatives of the dif-  eucrim ID=0603037 exist at the European Union level. How- ferent institutions of the Council of Eu- ever, the Agency will not deal with indi- rope frequently expressed deep concerns European Parliament: Support with vidual complaints. It will have the right about the plans to set up the EU’s Funda- Amendments to formulate opinions to the Union insti- mental Rights Agency. During a visit in The European Parliament firmly sup- tutions and to the Member States when Germany in December 2006, Council of ported the Commission proposal on the implementing Community law, either on Europe Parliamentary Assembly Presi- establishment of an EU Agency for Fun- its own initiative or at the request of the dent, René van der Linden, recently still damental Rights. On 30 November 2006, European Parliament, the Council, or the stressed that the Agency risks creating the EP adopted a report from MEP Kinga Commission. Additionally, it will present unnecessary duplication. Gál which proposes several amendments an annual report on fundamental rights On 9 February 2006, in a speech in Ath- to the Commission proposal. The EP sug- issues, including examples of good prac- ens, he reprimanded the Agency for not gested, inter alia, that EU institutions tice, and produce thematic reports on top- having an added value. He was further should be able to request opinions on their ics of particular importance to the Union’s concerned about the geographical remit legislative proposals or on positions taken policies. Geographically, the Agency will of such an Agency, requesting that the in the course of legislative procedures as focus on the Community and its Member Agency should gather and analyse data regards their compatibility with funda- States, but candidate and Western Balkan within the EU 25 member states only. mental rights. Moreover, the amendments countries will also have the possibility  eucrim ID=0603035 stress close cooperation with the civil to participate. In order not to overtax the However, after the EU Council decision society and request the introduction of Agency, Germany especially has advo- on 15 February 2007, Secretary General a Scientific Committee to guarantee the cated a streamlined Agency whose geo- Terry Davis thoroughly welcomed its scientific quality of the Agency’s work. graphic area of activity is limited to the decision to create a new Fundamental By adopting a report from MEP Kósáné EU and its applicant countries. Rights Agency. According to Davis, this Kovács, the EP pleaded that the Agen- According to the Council, the Agency is an important and challenging task, cy’s mandate also covers areas of Title on the one side, and the Council of Eu- and the new Agency can make a useful VI TEU. However, the Parliament’s rope and the European Court of Human contribution to helping the EU to com- resolutions were only taken into account Rights on the other, will complement ply with the Council of Europe stand- in the consultation procedure, thus the one another in a way which will avoid ards based on the European Convention Council was not bound to them. duplication of work. While the Agency on Human Rights. He further welcomed  eucrim ID=0603038 will concentrate on Community law and that the EU had asked the Council of Eu- its implementation, the Council of Eu- rope to participate in the administration EESC in General Favour rope and the European Court of Human of the new Agency and announced im- The European Economic and Social Rights will focus on ensuring compli- mediate talks in this context. Committee (EESC) also welcomed the ance with the European Convention on  eucrim ID=0603036 EU Agency for Fundamental Rights. In

54 | eucrim 3–4 / 2006 NEWS its opinion of February 2006 it favoured OLAF Investigations – Some Cases ly from preferential trade arrangements the extension of the Agency’s remit to Reported on fresh garlic between the EC and cer- include the third pillar which is a key el- OLAF, together with its partners, was tain countries. Whereas the import of ement in the view of the EESC. It also successful in detecting several fraud garlic from these countries is duty-free, favours including a wide range of civil cases, some of which are highlighted in imports from China are liable to high du- society groups in the Agency’s bodies. the following: ties. Evasion of this levy is attractive be-  eucrim ID=0603039 Anti-dumping duties on products from cause China is one of the world’s leading China lead ex- and importers to circum- producers of garlic and production costs Committee of the Regions vent their obligations. The latest success there are low. OLAF estimates the finan- The Committee of the Regions (CoR) of OLAF and its partners in this respect cial damage to the EU taxpayer to be at already gave an opinion on the sphere was the detection of illegal trade in least € 60 million. of action, missions, geographical scope, cigarette lighters. Imports evaded anti-  eucrim ID=0603046 and structure of the new EU’s human dumping duties imposed on China by rights watchdog in June 2005. The CoR misdeclaring the country of origin (In- EU Expenditure Still Often Spent Incor- recommended that the Agency have ac- donesia or Malaysia instead of China). rectly, European Court of Auditors Says cess to the necessary intellectual and ma- Transhipment in Malaysia alone led to Each year in October, the European Court terial resources to fulfil its mission and an illegal import of 300 million lighters of Auditors (ECA) presents its Annual suggested that the geographical sphere from China during the past four years Reports covering the previous financial of action should be restricted to the EU and therefore damaged the EU budget year. The main content of the reports is Member States. considerably. The duties will now be re- the Statement of Assurance (also known  eucrim ID=0603040 covered from the importers. as “DAS” after the French acronym  eucrim ID=0603043 “Déclaration d’Assurance) which com- CCBE Position Likewise, OLAF, together with the “Zoll­ prises conclusions on i) the reli­bility The Council of Bars and Law Societies kriminalamt” (German Customs Investi- of the accounts and ii) the legality and of Europe (CCBE), which represents gations Office), detected the evasion of regularity of the underlying transactions more than 700,000 European lawyers, anti-dumping duties on energy-saving (see Art. 248 TEC). submitted its statement on the Agency lamps, the rate of which is currently up In its 2005 annual report, which was for Fundamental Rights in February to 66.1 %. Energy-saving lamps were al- presented in October 2006, the ECA 2006. The CCBE stressed the need for a legedly produced in China, transhipped was generally satisfied with the financial more explicit stipulation of the Agency’s through third countries and reloaded management as to the EC’s revenue, the advisory capacity at the early stages of there, provided with false certificates of EU administrative expenditure, and the policy and decision making. The CCBE origin and then imported into the EU. pre-accession strategy. However, with also favoured a mandate for the moni- The German customs administration regard to expenditure, the ECA found toring of human rights in third countries, was able to recover € 7 million from the a continuing material level of errors in even if no association agreement was fraudsters. the underlying transactions (the ECA concluded and advocated an obligation  eucrim ID=0603044 gives a so-called “qualified opinion” in for Member States to regularly report to Investigations co-ordinated by OLAF this case). This concerns the four prin- the Agency. revealed fraudulent practice by an im- cipal areas of the general EU budget:  eucrim ID=0603041 porter who falsely declared the countries agriculture, structural measures, internal of origin concerning raw cane sugar. The policies, and external action. Deficien- plan was to benefit from the preferential cies in internal control, in particular in Specific Areas of Crime / Substantive treatment given to products originating Member States for shared management Criminal Law from ACP countries (Asia-Caribbean- expenditure are the main reason. But the Pacific Group of States). A respective ECA also blames the internal controls Protection of Financial Interests agreement allows products from the carried out by the Commission. It should ACP to enter the EC free of duty. Instead be mentioned that the ECA confirmed Commission Can Start Negotiations for coming from ACP countries, the sugar in similar findings in its previous annual PFI Agreement with Liechtenstein fact originated from Brazil and was re- reports. The Minister for Economic and Financial fined in Bulgaria; thus it could not bene- Hubert Weber, the Court’s President, Affairs, at its Council meeting on 7 No- fit from exemption from customs duties. said: “Overall, the situation [relative to vember 2006, authorised the Commis- The total damage is estimated to be up to the legality and regularity of underly- sion to open negotiations for an agree- € 30 million. ing transactions] has not substantially ment between the EC and Liechtenstein  eucrim ID=0603045 changed since last year. However, this in order to counter fraud and other illegal Another field in which OLAF is- cur does not mean that all, or even the ma- activities which are detrimental to the rently carrying out investigations is the jority of, payments from the EU budget financial interests of the Community. smuggling of garlic. Smugglers use dif- are affected by errors, nor can it be in-  eucrim ID=0603042 ferent methods in order to benefit illegal- terpreted as an indication of fraud. What

eucrim 3–4 / 2006 | 55 NEWS it does signify, however, is that, judg- instrument designed by the European needs to be explored in order to strength- ing by the results of the Court’s detailed Parliament to enhance cooperation with en the real protection of the EU’s finan- audit work, errors with the financial national parliaments at the committee cial interests; furthermore, the possibility impact are found too frequently for the level. They intend to foster the exchange of OLAF’s full administrative independ- Court to conclude that all is well. The of views and information between the ence from the Commission and the other underlying reason why most errors oc- committees of the European Parliament institutions should be evaluated. cur is that beneficiaries – farmers, local and the national parliaments with regard A major part of the resolution is dedi- authorities, project managers – claim to a concrete area of European politics. cated to the risks to human and animal more that they have the rights to claim.  eucrim ID=0603048 health in cases of fraud in trade in ag- Explanations range from simple neglect ricultural products – as discussed at the or error, through poor knowledge of the EP Resolution on the Recovery of Com- seminar in Bled/Slovenia in spring 2006 complex rules up to resumed attempts munity Funds (see eucrim 1-2/2006, pp. 10-11). In to defraud the EU budget. However, it The difficulties and complexity of- re this context, the resolution stresses that is the responsibility of the Commission covery procedures, particularly in the closer cooperation between the national to administer the budget in a way that context of the shared management of ag- customs authorities, the veterinary serv- reduces the risk of irregularities through ricultural funds, was subject to a resolu- ices, and EU authorities such as OLAF is preventive measures and controls that tion on the recovery of Community funds urgently needed. The MEPs suggest that, are properly carried out.” adopted by the European Parliament on where fraud could at any given moment  eucrim ID=0603047 24 October 2006. The resolution is based have health repercussions, the health on an own-initiative report from MEP services responsible should be informed, Better Financial Management of EU Paulo Casaca, Member of the Commit- have access to samples, and that such Budget at Stake in the EP tee of Budgetary Control. The resolution samples should be kept for a consider- Against the background of the repeated reflects various aspects related to the ably longer period than is now the case. negative Statements of Assurance of the lack of sound financial management and In addition, the resolution notes that a European Court of Auditors as to the improper recovery of Community funds. main obstacle to recovery is that OLAF lack of supervisory systems and con- The most important are as follows: does not possess suitable information on trols in the Member States relating to The resolution first welcomes the three the quantities of incriminated products, the aforementioned underlying transac- proposals submitted by the Commission while application of the criminal law to tions, the European Parliament’s Com- in the framework of the 2002 reform of the inquiries (in the Member States) has mittee on Budgetary Control initiated a the Financial Regulation, including a proven disastrous for recovery. Lastly, “Joint Committee Meeting” on the role five-year deadline for recovery of sums the EP stresses the need for the creation of budgetary control committees in na- owed to the Community. The EP calls of the European Public Prosecutor whose tional parliaments with regard to the on Member States to prove their com- presence, as envisaged in the Constitu- control of the Community budget. The pliance with international accounting tional Treaty, would lead to more “joint- meeting was held on 9 and 10 October standards and consider whether it could up” procedures and reduce the complex- 2006 in Brussels. The meeting analysed be used by the EU in order to develop ity of the current situation. the fundamental weakness of the shared a common approach in this matter. It is  eucrim ID=0603049 management system and tried to develop recommended that the authorising of- solutions on how financial management ficer should inform OLAF immediately Commission Recovers Incorrectly Spent and accountability in the European Un- if he establishes that the expenditure is Farm Subsidies from Member States ion can be improved. In this context, the not consistent with the contact or that As reported in eucrim 1-2/2006, p. 10, role that budgetary control committees of authorisation was obtained by deceit, the Commission regularly takes deci- national parliaments have in the control threat, or bribery. sions on the conformity of CAP (Com- and scrutiny of the Community budget The MEPs state that procedures of re- mon Agricultural Policy) expenditure was discussed. Another issue addressed covery, which must be carried out in with EU law and requires Member the role of national audit institutions in the Member States, take far too long, so States to pay back unduly paid funds if relation to EU funds since national au- that recovery is often subject to delays they apply audit procedures negligently. dit institutions have very different audit or cannot even be effected. With regard In its decision from October 2006, the cultures and mandates in the various EU to enforcement orders, it is considered Commission found that some Member Member States. In doing so, the meeting important that communications between State’s recovery procedures were inad- contributed to a better understanding of the Commission and the Member States equate and therefore reclaimed a total of each other’s legal budgetary control and be simplified and closer links established € 317.3 million from the bloc’s big five audit systems. between the Commission’s services and parties: Italy, Spain, the UK, France, and This was the first “Joint Committee those responsible in the Member States. Germany. These recoveries relate to ir- Meeting” which was organised by the With regard to the reform of OLAF, the regularities communicated by the Mem- Committee on Budgetary Control. “Joint EP believes that the possibility of closer ber States before 1 January 1999. The Committee Meetings” are a rather new cooperation with Eurojust and Europol Commission’s statement also concluded

56 | eucrim 3–4 / 2006 NEWS that € 176.3 million should be written off fraud, economic literature estimates that ber States would follow it. The Com- at the cost of the Community budget as tax fraud accounts for 2-2.5 % of GDP. mission would also like to consider the their non-recovery was not due to negli- This would amount to about 200 to so-called “reverse charge mechanism”, gence on the part of the Member States. 250 billion € at the EU level. László Ko- particularly in order to avoid carousel  eucrim ID=0603050 vács, European Commissioner for Taxa- fraud. This would mean that, instead tion and Customs, pointed out an inter- of the supplier (in principle, the current EC and Member States Agree on Distri- esting link between the fight against tax system), it would be the recipient/cus- bution of Philip Morris’ Money fraud and the Lisbon strategy. The huge tomer of goods or services who declares In October 2006, the European Com- sum of lost tax money could be used to the VAT in business-to-business rela- munity (EC) and the ten Member States accelerate economic growth, create new tions. The customer can then set off this which initially signed the anti-contra- jobs, or increase competitiveness. The payment against his input tax deduc- band and anti-counterfeit agreement Communication presents actions which tion. Thus, any flow of money which is with Philip Morris International (PMI) could be implemented in the short term, currently being exploited by fraudsters arranged how to distribute the payments mainly in the following three areas: can be avoided. from the tobacco giant. On 9 July 2004, • Reinforcing (administrative) cooper­ Beyond these areas, the Communication PMI concluded a multi-year agreement ation between the Member States: The examines some single aspects, such as which includes the establishment of an absence of a Community administrative improvements in the exchange of infor- effective system for combating ciga- culture is seen as a major obstacle to the mation and the reinforcement of tax dec- rette smuggling and counterfeiting in fight against fraud. In this context, the laration obligations. the future and which ends all litigation Commission stresses the need to make  eucrim ID=0603052 between the parties in this area. The more coherent use of OLAF’s services European Commission had accused the and provide OLAF with a strengthened Council Position on Common Strategy world’s biggest tobacco manufacturer of framework for operational assistance to Fight Fiscal Fraud collusion with tobacco smugglers to EU and intelligence. Furthermore, current The ECOFIN Council addressed the destinations. The agreement includes legislation regarding cooperation in the aforementioned strategy in two meet- substantial payments by PMI, which field of direct taxation and assistance in ings in 2006. At its meeting on 7 June, could total approximately 1.25 billion the recovery of taxes should be tight- the Council stimulated further discus- USD over 12 years. The arrangement ened up, as well as risk management sion on the reverse charge mechanism now made between the EC and the said improved, so that countries can be rap- for VAT but showed reservations about Member States applies to the payments idly informed of the potential risks that a rigid change. However, the Austrian already received by PMI since 2004 and particular companies may represent. In Presidency called on the Commission to to the future annual payments that will addition, a permanent forum should be propose a directive which would allow be paid through 2016. The Commission created at the Community level for all Member States the option of applying proposed increasing the financial en- direct and indirect taxes where issues the reverse charge mechanism to domes- velope of the next Hercule Programme relating to fraud and cooperation could tic business-to-business supplies where 2007–2013 (see below) by € 44 million be discussed. the invoice amount exceeds 5,000 €. taken out of the PMI payments. It could • Increasing cooperation with third At its meeting on 28 November 2006, be used to finance training actions and countries: The current cooperation is the Council laid down the priorities by the purchase of equipment in order to based on bilateral agreements which which to proceed with the strategy: prevent smuggling of cigarettes. lead to different situations that are ex- • Establishment of an action plan, in-  eucrim ID=0603051 ploited by fraudsters. This system could cluding a follow-up mechanism with the be replaced by a common EU agreement aim of ensuring a more efficient use of EU Strategy to Fight Fiscal Fraud with third countries. Moreover, the in- administrative cooperation; Because of the free movement of goods clusion of tax cooperation clauses into • Exploration of ways to enable Mem- and services within the internal market the economic partnership agreements is ber States to take more efficient meas- and the globalisation of the economy, proposed. ures against fraudsters and give as much Member States are increasingly unable • Modifying the current VAT system: priority to the protection of other Mem- to fight fiscal fraud on their own. There- Since VAT fraud still raises the most ber States’ VAT revenue as to their own; fore, with its Communication “concern- concern, the Communication gives • Possibilities for quicker and more de- ing the need to develop a co-ordinated some impetus on how to reduce the tailed exchange of information between strategy to improve the fight against fis- losses of VAT income. The Commis- Member States, including the study of cal fraud” (COM(2006) 254), the Com- sion calls upon the introduction of the legal and practical possibilities of ac- mission initiated a new campaign in “definitive VAT regime”, i.e. taxation of cess to data on taxpayers for tax admin- order to trigger indepth discussions on goods and services in the Member State istrations in other Member States; this finding common solutions to the grow- of origin. However, this would mean a should also include the elaboration of ing problem of tax fraud. Although there fundamental change to the current VAT legislative proposals, where necessary, are no official figures on the level of tax system and it is unlikely that all Mem- to ensure that Member States obtain the

eucrim 3–4 / 2006 | 57 NEWS relevant information from businesses, the common system of value-added tax New Council Directive Aims for Unified accompanied by an assessment of the ef- entered into force. Hence, the Directive Struggle against Tax Evasion fects in terms of the additional burden on puts the European turnover tax system As mentioned above, the 6th VAT Direc- businesses and administrations by taking on a new legal foundation. Significant tive allows Member States to derogate into account the possibilities offered by amendments to the 6th VAT Directive from the common Community VAT pro- electronic technologies; of 1977 on several occasions necessi- visions in order to simplify the procedure • Examination of potential legal chang- tated a complete revision for reasons for charging the tax or to prevent certain es to the current VAT system in view of clarity, transparency, and ration- types of tax evasion or avoidance. How- of enhancing the legal possibilities for alisation. Some unclear rules were ever, these derogations can only be made combating fraud, such as joint and sev- transformed into new articles, some for single Member States. Directive eral liability. outdated rules were deleted. Directive 2006/69/EC makes certain particularly  eucrim ID=0603053 2006/112, in principle, does not bring effective individual derogations appli- about substantive changes in content cable to all Member States. It author- but recasts the structure and wording izes, for instance, Member States to take VAT of the older directive. The new Direc- steps against avoidance schemes relating tive alters the format of the 38 articles to taxable persons and the transfer of a Commission Objects to Austrian and of the 6th Directive and now contains business as a going concern. Another German Introduction of Reverse Charge 414 new articles plus 11 annexes. The example is the possibility for Member System 12th annex contains a correlation table States to re-valuate supplies and acquisi- In the context of the reverse charge mech- with the old and new EC turnover tax tions under specific limited circumstanc- anism (see above), it is worth mentioning law. The 1st VAT Directive of 1967 and es to ensure that there is no loss of tax a decision of the Commission from July the 6th VAT Directive, as well as all through the use of associated parties to 2006 which rejected a request from Aus- directives which amended them succes- derive tax benefits. Furthermore, the re- tria and Germany for a general introduc- sively and were incorporated into the verse charge mechanism (see above) can tion of the mechanism to all business-to- new framework, are repealed. Directive be introduced in specific sectors (e.g., business supplies of goods and services 2006/69/EC regarding certain measures construction, waste) where VAT car- in their territory where the invoice value assisting in countering tax evasion and ousel fraud has proven to be a frequent exceeds 5,000 € and 10,000 € respec- avoidance, mentioned below, was also problem. Member States are not obliged tively. The request was based on Art. 27 taken into account. to apply the rules of the Directive. They of the Sixth VAT Directive (Dir. 77/388/  eucrim ID=0603055 are seen as an alternative – an option for EEC) by which Member States can be Member States to take action selectively authorised to introduce special measures Amendments to Present VAT Scheme and in a more flexible way. The Direc- for derogation from the provisions of the Still Open tive is based on a Commission proposal Directive, inter alia, in order to combat The Council could not yet agree on a from 2005 (COM(2005) 089). fiscal fraud. The authorisation is taken package with several modifications to  eucrim ID=0603057 up by the Council, acting unanimously the current VAT regime. It intends to on a proposal from the Commission; the reach a solution on the draft legislation European Court of Justice Approves European Parliament or the European by June 2007. The package also takes Italian Regional Tax Economic and Social Committee is not into account aspects of combating VAT On 3 October 2006, the European Court consulted. The Commission decided not fraud. The individual elements are as of Justice (ECJ) delivered its answer to to make such a proposal because it takes follows: (1) A draft directive on the place the question posed by an Italian court re- the view that Art. 27 only allows dero- of supply of services as concerns VAT garding whether the Italian regional tax gations in specific cases, whereas the re- payments aims at changing the place of on productive activities (imposta region- quest by Germany and Austria would en- taxation for VAT from the place where ale sulle attività produttive, “IRAP”) is tail a fundamental change to the current the supplier is located to the place where compatible with the 6th VAT Directive VAT system. The Commission believes the customer is located. (2) Two draft di- (see eucrim 1-2/2006, p. 11). The IRAP that the only possible route is a legisla- rectives and a draft regulation have the is levied on the net value of production tive act under Art. 93 TEC, providing objective of simplifying cross-border (the difference appearing in the profit for an agreement by all Member States VAT obligations and refund procedures and loss account between the “value of in the Council, after consultation of the for business; the core element is the production” and the “production costs” European Parliament and the Economic creation of a “one-stop” scheme which as defined by Italian legislation) of an and Social Committee. would facilitate registration and decla- undertaking (a company or natural per-  eucrim ID=0603054 ration of VAT by business in Member son) within the territory of a region in States in which they are not registered. a given period. Art. 33 of the Directive, VAT Directive Recast (3) Other measures will rearrange VAT however, prohibits Member States from On 1 January 2007, Council Directive for e-commerce. maintaining or introducing taxes with 2006/112/EC of 28 November 2006 on  eucrim ID=0603056 the characteristics of a turnover tax. The

58 | eucrim 3–4 / 2006 NEWS

ECJ decided that the tax in question can- In this context, the AG makes an impor- Regulation on Transfers of Funds in not be characterised as a turnover tax tant clarification on the notion of “ascer- Force and can consequently be maintained. taining the legal position”. He concludes The European Parliament and the Coun- The Court takes the view that IRAP does that Art. 6 para. 3 not only covers the ad- cil endorsed a Regulation which lays differ from the main characteristics of vocates’ missions of representation and down rules on information on the pay- VAT because there is no direct connec- defence but also those of assistance and er accompanying transfers of funds. It tion to the supply of goods or services as legal advice to the client. The AG then is based on the Commission proposal such, it is not proportional to the price of develops criteria for the differentiation which was outlined in eucrim 1-2/2006, goods and services, and not all taxable between the said protected activities un- p. 12. The Regulation, which applies persons have the possibility of passing der the right of professional secrecy and from 1 January 2007, aims at guarantee- on the burden of the tax to the final con- the non-protected ones. He concludes that ing the full traceability of payments and sumer. The judgment is one of the rare the activities described in Art. 2a point 5 settlements, which is seen as a signifi- cases in which the Court does not follow of the Directive concern the realisation cant tool in combatting money launder- the opinion of the Advocate General (see and preparation of commercial or finan- ing and terrorist financing. The Regula- eucrim 1-2/2006 as cited). cial transactions and, in doing so, the ad- tion, in principle, applies to all transfers  eucrim ID=0603058 vocate performs a “non-judicial activity”. of funds, in any currency, which are These activities fall outside the scope of sent or received by a payment service professional secrecy since they are only provider established in the Commu- Money Laundering carried out in the client’s interest. nity. However, the Regulation provides  eucrim ID=0603059 for some exceptions from the scope as Advocate General Sees 2nd Anti-Money regards certain transactions which rep- Laundering Directive in Line with Fun- Improper Implementation of Anti-Money resent a low risk of money laundering damental Rights Laundering Law and terrorist financing and in which case In response to the action lodged by the The City of London Corporation re- the traceability of the transfer is ensured Belgian Bar Association on the validity leased a report which examines the otherwise. Furthermore, Member States of the second anti-money laundering Di- comparative implementation of the Sec- are allowed to discharge payment serv- rective (see eucrim 1-2/2006, p. 11), Ad- ond Money Laundering Directive (Dir. ice providers from their obligations for vocate General (AG) Maduro endorses 2001/97/EC – hereinafter: 2MLD) in six charity purposes under the condition that the system established by the Directive EU Member States: the UK, Spain, Italy, the transfer of the fund does not exceed as to new obligations for independent le- Greece, Poland, and Lithuania. The re- 150 €. gal professions. The petitioners defend- port shows that differing implementa- The Regulation distinguishes between ed themselves against the extension of tion of the 2MLD hampers a consistent obligations towards the payment service obligations to report suspicious money EU fight against money laundering. Ac- provider of the payer, the payment serv- laundering activities to advocates and cording to the report, difficulties occur, ice provider of the payee, and intermedi- notaries. They claimed that these obli- in particular, due to the lack of clarity ary payment service providers. Payment gations would infringe the principle of in the definitions. National laws vary, service providers of the payer must es- professional secrecy and the lawyer’s in- for instance, as to the notions “serious pecially provide complete information dependence. The AG has no objections crime”, “accounting services”, or “legal on the payer, including his/her name, against the provision of the Directive professionals”. Compliance also var- address, and account number. Payment which, on the one hand, covers nota- ies widely because the 2MLD fails to service providers of the payee have the ries and independent legal professionals provide for the establishment of com- duty to check missing or incomplete who participate in financial or corporate petent authorities in each Member State information on the payer. If necessary, transactions (Art. 2a point 5), but, on the to monitor and enforce compliance with they must reject the transfer or ask for other hand, leaves Member States the the requirements of the Directive. Prac- complete information on the payer. Both possibility of exempting these profes- tical problems arise about the verifica- the payment service providers of the sionals from their obligations when as- tion of identity when the customer is not payer and payee must keep records of all certaining the legal position of a client physically present during the transac- information for five years and fully co- or representing a client in legal proceed- tion. The report eventually points out a operate with the national authorities re- ings (Art. 6 para. 3 subpara. 2). clash between the 2MLD prohibition on sponsible for money laundering and ter- After having professional secrecy recog- “tipping off” and the right of the individ- rorist financing. By 14 December 2007, nised as a fundamental right in the sense of ual to have access to his data, set out in Member States are obliged to introduce Art. 6 para. 2 TEU, the AG addresses the the Data Protection Directive. The report effective, proportionate, and dissuasive limits of this right and examines whether intends to be a basis towards helping to penalties for failure to comply with the the Directive respects its essence. The AG identify the changes that will be required provisions of the Regulation. argues that the privilege not only protects to implement the Third Money Launder- The Regulation complements the third the client’s interests, but also serves the ing Directive by December 2007. anti-money laundering directive (see interests of justice and the respect of law.  eucrim ID=0603060 eucrim 1-2/2006, p. 11) and adapts

eucrim 3–4 / 2006 | 59 NEWS

Community law to the special recom- 23 November 2006 particularly tackled or Chinese counterparts in order to avoid mendations against terrorist financing the increasing threats of identity theft IPR infringements. which were made by the Financial Ac- and other modern forms of payment  eucrim ID=0603064 tion Task Force (FATF) in the aftermath fraud, especially online fraud. The con- of the 9/11 terrorist attacks. The FATF ference brought together experts from Council Pursues Directive on Criminal is an intergovernmental body which was governments, the private sector, and Measures Further established in 1989 by the G7 and whose the public sector. The aim was to raise At its formal meeting in October 2006, purpose is the development and promo- awareness on the problem of maintain- the Council tackled the proposed Direc- tion of national and international poli- ing the integrity of identities and pay- tive on criminal measures aimed at ensur- cies to combat money laundering and ments and to explore possible future ing the enforcement of intellectual prop- terrorist financing. actions, such as a new EU criminal leg- erty rights (see eucrim 1-2/2006, p. 13).  eucrim ID=0603061 islation on identity theft. A study in this The debate focused on the need for such respect shall be commissioned in 2007. an instrument, Community competence The following link leads to the webpage and the scope of the Directive. Bearing Money Counterfeiting of the conference: in mind the principle of subsidiarity and  eucrim ID=0603063 the fact that the use of criminal law is Euro Counterfeiting in 2006 considered a means of last resort, the Following the numbers on counterfeit Ministers concluded that further scrutiny Euro coins in 2005 (see eucrim 1-2/2006, Counterfeiting and Piracy is needed regarding the need for criminal p. 12), the Commission recently revealed law measures at the EU level. Nonethe- the statistics for 2006. There has been Germany Uses EU and G8 Presidency for less, they agreed to continue discus- a considerable increase in counterfeit Protection of Intellectual Property sion on the text by the Working Party money and more sophisticated ways to In eucrim 1-2/2006, p. 13, the huge eco- even though an evaluation of Directive counterfeit coins. However, there is also nomic damage which results from product 2004/48 on the protection of intellectual better cooperation between competent and trademark piracy and other infringe- property rights through civil law meas- authorities, and law enforcement contin- ments of property rights was pointed out. ures is outstanding and the Court’s judg- ued successful actions. Approximately Germany will use its EU and G8 presi- ment on the Framework Decision on 164,000 fake coins were taken out of dencies in 2007 to put the protection of ship-source pollution (Case C-440/05; circulation (2005: around 100,500), intellectual property rights (IPR) high on see eucrim 1-2/2006, p. 3) could entail 86 % of which were 2-Euro coins. The its agenda. Continued progress on several further clarifications on the competence German national side remains the most initiatives is envisaged, as well as launch- in the first and third pillar regarding reproduced side of any coin. Since 2002, ing new initiatives within the group of criminal matters. The Council added that 12 illegal mints have been dismantled. the G8 States. The subject of intellectual the scope of the Directive should be lim- Around 565,000 counterfeit Euro bank­ property protection will be a topic on ited to those intellectual property rights notes were withdrawn from circulation, the agenda of the G8 Justice and Interior which have been harmonised in Com- the European Central Bank reported. Ministers meeting which will take place munity legislation and leave aside rights  eucrim ID=0603062 in Munich in May 2007 at which the en- which are regulated in national laws of forcement of intellectual property rights the Member States. by means of criminal law provisions of In the context of the discussion on these Non-Cash Means of Payment the G8 States and better international co- measures, it should be mentioned that the operation in the field of criminal prosecu- Council keeps a close eye on its general High-Level Conference on Identity Theft tion will be addressed in particular. guidelines regarding how criminal law is- and Payment Fraud Germany will also make an effort to im- sues should be handled in the first pillar The EU attaches great importance to in- prove the protection of IPR at the EU following the Court’s judgement in case creasing confidence in non-cash means level. In this context, Directive 2004/48/ C-176/03 (see conclusions of the informal of payment, for example those payments EC already ensures a harmonization of JHA Council meeting in Vienna on 13- carried out by credit cards or bank trans- enforcement measures by civil and ad- 14 January 2006, eucrim 1-2/2006, p. 3). fers. As a consequence, cross-border ministrative means. The German gov-  eucrim ID=0603065 purchases would be encouraged and ernment endorsed a bill on 24 January e-commerce boosted. However, fraud 2007 which would implement this Di- Latest Customs Statistics on Counter- in this sector undermines these efforts. rective into German law. feiting and Piracy The 2004–2007 action plan to prevent Germany will lay further emphasis on The Member States are obliged to pro- fraud in non-cash means of payment closer cooperation with China since vide quarterly customs statistics on (see COM(2004) 679) tries to reinforce China remains the “hot spot” for intel- counterfeit or pirated goods originat- measures of prevention against crimi- lectual property theft. Germany will also ing in or coming from third countries to nal activities in this sector. Within this support actions by private economic the Commission; the Commission then framework, a conference on 22 and operators with the Chinese government communicates this information to all

60 | eucrim 3–4 / 2006 NEWS

Member States at the end of every year risk management by adapting the Com- sues related to the approximation of pe- (Art. 8 of Commission Regulation No. munity Customs law (see also “Customs nal law provisions. Reference has been 1891/2004 laying down provisions for Cooperation” below), and operational made by a Danish court in the course of the implementation of Council Regula- cooperation with third-country players, criminal proceedings brought against tion No. 1383/2003 concerning customs especially China and the USA. two people charged with unlawfully action against goods suspected of infring-  eucrim ID=0603067 disclosing insider information relating ing certain intellectual property rights and to a merger between two financial insti- the measures to be taken against goods Joint Customs Operation “DAN” tutions (Case C-384/02 “Grøngaard & found to have infringed such rights). The After the successful landmark operation Bang”). The Værdipapirhandelslov (law latest Community-wide figures for the “FAKE” (see eucrim 1-2/2006, p. 13), on dealings in transferable securities), year 2005 were published in November another successful joint customs opera- which transposed Directive 89/592 into 2006. These statistics show that Customs tion was reported. The “DAN” opera- Danish law, provides that the infringe- seized more than 75 million counterfeited tion against counterfeiting targeted ports ment of the prohibition on disclosure of and pirated goods. The number of customs in 13 Member States in autumn 2006. insider information is punishable. How- cases involving fakes increased to more It led to the seizure of 92 containers in ever, the Danish law as well as Art. 3 than 26,000, which is an increase of 20 % total. The customs authorities were able lit. a) of the Directive provide an excep- over the 2004 figure. However, there has to confiscate a large number of fake tion: Disclosure is possible in the normal been a drop of about 25 % in the actual toys and sunglasses, counterfeit shoes, course of the exercise of the employ- number of articles seized. China remains, imitated car parts, DVD players, knives, ment, profession, or duties of the person by far, the major country where counter- clothes, games, lighters, and cigarettes. in possession of the insider information. feit goods come from (64 % of seized  eucrim ID=0603068 The Court provides criteria for the inter- goods). Current fake products which can pretation of this exception. It holds, inter seriously harm the consumer’s health, Resolution on Counterfeiting of Medici- alia, that the exception must be inter- such as counterfeit foodstuff, drinks, and nal Products preted strictly. The criminal structure of alcohol (more than 5 million seizures) as In eucrim 1-2/2006, p. 13, the alarm- the proceedings and the principle nulla well as counterfeit medicines (more than ing growth of counterfeit, dangerous poena sine lege do not affect this strict 500,000 seizures in 2005) are key chal- medicine was pointed out. The European interpretation. This is in line with the lenge for the EU. Changes in the routes of Parliament adopted a non-binding reso- opinion of Advocate General Maduro fraud, a very high quality of fakes and an lution on this topic in September 2006. who argued that the interpretation of a increasing use of the Internet to sell coun- The MEPs demand fast and strong ac- directive’s scope cannot be conditioned terfeit goods (mainly medicines) are the tion from the EU to combat this trendy by the civil, administrative, or criminal main reasons which make customs ac- type of counterfeiting. In particular, the nature of the proceedings. tions against infringements of intellectual EU is urged to equip itself with the ap-  eucrim ID=0603070 property rights increasingly difficult. propriate means to effectively combat il-  eucrim ID=0603066 licit practices. Moreover, the EU is called upon to take steps to strengthen the regu- Racism and Xenophobia Customs Action Plan to Combat Counter­ latory and quality-control capacity for feiting and Piracy medicinal products and medical equip- New Attempt for Consensus on Common The Commission also published some ment put on the market in countries with Criminal Liability for Racism and Xeno- interim results relating to its Customs inadequate resources and to improve ac- phobia Action Plan to combat counterfeit- cess to affordable medicines. The EP also Germany has put the proposal for a ing and piracy from October 2005 (see wants the EU to promote an international Framework Decision on combating rac- eucrim 1-2/2006, p. 13). Since then, convention to fight the counterfeiting of ism and xenophobia back on the politi- several actions have been initiated, medicines, in which the national legisla- cal agenda of its Presidency. The aim is e.g., targeted time-limited Operational tions make the counterfeiting or receiving to attain a minimum harmonisation in Customs Actions against Counterfeit at and distribution of counterfeit medicines order to ensure that the same behaviour major ports and airports in Europe (see a specific criminal offence. relating to anti-semitism, racism, and also “Operation DAN” below), the es-  eucrim ID=0603069 xenophobia constitutes an offence in all tablishment of an Anti-Counterfeit Task Member States and that effective, pro- Force consisting of top EU Customs portionate, and dissuasive penalties and Experts to improve, inter alia, coopera- Insider Trading sanctions are provided for natural and tion with the private industry (especially legal persons having committed or being right holders), the formation of a joint Court Clarifies Ban on Disclosure of liable for such offences. They include, Business Customs Working Group to Insider Information for instance, incitement to violence and streamline the exchange of intelligence, The European Court of Justice renders hatred or the condoning, denying, or particularly from right holders to EU more precisely the insider trading direc- grossly trivialising of crimes of genocide, ports and airports, preparations for better tive 89/592/EEC and touches upon is- crimes against humanity, and war crimes

eucrim 3–4 / 2006 | 61 NEWS out of racist or xenophobic motives as preted in full compliance with the ECHR the “Programme for European Criminal defined in the Statute of the International and the case law of the European Court Justice” which was recently published Criminal Court. The prohibition of spe- of Human Rights. Two aspects go over by a working group of 14 European cific symbols, such as swastikas, will and above the ECHR and would char- criminal law scholars from 11 Member not be covered. The Framework Deci- acterise the added value of the FD: The States. The Programme is considered an sion was initially proposed in November FD would additionally confer the right alternative concept to current methods of 2001 by the Commission. The proposal to obtain information concerning fun- Europeanisation of criminal law which was last discussed under the Luxemburg damental procedural rights and it would are primarily based on the principle of Presidency in 2005 and then put on hold. also apply to proceedings for the execu- mutual recognition and the abolishment Different attitudes towards the freedom tion of a European Arrest Warrant or for of the requirement of double criminality. of expression in the constitutional orders the extradition or transfer of an arrested The scholars counter with a proposal on of the Member States were the main rea- person to an international court. An an- a regulation of trans-national criminal son for the failure of the proposal. On nex lists practical measures to guarantee law and procedure based on the idea of 20 February 2007, Commission Vice- the above-mentioned rights in the Mem- a better consideration of the democratic President Franco Frattini supported the ber States. and rule-of-law requirements of criminal German push to seek a consensus. Ger-  eucrim ID=0603073 law. It attempts to strike a fairer balance many tabled a new text on the basis of On 17 January 2007, the national delega- between effective criminal prosecution the discussions at the JHA Council meet- tions from Cyprus, the Czech Republic, and the defendant’s safeguards. ing on 15 February 2007. Ireland, Malta, Slovakia, and the United With respect to transnational criminal  eucrim ID=0603071 Kingdom tabled the text of a non-bind- proceedings, the proposal first deals with ing resolution. It sets out “action points” guiding principles of transnational crimi- which EU Member States should act nal proceedings which relate to the early Procedural Criminal Law upon through national action plans in or- allocation of proceedings to one Mem- der to enhance the minimum standards ber State, the way of conducting inves- Procedural Safeguards of Art. 5 and 6 of the ECHR in practice. tigations, and legal remedies against the  eucrim ID=0603074 determination of the investigating state Framework Decision on Procedural and against coercive measures. Second, Rights – State of Play Lawyer’s Resolution Tries to Convince alternative options are shown as to the The Finnish Presidency was also not able Member States on Minimum Guaran- European Arrest Warrant and court or- to manage an agreement on the hotly de- tees ders directed that a defendant participate bated proposal on a Framework Decision A forum organised by the Deutscher An- in a trial, serve a sentence or sanction on certain procedural rights in criminal waltsverein (German Bar Association), in the investigating/sentencing Member proceedings. The main outstanding is- held on 16 September 2006 in Frankfurt/ State. Third, detailed provisions spec- sues are whether to adopt a framework Oder, was dedicated to fundamental rights ify the conditions under which persons decision or a non-binding instrument, in criminal proceedings. Speakers from can be sent back to their home country and the risk of developing conflicting different EU Member States discussed where custodial sentences of the sen- jurisdictions with the European Court the presumption of innocence, the right tencing state are enforced and how these of Human Rights. As agreed at the JHA to be heard, defence/consultation rights, sentences are possibly adjusted (see also Council meeting in June 2006, the scope the right to remain silent, and the proce- the “Framework Decision on the transfer would be limited to the right to infor- dural implementation of minimum stand- of sentenced persons” below). Fourth, it mation, the right to legal assistance, the ards. In the end, a resolution was adopted is made clear that direct communication right to legal assistance free of charge, which is addressed to the Council. The between the authorities and the ne bis in the right to interpretation, and the right resolution contains proposals on how the idem principle govern the overall con- to translation of documents of the proce- above-mentioned procedural rights could cept of transnational criminal proceed- dure (see also eucrim 1-2/2006, p. 15). be formulated and implemented as mini- ings. Furthermore, the Programme regu-  eucrim ID=0603072 mum procedural guarantees throughout lates the “Eurodefensor” (see below) and Germany considers the issue a priority the EU. The following link leads to the composes theses on substantive criminal during its Presidency in the first half of press release of the DAV. It includes the law in Europe. 2007. On 22 December 2006, it put for- link to the resolution. The publication includes the proposed ward a compromise proposal which re-  eucrim ID=0603075 regulation (in German, English, Spanish, flects the results of the meetings of the and Slovak), together with statements of Working Party and takes into account Programme for European Criminal reasons (in German and English), as well the suggestions made by the Council of Justice as the lectures held at a conference in Europe. The proposal clarifies that the Another impulse to achieve a better an- Thessaloniki/Greece on 26 and 27 May EU instrument takes up certain mini- choring of individual guarantees in the 2006 where the programme was discussed mum standards, as enshrined in Art. 5 EU legislation in the area of freedom, with experts from various EU states. and 6 of the ECHR, and must be inter- security and justice might emanate from  eucrim ID=0603076

62 | eucrim 3–4 / 2006 NEWS

Institutional Aspect of Procedural Safe- the “Eurodefensor” is contained in the third pillar is hardly achievable, con- guards publication “A Programme for European trary to the initial intention of the Com- In the context of safeguarding procedural Criminal Justice” (see above). mission. A lot of Member States feared rights, two major conferences took place  eucrim ID=0603078 drawbacks because differences in data in 2006 to promote an institutionalisa- processing with private companies and tion of defence in cross-border cases. law enforcement authorities have not Data Protection been taken into account. Hence, Ger- European Criminal Law Ombudsman many has undertaken a new effort to A conference in Trier, Germany on Data Protection in the Third Pillar seek a compromise on the proposal at 7 April 2006, organised by the Academy A comprehensive and consistent data the beginning of its presidency. Germa- of European Law in cooperation with protection framework in cases of judi- ny’s approach is to simplify and revise the Council of Bars and Law Societies cial and police cross-border operations the present tabled text. The elimination of Europe (CCBE) and the European is considered one of the current legis- is envisaged of all detailed rules from Criminal Bar Association (ECBA), ex- lative priorities. This was also stressed the FD DPPJCC which are contained amined the idea of creating a European by Finland and the future holders of the in sector-specific data protection provi- Criminal Law Ombudsman (ECLO). EU Presidency at a meeting in Tampere sions, e.g., governing the Europol Com- The discussion was based on a proposal on 20 September 2006. At present, there puter System, the Schengen Information from the CCBE dated December 2004. are no common data protection provi- System, or the exchange of information The Ombudsman should be a criminal sions in the EU justice and home affairs and intelligence between law enforce- defence lawyer in independent prac- cooperation. The EC’s data protection ment authorities (on this latter issue, see tice, supported by a team of defence directive does not cover the third pillar respective Framework Decision below). lawyers, one drawn from each Member (Art. 3 para 2 Dir. 95/46/EC). The is- The FD DPPJCC should therefore only State. He should act as a counterpart to sue will become much more important consist of general principles in order to the institutions on a European level, re- when the principle of availability is ap- achieve a quick compromise. The fol- sponsible for facilitating cross-border plied, which is expected for 2008. The lowing link refers to the latest publicly prosecution of crimes, such as Europol, principle of availability would mean that available Council document and the Eurojust, and the EJN. The conference, a law enforcement authority of a Mem- original Commission proposal. however, revealed the different con- ber State must have immediate and swift  eucrim ID=0603079 cepts of an Ombudsman, particularly as access to relevant criminal information regards his function and competences. in another Member State in the same EP Position on the JHA Data Protection Furthermore, questions on financing the way than the information is provided to Framework Ombudsman and whether he should be authorities in that state. In this context, The Commission proposal on a data attached to a European institution re- the Commission tabled a proposal for protection regime for justice and po- main open. a Council Framework Decision on the lice cooperation was also subject to  eucrim ID=0603077 protection of personal data processed discussions in the European Parliament within the framework of police and ju- (EP) several times. The EP, at its ses- Eurodefensor dicial cooperation in criminal matters sion on 27 September 2006, approved At a conference in Thessaloniki/Greece (COM(2005) 475 – hereinafter: FD DP- 60 amendments tabled by French rap- on 26-27 May 2006, a group of criminal PJCC), which is currently being debated porteur MEP Martine Roure. In general, law scholars presented the institution of in the Council. The aim is to ensure that the amendments include stronger provi- the “Eurodefensor”. It suggests the crea- the different levels of data protection in sions on the necessity of data process- tion of an independent institution with the Member States do not hamper the ing and the purpose of processing. The the task of preserving procedural bal- exchange of information. It also aims at EP is in favour of a different treatment ance in transnational criminal proceed- ensuring that the fundamental rights of of various groups of persons (suspects, ings. This institution would be strictly EU citizens, above all the right to pri- convicted people, victims, witnesses, separated into the sections “proto de- vacy, are respected in the consideration etc.) and special safeguards with regard fence” and “support”. The proto defence of personal data related to law enforce- to biometric data and DNA profiles. The section would safeguard the defendant’s ment. The proposal could not be adopted MEPs also strongly recommend that all interests as long as the investigations are under the Finnish Presidency. The most data are covered when personal data are conducted in secret by the investigation controversial issue is whether the frame- transmitted or made available and not state. The support section would provide work decision should only apply to to limit the framework decision only to services to the defence in cases which cross-border data processing or also to data exchanged between Member States are investigated Europe-wide. These processing which is carried out purely in (Council is currently divided on this is- services would comprise, for instance, domestic contexts. sue). Lastly, the EP suggests reviewing establishing and arranging contacts, It also turned out that full consistency the data protection rules for Europol, coordinating the defence, or deliver- between the data protection Directive Europol, and the Customs Informa- ing financial support. The proposal on 95/46 and a similar instrument for the tion System within two years in order

eucrim 3–4 / 2006 | 63 NEWS to make them fully consistent with the the data protection directive 95/46/EC. exporting and importing the same nar- framework decision. The opinion of the Whistleblowing schemes are designed cotic drugs and which are prosecuted Parliament is not binding on the Council. to provide a mechanism for employees in different Contracting States are, in  eucrim ID=0603080 to report misconduct within companies principle, to be regarded as “the same through a specific channel. With special acts” in the sense of Art. 54 CISA. The EP Recommendation Tries to Influence regard to corporate governance in the divergent legal classification of the acts Debate on JHA Data Protection in the field of accounting, internal account- in two different Contracting States is Council ing controls, auditing matters, the fight irrelevant. Likewise, it does not matter In a recommendation of 14 December against bribery, banking and financial whether the quantities of the drug at is- 2006 the EP complains that the Council crime, companies increasingly face the sue in the two Contracting States con- did not take into account the opinions dilemma of bringing in line whistleblow- cerned and the persons alleged to have of the EP, the European Data Protection ing schemes – particularly as required by been party to the acts in the two States Supervisor, and the Conference of Euro- US rules – with EU data protection rules. are identical or not. pean Data Protection Authorities. It rec- The opinion of the WP tries to provide Secondly, the ECJ agrees with the Ad- ommends not watering down the draft guidance on how to best implement the vocate General in that Art. 54 CISA also on the Framework Decision on data pro- said schemes in this sector. It scrutinizes applies to final decisions which acquit tection as regards transfer of information the compliance of whistleblowing with the accused for lack of evidence. Not in police and judicial cooperation. the criteria for making data processing applying this article to those decisions  eucrim ID=0603081 legitimate, the principles of data qual- would contradict the spirit of Art. 54 ity and proportionality, the provision CISA as a guarantee of the right to free- EDPS Concerned about Development of of clear and complete information, the dom of movement. Negotiations on Data Protection in Third rights of the incriminated person as to in-  eucrim ID=0603084 Pillar formation rights and the rights of access, After having given a detailed analysis in rectification and erasure, the security of Ne bis in idem and Acquittal Because a first opinion of 2005 on the Commis- processing operations, the requirements Proceedings Were Time-Barred: Judge- sion proposal for a Council Framework for the management of whistleblowing ment in “Gasparini” Decision on the protection of personal schemes, the provisions on the transfer The European Court of Justice (ECJ) data processed within the framework of personal data, and the notification developed its case law on Art. 54 CISA of police and judicial cooperation in requirements. Emphasis is put by data further in “Gasparini”. In this case, the criminal matters, the European Data protection rules on the protection of the ECJ had to answer several questions Protection Supervisor (EDPS) recently person incriminated through a whistle- on a smuggling case. The defendants reacted to the direction that the nego- blowing scheme rather than the whistle- were alleged to have imported olive oil tiations have taken within the Council. blower. In conclusion, the WP advocates from Tunisia and Turkey into Portugal In line with the European Parliament, that any restriction on the rights of the without declaring it to the customs au- the EDPS urges not lowering the stand- accused person should be applied in a thorities. Then, they sold the oil on the ards of protection. He stresses his view restrictive manner to the extent that they Spanish market. While a Portuguese that consistency of the framework deci- are necessary to meet the objectives of court acquitted two defendants on the sion with the data protection directive the whistleblowing scheme. ground that their prosecution because of and the Council of Europe Convention The Article 29 Working Party was set up smuggling was time-barred, the Spanish No. 108 on data protection is absolute- under Art. 29 of Dir. 95/46. It is an inde- authorities wondered whether they are ly essential. As regards the applicabil- pendent European advisory body on data banned from further prosecuting the de- ity to domestic processing (see above), protection and privacy. fendants because of the marketing of the the EDPS deems it unworkable if the  eucrim ID=0603083 goods in Spain. scope of the framework decision is The Court first stated that the ne bis in limited only to cross-border exchanges idem principle, enshrined in Art. 54 between Member States. The following Ne bis in idem CISA, also applies in respect of an ac- link contains both the first and second quittal on the ground that prosecution of opinion of the EDPS. Judgment in “Van Straaten” the offence is time-barred. This is the first  eucrim ID=0603082 After the Advocate General delivered case at the ECJ in which a final decision his opinion in the “Van Straaten” case is not based on a determination as to the Statement on the Balance between (see eucrim 1-2/2006, p. 17), the Euro- merits of the case. The ECJ clarifies that Whistleblowing and EU Data Protection pean Court of Justice (ECJ) rendered the this is not a requirement for the applica- Rules judgement in September 2006. With ref- tion of Art. 54 CISA (“procedure-based The Article 29 Data Protection Work- erence to the case law of “Van Esbroeck” approach”) and therefore disagrees with ing Party (hereinafter: WP) examined (see eucrim 1-2/2006, p. 17) and in line the opinion of Advocate General Sharp- the compliance between whistleblow- with the Advocate General, the ECJ first ston who concluded that a person may ing schemes and the rules enshrined in holds that punishable acts consisting of not benefit from Art. 54 CISA if pro-

64 | eucrim 3–4 / 2006 NEWS ceedings have been discontinued in one in time and space, which would be the a trial in absentia (which was the case Member State without consideration of case, for instance, if the money laundered for the conviction of Mr. Kretzinger in the merits of the case (“substance-based in Belgium formed part of the original Italy) may be considered as a trial which approach”). proceeds of illicit drug trafficking in the has been “finally disposed of” according As to the question of whether the import Netherlands. The Advocate General adds to Art. 54 CISA. The Advocate General and subsequent sale of goods constitute that, in the affirmative (acts inextricably concludes that the domestic legal or- “the same acts”, the ECJ reiterates its linked in time, in space, and by their der of the sentencing state determines statement in “Van Esbroeck” (see eucrim subject matter), Art. 54 CISA would also whether a decision finally disposes of a 1-2/2006, p. 17) that “the only relevant cover acts which are ancillary or addi- trial. However, one important proviso is criterion is identity of the material acts, tional to the offence penalised in the first made: The trial in absentia must comply understood as the existence of a set of judgment, even though these acts were with the requirements laid down in Art. 6 concrete circumstances which are inex- unknown to the prosecuting authorities ECHR and by the relevant case law of the tricably linked together”. It concludes or the adjudicating court at that time. European Court of Human Rights which that the conduct in question may fulfil  eucrim ID=0603086 find their expression in Art. 5(1) of the these conditions. The Advocate General, Framework Decision on the EAW. by contrast, tended to be more restrictive Advocate General Replies to Reference  eucrim ID=0603087 in this point. of the German Federal Supreme Court  eucrim ID=0603085 Advocate General Sharpston replied to several interesting question on the in- Taking Account of Convictions Opinion of Advocate General in “Kraai- terpretation of Art. 54 CISA which were jenbrink” Case brought before the European Court of Political Agreement on Framework Advocate General Sharpston gave her Justice in the German case “Kretzinger” Decision on Taking Account of Convic- opinion in the case “Kraaijenbrink” (see (see eucrim 1-2/2006, p. 17). She sug- tions eucrim 1-2/2006, p. 17). Belgian courts, gests that the reasoning in “Van Es- At its meeting in December 2006, the on the one hand, took the view that of- broeck” may apply by analogy to the JHA Council reached a political agree- fences of receiving and handling pro- present case. This would mean that the ment on the Framework Decision (FD) ceeds of drug trafficking committed in defendant’s operation to transport smug- on taking account of convictions. The The Netherlands and offences commit- gled goods from their point of entry to a idea of developing an area of freedom, ted in Belgium relating to the exchange final destination in the Community can, security and justice is not only to swiftly of sums received from trading narcotics in principle, be regarded as a single act transmit information on previous con- in The Netherlands must be regarded as and therefore Art. 54 CISA would apply victions on an offender, but also to make separate acts, so that Art. 54 CISA does (first question of the German Federal Su- use of the information transmitted by not apply. The defendant, on the other preme Court). considering convictions handed down hand, shared a common intention dur- With regard to the second question, the in another Member State. Therefore, ing the commission of the acts in the two Advocate General considers a suspend- the FD will lay down the conditions un- Member States, which legally consti- ed custodial sentence to also somehow der which a conviction against a person tutes a single act under Belgium criminal penalise the offender and therefore be handed down in one Member State can law. However, it was not clear from the regarded as a penalty which has been en- be taken into account in new criminal reference whether the sums which were forced or is actually being enforced ac- proceedings against the same person in laundered in both countries derived from cording to Art. 54 CISA. Periods spent another Member State. The FD concerns the same drug trafficking operations or on remand pending trial or in police cus- proceedings on different facts. It neither formed part of the same criminal pro- tody are, by contrast, no penalties that addresses the ne bis in idem rule nor ceeds. would principally fulfil the enforcement questions the execution of a conviction The Advocate General repeats the condition of Art. 54 CISA. The reason in a Member State other than the con- Court’s findings in “Van Esbroeck” in given by the Advocate General was that victing state. Likewise, the FD does not that the assessment of “the same acts” the aim and purpose of such pre-trial de- seek to harmonise the effects attached to depends on the identity of the material tention differ from convictions for pun- previous foreign convictions by the dif- acts. The national court must determine ishment. ferent national legal systems. whether the material acts at issue consti- The third question referred to the influ- The FD contains the minimum obli- tute a set of facts which are inextricably ence of the European Arrest Warrant gation for Member States to attach to linked together in time, in space, and by (EAW) on the application of the ne bis previous convictions handed down in their subject matter. The Advocate Gen- in idem principle. Ms. Sharpston found another Member State effects equivalent eral concludes that the common intention that the issue of a EAW for the surrender to those attached to national convictions. may be a factor for this determination. of the defendant has no implications for This obligation shall apply to the various However, it is crucial for the Belgium the “enforcement condition” of Art. 54 stages of new criminal proceedings (pre- court in this case to determine whether CISA. Nevertheless, she examines in trial stage, trial stage, and time of execu- the laundering operations are also linked more depth whether judgements after tion). The FD, which was proposed by

eucrim 3–4 / 2006 | 65 NEWS the Commission, would replace Art. 56 of smart sanctions targeting individuals The CFI held that, although the regula- of the Convention on the International or private organizations which engage tion is an independent decision of an EC Validity of Criminal Judgments of 1970 in or support terrorist activities. Resolu- organ, the Court has to refrain from fur- (Council of Europe ETS No. 70) within tions 1267 (1999) and 1333 (2000) or- ther review under EC law. Obligations the EU. The FD has yet to be adopted der UN member states to freeze without under the UN Charter take precedence formally. delay funds and other financial assets over primary EC law. Deriving this con-  eucrim ID=0603088 or economic resources of the Taliban, clusion from Article 103 UN Charter, the Usama Bin Laden, Al Qaida and their CFI took the view that the EC is bound EP Opinion on Taking Account of affiliates. A special subcommittee was by obligations from the UN Charter to Convictions established to identify and blacklist in- the same extent as its Member States In September 2006, the European Parlia- dividuals and private organizations to were if it acts in lieu of them within the ment (EP) delivered its opinion on the be subjected to this sanctions regime. realm of the UN Charter. In the exercise aforementioned proposal of the Com- Acting on behalf of their Member States of its powers, the Community is bound mission on taking account of convic- based on common position 2002/402/ to adopt all the measures necessary to tions (COM(2005) 91). In line with the CFSP, the European Union transposed enable its Member States to fulfil those political agreement of the Council, the the UN resolutions and enacted Regula- obligations. EP found that entries in the national tion (EC) 881/2002 that is based on Arti- The Court thus limited its review au- criminal records of convictions handed cles 60, 301, 308 TEC and mirrors these thority primarily to observance by the down in another Member State (Art. 6 resolutions in content. institutions of the rules of jurisdiction of COM(2005) 91) should be considered Immediately after 9/11, the United Na- and external lawfulness and the essential in the proposal on the exchange of infor- tions Security Council issued Resolution procedural requirements which bind their mation extracted from criminal records 1373 (2001) to further enhance interna- actions. Due to this judicial restraint, (see above). With regard to the definition tional cooperation against terrorism. It compliance with European human rights of “conviction”, the EP suggests that it expanded the scope of prior resolutions standards was not scrutinised. The CFI should not include decisions of admin- and obligated UN member states to ex- merely reviewed the regulation for its istrative authorities imposing criminal tend freezing orders to all persons and compatibility with mandatory rules of sanctions. The Council decided that deci- entities that entertain or support terror- international public law. In Yusuf and sions passed by judicial authorities other ist activities. The final determination Kadi the CFI could not detect a violation than a court or by administrative authori- of appropriate objects was left to the of such fundamental principles that fall ties are not covered by the FD; however, resolution’s addressees. Again taking within the ambit of jus cogens. In partic- Member States whose legal systems are action pursuant to a Common Position ular, the Court concluded that the oppor- familiar with such convictions may take (2001/931/CFSP), the EU adopted Reg- tunity to petition the Sanctions Commit- them into account. ulation (EC) 2580/2001 to implement tee of the UN Security Council satisfied  eucrim ID=0603089 the new resolution. It concomitantly au- the mandatory minimum requirements thorised the Council to administrate an of the right to a fair trial. The applicants EU blacklist specifying the targets of the appealed against the judgment before Freezing of Assets smart sanctions. This is an autonomous the European Court of Justice (Cases By Frank Meyer procedure carried out by the EU. the C-415/05 P and 402/05 P). Council, constrained by procedural and  eucrim ID=0603090 Blacklisting and Actions against Freez- material requirements laid down in Ar- ing of Assets – Background ticle 1 of Common Position 2001/931/ Cases Ayadi & Hassan: CFI Clarifies The recent months were marked by sev- CFSP, is entitled to decide on inclusions Individual’s Rights eral significant judgments by the Euro- and update the list periodically. On 12 July 2006 the Court of First pean Court of First Instance (CFI) on the Instance upheld these standards but development of procedural safeguards in Cases Kadi & Yusuf – EU Has Power to seized the chance to clarify human the EU. These judgments were handed Freeze Terrorist Assets rights obligations under the ECHR. down in the context of actions which On 21 September 2005, the CFI dis- The Court recognizes that freezing of were brought before the Court by per- missed two actions brought by listed EU funds constitutes a particularly drastic sons and entities seeking removal from citizens and a foundation requesting the measure and notes that it is for the re- EU lists which allow the freezing of their annulment of Regulation 881/2002. The spective home countries to scrutinize assets. Other related cases are pending CFI, for the first time, had to determine allegations against their citizens and before the Court. Before the main judg- the scope and standard of review of the petition the UN sanctions committee ments are presented in more detail, the EC Regulations implementing Security for a delisting if inclusion turns out background of the listing is explained: Council resolutions one-to-one (Cases to be unjustified (Cases T-253/02 and To deny terrorists access to finances and T-306/01, “Ahmed Ali Yusuf and Al T-49/04, “Chafiq Ayadi” and “Faraj financial networks, the United Nations Barakaat International Foundation” and Hassan”). In this case, the applicants Security Council has imposed a scheme T-315/01, “Yassin Abdullah Kadi”). also brought an appeal against the judg-

66 | eucrim 3–4 / 2006 NEWS ment before the European Court of Jus- zen (Case T–228/02, “Organisation des the evidence against them. Moreover, tice (Cases C-403/06 P and 399/06 P). Modjahedins du peuple d’Iran [herein- the Council has started to issue state-  eucrim ID=0603091 after: OMPI]). The OMPI had brought ments of motivation to those groups and actions seeking annulment of common individuals who were newly included Case Segi and Others: EU Blacklisting positions and decisions including and in the list on 21 December 2006. With without Direct Adverse Effects Does Not maintaining OMPI in an autonomous particular regard to persons, groups and Infringe Law EU blacklist. The CFI held that such entities who were kept on the list by the In a different strand of actions, the par- a scenario is distinguishable from the same decision a notice for attention was tial annulment of Regulation 2580/2001 Kadi and Yusuf line of cases. The sanc- published to inform about the possibility along with Council Decisions to insert tions regime left discretionary powers as to submit a request to obtain the Coun- and/or keep applicants’ names on the EU to the appropriateness and well-founded- cil’s statement of reasons for their inclu- black list, was requested. In the Segi case, ness of smart sanctions against potential sion. Additionally, the persons, groups the European Court of First Instance re- targets to the EC organs. The applicant’s and entities concerned may submit a re- jected the claim for applicants which, al- inclusion, hence, involved the exercise quest to the Council, together with any though included in the blacklist, had not of the EC’s own powers which entails supporting documentation, that their been designated for freezing of assets by full applicability of primary Community case should be reconsidered. the Council but as objects of intensified law, namely the obligation to state rea-  eucrim ID=0603096 cooperation in the area of JHA under Ar- sons and the right to effective judicial ticle 4 of Common 2001/931/CFSP only. protection. Case Sison: No Rights of Access to In absence of additional implementing In particular, the observance of the Information measures, the Court could not find any right to a fair hearing requires that the The ruling in OMPI is particularly crucial infringement on primary Community parties concerned must be informed of in context with a decision on the access law (Case T–338/02 “Segi, Araitz Zubi- the specific information or material on to confidential documents in 2005. The mendi Izaga, Galarraga”). the file which indicate that national au- Court of First Instance is responsible for  eucrim ID=0603092 thorities suspect applicants of terrorist dealing with the petitions of José Maria On appeal, Advocate General Mengozzi activities. A decision to freeze assets Sison. The applicant, a consultant of the concurred with stressing that national must likewise indicate how the Council National Democratic Front for the Phil- courts are the competent fora to provide exercised its discretion to subject ap- ippines and Dutch resident was also list- effective remedy against adverse conse- plicants to the sanctions regime, in par- ed based on a Council Decision adopted quences of the inclusion. ticular, why targeting the applicant was in 2002. He subsequently brought action  eucrim ID=0603093 deemed appropriate. for annulment of these measures. This In the same vein, the European Court of In the present case, there was no no- action is still pending (Case T-47/03). Human Rights dismissed a complaint tification of said considerations or the The applicant is also seeking access to filed by the same applicants. In the opin- evidence adduced to corroborate accusa- documents that served as a basis for said ion of the ECtHR, inclusion in the list tions, neither before nor after the deci- Council decisions to include and keep his alone does not violate European human sions. The applicant was neither placed name in the EU blacklist. The applicant rights as long as it does not have direct in a situation to submit his view to the also sought information as to the identi- legal effects or results in specific en- Council nor to avail itself of its right of ties of the states that bear responsibility forcement measures (ECtHR, Appl. No. action before the CFI. The Court there- for the allegations against him. 6422/02; No. 9916/02 – Segi, Gesto- fore found that the challenged decision The applicant requested disclosure pur- ras Pro Amnistia and others v. 15 EU did not contain sufficient statement of suant to Regulation 1049/2001 but the States). reasons and was adopted in a way that Council refused to grant even partial  eucrim ID=0603094 violated the applicant’s right to a fair access, arguing that documents, which hearing. had led to the adoption of the decisions, Case OMPI: Fair Trial Guarantees Appli- The Council reacted in so far as it sends, had been classified as “Confidentiel cable to Decision to Freeze Assets from December 2006 on, a “statement of UE”. The applicant brought an action The European Court of First Instance, motivation” to the suspects setting out for annulment against this decision but consequently, decided differently where the evidence against him and instruc- the CFI, on 26 April 2005, rejected ap- listed persons suffered immediate ad- tions on how to lodge a legal challenge. plicant’s claim (Joint Cases T-110/03, verse effects. On 12 December 2006, The concerned persons or organisations T-150/03 and T-405/03). The CFI recalls the CFI annulled a Council Decision can present its views, together with any that, as a rule, the public is to have ac- updating and keeping the name of an supporting documentation within a cer- cess to the documents of the EC institu- Iranian resistance group − established tain time limit. tions but the power to refuse access rests and situated in France with the objective  eucrim ID=0603095 with the competent organs, in accord- of replacing the current Iranian regime Subsequent to this decision the Council ance with exemptions spelled out in the by a democracy − on the list of persons has decided to provide OMPI with a suf- Regulation. In the applicant’s case, the and entities whose funds were to be fro- ficient statement of reasons setting out denial was mandatory under Article 4 of

eucrim 3–4 / 2006 | 67 NEWS

Regulation 1049/2001 since disclosure For further information on the conditions tions will include mechanisms similar to of their contents imperilled pivotal secu- of the calls, please refer to the following those under AGIS so that there will be rity interests. Additional rules concern- OLAF website. general calls for proposals, possibly as ing the handling of classified documents  eucrim ID=0603098 early as March 2007. are laid down in Article 9. They prohibit On 14 December 2006, the European handover without the originator’s con- Pericles Programme 2007–2013 Parliament laid down its position in a sent which was lacking in the present In November 2006, the Council extend- first reading and made several amend- case. ed the Community programme, which ments to the proposed programmes. On On appeal, the ECJ followed this line of establishes an exchange, assistance, and 15 February 2007, the Council approved argumentation and upheld the judgment training programme for the protection of these programmes at the JHA meeting in (Case C-266/05 P). The judges found the Euro against counterfeiting (“Peri- Brussels. Please also refer to the website that the Council enjoys broad discretion cles” programme), to the next financial of the European Commission, DG JLS, when determining the applicability of an period ranging from 2007 to 2013. The for up-to-date information. exception clause. Given the wording of financial envelope for this period will  eucrim ID=0603100 Article 4 of Regulation 1049/2001, the be € 7 million Co-financing of projects Council was, in particular, not obliged to for the protection of Euro banknotes and Community Strategic Guidelines for take appellant’s individual interests into coins under the Pericles programme is Cohesion Policy Adopted account. Due to the scope of discretion one of the responsibilities of OLAF in In eucrim 1-2/2006, p. 18 it was re- the Court may only review respective the area of the protection of the Euro ported that an EU decision was due on decision for compliance with procedural against fraud and counterfeiting. the Community strategic guidelines for rules and the duty to state reasons or the  eucrim ID=0603099 cohesion policy, a condition for the al- absence of manifest error of assessment location of the money from the struc- of the facts and misuse of powers. In his AGIS and Successor Programmes for the tural fund to the next budget period from opinion Advocate General Geelhoed had Area of Freedom, Security and Justice 2007 to 2013. The Council adopted these recommended a rejection of the appel- AGIS, the framework programme to guidelines in October 2006, so that the lant’s case on the same grounds. The Ad- help police, the judiciary, and profes- relevant programmes could be launched vocate General also had taken the view sionals from the EU Member States, as immediately in 2007. The guidelines that the European Courts may only carry well as candidate countries, co-oper- define the priorities to which resources out a review for manifest errors in the ate in criminal matters and in the fight should be targeted. They are the basis Council’s determination. against crime, has been terminated. Al- for the national authorities to draft their  eucrim ID=0603097 though originally intended to run until national strategic priorities and plan- 2007, the programme ended a year early ning for 2007–2013 (so-called National in 2006. It will be succeeded by three Strategic Reference Frameworks). The Cooperation new programmes in the area of freedom, resources of cohesion policy account for security and justice. about one third of the EU budget for the Funding These new programmes are due to run period covering 2007–2013. over the period 2007–2013. Two of them  eucrim ID=0603101 Hercule Programme 2007 are part of the proposed framework pro- The first calls of the annual Hercule grammes “Security and Safeguarding work programme for proposals in 2007 Liberties” and the third belongs to “Fun- Law Enforcement Cooperation have been published. Proposals can be damental Rights and Justice”. Under the submitted on “training in the area of framework programme “Security and Framework Decision on the Exchange the fight against fraud” or co-financ- Safeguarding Liberties”, the new spe- of Information ing of “seminars, comparative studies, cific programmes “Prevention, Prepar- The Council adopted a Framework De- measures to disseminate expertise and edness and Consequence Management cision (FD) on simplifying the exchange an annual meeting of the presidents of of Terrorism and Other Security-Related of information and intelligence between the associations in connection with the Risks” and “Prevention of and Fight law enforcement authorities of the Mem- protection of the Communities’ finan- against Crime” will be carried out. Un- ber States of the European Union. The cial interests”. The Hercule programme der the framework programme “Funda- objective of the FD, based on a Swed- is the Community action programme to mental Rights and Justice”, the new spe- ish initiative and published in December promote activities in the field of protec- cific programme “Criminal Justice” shall 2006, is to overcome current obstacles tion of the EC’s financial interests. After be set up. These programmes are likely to mutual assistance in criminal matters adoption by the European Parliament to cover the entire scope and objectives and speed up the information exchange and the Council, the new Hercule pro- of the AGIS programme and the current as established by the Schengen Conven- gramme will cover the period from 2007 pilot projects and preparatory actions in tion. Hence, the FD provides a legally to 2013, the period of the new financial the area of internal security and criminal binding framework to ensure that infor- perspective (Hercule II). justice. The procedures for funding ac- mation vital for law enforcement author-

68 | eucrim 3–4 / 2006 NEWS ities (i.e. police, customs, and any other if the provision of information or intel- Asset Recovery Offices authority authorised by national law to ligence would harm essential national On 12 December 2006, the European detect, prevent, and investigate offences security interests, jeopardize the success Parliament adopted a legislative resolu- or criminal activities and to exercise au- of a current investigation or a criminal tion on the proposal for a Council De- thority and take coercive measures in the intelligence operation or the safety of cision concerning cooperation between context of such activities) is exchanged individuals, or if it is clearly dispropor- the Asset Recovery Offices of the Mem- expeditiously and effectively throughout tionate or irrelevant with regard to the ber States in the field of tracing and the bloc for the purpose of conducting purposes for which it has been request- identification of proceeds from or other criminal investigations or criminal intel- ed. Furthermore, refusal is possible if the property related to crime. This legal ligence operations. offence to which the request is related is instrument would complete the Frame- The main content of the FD is as fol- punishable by a term of imprisonment work Decision of 24 February 2005 on lows: of one year or less. The requested Mem- confiscation of crime-related proceeds, • With regard to its scope: The FD is ber State must refuse the provision if a instrumentalities and property and the not limited to specific types of informa- competent judicial authority has not au- Framework Decision of 22 July 2003 tion, but applies to any information or thorised the access and exchange of the on the execution in the European Union data which is held by law enforcement information requested. of orders freezing property or evidence authorities, including data which is held Member States now have until 19 De- at an organisational level. The proposal by public authorities or private entities cember 2008 in order to comply with the was launched by Austria, Belgium, and and which is available to law enforce- provisions of the FD. The Commission Finland in March 2006 with the aim of ment authorities without coercive meas- shall submit a report on the operation of making the cooperation between na- ures having to be taken. The FD states the FD before 19 December 2010. tional authorities involved in the trac- that Member States are neither obliged  eucrim ID=0603102 ing of illicit proceeds and other property to gather and store information and in- quicker and more efficient. Therefore, a telligence for the purpose of providing Council Recommendation on Enhancing network of contact points at the EU level it to the competent law enforcement au- Operational Cooperation should be created. Member States will thorities of other Member States, nor do Against the background of Art. 30 TEU, be obliged to set up or designate a na- they have to use coercive measures to which provides for operational coop- tional Asset Recovery Office which will fulfil a request. Furthermore it is made eration between the competent authori- have the task of exchanging information clear that national authorities require the ties − including the police, customs, and best practices, both upon request or consent of the requested Member State if and other specialised law enforcement spontaneously. they would like to use the information or services of the Member States involved The Council Decision would formalize intelligence as evidence before a judicial in the prevention, detection, and in- and put in place at the EU level the struc- authority. vestigation of criminal offences −, the ture of informal and voluntary coopera- • Discrimination in the exchange with- Council made a recommendation to tion in the so-called Camden Assets Re- in one Member State and cross-border achieve this objective at the national covery Inter-Agency Network (CARIN). exchange is abolished. This means, for level. The recommendation encourages This network, established in 2004, is instance, that a Member State may not Member States to draw up agreements currently operating beyond the EU level subject the exchange of information be- or arrangements at the national level and convenes practitioners and experts tween its national law enforcement au- between police forces, customs authori- in the cross-border identification, freez- thority and the foreign one to a judicial ties, and other specialised law enforce- ing, seizure, and confiscation of the pro- agreement or authorisation if such an ment services. It is recommended that ceeds of crime. It seeks to enhance the agreement or authorisation is not neces- these instruments contain, inter alia, the knowledge of methods and techniques in sary in an internal domestic procedure. exchange and sharing of information or this field. The network comprises nearly • Time limits to answer requests for in- data, procedures for joint actions, or the all Member States, plus OLAF and Eu- formation are set. In urgent cases, for ex- exchange of liaison officers. The aim is rojust. Europol acts as the secretariat of ample, the response may not take more to avoid duplication of efforts and to use the CARIN network. than 8 hours if the information or intel- resources in an optimal way. The recom-  eucrim ID=0603104 ligence is held in a database directly ac- mendation replaces Council Resolution cessible by a law enforcement authority. of 29 November 1996 on the drawing Green Paper on Detection Technologies • The procedure by which to request up of police/customs agreements in the Detection technologies are increasingly and collect information is standardized. fight against drugs (OJ 1996 C 375, 1) used in the daily work of law enforce- Authorities must fill out a standard form, and extends it to all other relevant areas ment authorities, customs and other se- which is set out in the annex of the FD of crime. Member States must inform curity authorities to fight terrorism and when requesting information or intelli- the Council within three years of the other forms of crime. Detection tools gence. measures taken following the recom- are, for instance, used by customs to • The reasons for withholding infor- mendation. protect borders or check goods entering mation or intelligence are limited, e.g.,  eucrim ID=0603103 the EU. The Commission’s Green Paper

eucrim 3–4 / 2006 | 69 NEWS on “Detection technologies in the work case exchange mechanism with an au- the better protection of society and the of law enforcement, customs and other tomatic and/or structured information economy against smuggling and fraud, security authorities” adopted in Sep- exchange mechanism without a prior re- cross-border organised crime and mon- tember 2006 (COM(2006) 474) would quest from the receiving Member State. ey laundering, threats to the environ- like to streamline the approaches, prac- • Establishing a European Central Data ment and cultural heritage, and any other tices, and efforts in the field of detection Directory: Against the background of threats within their competencies. In this technologies. The Green Paper aims at the modernisation of the EC’s customs context, the Council also set four aims: further enhancing dialogue between the system − which will lead to all traders (1) considering new forms of coopera- public and private sector in an effort to being able to provide all necessary infor- tion; (2) taking practical steps towards focus investment on standardisation, mation on goods and carriers to customs implementing these new forms of coop- research, certification and interoper- services in advance and being electroni- eration; (3) improving and making more ability of detection systems and to bet- cally connected to customs authorities flexible the existing cooperation proc- ter transform research results into useful (see below) − it is felt that information ess; (4) enhancing public confidence in and applicable tools. This should help to should be in the hands of law enforce- customs. develop an advanced market in detection ment authorities at the earliest possible A Customs Cooperation Working Party products and security solutions which, in moment in time. It is argued that this will (CCWP) – a project group which con- turn, should lead to greater availability allow better risk analysis of operations venes representatives from the Member of products and services at lower cost. which may involve irregularities in rela- States on a voluntarily basis − is re- The Commission stresses that the use of tion to customs or agriculture law. Thus, sponsible for the implementation of this detection technologies is very intrusive the Community (OLAF) shall have the resolution. This is done by work plans into the individual’s freedoms and rights possibility to access data from a pool which formulate concrete actions while and therefore all measures must comply which is fed by the principal service sup- pinpointing their objectives. The CCWP with fundamental rights as provided for pliers, public or private, that are active in recently submitted a report on the imple- in the EU Charter and the ECHR. the international carriage of goods and mentation of the first action plan which  eucrim ID=0603105 containers. ran from 2004 to 2006. The work plan • Introducing the possibility for the contained 44 actions/activities in eleven Commission or Member States to for- work areas. Customs Cooperation ward information to third countries after  eucrim ID=0603107 prior consent of the Member State which Furthermore, the subsequent action plan Commission Proposes Amendment to supplied the information. to implement the strategy for customs co- First-Pillar Mutual Legal Assistance • Extending the use of CIS data for operation in the third pillar was worked Scheme analysis purposes. Currently, data can out. It covers the period from 1 January On 22 December 2006, the Commis- be included in the CIS only for the pur- 2007 till 30 June 2008 and tackles four sion put forward a proposal for a Reg- poses of sighting and reporting, discreet work areas: border management and ulation that would amend Regulation surveillance, or specific checks. security, intelligence, operational coop- No. 515/1997 (COM(2006) 866). Regu- • Creating the legal basis for the Customs eration, and information exchange. The lation 515/1997 is the basic legal frame- Files Identification Database (FIDE). proposed actions are listed in the annex. work which draws up rules whereby the The FIDE records any references to past  eucrim ID=0603108 Member States assist each other and or current investigations in each Mem- cooperate with the Commission in order ber State, thus enabling customs officers Introduction: New Customs Environ- to prevent and investigate irregularities to find out whether and which other au- ment in Community customs and agriculture thorities have conducted investigations One of the most extensive objectives law that may be detrimental to the EC’s on a similar person or business. of the Community is the crucial ration- financial interests. In addition, the Regu-  eucrim ID=0603106 alisation and simplification of the cur- lation establishes the Customs Infor- rent customs system. This process shall mation System which enables customs Action Plan to Implement the Strategy entail facilitation of trade as much as authorities to rapidly disseminate and for Customs Cooperation possible, on the one side, and react to exchange information on breaches of On 2 October 2003, the Council ap- the growing security and safety threats customs and agriculture legislation and proved a resolution on a strategy for cus- to the interests of the Community and make requests for action (CIS I). toms cooperation (OJ 2003 C 247, p. 1). its citizens, on the other. The Commis- The proposed amendments are intended The Council therein invited the customs sion put forward several proposals to to broaden the framework and integrate administrations and other authorities of achieve this aim. Some of the propos- more modern mechanisms as to customs the Member States with responsibility als have already been adopted as leg- cooperation. The principal issues are: for the implementation of customs leg- islation, others are still in the pipeline • Extending the possibilities of exchang- islation to execute a strategy within the of the legislative procedure. The recent ing VAT-related information. framework of the creation of an area of months brought some progress which • Supplementing the current case-by- freedom, security and justice, to enable will be presented in the following. They

70 | eucrim 3–4 / 2006 NEWS concern the EU customs security pro- 18 December 2006 (Regulation 1875/ the basic common legal framework for gramme, the modernization of the cus- 2006) implements the described secu- common application of the rules govern- toms court, the creation of an electronic rity amendments to the Customs Code ing the Customs Union. It consolidates customs environment (e-customs), and by Regulation 648/2005. It foresees the all common customs legislation in a the establishment of a new funding of following: single text and provides a framework customs actions from 2008 onwards. • entering into force of the provision for the Community’s import and export For further information on the Commu- for the AEO programme by 1 January procedure. The major drawback of this nities customs strategy and customs re- 2008, code is that it was developed for a paper- form, a visit to the following homepage • making it mandatory for traders to based environment which turned out to of the European Commission’s Taxa- provide customs authorities with ad- be a factor for increased risk of fraud and tion and Customs Union Directorate- vance information on goods brought into compromised security and safety. The General is recommended: or out of the customs territory of the EC proposed new Customs Code is based on  eucrim ID=0603109 as from 1 July 2009, the idea of an electronic customs envi- • fully computerizing the risk manage- ronment, turning electronic declarations Commission Implementation Regulation ment system by 2009. and electronic data exchange into a fun- to Secure Supply Chain The regulation also requires customs au- damental principle. The modernization Since the terrorist attacks in New York, thorities to electronically exchange infor- would streamline customs procedures, Madrid, and London, the Community mation on exports in order to speed up introduce an efficient centralized -cus pays special attention to securing the export procedures. It is expected that all toms clearance, and lay the foundations international supply chain of goods. Member States will be ready by 1 July for risk-based controls in the internal This should be achieved by improved 2007. This will be the first step of the market. The Council of Competitiveness customs controls at the EU border. The electronic customs project (see below). held a political debate on the proposal concept of achieving a good balance be-  eucrim ID=0603110 for modernizing the Customs Code at tween a smooth functioning of trade and a meeting on 4 December 2006. On efficient security controls is to reward New System Allows Better Control of 12 December 2006, the European Parlia- traders who demonstrate their compli- Container Routes ment adopted some amendments to the ance with the criteria for a secure supply The European Commission, in col- proposed regulation. It made some gen- chain with benefits, such as fewer con- laboration with OLAF, has developed a eral observations on individual points of trols. Regulation No. 648/2005 of the technology through its in-house research the proposal. European Parliament and the Council of service, the Joint Research Centre, which The revision of the customs procedures April 2005 introduce these security- and allows automatic gathering and analyz- must be viewed against the background safety-related aspects into the present ing of data on global maritime container of the Lisbon Strategy to stimulate eco- Community Customs Code of 1992 as movements in order to enable the iden- nomic growth and employment within follows: tification of potentially suspicious con- the bloc and the EU’s e-government ini- • Traders are required to provide cus- signments (project ConTraffic). In doing tiative which aims at allowing business- toms authorities with information on so, customs will be able to control and es to benefit from modern IT technology goods prior to their import into or export monitor more of the world’s cargo as in order to facilitate trade. from the EU in the form of electronic well as check whether false declarations  eucrim ID=0603112 summary declarations (pre-arrival / pre- of origin were made. The system is ex- departure declarations). pected to better identify circumventions Paperless Environment for Customs and • The exchange and sharing of informa- of anti-dumping duties and increasingly Trade tion among customs authorities is pro- detect the smuggling of prohibited or A Commission proposal for a Deci- vided for. counterfeit goods. sion to introduce an electronic, paper- • The concept of the Authorized Eco-  eucrim ID=0603111 free customs environment in the EU nomic Operator (AEO) is introduced: (COM(2005) 609 final) is closely linked If traders meet certain security criteria, Modernized Customs Code to the above-mentioned proposal for a they can be recognised as reliable. They The major piece of future legislation for modernized Customs Code. This pro- can then benefit from facilitation in terms costums procedure and administration posal was already tabled on 30 Novem- of security controls and simplification of may be a modernized Customs Code. ber 2005. It was approved by the Euro- customs procedures. A proposal from the Commission dat- pean Parliament on 12 December 2006 • Uniform risk selection criteria for ed 30 November 2005 for a respective without amendments; the Council has controls are introduced, supported by regulation (COM(2005) 608) suggests not yet reached a decision. computerised systems. This shall ensure a complete overhaul of the current Cus- The instrument would implement the better management of risk assessments toms Code which was conceived in the electronic customs environment concept and more target-orientated controls by Eighties, entered into force in the Nine- as laid down in the future modernized customs services. ties, and is considered to be out of date. Customs Code. Therefore, the draft re- Now, a Commission Regulation of The present Customs Code of 1992 is quires that customs systems operated by

eucrim 3–4 / 2006 | 71 NEWS the customs administration and by the modernized Customs Code. Furthermore, lateral agreement concluded outside the Commission must be accessible to eco- it will pursue further expansion of inter- legal framework of the EU. Its main fea- nomic operators and be interoperable, national customs cooperation, support ture is the increased possibility of sharing both with each other and with systems the further development and implementa- information: National law enforcement operated by other authorities involved tion of the authorised economic operator authorities from the participating states in the international movement of goods. concept, ensure the maintenance of the are granted automated access to DNA The aim is to improve and facilitate sup- current operational trans-European IT and fingerprint databases as well as vehi- ply chain logistics and customs process- systems, and help exchange information cle registration data. The treaty provides es for the import and export of goods, as and implement best practices with the specific rules for each type of data (so- well as the reduce risks related to threats customs administrations of third coun- called data-field-by-data-field approach). to the safety and security of citizens, by tries, particularly the candidate countries, In cases involving DNA and fingerprints, abolishing the differences between the the potential candidate countries, and the only reference data are available. Further existing systems among the Member partner countries of the European neigh- information, e.g., personal data, may be States. Member States’ electronic cus- bourhood policy. Customs 2013 foresees communicated within the usual frame- toms systems would be made compat- a budget of € 323.8 million over six years work of mutual legal assistance (“hit/no ible with each other and a single, shared (compared to approximately € 157 mil- hit system”). Furthermore, the exchange computer portal created. The Commis- lion for the previous programme). of data concerning the prevention of sion proposes staggered deadlines to  eucrim ID=0603114 threats in the occurrence of mass events ensure simultaneous implementation of with a cross-border dimension (e.g., the the pan-European electronic customs exchange of personal data on hooligans), system. Police Cooperation as well as data concerning potential ter- If the electronic customs environment rorists, is regulated. The treaty also makes is established, traders will fully benefit New German-Dutch Police and Justice it possible to increase cross-border police from the so-called “single window” and Cooperation Treaty operations, such as joint patrols. “one-stop shop” concept. This means A new treaty between Germany and the At the Council meeting on 15 February that economic operators need only pro- Netherlands on cross-border police co- 2007, the Justice and Home Affairs Min- vide information required by customs operation and cooperation in criminal isters agreed on integrating the “third and other agencies involved in frontier matters entered into force on 1 Sep- pillar activities” of the Prüm Treaty into control (e.g. police, border guards, vet- tember 2006. After similar agreements the EU’s legal framework after several erinary and environmental authorities) with Austria and Switzerland, the new Member States have notified their inter- once to a single electronic entrance point treaty modernizes the bilateral relations est in joining the agreement. This inter- (“single window”) and that the goods are of Germany with its third neighbour. est also arose because the treaty between controlled by all authorities at the same The treaty supersedes a German-Dutch Austria and Germany, which already time and at the same place (“one-stop agreement on police cooperation from apply the Prüm provisions, has proven shop”). 1996. The new framework brings about, effective. The legal framework for the  eucrim ID=0603113 for instance, an intensified exchange of integration of the Prüm Treaty shall be information between police authorities, a Council Decision on the stepping up Customs 2013 Programme closer cooperation regarding the com- of cross-border cooperation − a draft of The EU institutions are preparing the ex- parison of DNA profiles, rules on the which was tabled by the German Presi- tension of the Customs 2007 programme cross-border deployment of undercover dency. The German Presidency has the which lays down the legal and financial officers, extended possibilities for cross- ambitious goal of completing the proc- basis needed to support several actions to border surveillance, and less rigid pro- ess of transposition by the end of its help the facilitation of trade and to com- visions on hot pursuit of persons who Presidency in June 2007. Excluded from bat fraud. It runs from 1 January 2003 are escaping. The treaty is published in: the draft are cooperation mechanisms to 31 December 2007. The Commission BGBl. II 2006, p. 194. which relate to the first pillar, particu- proposed a new action programme for  eucrim ID=0603115 larly measures against illegal immigra- the period of 1 January 2008 till 31 De- tion, such as document advisors and mu- cember 2013 (proposal of 17 May 2006, Prüm Treaty Set to Be Integrated into EU tual support in cases of repatriation. The COM(2006) 201). The proposal was dis- Legal Order Ministers were also unable to agree on cussed in the European Parliament on On 27 May 2005, Austria, Belgium, taking over a provision relating to cross- 12 December 2006 in a first and single France, Germany, Luxembourg, the border police intervention in the event reading procedure. The amendments made Netherlands, and Spain signed the Treaty of imminent danger (Art. 25 of the Prüm are in line with the Council approach. The of Prüm which provides for closer cross- Treaty and Art. 18 of the draft Council Council has not yet taken a decision. The border cooperation of police and judicial Decision) after the UK and Ireland were programme is a further element in the authorities in order to better combat ter- reluctant to give foreign police officers creation of a paperless electronic customs rorism, cross-border crime, and illegal sovereign powers on a Member State’s environment and implementation of the immigration. The Prüm Treaty is a multi­ territory. This issue shall be further de-

72 | eucrim 3–4 / 2006 NEWS bated in one of the forthcoming Council Judicial Cooperation ecutor’s Office, and (9) to secure uniform meetings. protection for fundamental rights. The procedure of transposing the given Conclusions after Ten Years of the  eucrim ID=0603119 provision from outside the EU order is Geneva Appeal criticised because it would bypass the On 3 October 2006, at a meeting in the Communication from the Commission on proper European legislation process. It is European Parliament, experts took stock Judicial Training also criticised that the joining Member of the judicial cooperation achieved in Against the background of the Hague pro- States have no alternative but to accept criminal matters during the 10 years gramme, which emphasizes the necessity already existing solutions in relation to since the so-called Geneva appeal. The of strengthening mutual reliance between the implementation of the Prüm Treaty. “appel de Genève” was launched by the Member States and which requires A further question concerns the risk that seven anti-corruption magistrates from “an explicit effort to improve mutual un- the data protection provisions in the draft different European countries on 1 Oc- derstanding among judicial authorities Council Decision transposing the Prüm tober 1996. Therein, they particularly and different legal systems”, and Art. III- Treaty overlap with the Framework De- denounced the powerlessness of the 269 and Art. III-270 of the Constitution cision on the protection of personal data judges faced with the illegal circulation for Europe, which call for the establish- in police and judicial cooperation (see of finances and argued for the free cir- ment of European measures to support the above). culation of information among judges in training of the judiciary and judicial staff  eucrim ID=0603116 a (single) European judicial area. Fur- in civil and criminal matters, the Commis- thermore, they demanded that banking sion adopted a communication pointing European Parliament Hosted Conference secrecy should not prevail with regard to out the importance of judicial training in on Prüm Treaty mutual legal assistance and that letters the European Union. Even though re- The Prüm Treaty was also subject of a rogatory could be transmitted directly, sponsibility in this area lies primarily with public seminar at the European Parlia- without interference of the executive. the Member States, the aim is to increase ment, organised by the Committee on They also advocated the reinforcement funds to the already existing various pro- Civil Liberties, Justice and Home Affairs of mutual administrative assistance in fi- grammes on training judicial practitioners (LIBE) in June 2006. The following link nancial matters and the incrimination of in European issues, for instance the “Fun- contains a document which summarises fiscal fraud (“escroquerie fiscale”). damental rights and justice” programme, the presentations at the meeting. The participants agreed that progress and to strive for a harmonization of stand-  eucrim ID=0603117 since the appeal is still unsatisfactory ards concerning judicial training in the and formulated nine proposals to better European Union. According to the com- Police Cooperation Seminar in the Euro- tackle the fight against serious transna- munication, judicial training should focus pean Parliament tional crime. Regarding the enhancement on three main areas: On 18 December 2006, the Committee on of the effectiveness of existing Euro- • increasing the familiarity of legal prac- Civil Liberties, Justice and Home Affairs pean judicial cooperation arrangements, titioners with the Union’s legal instru- of the European Parliament organised it was proposed: (1) to speed up the ments; a public seminar entitled “An Efficient process of ratification of conventions • improving mutual knowledge of the and Accountable Police Cooperation on cooperation in criminal matters; judicial systems in the Member States; in the EU – The Way Forward”. Speak- (2) to re-examine the restrictions on the • improving language training. ers addressed the following questions: application of the European Arrest War- To serve this purpose, the Commission What are the main obstacles to police rant, in particular in view of an abol- will continue the exchange programme cooperation in the EU? Data protection ishment of the “speciality” rule and the between practitioners and intends to as- – Are current standards in the police co- reservations concerning the surrender of sist in building up a European Judicial operation field satisfactory? What are the nationals; (3) to abolish appeals in inves- Training Network. solutions found so far to common opera- tigations with an international dimen-  eucrim ID=0603120 tional problems and would it be interest- sion; (4) to control more closely front ing to extend some of the best practices to companies and delimit banking secrecy; all the Member States? What should be (5) to support judicial training and ex- European Arrest Warrant (EAW) done at the strategic and operational level changes; (6) to set up a standard form by in order to enhance police cooperation? which to request the execution of inter- Quantitative Information on the Practi- How is it possible to improve parliamen- national letters rogatory. cal Implementation of the EAW tary control in the field of police coopera- With respect to the establishment of a The following Council document sets tion, particularly in cases regarding the genuine European area of judicial coop- out figures on the practical implementa- absence of the (European) Constitution? eration in criminal matters, the following tion of the European Arrest Warrant in Background notes and contributions of suggestions were made: (7) to enable ma- the year 2005. They are based on the the speakers can be downloaded via the jority voting by make use of the passerelle replies of Member States to an annual following homepage. clause of Art. 42 TEU; (8) to gradually questionnaire.  eucrim ID=0603118 create the proposed European Public Pros-  eucrim ID=0603121

eucrim 3–4 / 2006 | 73 NEWS

Quick Execution of an EAW with Sup- ferences which may arise from the execu- instance, stems from organised crime. port of Eurojust tion of EAWs are objective and propor- The competent authorities of the execut- Eurojust reported on a very successful tionate, he denies a breach of the principle ing state will, without further formality, and speedy execution of a European Ar- of equality. In the view of the Advocate be obliged to recognise a confiscation rest Warrant which led to the arrest of a General, the principle of legality is not order which has been transmitted in banker who was the key figure in a big infringed because it must be observed accordance with the rules laid down in banking scandal in Austria. Eurojust en- by the national legislator when assessing the FD and take the necessary measures abled the quick transmission of an EAW criminal acts or imposing penalties and, for its execution. Similar to the scheme from Austria to France so that the want- therefore, is not a matter of the FD which of the European arrest warrant, double ed person could be taken by surprise in only tries to establish a mechanism for as- criminality will not be verified if the his hideout in the south of France. sistance. act giving rise to the confiscation order  eucrim ID=0603122  eucrim ID=0603123 constitutes one or more listed offences. Reasons for non-recognition or non-ex- Framework Decision on EAW Complies Poland Amended Constitution ecution are limited. with EU Law, Advocate General Says After the Polish Constitutional Tribunal The FD does not deal with the restitution of Advocate General Ruiz-Jarabo Colomer declared that the extradition of Polish the property to its rightful owner nor does proposed to dismiss concerns against the citizens through the surrender proce- it prejudice the end to which the Member Framework Decision (FD) on the Euro- dures of the European Arrest Warrant is States apply the amounts obtained as a pean Arrest Warrant (EAW) which were unconstitutional (judgment of 27 April consequence of its application. Member brought before the ECJ by the Belgian 2005), the Polish parliament agreed on States now have two years to implement Arbitragehof (see Weyembergh, eucrim a controversially discussed amendment the FD. It complements the Framework 1-2/2006, p. 26). The reference for the of the constitution (new Article 55). Ex- Decision on confiscation of crime-related preliminary ruling contained two ques- tradition of Polish citizens is allowed if proceeds, instrumentalities and property tions: First, the legal basis was contested the offence was committed outside the of 2005, which approximates the laws by claiming that a framework decision territory of the Republic of Poland and of the Member States with the view to was not the suitable instrument to use. the act on which the extradition is based confiscating the proceeds of crime from In particular, it was argued that the EAW constitutes an offence under Polish law, a wide range of offences and lays down ought to have been established by an at the time of commission as well as at provisions on the onus of proof regarding international convention. Second, doubt the time of extradition. Furthermore, the the source of assets held by a person con- was expressed as to whether the non-veri- legislator stipulated that extradition of a victed of an offence related to organised fication of double criminality for 32 of- person is prohibited if the execution of crime. The latter must be implemented by fences is compatible with fundamental the extradition would infringe the rights 15 March 2007. Both instruments aim at rights as to the principles of legality and and freedoms of human beings and citi- meeting the demand of the 1999 Tampere the principle of equality and non-dis- zens. The amendments are not consid- conclusions to root out the financial gain crimination, and, accordingly, whether it ered as being fully in line with the re- of organised crime by taking measures in complies with Art. 6 (2) TEU. quirements of the Framework Decision order to trace, seize, freeze, and confis- After having examined the differences on the European Arrest Warrant. Amend- cate proceeds from crime. between the EAW scheme and traditional ments to the Polish Procedural Criminal  eucrim ID=0603125 extradition procedures, as well as having Code were implemented by a law from worked out the essence of framework de- 27 October 2006 (Dziennik Ustaw 2006, cisions, the Advocate General concludes No. 226, Pos. 1647). European Supervision Order that the Community legislator has a wide  eucrim ID=0603124 discretion as to which instrument he Commission’s Push to Diminish Pre-Trial would like to choose. In view of the effec- Detention tiveness of Community law, the Council Confiscation Orders After having consulted the public was not only entitled, but obliged to es- through the Green Paper on mutual tablish the EAW in a framework decision. New Framework Decision Applies recognition of a non-custodial pre-trial He points out that framework decisions Mutual Recognition Principle to Confis- supervision measure (COM(2004) 562) are an appropriate measure by which to cation Orders and after an expert meeting in June 2006, avert the difficulties arising from the rati- On 24 November 2006, the Council the Commission tabled a proposal for a fication of international treaties. Framework Decision (FD) on the appli- Framework Decision on the European As regards fundamental rights, the Advo- cation of the principle of mutual recog- supervision order in pre-trial procedures cate General sees neither a breach of the nition to confiscation orders entered into (COM(2006) 468). The Commission is principle of equality nor the principle of force. The FD facilitates the coopera- reacting to statistical data which show legality. By considering that the two dif- tion between Member States as regards that non-resident EU citizens awaiting ferent regimes of double criminality are mutual recognition and execution of trial are more often remanded in pre-trial not comparable, and by arguing that dif- orders to confiscate property, which, for detention than resident EU citizens.

74 | eucrim 3–4 / 2006 NEWS

The instrument would allow suspects to rent system on the transfer of sentenced The following documentation contains go back to their state of normal residence persons which is mainly governed by the latest publicly available Council and be subject to supervision measures the legal framework of the Council of document of the draft Framework Deci- there. To this end, the trial state may (not Europe (CoE). Under the CoE Conven- sion as well as the original proposal. must!) issue a so-called European super- tion on the Transfer of Sentenced Per-  eucrim ID=0603127 vision order to set pre-trial supervision sons of 1983 (ETS No. 112), sentenced The European Parliament gave its opin- measures and must, in principle, be rec- persons may be transferred to their state ion on the proposal on 14 June 2006, ognised by the state of normal residence of nationality to serve the remainder of suggesting several amendments, includ- (“executing state”). The trial state would a sentence only with the person’s con- ing more information rights for victims. impose one or more obligations on the sent and that of the states involved. The  eucrim ID=0603128 suspect aimed at reducing the three Additional Protocol to the Convention “classical” dangers that allow pre-trial of 1997 (ETS No. 167) allows transfer Supervision of Suspended Sentences – detention. The executing Member State without the consent of the sentenced Initiative by Germany and France would be responsible for the supervision person only in specific cases, i.e. if the Another bid to enhance the social reha- of the suspect and is obliged to report person has fled to his state of nationality bilitation of perpetrators in an area of any breaches of the suspect’s obligations or if the person is subject to an expulsion freedom, security and justice was made to the issuing judicial authority which or deportation order. by Germany and France which initi- can decide on the arrest and return of the The EU Framework Decision would ated a proposal for a Framework Deci- suspect to the issuing state. further reduce the involvement of the sion on the recognition and supervision The supervision order would allow sus- sentenced persons in the proceedings. of suspended sentences and alternative pects to be the subject of supervision The consent of the home country to sanctions. Cross-border supervision of measures in their normal environment, enforcement of the judgement in that probation is one of the priorities of the reduce discrimination against non-resi- country would also be dispensed with. German Presidency. This instrument dent subjects, and save Member States The home country (executing Member would replace throughout the EU a money spent on foreign prisoners in the State) would have the duty to recognise Council of Europe convention of 1964 penitentiary system. The objective is and enforce judgements handed down in (ETS No. 51) which to date regulates the to reinforce the right to liberty and the other Member States on the executing supervision of conditionally sentenced presumption of innocence in an area of Member State’s nationals, its permanent or conditionally released offenders in freedom, security and justice. It would residents, or persons with other close their state of ordinary residence. How- fulfil the requirement of the ECHR that links to it, subject to certain grounds of ever, this convention has only been rati- the states should make the widest use refusal. Double criminality – currently a fied by 12 EU Member States so far and of non-custodial supervision measures. further requirement for the transfer – is its application has proven cumbersome. However, the Commission clarifies that removed according to a list of offences The present initiative would close a gap the FD would not confer a suspect’s right corresponding to the system of the Eu- which has been left open by the above- to receive a supervision order. ropean Arrest Warrant. The instrument is mentioned Framework Decision on the  eucrim ID=0603126 based on the idea of providing optimum enforcement of sentences. This Frame- social rehabilitation by sending convicts work Decision only applies to the ex- back to the State where they understand ecution of judgements which impose Transfer of Sentenced Persons the language and have close personal a custodial sentence or any measure links. Poland still blocked the Frame- involving deprivation of liberty. Al- Compromise Reached on Framework work Decision in December 2006, again though it contains a provision under Decision on Enforcement of Sentences giving rise to discussion on the reason- which conditions the executing state is At its meeting on 15 February 2006, ability of the requirement of reaching an entitled to release early or condition- the Justice and Home Affairs Ministers unanimous decision on “third pillar ac- ally a transferred person from impris- reached a general consensus on a Frame- tions”. Poland feared that the prisoner’s onment, it does not cover the following work Decision on the application of the opposition to being transferred or his cases: (1) if the judgement imposed an principle of mutual recognition of judg- family location is not sufficiently taken alternative sanction on a natural person; ments in criminal matters imposing cus- into account; cost implications were also (2) if the judgement imposed a sus- todial sentences or measures involving thought to be a reason for Poland’s veto. pended sentence from the outset; (3) if deprivation of liberty for the purpose of Taking into account Poland’s concerns the offender served a part of the pun- their enforcement in the European Un- − especially in the light of the increased ishment in the sentencing state and is ion. The instrument stems from an initia- mobility of Polish citizens, which leads then released on probation (conditional tive submitted by Austria, Finland, and to practical and material consequences in release). The initiative by Germany and Sweden in January 2005 and was also the transfer of Polish citizens convicted France applies the principle of mutual discussed under the short term “Euro- in other Member States −, the Council recognition to this kind of judgement pean enforcement order”. This Frame- granted Poland a five-year derogation and the Member State, in which the work Decision would replace the cur- from the scheme. sentenced person is legally and ordinar-

eucrim 3–4 / 2006 | 75 NEWS ily resident, is, in principle, obliged to Franco Frattini − presented their com- these objectives are set out in the joint supervise suspensory measures and al- mon project of a Europe-wide criminal action plan which was adopted by the ternative sanctions. records network. Germany, France, and Commission and the Council on 2 and The proposal is drafted in a similar way Spain already agreed in 2003 that they 3 June 2005, with a view to implement- to the Framework Decision on the en- would speed up plans to share data on ing the Hague Programme. forcement of custodial sentences. In convicted criminals by electronically Exchanges of information on convictions this context, the proposal contains, for linking their national registers. Until are currently governed by Articles 13 instance, the waiver of the verification now, Belgium, the Czech Republic, and and 22 of the 1959 Council of Europe of double criminality for the list of of- Luxembourg have cooperated. After a (CoE) Convention on Mutual Assistance fences parallel to the EAW, the funda- successful pilot phase, which began in in Criminal Matters. However, this sys- mental competence of the executing 2005, the project has recently gone into tem presents certain shortcomings. To state for all other decisions relating to a operation. The goal of the project is to evaluate the shortcomings of the exist- suspended sentence or alternative sanc- build up a secure electronic communica- ing mechanism, the Commission pub- tions, time limits and limited grounds tion among the national criminal records lished a White Paper on exchanges of for refusing recognition and supervi- and to much more easily facilitate the information on convictions and the ef- sion, and obligations to allow consulta- data exchange. Its aim is to rapidly en- fect of such convictions in the European tion. able legal authorities to obtain full infor- Union in January 2005 (COM(2005) 10 In the run-up to the initiative, Germa- mation on the legal histories of people final). The Commission identified three ny asked the Member States to reply convicted in other states. The countries main problem areas: First, the difficulty to a questionnaire. A summary of the involved hope that their network could in rapidly identifying the Member States answers is published in Council doc. serve as a model for a future system link- in which individuals have already been 5968/07 of 5 February 2007. It gives a ing all criminal registers in the EU. The convicted; second, the difficulty in ob- good comparative insight into the differ- German Minister of Justice promised to taining information quickly and by ent legal systems of the Member States make a special effort in this respect dur- means of a simple procedure; and, third, as to the suspension of sentences. The ing the German Presidency. the difficulty in understanding the infor- Council Working Party on cooperation This network of national registers is a mation provided. It therefore proposed in criminal matters already undertook a prominent example of the promotion of the improvement of the circulation of in- first examination of the proposal in Feb- e-Justice in Europe, i.e., the increased formation through computerisation in a ruary 2007 and the German Presidency cross-border use of information and two-stage approach: In stage one, a sys- made some refinements to the text after communication technology in the justice tem for identifying the Member States in these first discussions. The following sector in order to intensify cooperation in which an individual has previous con- link contains the original draft by Ger- the area of freedom, security and justice. victions is to be set up and a technical many and France as well as an explana- The further development of e-Justice is and electronic infrastructure enabling tory memorandum. one of the top priorities of the German the rapid, secure exchange of informa-  eucrim ID=0603129 Presidency and the subsequent presiden- tion on convictions put in place; in stage cies of Portugal and Slovenia. The main two, a “standard European format” is to idea is to facilitate and expedite access be established for exchanges enabling Exchange of Information on Criminal to justice by coordinating and network- final users to obtain readily understand- Records ing already existing electronic systems able and useable information. By Julia Macke in the various Member States rather than  eucrim ID=0603131 creating a new centralised infrastructure The question of the more well-organised at the European level. The possibilities November 2005: Council Decision – exchange of information extracted from for further use of the information tech- Preliminary Changes Only national criminal records is actually nology in the justice sector in the future On 21 November 2005, the Council being intensely discussed throughout will be addressed at a conference in adopted a Decision on the exchange of the whole EU. There are different ap- Bremen/Germany from 29 to 31 May information extracted from the criminal proaches on how to improve the current 2007. record (2005/876/JHA). It entered into situation. They are presented in the fol-  eucrim ID=0603130 force on 9 December 2005. The Deci- lowing. sion shall only supplement and facilitate Developments in the EU – White Paper the 1959 CoE Convention on Mutual As- Special Project Involving Six European Identified Shortcomings sistance in Criminal Matters. Pursuant to Countries – Example for e-Justice The need to improve the quality of infor- this Decision, each Member State shall On 6 June 2006 in Bonn, Germany, the mation exchanged on criminal records designate a central authority which shall Ministers of Justice of Germany, France, has also become a priority for the entire inform the central authorities of other Spain, Belgium, the Czech Republic, and EU. The Hague Programme of Novem- Member States of criminal convictions Luxembourg − together with the Vice- ber 2004 called on the Commission to and subsequent measures in respect of President of the European Commission, put forward proposals in this regard and nationals of those Member States entered

76 | eucrim 3–4 / 2006 NEWS in the criminal record (Art. 1 and 2). All the planned FD is to comprehensively Union (COM(2006) 359). As already future information requests shall be for- define the ways that a Member State, proposed in the above-mentioned White warded on the basis of a special request in which a conviction is handed down Paper, the Commission plans to create form which is set out in the Annex of the against a national of another Member an index of convicted persons limited Decision (Art. 3 par. 1). Both the request State (“convicting Member State”), may to third-country nationals which would form and the reply shall be sent in the transmit such a conviction to the Mem- enable a Member State requiring infor- official language of the requesting or re- ber State of the convicted person’s na- mation on a person’s criminal record to quested Member State (Art. 5). tionality (“Member State of the person’s receive immediate notification of which The main purpose of the Decision is to nationality”). In the long term, the Com- other Member State holds information reduce the time needed for the procedure mission aims at creating a “standardised on this person. Only the elements ena- of obtaining information: The reply shall European format” allowing information bling the identification of the convicted be sent immediately and, in any event, to be exchanged in a uniform, electronic, person shall be transferred to the index, within a period not exceeding ten work- and easily machine-translatable way. not the content of the criminal record ing days from the receipt of the request Therefore, the Commission would like itself. The Commission examines how (Art. 3 par. 2). Of further importance is to set up a committee to assist the Com- to ensure efficient functioning of this the provision of Art. 4 on the purpose mission in defining and developing this planned limited index and which exist- limitation principle: Personal data may exchange system. In contrast to Art. 4 of ing IT systems at the EU level could be be used by the requesting Member State the Council Decision, the Commission of relevance in this context. only for the purpose of the criminal pro- proposal also allows for personal data to  eucrim ID=0603135 ceedings for which it has been request- be used by the requesting Member State ed, whereas personal data communicat- to prevent an immediate and serious Criticism of the European Data Protec- ed under Art. 3 for purposes other than threat to public security (Art. 9 par. 3). tion Supervisor criminal proceedings may be used by The Council is currently considering the The European Data Protection Super- the requesting Member State in accord- proposal, whereas the European Parlia- visor (EDPS) produced two detailed ance with its national law only for the ment has not yet delivered its opinion. opinions concerning the Proposal for the purpose for which it has been requested  eucrim ID=0603133 Council Decision of November 2005, on and within the limits specified by the re- the one hand, and the Commission Pro- quested Member State in the form. January 2007: Manual of Procedure posal of December 2005, on the other.  eucrim ID=0603132 In January 2007, the Council issued a In his first opinion of March 2004, the Manual of Procedure concerning the EDPS criticised the proposal for the December 2005: New Commission aforementioned Council Decision. This 2005 Council Decision on the exchange Proposal on FD – Fundamental Changes Manual aims at being a factual docu- of information from criminal records. Planned ment to assist practitioners when making His suggestions were widely rejected by Shortly after the above-mentioned requests for information extracted from the Member States. The EDPS pointed Council Decision entered into force, the the criminal records of another Member out that Art. 4 on data protection did not Commission transmitted a new proposal State and when using the standardised apply to own-initiative information on for a Framework Decision (FD) on the form. It therefore contains practical in- convictions and that there were no thor- organisation and content of the exchange formation on each Member State and on ough guarantees on the safeguards of of information extracted from criminal how to complete the requests, such as data protection. He further recommend- records between Member States in late the postal address of the central author- ed that the scope of the proposal be lim- December 2005 (COM(2005) 690). The ity designated to receive such requests ited to serious criminal offences in view Commission argued that this new pro- or the necessary information on the per- of the principle of proportionality. posal was necessary because the Coun- son’s name, sex, nationality, and date  eucrim ID=0603136 cil Decision of 21 November 2005 did and place of birth. The EDPS published a second detailed not make any fundamental changes to  eucrim ID=0603134 opinion on the Commission Proposal the old system and was only a first step for a Framework Decision in May 2006 towards addressing its shortcomings in Exchange of Information on Convictions containing recommendations for major the short term. In contrast, the aim of the of Third-Country Nationals changes in the draft measure. He recom- new proposal is a thorough reform of the The aforementioned Commission Pro- mended, for instance, that the measure old system. Therefore, it shall replace posal only applies to EU citizens and not should not enter into force before the Art. 22 of the 1959 CoE Convention on to third-country nationals or to persons proposal for the over-arching Council Mutual Assistance in Criminal Matters. of unknown nationality who have been Framework Decision on the protection The new proposal assimilates the im- convicted within the EU. To close this of personal data in police and judicial provements achieved through the Coun- gap, on 4 July 2006, the Commission matters (see above) also enters into force cil Decision and would repeal it. At published a working document on the and that the transfer of data in instances the same time, however, the proposal feasibility of an index of third-coun- not concerning criminal proceedings exceeds the Decision. The purpose of try nationals convicted in the European should only be allowed “under excep-

eucrim 3–4 / 2006 | 77 NEWS tional circumstances”. He also reiterated prevent and fight crime, etc. is lacking, international obligations. This should the argument that the FD should be lim- although high-quality data are needed, be achieved through an enhanced co- ited to serious criminal offences. e.g., for legislative instruments or the operation in specific thematic areas and  eucrim ID=0603137 evaluation of measures as regards the with specific priority regions. prevention of and fight against crime. The Commission report first outlines the Member States Object EDPS Sugges- The Communication contains an action recent developments in specific crimi- tions plan covering the period from 2006 – nal areas such as organised crime. The One month later, on 28 June 2006, the 2010 to solve this problem. A short-term report states that organised and serious Council Working Party on cooperation goal is the collection of the first Commu- crime remains a threat to the economic in criminal matters considered the last nity statistics on crime and criminal jus- and social fabric of democratic societies. opinion of the EDPS. The participants tice by gathering and assessing available Second, the report deals with EU ac- disagreed with the suggestion that the national data. In the long term, the plan tivities in priority regions and countries, Framework Decision on the organi- is to harmonise methodologies and data such as the accession countries Romania sation and content of the exchange of collection for EU statistics on crime and and Bulgaria, the candidate countries information extracted from criminal criminal justice, including the establish- Croatia, Turkey and FYROM, other records should not enter into force be- ment of a respective legal instrument. Western Balkan countries, Russia, U.S., fore the entry into force of the Frame- The paper also mentions that “whenever and Canada, etc. The report concludes work Decision on the protection of per- legal instruments designed to prevent or that overall progress has been positive sonal data in police and judicial matters. fight crime are drafted, the Commission and steady across topics and regions. There was also no support for limiting will therefore, as a mainstreaming initia-  eucrim ID=0603140 the measure to serious offences. The tive, introduce a requirement to provide The Council report focuses on an over- question of the limited transfer of data appropriate statistics in a form adapted all assessment of the activities foreseen not concerning criminal proceedings to the practices of the European Statisti- by the External Strategy and coopera- was not discussed. cal System”. tion with third countries in the fields of Furthermore, the Council Working Party Furthermore, the Commission is setting JHA, specific suggestions for geographi- stressed in this meeting that it was im- up an expert group which has the task of cal and/or thematic priorities for future portant to reduce existing difficulties in assisting the Commission in implement- action, and options for measures to im- the comprehension of conviction infor- ing the action plan and giving advice on prove cooperation with specific coun- mation. It therefore referred to the pro- the development of the EU’s criminal sta- tries and regions. posals of the above-mentioned White tistics framework. The expert group will  eucrim ID=0603141 Paper, approved them, and pointed out consist of four categories. It will com- that the Commission had commissioned prise representatives of Member State, Vienna Declaration on Security Partner- a study in April 2005 to review the na- Candidate and Acceding country admin- ship tional criminal records systems in the istrations in the field of JHA; representa- The Austrian Presidency fostered coop- EU. This format will be based on the tives from European and international eration with non-EU countries in justice work already done by the above-men- bodies; networks and organisations with and home affairs, continuing the imple- tioned six European countries to inter- expertise in the area of crime and crimi- mentation of the Strategy for the Ex- connect their systems. nal justice; and members drawn from the ternal Dimension of Justice and Home  eucrim ID=0603138 academic and private sectors. Affairs (Council doc. 15446/05). This  eucrim ID=0603139 process culminated in a Conference in Vienna, bringing together ministers Crime Statistics and representatives from more than External Dimension 50 countries and international organi- Commission Wishes Harmonised Rules sations. The conference approved the on Statistics in JHA Strategy for the External Dimension of Vienna Declaration on Security Partner- The Commission has undertaken ef- JHA: Two Progress Reports ships of 5 May 2006 which reflects the forts to make statistical data on crime Both the Commission and the Council importance of internal security in exter- and criminal justice more comparable submitted progress reports on the im- nal relations. Part I of the Declaration throughout the EU. The Communication plementation of the strategy for the Ex- subscribes itself to general principles of on “Developing a comprehensive and ternal Dimension of JHA (see Council cooperation with third countries within coherent EU strategy to measure crime doc. 15446/05). The strategy, approved the area of justice and home affairs. It and criminal justice” of August 2006 by the JHA Council on 1 December therefore defines key principles for a (COM(2006) 437) tackles the problem 2005, aims at elaborating partnerships future security partnership between the that, due to the differing systems of the with third countries in the field of jus- EU and interested third countries. Part II EU Member States, reliable and compa- tice and home affairs which includes of the Declaration focuses on three rable information on criminal trends, lev- strengthening the rule of law and pro- priority areas for future cooperation, els and structures, and measures taken to moting the respect for human rights and namely combating terrorism, organised

78 | eucrim 3–4 / 2006 NEWS crime and corruption, and migration/ Common Space of Freedom, Security agreements between the EU Member asylum. Concrete measures and actions and Justice with Russia States and Russia is presented. have been identified and agreed upon While the Austrian Presidency tackled  eucrim ID=0603146 along the lines of principles identified closer cooperation in South East Europe, under Part I. the Finnish Presidency focused on inten- EU Meetings with Russia on JHA  eucrim ID=0603142 sified cooperation with Russia. The EU Discussions on the further establishment relationship with Russia in justice and of a Common Space of Freedom, Securi- Start of Tripartite Security Cooperation home affairs (JHA) is primarily based on ty and Justice between the EU and Russia EU/Russian Federation/USA the Road Map for the Common Space of (see above) took place at two meetings During the Austrian Presidency, the Freedom, Security and Justice, adopted of the Permanent Partnership Council EU, represented by Commission Vice- at the EU-Russia Summit in May 2005. (PPC) in March and October 2006. The President Franco Frattini and the Inte- This road map propounds the principles PPC is the institutional framework for rior Ministers of Austria, Finland, Ger- underlying the EU-Russia cooperation regular consultations between the EU many, Slovenia, and Portugal, and their in JHA and sets out a number of agreed and Russia at the ministerial level (here colleagues from the Russian Federation objectives and areas for cooperation for Ministers of the Interior and Justice). and the United States, held a joint meet- the short and medium terms. It contains, In the meeting of October, discussions ing for the first time. The outcome of for instance, a fostered cooperation to dealt, inter alia, with the Russian legal the meeting was a declaration, in which combat transnational organised crime, system and the development of the Rus- the participants set out the key princi- including intensified law enforcement sian judiciary, and strengthened criminal ples for a possible future “Tripartite Co- cooperation with OLAF, Europol, and law cooperation, in particular in view operative Relationship” in the field of Eurojust, promotion of a comprehensive of finalising an operational agreement justice and home affairs, including the anti-money laundering regime, and com- between Europol and Russia, as well willingness to work together in order to bating corruption. as concluding a cooperation agreement tackle common threats and problems,  eucrim ID=0603145 between Eurojust and Russia. Addition- to make JHA a priority in external re- ally, the EU-Russia liaison officers net- lations, to promote the implementation Action-Oriented Paper on Russia in JHA work should be enhanced in the future. of principles and norms of international The Finnish Presidency made headway Another important issue was corruption. law, and to mobilise joint resources to by drafting an action-oriented paper on Joint training of law enforcement staff in achieve common goals in internal and Russia. It aims at implementing certain issues related to corruption prevention is homeland security issues. Addition- aspects of the EU-Russia road map in to be organised. The EU welcomed the ally, specific areas for the tripartite co- compliance with the Strategy for the fact that Russia has approved the UN operation were identified. In the fight External Dimension of JHA of Decem- Convention against Corruption and the against organised crime and corruption, ber 2005 (see above). According to this Criminal Law Convention on Corrup- measures are planned to combat money Strategy, action-oriented papers cover tion by the Council of Europe in 2006. laundering, drug trafficking, trafficking specific priority countries, regions, and  eucrim ID=0603147 in human beings, and cybercrime. It is themes. These papers should include intended to intensify the “trialogue” (1) an analysis of the issue and the EU’s The Northern Dimension – New during the forthcoming Presidencies. A objectives, drawing on relevant informa- Arrangements further formal meeting is planned dur- tion from the EU’s institutions and from A facet of the relations between the EU ing the German Presidency. the Member States; (2) a summary of and Russia is the so-called Northern Di-  eucrim ID=0603143 current action being carried out by both mension. The Northern Dimension (ND) the Commission and the Member States; refers to a particular external policy Justice and Security Relations with the and (3) identification of what needs to which addresses the special challenges USA in 2006 be done at the political, technical, and of the Baltic sea region and the Arctic Partnership with the USA is an integral operational levels in order to meet EU sea region. It aims at strengthening dia- part of the EU’s strategy for the exter- objectives. logue and cooperation from North-West nal dimension of justice, freedom and The action-oriented paper on Russia Russia in the East to Iceland and Green- security. To this end, several informal gives first an overview on the situation land in the West. Partners are the EU and and formal meetings took place in 2006 as regards the cooperation between the its Member States, Norway and Iceland, between the EU and the US on bilateral EU and Russia in the area of freedom, and the Russian Federation. An aspect level. Meetings covered, for instance, security and justice. Then, concrete ac- of the ND policy is the implementation data protection and sharing information, tions are listed which ought to be taken of the four EU-Russia Common Spaces. cooperation between Europol/Eurojust to meet the objectives as set out in the In addition to justice and home affairs and US authorities, as well as closer co- aforementioned road map. In the an- (see above) these are Common Spaces operation to combat organised crime and nex of the latest Council document on on Economy, External Security, and Re- human trafficking. this issue (available through the follow- search, Education & Culture. However,  eucrim ID=0603144 ing link), an instructive list of bilateral special questions and challenges of the

eucrim 3–4 / 2006 | 79 NEWS

Northern region are also taken into ac- EU-Western Balkans Summit on JHA cooperation, such as hot pursuit, cross- count in the ND. Iceland and Norway as- Issues border surveillance, controlled delivery, sociate themselves with the objectives of Within the framework of the EU Stability and covert investigations, and (3) further the Common Spaces. Pact for the Western Balkans, the Min- measures enhancing the fight against At a summit in November 2006, the part- isters of Interior and Justice of the EU crime, such as the establishment of joint ners agreed on a new basis for the policy Presidencies and Balkans countries (Al- investigation teams, and the transmis- of the ND, i.e. the Northern Dimension bania, Bosnia and Herzegovina, Croatia, sion and comparison of DNA-profiles Framework Document and a Political FYROM, Montenegro, and Serbia) have and other identification material. The Declaration. As regards justice and home been meeting annually since 2003. The project for establishing a mutual police affairs, the emphasis is generally put on fourth EU-Western Balkans forum on cooperation agreement for the Balkans facilitation of people-to-people contacts Justice and Home Affairs (JHA) was countries was initiated in 2005 by the (e.g. by visa-free travel in the long term), held in Tirana, Albania, on 17 November Austrian Ministry of the Interior’s Fed- efficiency of the judicial system and ju- 2006. Based on the Commission’s West- eral Criminal Intelligence Service. Aus- dicial cooperation in criminal and civil ern Balkan progress reports, the progress tria, together with Germany, Europol, matters. made in each Western Balkans country in and the Stability Pact for South East Eu-  eucrim ID=0603148 combating organised crime, corruption, rope, acted as midwives in the develop- and human trafficking was reviewed and ment of the SEE PCC. Western Balkans – Action Plan specific priorities for future work were  eucrim ID=0603151 In connection with the implementa- set. The meeting also highlighted the tion of the above-mentioned Strategy regional dimension of organised crime, Western Balkans – SECI Center on the External Dimension of JHA and particularly since organised crime in the The Council adopted conclusions on the based on the findings of the Vienna Dec- Western Balkans is closely connected further development of the SECI centre laration on Security Partnerships, an to the organised crime in the EU Mem- at its meeting on 4-5 December 2006 “Action-Oriented Paper on Improving ber States. It was concluded that bilat- (pp. 36-38 of the linked press release). Cooperation, on Organised Crime, Cor- eral and regional cooperation between The SECI Center is a platform for the ruption, Illegal Immigration and Coun- the police and judicial authorities and close cooperation of law enforcement ter-terrorism, between the EU, Western the proper implementation of existing authorities in South-East Europe, de- Balkans and relevant ENP [European bilateral and regional agreements, e.g., signed as a reaction to increasing trans- Neighbourhood Policy] countries” was the Police Cooperation Convention for border crime after the painful wars compiled (re: action-oriented papers, South East Europe (see below), should and conflicts in the region. The SECI see above the news on Russia). This be further reinforced. Another spotlight Center became operational in 2000 and paper is practically a road map for EU was the strengthening of cooperation is located in Bucharest, Romania. Po- action on JHA in the Western Balkans between EU institutions, such as Eu- lice and Customs Liaison Officers from for the next few years. First, the paper ropol and Eurojust, and regional law en- 12 South-Eastern countries cooperate gives a situation overview, stating that forcement institutions, such as the SECI there, supported by national focal points. “organised crime originating from or Center (see below). Several EU Member States are perma- linked to the Western Balkans endan-  eucrim ID=0603150 nent observers for the SECI Center. The gers long-term political, economical and main activities are speedy exchange of social development in the region and Police Cooperation Convention for South crime-related information through the undermines the concept of the rule of East Europe Liaison Officers, on the one hand, and law. This problem increases due to cor- On May 5, the Ministers of the Interior the establishment of task forces, on the ruption, which is also significant for the of Albania, Bosnia and Herzegovina, other hand. The task forces focus on region and closely connected to organ- Moldova, Romania, Serbia and Mon- joint operations regarding a specific ised crime. Corruption in the Western tenegro, and The former Republic of criminal topic, including anti-fraud and Balkans risk to divert EU aid intended Macedonia signed a “Police Coopera- anti-smuggling, and financial and com- for revitalizing the region.” The main tion Convention for South East Europe” puter crime. The Council stressed in its part of the paper itemizes seven recom- (SEE PCC) in Vienna. The SEE PCC conclusions the enhancment of close mendations, each followed by proposals aims at applying Schengen standards cooperation between the SECI Center for immediate action. A first annex lists for police cooperation in the EU to the and Europol (see also above-mentioned the activities of the EU Member States: Balkans countries. The Schengen Con- action-oriented paper) since the centre agreements with Western Balkans coun- vention and other bilateral police co- could eventually become a Europol tries, liaison officers stationed there, and operation agreements were taken as a Regional Office. Moreover, the SECI training and support activities of the EU model. On this basis, the SEE PCC leads participating states were encouraged states. A second annex lists the existing to (1) an improvement of information to adopt a new legal framework for the financial support from the EU for the exchange, including the secondment of centre which is in compliance with the recommended actions. liaison officers, (2) the introduction and EU standards.  eucrim ID=0603149 reinforcement of cross-border forms of  eucrim ID=0603152

80 | eucrim 3–4 / 2006 NEWS

JHA Cooperation with Ukraine entrust the Luxembourg Prime Minister As regards the external relations be- Jean-Claude Juncker with the prepara- Re-launching the European project: tween the EU and the Ukraine, the re- tion of a report on the relationship be- needs of protection of EC interests vision of the Justice and Home Affairs tween the two institutions. and new strategies for penal Action Plan of 2001 is currently on the  eucrim ID=0603154 integration, waiting for the agenda. This Action Plan and a related European Constitution scoreboard constitute the common basis Juncker Report Catania (Italy), 24-26 May 2007 for cooperation measures in criminal and At the Plenary Session of the Council of On the occasion of the 10th Anniversary civil matters. At a meeting between the Europe Parliamentary Assembly (PACE) of its creation, the Centro di Diritto Penale Ministers of Justice and Home Affairs of from 10 to 13 April 2006 in Strasbourg Europeo in Catania organises an interna- the Ukraine and the EU “troika” (JHA Jean-Claude Juncker issued his report tional seminar which will take place at the Minister of Finland and Germany plus entitled “Council of Europe – European eve of the European Council meeting in Commissioner Frattini) in October 2006 Union: A sole ambition for the European June 2007 that will decide the future of the in Luxemburg, the parties took stock of continent”. This report includes differ- European Constitution. In this perspective, the implementation of the JHA Action ent proposals on how to improve the re- it aims to take stock of the existing EC and EU Law adopted to implement an effective Plan and agreed on items to which at- lationship between the CoE and the EU, protection of EC interests, and to identify tention should be paid in the near future. suggesting that the Union could become those new instruments and strategies to Among these items are the reform of the a Member of the Council by 2010, that be adopted so as to improve this protec- Ukrainian judiciary system, the conclu- EU Member States should immediately tion within the legal framework of the cur- sion of a strategic cooperation agree- open the door to EU accession to the rent EC/EU Treaties. ment between Europol and the Ukraine, European Convention on Human Rights Co-financed by OLAF in the framework the implementation of the Ukraine’s new (ECHR), and that the Commissioner for of the Hercule Programme, this seminar anti-corruption strategy, and strengthen- Human Rights should become an insti- is opened to all Associations of European ing cooperation between Eurojust and tution to which the EU could refer all Lawyers for the protection of the European Community Financial Interests. At the the Ukraine. human rights problems not covered by event, the meeting of the Presidents of the  eucrim ID=0603153 its existing machinery. The report shall Associations will also be hosted. It will take further contribute to the work on the place on Saturday, 26 May 2007, at 3 p.m. planned Memorandum of Understand- More information via the website: ing. http://www.lex.unict.it/10yearsconference/ Council of Europe  eucrim ID=0603155 default.asp Reported by Julia Macke PACE Recommendation 1743 4th European Jurists’ Forum After the publication of the Juncker Re- Foundations port, the Parliamentary Assembly adopt- Vienna, 3-5 May 2007 ed Recommendation 1743 on 13 April The 4th European Jurists’ Forum (EJF) Relations between the Council of 2006 concerning the planned Memo- will take place from 3-5 May 2007 in Europe and the European Union randum of Understanding between the Vienna. The focus of the EJF is to dis- Council of Europe and the European cuss the development of European Because of the general importance of the Union. It points out that PACE supports, law with practising lawyers, judges, relations between the Council of Europe in particular, the intensification of coop- and academics within the context of (hereinafter CoE) and the European Un- eration and political dialogue with the the following highly topical themes: (1) European Contract Law; (2) Towards ion, the latest developments in this area EU. The Assembly further recommends a European Criminal Law; (3) Migration are presented chronologically in the fol- to the Committee of Ministers ensuring in and to Europe. The European Criminal lowing: that the Assembly is fully involved in the Law section will address the following decision-making process concerning the three topics: “Tendencies and Perspec- Start-Up for New Framework planned Memorandum of Understand- tives of a European Criminal Policy”, At the 3rd Summit of Heads of State ing. It also stresses that the EU should “Basic Models of a European Penal and Government in November 2004, avoid any duplication, particularly when Law – Mutual Recognition, Cooperation, the decision was taken to create a new considering the setting-up of agencies, Harmonisation”, and “Common Princi- ples of Criminal Procedure as a Basis framework for enhanced cooperation and that it should acknowledge that of Transnational Criminal Prosecution”. and interaction between the Council of the Council of Europe must remain the The European Jurists’ Forum has been Europe and the European Union in areas benchmark for human rights, the rule of convening at two-year intervals since of common concern, including human law, and democracy and accede to the 2001. The first meeting took place in rights, democracy, and the rule of law. ECHR, thus contributing to the creation Nuremberg/Germany in 2001. In particular, the participants decided of a single legal mechanism for the pro- More information and registration de- to draft a Memorandum of Understand- tection of human rights. tails under: http://www.eujurist2007.at ing between the CoE and the EU and to  eucrim ID=0603156

eucrim 3–4 / 2006 | 81 NEWS

Draft of the Memorandum of Under- pean Court of Human Rights (ECtHR) taken place. However, the Protocol will standing and has been open for signature by the only enter into force when all 46 par- Meanwhile, the Committee of Ministers CoE Member States since May 2004. ties to the Convention have ratified it. is also working on the planned Memoran- Of further importance are the reports At present, Russia is the only Member dum of Understanding. In fact, a prelimi- from Lord Woolf, the former Lord Chief State which has not yet ratified the Pro- nary draft of the Memorandum of Under- Justice of England and Wales, concern- tocol. In December 2006, Russia even standing is already under consideration ing the simplification of administrative voted against the ratification of Proto- by the Committee. At two quadripartite measures, and the Group of Wise Per- col No. 14 so that “essential and long- meetings in March 2006 and November sons, both of which shall secure the ef- overdue changes to the European Court 2006, representatives of the Council of fectiveness of the European Convention of Human Rights must be put on hold,” Europe and the European Union prima- on Human Rights (ECHR) and its control as Council of Europe Secretary General rily discussed the draft of the Memo- mechanisms. Because of the relevance Terry Davis stated. Additionally, the randum of Understanding. Both parties of these discussions and developments European Court of Human Right’s new stressed that they wished to finalise the for all of Europe, they will be presented President, Jean-Paul Costa, expressed in Memorandum of Understanding as soon in more detail in the following: January 2007 his concern that the long- as possible. However, they also pointed awaited Protocol No. 14 was still not in out that, due to the remaining difficulties Protocol No. 14 place at the beginning of 2007, as had and legal implications of some of the el- Protocol No. 14 makes no radical chang- been hoped. According to him, the Pro- ements of the draft, the adoption of the es to the judicial control system estab- tocol is indispensable and would enable text would overrun its time. lished by the Convention. The changes the Court to increase its productivity by  eucrim ID=0603157 relate more to the functioning than to the at least 25 %. In its reply to Recommen- structure of the system. It is aimed at im- dation 1756 (2006) of the Parliamentary Committee of Ministers Set Up High- proving the system, giving the Court the Assembly, the Committee of Ministers Level Follow-Up Group procedural means and flexibility it needs also stressed in late January 2007 that it In order to overcome existing difficulties to process all applications in a timely was deeply regrettable and a source of in finding an acceptable compromise to fashion, while allowing it to concentrate serious concern that the Russian Duma drafting a Memorandum of Understand- on the most important cases which re- has yet not ratified Protocol No. 14, even ing, at the 116th session in May 2006, quire in-depth examination. The major though all Member States at the Warsaw the Foreign Ministers from the 46 CoE changes are: Summit expressed their determination to Member States decided to set up a high- • Decisions in clearly inadmissible cases, ensure that it would. Nevertheless, the level follow-up group to intensify the currently taken by a committee of three Committee of Ministers will continue work concerning the relations between judges, will be taken by a single judge, to give top priority to consolidating the the Council of Europe and the EU. They assisted by non-judicial rapporteurs, in system for the protection of human rights invited the EU to participate in this proc- the future. provided by the Convention. ess and asked the group to report on its • Repetitive cases which belong to a series  eucrim ID=0603160 work in good time so that appropriate deriving from the same structural defect at decisions could be taken at the next Min- the national level will be declared admis- Report by Lord Woolf isters’ session in May 2007. They also sible and decided by a committee of three In December 2005, Lord Woolf, the encouraged member states and the rele- judges, instead of a seven-judge chamber, former Lord Chief Justice of England vant bodies of both organisations to con- under a simplified summary procedure. and Wales, published a report entitled tinue the discussions in order to finalize • An additional admissibility criterion “Review of the Working Methods of the the text of the intended Memorandum of is foreseen so that the Court can declare European Court of Human Rights”. The Understanding as soon as possible. applications inadmissible in which the review, which was drawn up with the  eucrim ID=0603158 applicant has not suffered a significant assistance of a small group of experts, disadvantage. seeks to identify administrative meas- • The Committee of Ministers will be ures which could help the Court deal Reform of the European Court of Human empowered to bring proceedings before with its increasing workload: 44.100 Rights the Court when a state refuses to comply new applications were lodged in 2004 with a judgment. It will also have a new and the number of cases currently pend- Newest Reform Proposals power to ask the Court for an interpreta- ing before the Court stands at 82.100. In the past few years, the Council of Eu- tion of the judgment. The review recommends, among other rope has made several efforts to improve  eucrim ID=0603159 things, that the Court deal only with and consolidate the Council of Europe’s properly completed application forms. human rights protection system. The Russia Blocks Entry into Force of It further suggests that satellite offices newest reform proposals contain, inter 14th Protocol should be established in key countries alia, Protocol No. 14 which will achieve Protocol No. 14 had been signed by all which produce high numbers of inad- a more effective operation of the Euro- Member States and 45 ratifications had missible applications, that greater use

82 | eucrim 3–4 / 2006 NEWS should be made of national ombudsmen, the above-mentioned Protocol No. 14 is of democracy in Europe, share good and that other methods of alternative dis- problematic because it is a prerequisite practices aimed at preventing corruption pute resolution be encouraged. The re- for the reforms proposed by the Group from undermining democracy, and de- view also proposes that the Court should of Wise Persons, meaning that the Rus- termine further efforts that should be un- deliver more pilot judgments and then sian non-ratification will also constrain dertaken to meet the challenges ahead. deal summarily with repetitive cases. the implementation of these reform pro- At the end of the conference, the partici-  eucrim ID=0603161 posals. pants stressed that political corruption  eucrim ID=0603162 risked posing a serious threat to the fu- Report of the Group of Wise Persons ture of democracy in Europe. They also In its final report of November 2006, the pointed out that, in European democra- Group of Wise Persons proposes mak- Specific Areas of Crime cies today, political finances, conflicts ing the judicial system of the Conven- of interest, lobbying, and the political tion more flexible by authorising the Corruption influence on the justice systems seemed Committee of Ministers to carry out re- to carry the greatest risk of corrupting forms by way of unanimously adopted Parliamentary Assembly: New Resolu- principles and processes of democracy. resolutions without an amendment to the tion on Corruption They feared that the risks of political Convention. It further urges setting up a At its Plenary Session in April 2006, the corruption were likely to increase in the special judicial filtering body in order to Parliamentary Assembly adopted the future. Additional information about the guarantee that the Court is relieved of a Resolution “Poverty and the fight against Octopus Interface 2005 can be found in large number of cases, enabling it to fo- corruption in Council of Europe mem- eucrim 1-2/2006, p. 21. cus on its essential role. The Group of ber states” (Res. 1492). It points out that  eucrim ID=0603164 Wise Persons also paid close attention to corruption is still very present in certain the relations between the Court and the European countries and a major obstacle Octopus: Speech Given by Siim Kallas national courts and suggests, inter alia, to economic and social development as Siim Kallas, the Vice-President of the allowing constitutional courts or courts well to the eradication of poverty. Thus, European Commission responsible for of last instance to submit a request for it attaches importance to the rapid draw- Administrative Affairs, Audit and Anti- an opinion on legal questions relating ing up of practical plans of action, not Fraud, delivered a speech at Octopus to interpretation of the Convention and only for managing public finances but Interface 2006 on 21 November 2006 the protocols thereto. According to the also for the administration of accounts entitled “Transparency against corrup- above-mentioned review by Lord Woolf, in the private sector. It further recom- tion and the perception of corruption”, it also encouraged the Court to use the mends, inter alia, that the governments in which he reported on the high level “pilot judgment” procedure as much as of CoE Member States ask their public, of suspicion of corruption in the EU and possible in the future. It additionally local, and regional authorities to simpli- especially in the European Commission. analysed which alternative non-judicial fy bureaucratic procedures, make public He pointed out that this high level of sus- or complementary means of resolving authorities more accountable by pub- picion was not surprising but, to a large disputes existed, such as friendly settle- lishing information concerning public extent, related to the unique governance ment, mediation, or the extension of the funds and budgets, make it compulsory structure and complexity of the EU and duties of the Commissioner for Human for them to produce annual accounts, to regrettable corruption/fraud cases Rights. and guarantee the independence of the from the past. However, since 1999, the The Group of Wise Persons was set up media. The governments should also in- fight against corruption and fraud within by the Third Council of Europe Sum- troduce efficient systems for processing EU institutions and bodies has become mit in Warsaw in May 2005 to draw up complaints concerning corruption and an absolute priority for the EU. In this a comprehensive strategy for securing increase the independence and transpar- context, Kallas stressed the “Europe- the long-term effectiveness of the Euro- ency of the judicial system. an Transparency Initiative” which the pean Convention on Human Rights and  eucrim ID=0603163 Commission initiated in Spring 2005 its control mechanisms. After an interim and which contained a package of many report on its work had already been pub- Octopus: Annual Conference 2006 activities ranging from more complete lished in May 2006, the final report was At Octopus Interface 2006, the annual information on the use of EU money to published in November 2006. In March conference of the Octopus programme, better consultation, from professional 2007, a colloquy will provide an oppor- entitled “Corruption and Democracy”, ethics in the European Institutions to tunity to launch a multilateral debate on more than 120 public and private sector the framework within which the lobby- the Court’s future development in the experts from 45 countries, international ists operate. He left no doubt about his light of the report. Lastly, the 117th min- organisations, non-governmental organ- conviction that increased transparency isterial session in May 2007 will seek to isations, research institutions, and the would be the key tool in fighting both agree on the initial outlines of a lasting media met in Strasbourg, France, from corruption and the suspicion of corrup- reform that will enable the system to op- 20 to 21 November 2006 to identify the tion. erate effectively. The entry into force of risks that corruption poses to the future  eucrim ID=0603165

eucrim 3–4 / 2006 | 83 NEWS

GRECO: New Member States First Evaluation Round” which was As published by the Council of Europe, In the second half of 2006, three states published in 2005 by the Nomos-Verlag, this co-financed three-year project is one became new members of the Group of Baden-Baden, Germany. of the most important initiatives ever States against Corruption (GRECO):  eucrim ID=0603168 allocated to the Republic of Moldova by Austria on 1 December 2006, Switzer- the European Institutions with regard to land on 1 July 2006 and the Republic of Ukraine: Project against Corruption support, substance, and budget. It will Montenegro on 6 June 2006. As Secretary In September 2006, the Ukrainian Min- cover a broad range of activities, includ- General Terry Davis stressed in his speech ister of Justice officially launched op- ing strengthening the capacity of law- at the 31st GRECO plenary session in erations of the Ukrainian Project against enforcement bodies and the criminal jus- December 2006, the Russian Federation Corruption (UPAC) in Kyiv, which was tice system and the financing of political has become GRECO’s 44th member on already reported in eucrim 1-2/2006. The parties and electoral campaigns (see also 1 February 2007. As already mentioned Council of Europe will enter a partner- eucrim 1-2/2006). in eucrim 1-2/2006, the Ukraine became a ship with Ukraine’s Ministry of Justice  eucrim ID=0603172 member of GRECO on 1 January 2006. and other Ukrainian stakeholder institu-  eucrim ID=0603166 tions until May 2009 in order to battle Ukraine: MOLI-UA-2 corruption by introducing anti-corruption A round table of the MOLI-UA-2 project GRECO: New Evaluation Country Reports measures and harmonizing the Ukrainian entitled “Presentation of the legal opinion GRECO has carried out two evaluation legislation to bring it in line with interna- on the compliance of the draft Ukrainian rounds so far in which it assesses the tional standards in the fight against cor- AML legislation with the 3rd EU Direc- compliance of CoE Member States with ruption. Therefore, UPAC will provide its tive and the Council of Europe Conven- the anti-corruption framework of the Ukrainian counterparts with assistance in tion on Laundering, Search, Seizure Council of Europe. Evaluation reports, the implementation of the recently adopt- and Confiscation of the Proceeds from by country, are drafted by gathering in- ed National Anti-Corruption Concept. Crime and on the Financing of Terror- formation through questionnaires and  eucrim ID=0603169 ism” took place on 12 December 2006 in on-site country visits. The evaluation Kyiv, Ukraine. The main objective was team then makes recommendations and The Ukraine: Two Round Table Discus- to present and discuss the draft law of observations to improve anti-corruption sions the Ukraine on prevention and counter- standards in the respective country. In In this context, it is also worth noting action to the legalization of the proceeds the second half of 2006, six evaluation that, on 18 and 19 October 2006, two from crime as well as related laws. country reports were published (on Tur- round table discussions on the Draft Law  eucrim ID=0603173 key, Moldova, the USA, the Republic of on the Judiciary and the Draft Law on the Serbia, Azerbaijan and Cyprus). In Janu- Status of Judges were organised in Kyiv, ary and February 2007, reports on the Ukraine. Corruption-related aspects of the Counterfeiting Republic of Montenegro, Georgia , Bos- current drafts were discussed in detail. nia and Herzegovina, and Andorra fol-  eucrim ID=0603170 Conference on Fight against Counterfeit lowed. GRECO also launched the third Medicines evaluation round in January 2007. Russia: RUCOLA-2 The participants at the conference “Eu-  eucrim ID=0603167 On 17 October 2006 in Moscow, the State rope against Counterfeit Medicines”, Duma Anti-Corruption Commission, the which took place on 23 and 24 October GRECO: New General Activity Report Council of Europe, and the European 2006 in Moscow, Russia, proposed the On 27 June 2006, the 6th General Ac- Commission presented the joint project drafting of a legal instrument to com- tivity Report of GRECO on the activi- called RUCOLA-2, aimed at supporting bat “pharmaceutical crime”, counterfeit ties in 2005 was published. This report the State Duma Anti-Corruption Com- medicines, and other medical products. provides details on GRECO’s opera- mission in the development of legislative The conference was organised as part of tion during 2005 and cooperation with and other measures for the prevention of the Programme of the Chairmanship of other international players. In the report, corruption (see also eucrim 1-2/2006). the Russian Federation in the Committee GRECO also presents a number of con-  eucrim ID=0603171 of Ministers of the Council of Europe. clusions emanating from its ongoing In the so-called Moscow Declaration, Second Evaluation Round and focuss- the conference participants stressed that ing on the organisation, functioning, and Money Laundering counterfeit medicines represented a seri- supervision of public administration and ous threat to general health in Council of the status and conduct of public officials. Moldova: MOLICO Europe Member States and worldwide. In this context, it is worth mentioning the The start-up conference on the new Project They regretted that there was no inter- publication of Eser/Kubiciel entitled “In- against Corruption, Money Laundering nationally recognized, harmonised legal stitutions against Corruption – A Com- and Terrorist Financing in the Republic of definition for counterfeit medicines and parative Study of the National Anti-Cor- Moldova, named MOLICO, took place on that they were not covered by a unified ruption Strategies reflected by GRECO’s 31 October 2006 in Chisinau, Moldova. international enforcement practice to

84 | eucrim 3–4 / 2006 NEWS fight against them. They expressed their bility for remanding a person in custody, victims and to facilitate their access to concern with regard to the fact that there authorising continuation of the measure, justice and compensation. Many country was no integrated European instrument and imposing alternative measures be reports were presented to enable the ex- to counteract all aspects of international discharged by a judicial authority. The change of views on the existing stand- pharmaceutical crime, including the Recommendation makes further de- ards and practices as well as to identify counterfeiting of medicines and other tailed requirements, including the assist- possible gaps. medical products, and to encourage pub- ance of a lawyer, the physical presence  eucrim ID=0603177 lic health protection and safety. There- of the person concerned, informing the fore, the participants recommended that family, etc. It also governs the condi- New Rules for the Supervision of the an international legal instrument should tions of remand in custody and recom- Execution of Judgments be developed under the aegis of the mends, for example, that arrangements At the 964th meeting of the Ministers’ Council of Europe which should con- be made to enable remand prisoners to Deputies on 10 May 2006, the Commit- tain legal definitions of key terms in the continue with necessary medical or den- tee of Ministers adopted new rules for field of combating the counterfeiting of tal treatment, that remand prisoners be the supervision of the execution of judg- medicines and their distribution. This able to vote in public elections and refer- ments and terms of friendly settlements legal instrument should further contain endums, and that remand in custody not to govern the exercise of the powers of the recognition that acts of counterfeit- unduly disrupt the education of children the Committee of Ministers under Arti- ing medicines and distribution thereof, or young persons. cle 46, paragraphs 2 to 5, and Article 39, as well as involvement in such acts, are  eucrim ID=0603175 paragraph 4 of the ECHR. In principle, criminal acts, the establishment of the the Committee of Ministers’ supervision Convention of respective punishments Assistance to Crime Victims shall take place at special human rights for these crimes as well as new coopera­ In the context of better assistance to meetings where priority shall be given tion between healthcare authorities and crime victims, the Committee of Minis- to supervision of the execution of judg- law enforcement agencies of the CoE ters in June 2006 adopted a new recom- ments in which the Court has identified Member States. mendation to the CoE Member States a systemic problem. Detailed supervi-  eucrim ID=0603174 which reflects the specific needs of crime sion rules, such as control intervals, are victims (Rec(2006)8). States are urged additionally defined. The Committee of to ensure the effective recognition of the Ministers shall further adopt an annual Procedural Criminal Law rights of victims and to assist them. The report on its activities which shall be assistance available should include the made public. Procedural Safeguards provision of medical care, material sup-  eucrim ID=0603178 port, and psychological health services New Recommendation on the Use of as well as social care and counselling. Consultative Council of European Pros- Remand in Custody The Recommendation therefore reflects ecutors – 1st Meeting At the 947th meeting of the Ministers’ the role of public service and victim The first meeting of the Consultative Deputies on 27 September 2006, the support services and encourages, for Council of European Prosecutors to dis- Committee of Ministers adopted the instance, states to set up or support free cuss the role of the Public Prosecutor Recommendation on the use of remand national telephone help lines for vic- in protecting individuals took place on in custody, the conditions under which tims. It further recommends that states 6 July 2006 in Moscow, Russia, during it takes place, and the provision of safe- should ensure that victims have access the 7th session of the Conference of Pros- guards against abuse (Rec(2006)13). It to information which is of relevance to ecutors General in Europe. The partici- stresses the fundamental importance of their case and which is necessary for the pants mainly discussed the duties of the the presumption of innocence and the protection of their interests and the exer- public prosecutor in the criminal justice right to the liberty of the person and thus cise of their rights and that states should field towards victims and witnesses and, requests that strict limits on the use of ensure that victims have effective access in particular, towards juveniles, as well remand in custody be set and the use of to all civil remedies. Another section is as the duties of the public prosecutor to- alternative measures, such as undertak- dedicated to state compensation and the wards persons deprived of their liberty. ings to appear before a judicial author- question of which compensation should  eucrim ID=0603179 ity as/when required, be encouraged be provided by the state. wherever possible. The Committee of  eucrim ID=0603176 Ministers also points out that the remand Ministers of Justice of the CoE Mem- Justice Organisation in custody of persons suspected of an of- ber States addressed the importance of fence should be the exception rather than implementing modern measures on vic- Report on European Judicial Systems the norm and specifies in detail the con- tims’ assistance at a conference in Yer- On 5 October 2006, the Council of Eu- ditions which have to be fulfilled before evan, Armenia, in October 2006. They rope’s Commission for the Efficiency of a person may be remanded in custody. identified new ways to promote and Justice (CEPEJ) brought out its report It further recommends that the responsi- develop support and assistance to crime on the evaluation of European judicial

eucrim 3–4 / 2006 | 85 NEWS systems. It gives a comparative descrip- man beings, and cybercrime. They also tion of the Second Additional Protocol tion of public spending on the judicial recommended the creation of a database to the European Convention on Mutual system, the relationship between judicial making it easier to access information Legal Assistance in Criminal Matters” systems and their users, and the organi- on the forms that cooperation takes be- took place in Kyiv, Ukraine, to support sation of courts and judicial staff. The re- tween Member States. Member States’ efforts to ratify and im- port contains detailed information about  eucrim ID=0603182 plement the above-mentioned protocol. the budgets affected to the legal systems, From 12 to 13 October 2006, a “Confer- the allocation of legal aid, the number of South-Eastern Europe: Regional High- ence on Mutual Legal Assistance and Ex- courts in the Member States, the judicial Level Meeting tradition” took place in Sudak, Ukraine. staff, the number of lawyers, the users of A regional meeting of heads of police and Both events were organised within the the courts, the information technology senior officials from south-eastern Eu- UPIC project, which was already pre- equipment of the courts, the treatment rope took place on 21 September 2006 in sented in eucrim 1-2/2006 (p. 22). The of criminal and civil cases, the length Sarajevo. It was organised by the Council new working plan and calendar of ac- of proceedings, and the enforcement of of Europe within the framework of the tivities for 2007 is now also available on court decisions. The report, which was CARDS Regional Police Project (CAR- the UPIC homepage. adopted by the CEPEJ in July 2006, PO) and, at the same time, the final con-  eucrim ID=0603185 presents data from the year 2004. ference of the CARPO project which was  eucrim ID=0603180 due to finish on 30 September 2006. The meeting reviewed the progress made in Legislation Call for Projects implementing the Brijuni Strategy which An in-depth analysis of the report’s find- was adopted by the Ministers of the Interi- Ratifications (Selection) ings will be carried out in the months or and Security of south-eastern Europe on On 6 February Albania ratified the ahead. By making its unique database 23 September 2005 in Croatia. For more Money Laundering Convention (ETS available for use to researchers wishing information on this strategy against organ- No. 198). In January 2007 Moldova to benefit from its official scientific -sup ised and economic crime and the CARPO ratified the European Convention on port, the CEPEJ invites the European sci- project on the whole, please refer to eucrim the Transfer of Proceedings in Crimi- entific community to work on six specific 1-2/2006, p. 22. nal Matters (ETS No. 73); Luxem- studies. The CEPEJ will also study other  eucrim ID=0603183 bourg and Portugal ratified the Ad- proposals of projects aiming at analysing ditional Protocol to the Convention the results presented in its report. South-Eastern Europe: Situation Report for the Protection of Individuals with  eucrim ID=0603181 on Organised and Economic Crime regard to Automatic Processing of On the occasion of the above-mentioned Personal Data, regarding supervisory conference, a detailed “Situation Report authorities and transborder data flows Cooperation on Organised and Economic Crime in (ETS No. 181). In addition, Portugal South-Eastern Europe”, which is an up- ratified the Second Additional Protocol Ministers’ Conference: Improving Euro- date of a 2005 situation report, was also to the European Convention on Mutual pean Cooperation in the Criminal Jus- published. It aims at pointing out new Assistance in Criminal Matters (ETS tice Field developments, threats, analytical gaps, No. 182). In the second half of 2006, On 9 and 10 November 2006, a high- and other organised crime-related issues the Netherlands (16 November 2006) level conference of the Ministries of of concern in south-eastern Europe to and Armenia (12 October 2006) ratified Justice and the Interior on the topic of help policy-makers in Europe and the the Convention on Cybercrime (ETS “Improving European Cooperation in region make better informed anti-crime No. 185). The Ukraine (21 December the Criminal Justice Field” took place decisions, address measures still out- 2006), Armenia (12 October 2006), in Moscow, Russia. The participants standing, and enhance public awareness and Lithuania (12 October 2006) also stressed that they supported the sim- and public participation in strategies ratified the Additional Protocol to the plification of the workings of the main against organised and economic crime. Convention on Cybercrime (ETS No. European Conventions regulating inter- Therefore, the report reflects the current 189). Russia (4 October 2006) ratified national cooperation in criminal mat- situation in all project areas. the Criminal Law Convention on Cor- ters and the development of a network  eucrim ID=0603184 ruption (ETS No. 173). Cyprus (21 No- of national contact points to facilitate vember 2006) and Latvia (27 July relations between those responsible for Ukraine: International Cooperation in 2006) ratified the Additional Protocol international cooperation relating to the Criminal Matters to the Criminal Law Convention on fight against terrorism, corruption, and From 7 to 8 December 2006, an “Inter- Corruption (ETS No. 191). organised crime, the trafficking of hu- national Conference on the Implementa-  eucrim ID=0603186

86 | eucrim 3–4 / 2006 Harmonization of the Criminal Law Enforcement of Community Policy

The European Community and Harmonization of the Criminal Law Enforcement of Community Policy

Professor John A.E. Vervaele

I. Introduction harmonize administrative (punitive) sanctions. Some 14 years after the ruling, it can be said that the EC has not made con- In the spring of 2006, the alarm was sounded in several siderable use of this power. Quite the contrary is, in fact, the Member States concerning the (further) European erosion of case: it is remarkable that, in many areas of Community law, national criminal law. The direct cause was the judgment of no initiatives have been taken whatsoever in this direction. the Grand Chamber of the European Court of Justice in Case C-176/031 concerning the harmonization of criminal law pen- The EC’s competence to harmonize national criminal law is alties in environmental cases, in which the European Com- obviously a more complex and sensitive issue. From the case munity (EC) was, for the first time, considered functionally law of the ECJ it is abundantly clear that criminal (procedural) competent to harmonize the criminal law enforcement of Com- law belongs within the sphere of competence of the Member munity policy.2 The Europeanization of criminal law has been States,7 but that Community law may impose requirements developing steadily since the entry into force of the Maastricht as to the fulfilment and interpretation of this competence Treaty. Where does this fear of harmonization of criminal law within the framework of the enforcement of Community law. through the first pillar originate? Does it matter that much Criminal law must not only be left aside when the rules to whether national criminal law is harmonized through Direc- be enforced prove to be contrary to Community law (negative tives or Framework Decisions? Is that not no more than just a integration). Community law also unmistakably establishes Bruxellian institutional issue? The central question addressed requirements which national criminal law enforcement must in this contribution is: what legal and political consequences fulfil if it is applied with the aim of compliance with Commu- may be expected from the Court’s judgment?3 nity law (positive integration) This duty to enforce in accord- ance with certain requirements also applies to criminal law if the Member States decide that this is the tool which they will II. European Integration and Criminal Law – use to enforce Community law.8 A History of Developments4 A foolproof separation of the criminal law policy of the Mem- It is no secret that the EC’s founding fathers indeed overlooked ber States and that of the EC has never existed. Both de iure the importance of the enforcement of Community law. The EC and de facto, a process of indirect EC harmonization of nation- Treaty does not provide for clear legal basis or assign powers al criminal law, mainly of special criminal law, has been taking of either direct enforcement by the EC (with the exception of place for decades now. The Community legal order and inte- the enforcement of European competition rules), or indirect gration also include the criminal (procedural) law of the Mem- enforcement of Community law by the Member States. It is ber States, as a result of which the Member States’ autonomy is mainly thanks to the Court that this autonomy has been some- restricted. A model of European integration is not compatible what conditioned. Because of this, Member States are bound with the restriction of criminal law to national confines, where by the Court’s interpretation of the requirements of Arti- it would remain out of reach of any Community law influence cle 10 EC (Community loyalty). The Court has established whatsoever. The key question is, however, whether the EC’s that the Member States have a duty to enforce Community competence to harmonize extends far enough to enable the EC law, whereby they must provide for procedures and penalties to directly oblige the Member States to criminalize violations that are effective, proportionate, and dissuasive and that offer a of Community rules. Is it within the EC’s competence to im- degree of protection which is analogous to that offered by the pose requirements as to the nature and severity of the penalty? enforcement of provisions of national law having a similar Does this possible competence also extend to the scope of ap- nature and importance (assimilation principle). It is not only plication ratione materiae, ratione personae and rationi loci, the task of legislation to fulfill these requirements; they must to procedural aspects, to the modalities of application (statute also be put into practice in the course of enforcement.5 In 1992 of limitation, dismissal or dropping of charges, etc.)? the Court in its judgment in Case C-240/906 recognized that the EC was functionally competent to harmonize measures, in- For decades now, the Commission and the European Parlia- cluding those in the field of punitive sanctions which, without ment have been attempting to convince the Council to impose a doubt, fall within the scope of application of the criminal law a Community obligation on the Member States to enforce guarantees of Article 6 ECHR. This landmark judgment finally EC policy. The Council usually approved the proposals, but resolved the controversy surrounding the EC’s competence to only after amending them in such a way that the obligations

eucrim 3–4 / 2006 | 87 EC Competences in Criminal Matters were stripped of their criminal law packaging. Any and all ment and, regarding the latter issue, to improve the relation- references to the criminal law nature of the obligations were ship between administrative and criminal law enforcement. systematically deleted. Criminal law prohibitory or mandatory The approach has been predominantly ad hoc and eclectic, provisions were changed into mere prohibitory or mandatory both in the Council and in the Commission. The lack of any provisions. Obligations to impose criminal law sanctions were well-considered criminal law policy is also reflected in current replaced, simply, by sanctions. initiatives to harmonize criminal law. Why, for instance, does the Commission press for the criminal law harmonization of During the intergovernmental conference in preparation for environmental law and criminal law protection of the financial the Maastricht Treaty, The Netherlands’ attempts to integrate interests of the EC,11 but fail to do the same in the field of aspects of criminal justice into EC law, including the power competition, or fisheries, or the financing of terrorism? Why of direct harmonization, were doomed to failure. The Luxem- do the Member States urge for the criminal law harmonization bourg compromise, now known as the three pillar structure, of terrorism, xenophobia, the protection of victims of crime, has organized criminal law cooperation and harmonization but not the criminal law harmonization of serious violations into a separate semi-intergovernmental pillar which entered of food safety rules, intellectual property infringements, or the into force as part of the Maastricht Treaty in 1993. With the financial management of businesses? entry into force of the Treaty of Amsterdam in 1999, the third pillar shed its semi-intergovernmental character and thereby Secondly, it is important to form a clearer picture of the institu- became a full-fledged EU policy area. tional legislative skirmishes between the EC and the EU con- cerning criminal law harmonization. Altogether, three types of legislative conflicts can be distinguished in the period between III. Criminal Law Cooperation and Criminal Law 1993 and 2005. Harmonization in the EU – A Political Statement The first type may be described as ‘warding off’. The Com- Structuring the third pillar to include the direct legislative mission submits proposals for criminal law harmonization of competence of the EU in the field of cooperation in criminal Community law which the Council subsequently rejects. At matters and criminal law harmonization9 has not caused the best, the proposal is neutralized and stripped of its criminal controversy to subside, quite the contrary in fact. After all, law packaging. Here, the Council is applying an old legisla- the third pillar is a supplementary power that cannot under- tive tactic that was also used in the period before the entry into mine or interfere with the array of EC powers. Both Article 2 force of the Treaty on European Union. and Article 47, in conjunction with Article 29 EU, are clear on this. Whether or not this power exists also does not de- The second type may be described as ‘hijacking’, whereby the pend on whether, prior to the EU Treaty’s entry into force, any content of a proposal for a regulation or directive is copied regulation or directive was ever created which imposes a duty into a proposal for a framework decision or vice versa. The to harmonize criminal law. Disuse of a power does not lead to Commission and the Member States take turns to hijack the its demise, nor does the entry into force of the EU Treaty. It is content of each other’s proposals and subsequently package not political will which determines legal competence, at least them in a different legal instrument. The clash concerning the not without amendment of the Treaty. Nevertheless the third harmonization of environmental criminal law is a point in case criminal law pillar has been defined by many as exclusive, i.e., (framework decision versus directive).12 excluding any criminal law competence within the first pillar. The third type may be termed “cohabitation forcée”, whereby It is my belief that it was clear from the outset that the politi- two proposals are elaborated alongside each other and in har- cal-legal division between the first and the third pillar would mony with each other. The substantive provisions and, as the culminate in an institutional battle of competence concern- case may be, provisions concerning administrative harmoniza- ing the position of criminal law within the EU. In the case of tion are included in a proposal for a directive or a regulation, many of the legislative initiatives in the period between 1993 while the criminal law harmonization aspects are incorporated and 2005, the Commission came to diametrically oppose the into a framework decision. A good example, of what is known Council. Two factors are relevant for the present analysis. as the double text approach, concerns environmental pollu- tion from ships, where both proposals13 were developed by the First of all, neither the Commission nor the Member States Commission.14 submitted legislative proposals based on a well thought-out enforcement and criminal law policy. In this sense, the Tam- The political stalemate could only be broken by a ruling on pere programme10 provided insufficient direction. Even in the principle from the Court. It had already been evident to policy areas of far-reaching integration, such as the internal the Commission for some time that the Council would con- market, the customs union, or the monetary union, there is no tinue to claim the third pillar’s exclusive rights to criminal law final enforcement element. In none of the institutions hasa harmonization, even contrary to the opinion of its own Legal policy plan unfolded to present an integrated vision to address Service.15 The judgment in case C-176/03 is a second land- the need for harmonization, to attune prevention and punish- mark ruling concerning the enforcement of Community law as

88 | eucrim 3–4 / 2006 Harmonization of the Criminal Law Enforcement of Community Policy the Court in this ruling recognized the functional competence possible, i.e., transcending specific policy areas. Here, we of the EC to harmonize the enforcement of Community law might think of horizontal criminal law measures in the agricul- by means of criminal law. No less than eleven Member States tural sector and the structural funds in connection with fighting intervened in the proceedings. Ten Member States16 support- EC fraud, or terrorism, or organized crime. The Commission ed the position of the Council. The Netherlands was the only also believes that the judgment puts an end to the double-text Member State to argue in favour of a variegated criminal har- approach. From now on, all this can be laid down in one single monization competence under EC law. directive or regulation.

In the second part of the communication, the Commission dis- IV. A Closer Inspection of the ECJ Judgment and Future cusses the consequences of the judgment more specifically. Criminal Law Harmonization Policy First of all, the Commission indicates that criminal law pro- visions concerning police and judicial cooperation, including 1. The Commission’s View on the Harmonization of Criminal measures on the mutual recognition of judicial decisions and Law Enforcement after Case C-176/03 measures based on the principle of availability, fall within the area of competence of the third pillar. This is also true for the Commissioner Frattini, responsible for the European Area harmonization per se of the general part of criminal law or of Freedom, Security and Justice, is aware that the judgment criminal procedural law within the framework of cooperation obliges the Commission – as the driving force behind legis- and mutual recognition. The criminal law harmonization of lative policy in the EC – to present a consistent, horizontal policy areas that are not part of the EC Treaty, but are never- vision for all policy areas. After consultations between the theless necessary for the objectives of the Area for Freedom, various Directorate-Generals, the Commission in November Security and Justice, must also take place within the third pillar. 2005 submitted a specific communication17 to the European An interesting point is that, in this second part, the Commis- Parliament and the Council concerning the implications of the sion further defines the conditions for criminal law harmoniza- Court’s judgment in case C-176/03. tion through the Community under the heading “Consistency of the Union’s criminal law policy”. The Commission clearly The Commission starts off by analyzing the content and scope indicates that criminal law harmonization in the EC is only of the Court’s decision. Article 47 EU provides that EC law has possible if there is a clear need to make the policy in question priority over Title VI EU, i.e., the first pillar prevails over the effective. Furthermore, the requirements of the principles of third. The Court further holds that Article 175 EC constitutes subsidiarity and proportionality must be met. This means that a proper legal basis for the matters regulated in Articles 1–7 of there is a strict obligation to motivate the necessity. The har- the Framework Decision. The Commission subtly points out monization may concern the definition of offences, criminal that Articles 1–7 are criminal law provisions dealing with the penalties, and also what is termed “other criminal-law meas- definition of offences, the principle of the obligation- toim ures appropriate to the area concerned”. pose penalties, the level of penalties, accompanying penalties, and the rules on participation and instigation. The Court goes In the third part of the communication, the Commission dis- further than the Advocate General in his Opinion by not only cusses the consequences of the Court’s judgment for cur- accepting that the EC may oblige the Member States to enforce rent legislative practice. Here, the Commission distinguishes by means of criminal law, but may also lay down in detail what between secondary legislation, that has already been approved the arrangements should be. The Commission then turns to the in the Council, and pending files. The Commission consid- scope of the Court’s judgment. The Commission emphasizes ers it necessary to correct legislation in which it has become that the judgment does not mean that the Court has hereby rec- apparent, after this judgment, that it was adopted or proposed ognized criminal law enforcement as an area of Community on the wrong legal basis. For the pending files, it is clear that policy. Criminal law enforcement is merely the tailpiece of a the ordinary legislative procedure applies, allowing the Com- substantive policy area. However, the Commission does find mission to amend its proposals where necessary. Finally, the that the Court’s judgment may potentially impact all policy Commission annexes a list of adopted secondary legislation areas of negative integration (the four freedoms) and posi- and pending proposals which need to be amended in its opin- tive integration, which might require criminal law to ensure ion. The adopted secondary legislation concerns the criminal effective enforcement. This test of necessity must be defined enforcement of the environment;18 of the Euro19 and non-cash functionally, on an area-by-area basis. The necessity test means of payment;20 money laundering, freezing, seizing and also determines the nature of the criminal law measures to confiscation;21 unauthorized entry, transit and residence;22 cor- be taken. The Court does not impose any restrictions there. ruption in the private sector;23 attacks against information sys- Here, too, the approach is functional. The Commission does tems,24 and serious ship-source pollution.25 not elaborate further, but we may conclude from this that the Commission obviously wishes to leave the door open for the In this analysis, the Commission has not yet put all its cards on harmonization of aspects of the general part of criminal law the table. Notably, no insight is provided into possible propos- or criminal procedural law where necessary. The Commission als for the harmonization of policy. One could imagine, for further indicates its preference for horizontal measures where example, a common agricultural or fisheries policy or finan-

eucrim 3–4 / 2006 | 89 EC Competences in Criminal Matters cial services. Moreover, a number of failed proposals, such as decisions have, by now, been implemented in national law. It that on feed and food controls, are not mentioned. With this also emerged that the Council is not prepared to conclude a communication, the Commission has taken a clear stance and transfer agreement in favour of the first pillar. The Commis- provided an outline for the future. It has also opted to adopt sion indicated on the spot that it was prepared to run through a selective approach, which it also consistently follows in its the legislative process on a case-by-case basis. The Ministers legislative agenda.26 However, whether the green light has determined their position during the formal JHA Council of been given to an avalanche of proposals for Community crimi- February 2006.33 It is clear to them that the harmonization nal law remains to be seen. Both the Member States and the of criminal (procedural) law is in principle not a Community Council are still working out their strategies. competence. Exceptions must be interpreted restrictively. Such exceptions should, moreover, be no more than the tailpiece of 2. The Judgment in Case C-176/03: Reception in the Member detailed Community policy. States and in the JHA Council The Ministers were also of the opinion that, in the harmoni- Despite the unanimous opinions of the various legal services zation of criminal law sanctions, the Community must leave in the EU organs, including that of the Council itself, the Court room for the Member States to define the requirements of judgment has been greeted with amazement and disbelief by effectiveness and proportionality and thus should not regulate many governments. It is hardly surprising that the Court deci- everything in detail and exclusively. Procedurally, it was de- sion was not be embraced by the Member States, given their cided that, in the case of Community proposals with a (partial) numerous interventions in the proceedings in favour of the criminal law content, the Commission should expressly indi- Council. However, the governments have mainly focused their cate this to the COREPER. In this way, consultations could be criticism on the Communication of the Commission and intro- held between the JHA Council and the Community Councils duced this in the JHA Council. In Denmark, the Minister of in the areas concerned and the JHA Ministers could ensure the Justice wasted no time in informing Parliament of the judg- consistency of the Union’s criminal law system.34 The position ment and submitting a reservation.27 The Minister maintained of the JHA Council is clearly more moderate than the views of the view that no legal basis could be found in the EC Treaty, but some of the national Ministers of Justice. The competence to expressed awareness that the Court judgment is not limited to harmonize, including the harmonization of criminal sanctions environmental law. In France, the initiative came from Parlia- and, possibly, aspects of criminal procedural law, is recognized. ment itself. On 25 January 2006, the European Affairs Commis- Reference is also made to a procedure of consultations between sion of the French Assemblée Nationale informed the Speaker the Councils, in the various policy areas, and the JHA Council, of the Assemblée.28 The commission is of the opinion that the rather than a power for the JHA Council, to co-decide.35 Court acted beyond its competence and demonstrated a certain fédéralisme judiciaire. The commission also states that it is high time to end the gouvernement des juges and restore power to V. Conclusion the entities where it belongs, namely the governments of the Member States. The commission therefore proposes applying The judgment of the Court in case C-176/03 has formally done the bridging provision of Article 42 EU and thereby also install away with the legal basis for implementation in national law. an emergency brake procedure into the European Council.29 It seems highly unlikely that the Member States will shortly have to launch a major legislative operation within the frame- In the Netherlands, the Interdepartemental Commission on Eu- work of a voluntary transfer from the third to the first pillar. ropean Law (ICER) has examined the judgment. The ICER30 This does not mean that the Court’s judgment will not have considers its 2002 opinion31 in favor of functional EC compe- far-reaching consequences for the Europeanization of crimi- tence in criminal matters to be in no need of substantial amend- nal law and, therefore, also for the criminal law dimension of ment. The ICER stresses that the judgment impacts all policy European integration. The fact that the obligation for the Mem- areas referred to in Articles 2 and/or 3 EC, i.e., not the areas of ber State to achieve criminal law harmonization is not imposed employment, social policy, culture and public health, or sensi- through a directive or a regulation is not a neutral conclusion. tive issues such as drugs, euthanasia, abortion, and prostitu- Framework decisions require unanimity. Directives and regu- tion. The ICER also finds that the answer to the question of the lations are usually adopted by means of co-decision and quali- competence to harmonize criminal sanctions has been made fied majority. This means that the European Parliament is com- insufficiently clear. It remains unclear whether the Community petent to co-decide, resulting in greater democratic legitimacy. is competent to prescribe specific criminal sanctions and their Furthermore, as opposed to framework decisions, regulations level. The ICER’s opinion was taken over in its entirety in the and unconditional and clear provisions of directives have a Cabinet position of April 200632 as presented to Parliament. direct effect. In the first pillar, the Commission also has many more trumps up its sleeve in order to oblige the Member States In January 2006 in Vienna, the JHA Council, during informal to comply with criminal law harmonization. The Commission consultations, examined the Commission’s communication for may start infringement proceedings against a Member State. the first time. The Council is of the opinion that there is no ur- The Member State may be held financially responsible for non- gency to enact rectifying legislation. Many adopted framework compliance with enforcement duties and the Member State can

90 | eucrim 3–4 / 2006 Harmonization of the Criminal Law Enforcement of Community Policy even be fined for failing to comply with Court rulings. The Com- cision on combating ship-source pollution which concern the munity approach therefore has many advantages, both in terms of type and level of criminal sanctions also fall within the Com- legitimacy and in terms of efficiency. munity’s competence. Is the reproach that the Court has exceeded its competence jus- The discussion concerning the legal interpretation of the judg- tified? Is this really an example of a gouvernement des juges? ment is one thing; converting this legal competence into politi- Where have we heard this before? The Member States were cal reality in the Council is another. The Commission has to be also united in their outrage when, in 1963 and 1964, the Court, careful and spell out very well its criminal policy. Communi- in Van Gend en Loos and Costa Enel, established the priority tarization of criminal law thus does thus not mean the end of and direct effect of Community law as constitutional princi- administrative enforcement law. The European Commission ples. Since then, however, these principles have been consid- also attaches great importance to administrative enforcement. ered the basic pillars upon which European integration rests Moreover, the duty of criminal law enforcement based on a and it is furthermore generally accepted that European integra- regulation or a directive does not automatically mean that all tion would have failed without the autonomy of the Court. cases must also be criminally investigated and prosecuted. The Member States are and remain competent to determine – after The Court has also taken painstaking care in this recent judg- thorough consideration – which enforcement system (private ment. It has opted to sit in full chamber and taken its time law, administrative law, or criminal law) is best used in a given with the case. In my view, the judgment is consistent with the case. The national legislator can thus continue to use models, Court’s approach in the past. The Court has never subscribed whereby certain actions can be curtailed both administratively to the exclusive powers of the Member States or the third pil- and under criminal law (mix of instruments). Even in the case lar in the field of criminal law. The Court does indeed apply an of a duty to enforce through criminal law, the Member States extensive interpretation of the EU Treaty, but has been doing still retain the power to decide whether to prosecute or not. so for decades and by taking the functional approach, namely However, this choice must be based on thorough considerations, realizing the objectives of European integration. This approach including those involving the European interests at stake. is not only visible in this judgment, but also, for example, in the field of the financing of terrorism.36 However, I agree with More than ever, the Member States are also required to those who are critical of the judgment that the Court would think about a European criminal policy, both as concerns the have done well to provide more extensive reasoning for its enforcement of Community policy and the further definition of decision, which would have prevented a number of present the area of freedom, security, and justice. Discussion will have doubts from arising. to take place within the Member States concerning the common interest in effective enforcement of Community policy and the First of all, the Court does not expressly discuss the material internal market, the realization of the common area, and, in turn, scope of the judgment. Of course, the Commission will have to the common rule of law guarantees. Criminal law undeniably provide grounds to demonstrate that the objective in question reflects a part of national legal culture and is therefore a symbol is essential to European integration and that the harmoniza- of state sovereignty. In the development of a European integra- tion of criminal law is effective and necessary, for instance tion model based on shared sovereignty, it is only logical that by guaranteeing food safety, tackling EC fraud, or protecting the Member States cooperate in the creation of a common legal the Euro. A second problem in connection with the material culture, including the area of criminal law. The Member States scope concerns the way in which Articles 135 and 280 EC are and the European Union need a commonly supported criminal worded as regards the exclusion of the application of national law policy. The Hague programme is too heavily focused on the criminal law and the national administration of justice from area of freedom, security, and justice. This programme must be the power to take measures. The Court limits itself to observ- recalibrated as a result of the Court’s judgment regarding the ing that these provisions do not stand in the way of criminal insertion of the enforcement of Community law. The Court’s law harmonization in environmental matters. However, this judgment also offers a perfect opportunity to re-examine the has not clarified what the scope of these provisions actually is section on criminal law harmonization in the Constitutional for possible criminal law harmonization. Treaty. Article III-271, for example, offers the perfect basis for an integrated enforcement policy in the EU.38 It is interesting that the Dutch Council of State in its opinion37 considers criminal law harmonization to be inherent in Arti- The Court’s judgment transcends the institutional debate and cle 280 and that the restrictions mentioned do not stand in the forces us to take up the discussion of the position of criminal way of Community obligations to criminalize and harmonize law within European integration. Instead of exclusively fo- definitions of the offence. The principles on which the national cusing on the national protection of criminal law values, it is criminal justice systems are based, such as the choice whether high time to focus on a European agenda of criminal law val- to prosecute, discretion in sentencing, etc., are excluded. It ues. Only in this way can we give substance to mutual trust is also to be hoped that the judgment of the Court in case between the Member Sates and the enforcement bodies and instil C-440/05 will shed more light on the harmonization of crimi- faith in the citizen as regards criminal justice in Europe. The ob- nal sanctions. In this case, the Commission, after all, expressly ject of the debate is no longer whether we want European crimi- states that the provisions from the challenged framework de- nal law, but what we want it for and under which conditions.

eucrim 3–4 / 2006 | 91 EC Competences in Criminal Matters

13 Directive 2005/35/EC of the European Parliament and of the Council of Prof. John A.E. Vervaele 7 September 2005 on ship-source pollution and on the introduction of penalties Professor of Economic and Financial Criminal Law, Utrecht School for infringements, OJ L 255/11, 2005 and Council Framework Decision 2005/667 of Law; Professor of European Criminal Law, College of Europe, of 12 July 2005 to strengthen the criminal law framework for the enforcement Bruges, Belgium. of the law against ship-source pollution, OJ L 255/164, 2005. http://www.uu.nl/uupublish/homerechtsgeleer/defaculteit/discipline- 14 groepe/strafrechtwillem/medewerkers/johnvervaele/39964main.html Often this involves inter-institutional cooperation between a directorate-general responsible for the specific subject and the directorate-general for the third pillar. http://www.coleurop.be/w/John.Vervaele 15 In a number of opinions, amongst other things concerning the criminal enforce- ment of environmental law, the Council’s Legal Service has made clear that EC law provides a legal basis for a limited harmonization of criminal law, restricted to 1 Case C-176/03, Commission v. Council, judgment of 13 September 2005. the obligation to criminalize infringements of mandatory and prohibitory provisions 2 Point 48 of the judgment reads as follows: ‘As a general rule, neither criminal law and to provide for criminal sanctions. The modalities of the criminal sanctions and nor the rules of criminal procedure fall within the Community’s competence (…) other aspects should, according to the Legal Service, be regulated in third-pillar However, the last-mentioned finding does not prevent the Community legislature, framework decisions. With respect to the proposal for a framework decision on the when the application of effective, proportionate and dissuasive criminal penalties retention of the traffic data of service providers, the Legal Service of the Council by the competent national authorities is an essential measure for combating serious was of the opinion that these matters could only be regulated by an EC instrument. environmental offences, from taking measures which relate to the criminal law of The opinions are confidential. the Member States which it considers necessary in order to ensure that the rules 16 Denmark, Germany, Geece, Spain, France, Ireland, Portugal, Finland, Sweden which it lays down on environmental protection are fully effective’. and the United Kingdom. 3 For a thorough analysis of the judgment itself, see S. White, ‘Harmonisation of 17 COM(2005) 583 final. criminal law under the First Pillar’, European Law Review, 31 (2006), pp. 81–92, 18 Framework Decision 2003/80 of 27 January 2003 on the protection of the and P.-Y. Monjal, ‘Reconnaissance d’une compétence pénale communautaire pour environment through criminal law (OJ L 29, 2003) which was annulled by the Court la CJCE’, Recueil Dalloz 2005, no. 44, 3064–3067. of Justice and the Proposal for a Directive of the European Parliament and of the 4 For a more detailed analysis, see J.A.E. Vervaele, The Europeanisation of Crimi- Council on the Protection of the Environment through Criminal Law, COM(2001), nal Law and the Criminal Law Dimension of European Integration, in: P. Demaret, 139 of 13 March 2001, OJ C 180, 2001, as amended by COM(2002) 544, OJ C 020 I. Govaere & D. Hanf (eds.), 30 Years of European Legal Studies at the College of E, 2003. Europe, Liber Professorum, P.I.E.-Peter Lang, Brussels, 2005, pp. 277–298 and 19 Framework Decision on increasing protection by criminal penalties and other N. Haekkerup, Controls & Sanctions in the EU Law, Djoef Publishing, Copenhagen, sanctions against counterfeiting in connection with the introduction of the Euro, 2001. OJ L 140/1, 2000 as amended by Framework Decision OJ L 329/3, 2001. 5 See Case 66/88, Commission v. Greece, [1989] ECR 2965 and the Communica- 20 Framework Decision combating fraud and counterfeiting of non-cash means tion from the Commission as a result of this case, OJ C 147/3, 1990. of payment, OJ L 149/1, 2001. 6 Case C-240/90, Germany v. Council and Commission, [1992] ECR I-5383. For 21 Directive 91/308 on prevention of the use of the financial system for the purpose a detailed analysis of the EC harmonization of administrative enforcement, see of money laundering, OJ L 166, 1991, meanwhile replaced by Regulation 2005/60 J.A.E.Vervaele, Administrative Sanctioning Powers of and in the Community. and the Framework Decision on money laundering, the identification, tracing, freez- Towards a System of European Administrative Sanctions?, in: J.A.E. Vervaele ing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L (eds.), Administrative Law Application and Enforcement of Community Law in the 182/1, 2001. Netherlands, Kluwer, Deventer-Boston, 1994, pp. 161–202, http://igitur-archive. 22 Directive 2002/90 defining the facilitation of unauthorized entry, transit and library.uu.nl/law/2005-0622-155517/4371.pdf; J. Schwarze, ‘Rechtsstaatliche Gren- residence, OJ L 328, 2002 and Framework Decision 2002/946 on the strengthening zen der gesetzlichen und richterlichen Qualifikation von Verwaltungssanktionen im of the penal framework to prevent the facilitation of unauthorized entry, transit and europäischen Gemeinschaftsrecht’, EuZW 2003, 261–269 and M. Poelemans, La residence, OJ L 328/17, 2002. sanction dans l’ordre juridique communautaire, Bruylant, Bruxelles, 2004. 23 Framework Decision 2003/568 on combating corruption in the private sector, 7 Case 203/80, Casati, [1981] ECR 2595. OJ L 192/54, 2003. 8 Case 68/88, Commission v. Greece, [1989] ECR 2965 and Case C-226/97, Lem- 24 Framework Decision 2005/222 on attacks against information systems, OJ L mens, [1999] ECR 195. 69/67, 2005. 9 See Special Issue of Delikt en Delinkwent, 2002, September, Special Issue Pano- 25 Directive 2005/35 on ship-source pollution and on the introduction of penalties pticon, 2004, no. 1; G. Corstens/J. Pradel, European Criminal Law, Dalloz, 2002 for infringements, OJ L 255, 2005 and Framework Decision 2005/667 to strengthen and B. Hecker, Europäisches Strafrecht, Berlin 2005; M.S. Groenhuijsen, ‘Criminal the criminal-law framework for the enforcement of the law against ship-source Law in the European Union: a Giant Leap or a Small Step?’ in: A. Moore (ed.), Police pollution, OJ L 255/11. and Judicial Co-operation in the European Union, Cambridge, 2004, pp. 221–243. 26 See the Commission’s legislative schedule for 2006 for JHA matters, 10 Most recently updated by COM(2004) 401. http://www.statewatch.org/news/index.html. 11 COM(2001) 272final, OJ C 240 E, 2001. 27 Memorandum of 13 October 2005, http://www.euo.dk/upload/application/pdf/ 12 Framework Decision 2003/80 of 27 January 2003 on the protection of the a16a3e79/2005_sv21.pdf environment through criminal law (OJ L 29, 2003) which was annulled by the Court 28 http://europapoort.eerstekamer.nl/9345000/1/j9vvgy6i0ydh7th/vgbwr4k8ocw2/ of Justice and the Proposal for a Directive of the European Parliament and of the f=/vh7rdrlf7yxv.pdf Council on the Protection of the Environment through Criminal Law, COM(2001), 29 This is the emergency brake procedure provided for in the European Constitu­ 139 of 13 March 2001, OJ C 180, 2001, as amended by COM(2002) 544, OJ C 020 tional Treaty in case of criminal law harmonization which poses a threat to essential E, 2003. interests of a Member State.

92 | eucrim 3–4 / 2006 Options for the Development of a Community Criminal Law

30 Report on criminal law and the first pillar II, 2006, end of March 2006, Court construes a legal basis in the EC Treaty for the lists of sanctions against http://europapoort.eerstekamer.nl/9345000/1f/j9vvgy6i0ydh7th/vh61mh1tt9ua. organizations and persons who are suspected of being involved in the financing 31 See section 4 of this contribution. of terrorism, by combining provisions from the EC Treaty with Article 2 EU, the 32 DIE-402/06, http://europapoort.eerstekamer.nl/9345000/1f/j9vvgy6i0ydh7th/ objective of realizing a common foreign and security policy. vh61mh1tt9ua. 37 Opinion of the Council of State, 31 August 2001, reference no. W03.01.0420/I/A, 33 See document 6466/06 of the Presidency, Procedural consequences of the annex to TK II 2001-2002, 22 112, no. 207. The Cabinet increasingly ánd rightly judgment of the Court of Justice in case C-176/03, 16 February 2006. asks the Council of State for its opinion on European legislative proposals. 34 Point 3.3.2 of the Hague Programme of 24 November 2005. 38 J. Vogel, ‘The European integrated criminal justice system and its constitutional 35 Several Ministers had defended this view. framework’, Maastricht Journal of European and Comparative Law, 2005, 125–147. 36 In case T-306/01, Ahmed Ali Yusuf Al Bakaraat – T-315/01, Abdullah Kadi, the

Case C-176/03 and Options for the Development of a Community Criminal Law

Dr. Simone White1

In case C-176/032, the Court tackles the issue of the adoption 1. The Commission’s and the European Parliament’s of criminal law through the first pillar, which should be of par- Challenge to the Council ticular interest to eucrim readers. In this dispute, the Commission was supported by the Euro- The European Commission challenged the Council’s choice of pean Parliament, whilst the Council was supported by eleven Article 34 EU, in conjunction with Articles 29 and 31(e) EU, of the fifteen Member States, in an inter-institutional clash of as the legal basis for Articles 1–7 of Council Framework Deci- unprecedented character. There is no doubt that the case is of sion 2003/80/JHA of 27 January 2003 on the protection of the constitutional importance. environment through criminal law (the Framework Decision In November 2005, only two months after the judgment, the henceforth). European Commission issued a Communication on the im- plications of the Court’s judgment.3 Since then, the French The Commission argued that, under Article 175 EC, the legis- National Assembly has published an Information Report”.4 lature was competent to require the Member States to prescribe Meanwhile, the European Commission has made a fresh criminal penalties for infringements of Community environ- proposal in its Communication of 10 May 2006 on delivering mental protection legislation if this was a necessary means of results for Europe.5 ensuring that the legislation was effective.8 In support of its By May 2006 at the time of writing, European Voice had caught argument, it relied on the case law of the Court concerning the up with the development: “Don’t blame ECJ for filling Treaty duty of loyal cooperation and the principles of effectiveness void”.6 It pointed out that another case was pending before the and equivalence, but also on the fact that first pillar legislation Court, in which the Commission sought the annulment of a already requires the Member States to bring criminal proceed- 2004 Common Foreign and Security Policy (CFSP) Council ings or impose restrictions on the types of penalties that those Decision on the spread of small arms in Africa. More disputes states may impose.9 over pillar competencies were to be expected. It suggested that the Court, lacking the Constitutional Treaty, would redraw the Furthermore, the Commission argued that the Framework institutional boundaries. Decision should be annulled because it required the Member The following summarises and extends a case note published States to adopt penalties other than criminal penalties, even to earlier in 2006 in European Law Review on the harmonisation choose between criminal and other penalties, which fall within of criminal law under the first pillar.7 It covers the issues raised the Community’s competence. It also alleged abuse of process, by the judgment, the European Commission’s reaction to the since the Framework Decision had been adopted for reasons judgment, the possibilities of applying Article 42 EU, and the of expediency, a majority of Member States having failed to possible “spread” of pillar disputes. recognise that the Community had the necessary powers to require the Member States to prescribe criminal penalties for I. The Case environmental offences.10 The arguments of the two parties and the findings of the Court The European Parliament concurred with the Commission’s are summarised below. arguments.11

eucrim 3–4 / 2006 | 93 EC Competences in Criminal Matters

2. Main Arguments of the Council and Supporting Member the Community by the EC Treaty. In this case, the Court had States to ascertain whether Articles 1–7 of the Framework Decision affected the powers of the Community under Article 175 EC, The Council and the eleven Member States12 intervening given that the Commission maintained that Articles 1–7 of the in the proceedings argued that the Community did not have Framework Decision could have been adopted under Article power to require the Member States to impose criminal penal- 175 EC.18 ties in respect of the conduct covered by the Framework Deci- sion. Articles 135 and 280 EC, which expressly reserve to the The Court ruled that the protection of the environment con- Member States the application of national criminal law and the stituted one of the essential objectives of the Community, by administration of justice, confirm this interpretation.13 It was reference to Article 3(1)(l) EC, Article 6 EC and settled case supported by the observation that the Treaty on European Union law19 and that Articles 174–176 EC contained the framework devotes a specific title to judicial cooperation in criminal mat- within which Community environmental policy must be car- ters. The Commission’s position was described as contradictory ried out. because it amounted, on the one hand, to claiming that the au- thors of the EU Treaty and the EC Treaty intended to confer Furthermore, measures referred to in Article 175(2) EC im- – by implication – competence in criminal matters on the Com- plied the involvement of the Community institutions in such munity and, on the other, to disregarding the fact that the same diverse areas as fiscal policy, energy policy, or town and coun- authors expressly attributed such a competence to the EU.14 try planning policy, where the Community did not always have legislative powers.20 The Council also argued that the Court has never obliged the Member States to adopt criminal penalties.15 The principle of The Court found that the choice of a legal basis for a Commu- assimilation in Commission v Greece16 requires violations of nity measure must rest on objective factors amenable to judi- Community law to be punished in a manner analogous to com- cial review, in accordance with settled case law (in particular, parable violations of national law. This means that it is for the the aim and the content of the measure).21 The Framework Member States to apply whatever sanctions already exist in Decision clearly had the protection of the environment as its national law. The Court has not held, either expressly or by aim. This is due to the fact that the Council was concerned at implication, that the Community was competent to harmonise the rise of environmental offences and their effects, which had the criminal laws applicable in the Member States. been increasingly extending beyond the borders of the States in which the offences were committed, and found that a tough Furthermore, the Council argued that, as far as sanctions were response and concerted actions to protect the environment un- concerned, EU legislation tended to re-state ‘effective, propor- der criminal law were called for.22 tionate and dissuasive’ as found in Commission v Greece. Thus, the Council did not call into question the freedom of Member The Court recognised that, as a general rule, neither criminal States to choose between administrative and criminal law.17 law nor the rules of criminal procedure fell within the Com- munity’s competence. However, this did not prevent the Com- Whenever the Commission has proposed to the Council that a munity legislature, when the application of effective, propor- Community measure having implications for criminal matters tionate and dissuasive criminal penalties by the competent should be adopted, the Council has detached the criminal part national authorities was an essential measure23 for combating of that measure so that it may be dealt with in a Framework serious environmental offences, from taking measures relat- Decision. Thus, according to the Council, measures combating ing to the criminal law of the Member States, if considered environmental offences do not fall within Community compe- necessary24in order to ensure that EC rules on environmental tence. protection were fully effective.25 The Court also found that the Framework Decision left to the Member States the choice of 3. Findings of the Court penalties to be applied, as long as they were effective, propor- tionate and dissuasive. However, from its recitals, it is appar- The Court based its findings on Article 47 EU and Article 29 ent that the Council had criminal law in mind. EU. Article 47 EU requires that nothing in the EU Treaty may affect the treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing II. The European Commission’s Initial Reaction to the them. The first paragraph of Article 29 EU also states that a Judgment in Case C-176/03 high degree of safety within an area of freedom, security and justice must be attained without prejudice to the powers of the The European Commission responded to the judgment with European Community. a Communication in November 2005.26 It considered that, as a result of the Court’s judgment, certain framework decisions It fell within the task of the Court, therefore, to ensure that were either entirely or partly incorrect, since all or some of their acts falling within the scope of Title VI of the Treaty on Eu- provisions were adopted on an incorrect legal basis. It listed acts ropean Union did not encroach upon the powers conferred on adopted and pending proposals requiring amendment.

94 | eucrim 3–4 / 2006 Options for the Development of a Community Criminal Law

The list contains instruments relating to the protection of the lent protection in the Member States. These measures shall not environment, protection of the EC’s financial interests, finan- concern the application of national criminal law or the national cial crime (money laundering and corruption), intellectual administration of justice. In this area, if the Convention and property, information systems and immigration. It is not clear the three protocols were to be annulled, the previously reject- from the Commission’s Communication on what basis the list ed “PIF” Directive could be resurrected, although it must be was compiled and how these policy areas constitute priorities borne in mind that the last sentence of Article 280(4) EC will in criminal law terms for the European Union. These issues are continue to place restrictions, notwithstanding the judgment of briefly reviewed below. the Court in case C-176/03.

In several instances, the European Commission has suggest- 1. Protection of the Environment ed Article 95 EC as a legal basis (see below). Article 95 EC makes it possible to approximate provisions which have as The legal instruments listed by the Commission included the their object the establishment and functioning of the internal Council Framework Decision 2003/80/JHA on the protection market. This article excludes from its ambit fiscal provisions, of the environment through criminal law (annulled); the Direc- those relating to the free movement of persons and those relat- tive on ship source pollution and on the introduction of penal- ing to the rights and interests of employed persons. However, ties for infringements; and the Council Framework Decision to its ambit is very wide. strengthen the criminal law framework for the enforcement of the law against ship source pollution. The Commission suggests that the correct legal basis for these instruments is, in fact, Arti- 3. Financial Crime cle 175(1) EC and Article 80(2) EC for ship source pollution. The legal instruments on the Commission’s list include the Article 175(1) EC in Title XIX on the Environment provides Council Directive on prevention of the use of the financial sys- that the Council – acting in accordance with the procedure re- tem for the purpose of money laundering; the Council Frame- ferred to in Article 251 and after consulting with the Economic work Decision on money laundering, the identification, trac- and Social Committee and with the Committee of the Regions ing, freezing, seizing and confiscation of instrumentalities and – shall decide what action is to be taken by the Community in the proceeds of crime and the Council Framework Decision on order to achieve the objectives referred to in Article 174 EC combating corruption in the private sector. (which relates to the objectives of Community environmental policy). Article 80(2) in Title V of the EC Treaty on transport The European Commission suggests that the correct legal bas- policy states that the Council may, by a qualified majority, de- es for these instruments are, in fact, Articles 47(2) (for money cide whether, to what extent and by what procedure appropri- laundering) and 95 EC (for all). Article 47(2) EC of Title III on ate provisions may be laid down for sea and air transport. free movement of persons, services and capital and its chapter 2 on right of establishment states that The Council shall, acting in accordance with the procedure re- 2. Protection of the EC’s Financial Interests ferred to in Article 251, issue directives for the coordination of the provisions laid down by law, regulation or administrative action in The legal instruments listed by the Commission include the the Member States concerning the taking up and pursuit of activi- Council Framework Decisions on increasing protection by ties as self employed persons. The Council, acting unanimously criminal penalties and other sanctions against counterfeiting throughout the procedure referred to in Article 251, shall decide of the Euro and on combating fraud and counterfeiting of non- on directives the implementation of which involves in at least one cash means of payment; the Proposal for a Directive on the Member State amendment of the existing principles laid down by criminal law protection of the Community’s financial interests laws governing the professions with respect to training and condi- (“PIF Directive”). The European Commission suggests that tions of access for natural persons. In other cases the Council shall the correct legal basis for these instruments is, in fact, either act by qualified majority. Article 123(4) for the protection of the Euro or Article 280(4) EC for the horizontal directive on the protection of the EC’s financial interests. 4. Intellectual Property

In accordance with Article 123(4) EC, the Council, acting by The Commission’s list includes Proposals for a Directive on a qualified majority, may take measures necessary for rapid criminal law measures aimed at ensuring the enforcement of introduction of the single currency. Article 280(4) EC states intellectual property rights; and for a Council Framework De- that the Council, in accordance with the procedure referred to cision to strengthen the criminal law framework to combat in- in Article 251 EC, after consulting the Court of Auditors, shall tellectual property offences. adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of The European Commission suggests that the correct legal ba- the Community, with a view to affording effective and equiva- sis should be Article 95 EC.

eucrim 3–4 / 2006 | 95 EC Competences in Criminal Matters

5. Information Systems This seems a lengthy process, without guarantee of success. The “passerelle” (Article 42 EU) is not mentioned in the first As far as the Council Framework Decision on attacks against Commission document of November 2005, which only deals information systems is concerned, the Commission suggests with the implications of the Court judgment. that the correct legal basis should be Article 95 EC. Third pillar instruments adopted in the areas mentioned above 6. Immigration Control may already have entered into force in some cases. The issue then arises of whether the Member States should repeal any The Commission’s list includes the Directive defining the already existing implementing measure, pending the possible facilitation of unauthorised entry, transit and residence and (but by no means certain) adoption of a first pillar instrument. Council Framework Decision on the strengthening of the This desire for the right legal basis may possibly produce penal framework to prevent the facilitation of unauthorised adverse effects. The situation arguably thwarts legitimate entry, transit and residence. The European Commission sug- expectations by creating legal uncertainty (or even chaos) in gests that the correct legal bases for these instruments are, in that it lacks a procedure to ensure a smooth transition pending fact, Articles 61(a) and 63(3)(b) E C, within Title IV of the Court proceedings for annulment and recasting into first pillar E C Treaty on Visas, Asylum, Immigration and other policies instruments. However the practical aspects of multiple recast- related to the free movement of persons. ing should not be underestimated.

Article 61(1)(a) EC provides that, in order to progressively For example, in the area concerning the protection of the establish an area of freedom, security, and justice, the Coun- EC’s financial interests, the Convention on the Protection of cil shall adopt measures aimed at ensuring the free movement the Financial Interests, its three protocols and all framework of persons […] in conjunction with directly related flanking decisions relating to the protection of the Euro might be an- measures with respect to external border controls, asylum, and nulled and recast as first pillar instruments. Given that the fif- immigration […] and measures to prevent and combat crime teen “old” Member States have already ratified the so-called in accordance with the provisions of Article 31(e) EU. Article PIF Convention, one wonders whether they would be eager to 63(3)(b) E C provides for the adoption of measures concerning see it annulled and go through a process of recasting, which at illegal immigration and illegal residence, including repatria- best may take several years and at worst may leave the Euro- tion of illegal residents. pean Union with a legal void in this area should a Directive not have been adopted at the end of the process. At this stage, two comments are in order on the proposed legal bases. They all attract qualified majority voting and co-deci- There is no guarantee that, at the end of this long process, sion. None of the proposed legal bases make direct reference a qualified majority of Member States would agree that a first to criminal law, except for Article 61(1)(a) EC, which foresees pillar instrument is justified, judging by the fact that eleven three types of measures, including measures to prevent and Member States supported the Council in case C-176/03 by combat crime in accordance with Article 31(2) EU. It is the arguing against the European Commission. The European Com- only first pillar legal basis with an explicit cross-reference to mission might seek a bridging mechanism as part of its plan to the third pillar. ensure the continuity of legal effects in the member States.

III. The Process of Communitarisation Under the “Case-by- IV. The French Assembly and “Delivering Results for Case” Option Europe”: Application of Article 42 EU

It seems that the European Commission envisages a process of The French Assembly clearly had reservations about the Com- communitarisation, which would include the following steps: mission’s proposed approach. First, it argued that it was by no means clear that the Court intended the principle to extend be- • Proceedings for annulment of existing third pillar instru- yond the area of protection of the environment so that it could ments. It is not clear at this stage whether any interim meas- apply to the four freedoms. ures should be taken to ensure continuity and to safeguard le- gitimate expectations. Secondly, the Assembly said it was unclear when effective, • Recasting of third pillar instruments into first pillar instru- proportionate and dissuasive criminal penalties by the com- ments; or amendment of existing first pillar proposals so as to petent national authorities would be an essential measure con- incorporate third pillar aspects; resurrection of previous first sidered necessary in order to ensure that EC rules are fully pillar proposals; fusing of existing third pillar and first pillar effective. instruments into one first pillar instrument. • Presentation of recast first pillar instruments through the leg- Thirdly, it expressed reservations about limiting the choice of islative procedure. the Member States as to the types of sanctions to be adopted. Whereas previous jurisprudence left the Member States free

96 | eucrim 3–4 / 2006 Options for the Development of a Community Criminal Law to decide on the type of sanctions to be adopted, this new would then be opened after the entry into force of the Article approach would put an obligation on the Member States to 42 Decision: imbue particular Community policies with a common criminal (i) Title IV EC would apply to police and criminal matters law approach. (ii) Title IV would be amended to allow for special rules on ECJ jurisdiction for criminal matters In a more recent communication27 to the Council on “Deliv- (iii) A separate set of rules on jurisdiction of the ECJ would ering results for Europe”, the European Commission , in its apply in accordance with Article 67(2) EC for visas, asylum, chapter on freedom, security and justice stated immigration and other policies related to the free movement Action and accountability in some areas of policy asking are of persons. hindered by the current decision making arrangements, which lead to deadlock and lack of proper democratic scrutiny. Exist- Given the outcome of the referendum on constitutional matters ing Treaty provisions (Articles 42 EU and 67(2) EC) allow for in France and in The Netherlands, the adoption of an Article 42 changes to these arrangements, which would improve decision EU Decision might turn out to be a long and difficult road. taking in the Council and allow proper democratic scrutiny by the European Parliament; and the enhancement of the role of the Court of Justice. V. The (Rejected) Constitutional Alternative

It went on to add The context of this remarkable and volatile situation is the The Commission will present and initiative to improve decision “no” to a Constitutional Treaty, which would have provided for taking and accountability in areas such as police and judicial a single legal framework, adoption by qualified majority and cooperation and legal migration, using the possibilities under the co-decision for criminal and police matters, barring very few existing treaties. exceptions. It would also have provided for national parlia- ments to be consulted at the onset of the legislative process. In the section of the document concerned with subsidiarity, the Commission states The approach proposed by the European Commission follow- The Commission wishes to transmit directly all new proposals and ing the judgment is to introduce communitarisation of crimi- consultation papers to national parliaments, inviting them to react nal law without either recourse to Article 42 EU or a formal so as to improve the process of policy formulation.28 process for the consultation of national parliaments. The ap- plication of Article 42 EU, proposed by the French Assembly The French Assembly had also argued that there was no and the European Commission in its Communication “Deliv- “Treaty void” and discussed the possibility of applying Arti- ering results for Europe”, would bring the approach closer to cle 42 EU. Article 42 EU provides that the Council, acting the proposals contained in the rejected Constitutional Treaty, unanimously on the initiative of the Commission, and after with some important differences. The Constitutional Treaty consulting the European Parliament, may decide that action provides for a qualified majority (no veto) and a consulta- in areas referred to in Article 29 (Provisions on Police and tion of national parliaments. Finally, the Constitutional Treaty Judicial Cooperation in criminal matters) must fall under proposes a “package” which includes the strengthening of Eu- Title IV of the Treaty establishing the European Community ropol and Eurojust and the possibility of adopting a European (visas, asylum, immigration, and other policies related to the Public Prosecutor. free movement of persons).29 The consultation of national parliaments presented in Article 5 The French Assembly also argued that this Article 42 (“pas- of the Protocol on the application of the principles of subsidi- serelle” clause) would make it possible to progress in the fight arity and proportionality annexed to the rejected Constitution- against terrorism and drug trafficking. It did not, however, al Treaty provides that any national parliament may, within comment on the practicability of the Article 42 procedure and six weeks of the date of transmission of the Commission’s its likelihood of success. The procedure would entail national legislative proposal, send to the President of the European parliaments deciding on a transfer of Member States’ compe- Parliament, the Council of Ministers, and the Commission a tence to the first pillar. In some Member States, this may in- reasoned opinion stating why it considers that the proposal in volve a referendum. Should all 25 national parliaments agree, question does not comply with the principle of subsidiarity. a transfer would then become possible. Several possibilities The options are summarised below in tabular form.

eucrim 3–4 / 2006 | 97 EC Competences in Criminal Matters

Table: Options for Action after Case C-176/03

Options Keep to status quo: Commission proposal Implement French Constitutional Treaty (theoretical third pillar in Treaty of to implement judgment Assembly proposal option since Constitutional Treaty Nice (House of Lords in case C-176/03 of and Commission has not been adopted) Report) November 2005 proposal of May 2006

Initiative and Initiative shared Commission to Use of Article 42 Use of Articles III 270 to 277; Treaty basis between Commission take Council to EU in Treaty of Commission proposal and Member States; ECJ; if successful, Nice; if successful, Title VI Commission to make Commission to make first pillar proposal first pillar proposal

Procedure Title VI procedure Commission to National parliaments National Parliaments to be consulted initiate annulment to decide if in agree­ (subsidiarity and proportionality) proceedings in ECJ ment with application for existing Third of Article 42 Pillar instruments

Adoption Proposal for adoption Proposal for adoption Referenda and Proposal for adoption under single under EU treaty under EC Treaty other consultation legal framework of Constitutional after Court judgment mechanisms in Treaty favourable to Com­ Member States mission, such as C-176/03

Voting procedure Unanimity; EP only Qualified Majority Unanimity Qualified Majority (ordinary consulted procedure), except unanimity for Co-decision procedure Voting conditions EPP and operational cooperation to be determined by national parliaments; Co-decision procedure; national could retain unanimity parliaments to be consulted: more for some of the third EP and ECJ involvement pillar matters

Possible problems Continuation of status It might be difficult to Unanimity; long There may be no real prospect for quo after the Court get QM (keeping in delays; Existing “salami slicing” of the relevant part judgment may not be mind that 13 Member opt-outs may create of the Constitutional Treaty; leaving possible if the Com- States opposed com- problems out Articles on Eurojust and Europol mission lodges a large munitarisation in case may break up the package; Member number of annulment 176/03); spread of pil- States may object to QM proceedings with the lar disputes; legitimate ECJ; spread of pillar expectations thwarted; disputes; legitimate no national parliamen- expectations thwarted; tary oversight; poten- weak roles continue tially strong roles for for EP and ECJ; Com- EP and ECJ if success­ mission and Council ful; generally too to continue to clash; many contingencies complete polarisation in this approach; long of positions; “double intermediary period of track” approach to progressive commu- continue with first nitarisation; process and third pillar instru- can be reversed by ments adopted in the ECJ at any time; parallel no guarantee of con- tinuity

98 | eucrim 3–4 / 2006 Options for the Development of a Community Criminal Law

Advantages of No immediate change Case-by-case Might satisfy national Clear legal basis and legislative approach approach until new parliaments wishing to procedure; instrument enters into No direct effect Treaty is agreed keep unanimity and be force quickly consulted Does not preclude First pillar: direct Direct effect “case-by-case” effect First Pillar: direct approach effect Case-by-case approach not necessary Case-by-case approach may have Does not preclude piecemeal effects “case-by-case” approach pending procedure

VI. Discussion: An Era of “Pillar Talk”? VII. Conclusion

“Pillar disputes” are not new. In 1996 already, the European The House of Lords subsequently published a report on the Parliament Committee on Institutional Affairs commented on subject of the criminal law competence of the European Com- the possible overlap between the first and third pillars: munity in July 2006. Disputes relating to legal bases are com- In theory, the breakdown between first and third pillar seems clear monplace within the first pillar. These disputes do not usually enough. If a problem relates to the completion of the internal mar- create legal uncertainty. For example, in case C-178/03, the ket, only the provisions of the EC Treaty applies. Otherwise, the Court ruled that Regulation 304/2003 concerning the export provisions of Title VI are applicable. However experience has and import of dangerous chemicals should be annulled but shown that this breakdown does not work.30 that the effects of that regulation should be maintained until the adoption of a new regulation founded on appropriate legal The judgment may well herald an era of pillar disputes brought bases. In case C-176/03, the Court has not ruled that any effect to the European Court of Justice. On 21 February 2005, the should be maintained pending the adoption of a new, first pillar European Commission brought an action against the Council instrument. requesting the annulment of Council Decision 2004/833/CFSP implementing Joint Action 2002/589/CFSP with a view of a It is somewhat problematic to ask the European Court of European Union contribution to ECOWAS in the framework Justice to decide on the respective competence of the Member of the Moratorium on Small Arms and Light Weapons. The States and the European Commission. It potentially re-draws European Commission argued that the Common Foreign and constitutional boundaries. However we should not be surprised Security Policy (CFSP) Decision was in infringement of Arti- if the European Court of Justice takes on this role. It is not cle 47 EU, since it affects Community powers in the field of the first time that it has made a judgment of constitutional im- development aid. portance. The involvement of national parliaments is an idea whose time has come and which cannot be overlooked in an In addition, the European Commission sought a declaration enlarged union. Interestingly, neither subsidiarity nor propor- of illegality under Article 241 EC of Council Joint Action tionality were discussed in case C-176/03. In fact, the decision 2002/589/CFSP on the same basis and for the same reasons. of the Court seems unusually noncommittal in that respect. The European Commission argued that Joint Action 2002/589/ There is a “fin de Traité” flavour to this judgment which, if CFSP was an act of a general legislative nature on which the we needed convincing, implies that the borders between pil- CFSP Decision is based and which should be annulled for lack lars are now so permeable as to render the existing division of of competence. Title II thereof should be declared inapplicable. competences inoperable. Decision 2004/833 deals with the implementation of projects, the allocation of finance from the Community budget and re- porting arrangements. It expired on 31 December 2005.

Joint Action 2002/589 sets out the actions to be accomplished Dr. Simone White in order to combat the destabilising accumulation and spread Policy and Legal Administrator, Investigations & of small arms and light weapons. Title II deals with the alloca- Operations at the European Anti-Fraud Office tion of financial and technical assistance. It will be interest- (OLAF). ing to see whether the implementation of peace-keeping at the regional level might migrate to the first pillar.

eucrim 3–4 / 2006 | 99 EC Competences in Criminal Matters

1 The author’s views are not intended to reflect the Commission’s position. 19 Paragraphs 41–43 of judgment; also cases 240/83 ADBHU [1985] ECR 531, para- 2 Commission v Council (2005) ECR I 7879. graph 13; 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8; C-213/96 3 COM(2005) 583 final. Outokumpu [1998] ECR I 1777, paragraph 32. 4 Assemblée Nationale Française: Rapport d’Information 2829 sur les conséquences 20 Paragraph 44 of judgment; also case C-36/98 Spain v Council [2001] ECR I 779, de l’arrêt CE la Cour de Justice du 13 septembre 2005 sur les compétences pénales paragraph 54. de la Communauté européenne, presented by Christian Philip, Deputy, 25 January 21 Paragraph 45 of judgment; Case C-300/89 Commission v Council [1991] ECR I 2006. 2867 paragraph 10; Case C-336/00 Huber [2002] ECR I 7699, paragraph 30. 5 COM(2006) 211. 22 Paragraph 46 of judgment 6 European Voice, Editorial and Opinion, p. 8, 4–10 May 2006. 23 Author’s emphasis. 7 S. White (2006) 31 ELRV, pp. 81–93. 24 Ibid. 8 Paragraph 19 of judgment. 25 Paragraph 48 of judgment. 9 Paragraph 21 of judgment. 26 COM(2005) 583: Communication from the Commission to the European Parlia- 10 Paragraphs 22 and 24 of judgment. ment and the Council on the implications of the Court’s judgment of 13 September 11 Paragraph 25 of judgment. 2005 (Case C-176/03 Commission v Council), 24 November 2005. 12 Denmark, Germany, Greece, Spain, France, Ireland, The Netherlands, Portugal, 27 COM(2006) 211 final, 10.5.2006, op. cit. Finland, Sweden and the United Kingdom 28 P. 9 of COM(2006) 211 final. 13 See paragraphs 26 and 28 of judgment 29 See also a discussion of the application of Article 42 TEU in Steve Peers (2006), 14 See paragraph 29 of judgment. Transferring the Third Pillar, STATEWATCH analysis. 15 See paragraph 31 of judgment. 30 EP Committee on Institutional Affairs working document on cooperation in the 16 Case 68/88 Commission v Greece [1989] ECR 2965. fields of justice and home affairs, 25 January 1996, in: N. Dorn/S. White (1997), 17 Paragraph 32 of judgment. Beyond “pillars” and “passerelle” debates: the European Union’s emerging crime 18 Paragraphs 38–40 of judgment. prevention space, Legal Issues of European Integration 1997/1, pp. 79–93.

The Community Competence for a Directive on Criminal Law Protection of the Financial Interests

Dr. Lothar Kuhl / Dr. Bernd-Roland Killmann, M.B.L.-HSG1

I. Introduction and State of Play

In its judgment of 13 September 2005 in case C-176/03 EU’s third pillar. Most of them entered into force on 17 Octo- Commission v Council2 relating to the framework decision ber 2002, following ratification by the then 15 Member States, 2003/80/JHA,3 the Court refers explicitly to Article 280 para- except for the second protocol which still needs to be ratified graph 4 EC Treaty stating that it is not possible to infer from this by Italy. None of them has yet been ratified by all 27 Member provision that any harmonisation of criminal law must be ruled States. out where it is necessary in order to ensure the effectiveness of Community law. Member States had argued that its word- The European Parliament adopted a legislative resolution on ing, as that of Article 135 EC Treaty, expressly reserves “the the proposal for the PFI-Directive on 29 November 2001, application of national criminal law and the administration of putting forward 31 amendments in a first reading.6 Following justice” and therefore confirms the lack of any implicit confer- that, the Commission amended its proposal.7 However, the ral of power to the Community on criminal law. Council has still not adopted a Common Position. Thus, the proposal has remained dormant for a number of years without Article 280 paragraph 4 EC Treaty is indeed of particular in- any serious attempt being made to negotiate the proposal. The terest since the protection of the EC financial interests is at judgment of 13 September 2005 underpins the Commission’s the forefront of the development of a European criminal law. argumentation in favour of this Directive under Article 280 Long before the Court’s decision on the Community’s com- paragraph 4 EC Treaty. The Commission communication on petence, the Commission adopted a proposal for a Directive the Court’s judgment8 considers the proposal for a PFI-Direc- on the criminal law protection of the Community’s financial tive to be confirmed by the judgment. However, the PFI-In- interests.4 The proposal for this so-called PFI-Directive trans- struments are not directly called into question as a result of the forms into Community law essential provisions of the PFI- judgment as they had already been adopted before the intro- Instruments5 dating from 1995 to 1997, all adopted under the duction of Article 280 paragraph 4 EC Treaty.

100 | eucrim 3–4 / 2006 Directive on Criminal Law Protection of the Financial Interests

II. Criminal Law under Article 280 EC Treaty The judgement in case C-176/03 leaves open whether the Community may include a certain specification of sanctions. The judgement in case C-176/03 indicates that the approach It annuls the framework decision in its entirety, insofar go- to Community competence in criminal law is functional. No ing beyond the Commission’s request. Consistently applying distinction is made according to the nature of the criminal law the concept of effectiveness, in its specific form of effective, measures. The basis upon which the Community legislature proportionate, and dissuasive sanctions,13 leads to the conclu- may provide for measures of criminal law is necessary to en- sion that sanctions may possibly be subject to approximation, sure that Community rules are fully effective.9 at least as regards the range and type of penalties. How far the Community legislation may specify objectives regarding sanc- 1. Ensuring the Effectiveness of a Community Anti-Fraud tions related to criminal conduct due to the “indivisibility” of Policy legal acts will be further explored in pending cases.14

The objective of effectiveness is at the core of Article 280 2. Achieving Equivalence paragraph 4 EC Treaty: The Community may adopt the “nec- essary” measures in the fields of the prevention of and fight Paragraph 4 of Article 280 EC Treaty requires as a further ob- against fraud affecting the financial interests of the EC. For jective that measures must lead to equivalent protection in the the protection of the EC financial interests, national provisions Member States. Similar to effectiveness, equivalence implies give Community legislation its full effect. These national pro- that at least the incriminating elements describing criminal visions, including those on criminal offences, must be con- conduct as well as the related sanctions may be subject to ap- sidered a part of the system for protecting the EC financial proximation under Community legislation. Equivalence re- interests. quires that measures at the national level are in place through- out the Community in order to ensure that similar treatment The protection of the EC financial interests is not only an inde- within all national jurisdictions is achieved (as opposed to pendent Community objective, but, at the same time, a Com- equal treatment). munity policy that reinforces the impact of other Community policies which are implemented through financial means and The combined effect of equivalence and effectiveness may measures related to the EU budget.10 In particular, economic considerably reduce the degree of discretion by national legis- policies of the Community only achieve the specific aim of the lators in implementing a directive. Still, it allows the national related Community financing if their circumvention is effec- legislator to implement Community obligations with due re- tively prevented and, where necessary, prosecuted. From the gard to the overall national criminal law system which is in perspective of ensuring overall effective implementation of place.15 Due to their indirect effects, directives fall short of EC policies, Article 280 EC Treaty is intrinsically intertwined measures which concern “the application of national criminal with other Community activities. law.”16

Back in 1993, a comparative penal law study11 had identified Equivalent measures to combat fraud may also include general specific instances of incompatibilities and argued that the lack criminal law provisions insofar as they condition the function- of harmonised definitions and penalties under the various na- ing of a “working system”. However, this would be the excep- tional criminal law systems for certain offences was harmful tion. According to the Commission communication, “it follows to the EC financial interests. Effectiveness therefore includes, from the judgment of the Court that those aspects of criminal amongst other things, approximation via Community legisla- law and criminal procedure which require a horizontal ap- tion. In the specific field of combating offences, this implies proach do not in principle fall within the scope of Community more than formal legality: Conformity with a European defini- law. This would normally be the case for questions linked to tion of criminal conduct demands that national implementation general rules of criminal law and criminal procedure as well fully meets the requirement of legal certainty. Offences must as those related to police and judicial cooperation in criminal be precise, and have foreseeable consequences. The respective matters.”17 Therefore, although the request for equivalence provisions must be interpreted strictly, particularly with regard does not seem to go so far as to allow the Community legis- to the prohibition of using analogy in criminal law. The stricter lator to oblige Member States to abandon their fundamental the level of interpretation on the national implementation law, system of criminal law, it may require necessary adjustments the more explicit the approximating Community provisions of specific features to be provided, such as the criminal respon- need to be. The more explicit the Community provision, the sibility of heads of business or the liability of legal entities for less room for the national legislator. It may be that the only criminal conduct. choice left to the national legislator is to introduce a provision which is identical to the Community one. This is the most ef- The Commission communication indicates further that police fective form of approximation as it also allows obstacles to and judicial cooperation in the broad sense, including meas- judicial cooperation between the Member States’ authorities, ures on the mutual recognition of judicial decisions, fall within which might be caused, for instance, by double criminality, to the third pillar. However, aspects of what is commonly under- be overcome where still required.12 stood as procedural criminal law, particularly jurisdiction and

eucrim 3–4 / 2006 | 101 EC Competences in Criminal Matters limitation periods, may be subject to Community law if meas- law study of the national systems. This is all the more relevant ures are needed for an effective and equivalent protection of from the perspective of establishing a European Public Pros- financial interests, notably within the context of transnational ecutor’s Office for the protection of the financial interests as prosecutions. foreseen in Article III-274 of the Treaty establishing a Consti- tution for Europe. It can only function efficiently in the context of a fully approximated set of penal law provisions. III. Limits to EC Anti-Fraud Competence in Criminal Law 2. The Limits Imposed on Matters of “Application of National While effectiveness and equivalence specify the EC law-based Criminal Law or the National Administration of Justice” objectives which justify Community legislation on criminal law, the necessity requirement and the exception provided for Even where there is clearly an interest in Community legisla- in the last sentence of Paragraph 4 of Article 280 EC Treaty tion with a direct criminal law impact, the competence granted may limit it. to the Community in Article 280 EC Treaty is limited in that “[Community] measures shall not concern the application of 1. Necessity for the Protection of Financial Interests national criminal law or the national administration of justice.” As any exemption needs to be interpreted strictly, it may not be Although the judgment in case C-176/03 underlines the im- construed as going so far as to concern all aspects of criminal portance of a necessity test in order to exercise a Community law. At a minimum, rules on judicial cooperation, jurisdiction, competence,18 it fails to clarify which elements are to be taken and limitation periods may perfectly well be covered under into consideration. Two approaches could be envisaged, an ab- the Community competence. Member States simply apply stract necessity test or a concrete one: national criminal law or organise the national administration of justice under their own competence. However, the Member • In the Commission’s proposal for the directive, it argued States still remain bound by Article 280 EC Treaty to provide primarily from an abstract point of view. The Council act19 for an effective protection of the EC financial interests, also in adopting the PFI-Convention confirms that the measures con- procedural and organisational terms.21 tained in the PFI-Instruments were “necessary […] in such a way as to improve the effectiveness of protection under crimi- nal law of the European Communities’ financial interests”. IV. Outlook: The Scope of the PFI-Directive Indeed, while the proposal for a PFI-Directive had a positive impact on the speed of ratification and, at present, only the sec- The proposal for a PFI-Directive, as submitted by the Commis- ond protocol needs to come into force, enlargement led to the sion in 2001, has been a very careful initiative. The proposal need for accession to the PFI-Instruments by the new Member is based on the content of the PFI-Instruments and takes over States. The current system of protection based on conventions their definitions for criminal offences, a minimum threshold creates de facto a situation of different speeds. This is all the for sanctions as regards fraud – in comparison to the PFI-In- more unacceptable as the successive enlargements have had struments, the impact of the proposed provisions on sanctions as their effect to give this situation a quasi permanent status. is reduced – as well as provisions on the liability of legal per- Since entry into force depends on the accession of all of the sons and heads of businesses. The proposal also provides for new Member States, it creates a mixture of different legal sit- rules on cooperation between the Member States’ authorities uations amongst Member States with respect to the binding and the Commission. effect of the PFI-Instruments in the internal legal order. This situation does not lead to the desired effective and dissuasive With due regard to the judgment in case C-176/03, it may well penal protection. be argued that the Community competence under Article 280 paragraph 4 EC Treaty allows everything presently contained • The concrete necessity test requires effectively checking in the PFI-Instruments to be covered. According to the Court’s whether the objective of protection of the EC financial interests functional understanding of Community legislation, it seems has already been attained in practice by all Member States. The feasible that a proposal for a directive could also include pro- commitment of the Commission to put forward a concrete ne- visions on jurisdiction, a more explicit range of sanctions, and cessity test is demonstrated by its report on the implementation an approximation of rules on limitation periods. by Member States of the Convention on the Protection of the European Communities’ financial interests and its protocols.20 It seems more likely that other pieces of Community legis- The Commission stated that the harmonisation objective had lation will progress easily, once the Member States agree to not yet been fully achieved through the PFI-Instruments, since proceed with a proposal for a directive with regard to a key and the level of protection is not advanced enough to exclude any historic criminal law competence of the Community, designed risk of leaving unpunished some or deterring all conduct that to underpin the Community’s overall effectiveness. should be criminalised because it affects the EC financial inter- ests. Therefore, the Commission believes that the PFI-Directive Both the EP and the Commission consider the judgment of remains necessary. A concrete approach requires a comparative 13 September 2005 in case C-176/03 to be a clarification of the

102 | eucrim 3–4 / 2006 Directive on Criminal Law Protection of the Financial Interests competences of the Community to enact the Directive with crim- Following its second implementation report, the Commission inal law provisions under Article 280 paragraph 4 EC Treaty. In will reconsider its views on how to go ahead with initiatives the wake of the judgment, the European Parliament called upon based on Art. 280 EC Treaty in order to increase the protection the Council “to abandon its rejectionist stance on strengthened of the Communities’ financial interests by means of criminal protection for the Community’s financial interests through crimi- law measures. nal law measures and to move to the first-reading stage”.21

1 The views expressed are purely those of the authors and may not under any circumstances be regarded as stating an official position of the European Commission or the European Anti-Fraud Office (OLAF). Dr. Lothar Kuhl 2 ECR [2005] p. I-7879 paragraph 52. Head of Unit „Legislation and Legal Affairs“ at the 3 Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection European Anti-Fraud Office (OLAF). of the environment through criminal law, OJ L 29, 5.2.2003, p. 55. 4 Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Communities’ financial interests, COM (2001) 272 final, OJ C 240E, 28.8.2001, p. 125. 5 The EU-Convention on the protection of the European Communities’ financial interests (OJ C 316, 27.11.1995, p. 49), the Protocol to the Convention on the protection of the European Communities’ financial interests (OJ C 313, 23.10.1996, p. 2), the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the Dr. Bernd-Roland Killmann, M.B.L.-HSG European Communities’ financial interests (OJ C 151, 20.5.1997, p. 2), and the Legal Officer in the Unit „Legislation and Legal Affairs“ Second Protocol to the Convention on the protection of the European Communities’ at the European Anti-Fraud Office (OLAF). financial interests (OJ C 221, 19.7.1997, p. 12). 6 Opinion of the European Parliament of 29 November 2001, OJ C 153E, 27.6.2002. 7 Amended proposal for a European Parliament and Council Directive on the criminal-law protection of the Communities’ financial interests, COM (2002) 577 final, OJ C 71E, 25.3.2003, p. 1. 8 Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13 September 2005 (case C-176/03 Commission v Council), COM (2005) 583 final. possibility of enacting criminal law provisions in a Community Regulation, see 9 Paragraph 48 of the judgment in case C-176/03. Fromm in this issue of eucrim. 10 See Judgment of 18 November 1999 in case C-209/97 Commission v Council, 17 Paragraph 11 of Communication COM (2005) 583 final. ECR [1999] p. I-8067 paragraph 33. 18 Paragraph 50 of the Judgment in case C-176/03. 11 Mireille Delmas-Marty, Incompatibilities between legal systems and harmonisation 19 Council Act of 26 July 1995, drawing up the Convention on the protection of the measures: Final report of the working party on a comparative study on the protection European Communities’ financial interests (OJ C 316, 27.11.1995, p. 48). of the financial interests of the Community, in: European Commission (ed.), The legal 20 Report from the Commission – Implementation by Member States of the protection of the financial interests of the Community: Progress and prospects since Convention on the Protection of the European Communities’ financial interests the Brussels seminar of 1989, Brussels, 25 and 26 November 1993 [1993] pp. 59–93. and its protocols, Article 10 of the Convention, COM (2004) 709 and the related 12 Anne Weyembergh, Common Market Law Review 42 (2005) 1574: “Approximation Commission Staff Working Paper, SEC (2004) 1299 final. is a condition for smooth judicial cooperation, and especially for mutual recognition.” 21 Note, for instance, that Article 10, and even more so Article 280 EC Treaty, require 13 See Judgment of 21 September 1989 in case 68/88, Greek maize, ECR [1989] the Member States to ensure in particular that infringements of Community law are p. 2965 paragraph 24. also penalised under procedural conditions which are analogous to those applicable 14 See the argument of the Commission in its Action brought against the Council on to infringements of national law of a similar nature and importance (Judgment of 8 December 2005 as regards Framework Decision 2005/667/JHA, which constitutes 8 July 1999 in case C-186/98, Criminal proceedings against Nunes and de Matos, criminal law measures necessary to ensure the efficacy of the common transport ECR [1999] p. I-4883 paragraph 10).The obligations of the Member States to policy as developed by Directive 2005/35 EC (Pending case C-440/05, OJ C 22, protect the EC financial interests extend to the initiation of any proceedings under 28.1.2006, p. 10). administrative, fiscal, criminal or civil law (see Judgment of 14 July 1994 in case 15 See Judgment of 3 May 2005 in joined case C-387/02, C-391/02 and C-403/02, C-352/92, Milchwerke Köln/Wuppertal, ECR [1994] p. I-3385 paragraph 23). criminal proceedings against Berlusconi, Adelchi and Dell’Utri and others, ECR 22 Report A6-0185/2006 of 16 May 2006 on protection of the financial interests of [2005] p. I-3565. the Communities and the fight against fraud – 2004 annual report (2005/2184(INI)) 16 See point III.2 below. For more details on other reasons raised against the paragraph 74.

eucrim 3–4 / 2006 | 103 Kompetenzen der EG für das Strafrecht

Die Frage der Zulässigkeit der Einführung strafrecht- licher Verordnungen des Rates der EG zum Schutz der Finanzinteressen der Europäischen Gemeinschaft

Dr. Ingo E. Fromm

Über die Auswirkungen des Urteils des Europäischen Gerichts­ von Politikbereichen des EG-Vertrages im Einzelfall kompe- hofs vom 13.9.2005 – C-176/03 (Kommission/Rat) – wird der- tenzgemäß sein könne. Offenbar steht die Befugnis der Organe zeit kontrovers diskutiert. Vor allem Gegnern von strafrecht- der EG nur noch unter der Bedingung der „Erforderlichkeit“. lichen Kompetenzen der EG scheint das Urteil ein Dorn im Auge zu sein und es wird daher von diesen Teilen der Literatur Eine stillschweigende Kompetenzübertragung über die Ma- stark kritisiert.1 Insbesondere wird von diesen Stimmen im terie des Strafrechts hat der Gerichtshof jedenfalls nicht aus- Schrifttum befürchtet, dass die EuGH-Entscheidung im Hin- geschlossen (Rz. 27 des Urteils des EuGH vom 13.9.2005). blick auf die Kompetenzen der EG im Strafrecht überinterpre- Damit ist das Gericht der Auffassung des Rates sowie der bei- tiert werde.2 Es wird gar offen auf die Gefahr hingewiesen, getretenen Mitgliedstaaten entgegen getreten. Der Rat hatte ar- dass sich die Organe der Europäischen Gemeinschaft nunmehr gumentiert, für das Strafrecht sei „angesichts der erheblichen auch das Strafrecht einverleiben könnten,3 welches seit jeher Bedeutung des Strafrechts für die Souveränität der Mitglied- im Kernbereich der nationalen Souveränität stehe und daher staaten“ eine ausdrückliche Kompetenzzuweisung notwendig. durch die Europäische Gemeinschaft unantastbar sei. Auch die Tatsache, dass das Strafrecht grundsätzlich ebenso wie das Strafprozessrecht nicht in die Zuständigkeit der Ge- Der Europäische Gerichtshof musste in seiner viel beachteten meinschaft fällt, spricht nach dem EuGH nicht gegen straf- Entscheidung vom 13.9.2005 darüber entscheiden, ob die Or- rechtliche Kompetenzen der Organe der EG. So führt das gane der EG derzeit befugt sind, die Mitgliedstaaten zu ver- Gericht im darauf folgenden Satz des Urteils aus, dass dieser pflichten, in einem Rahmenbeschluss aufgeführte Verhaltens- Umstand den Gemeinschaftsgesetzgeber nicht hindern könne, weisen zur Bekämpfung der Umweltkriminalität strafrechtlich Maßnahmen in Bezug auf das Strafrecht der EG-Staaten zu er- zu ahnden. In überraschender Klarheit hat sich der Europä- greifen, die seiner Meinung nach erforderlich sind. Ferner trägt ische Gerichtshof eindeutig für eine umfassende Kompetenz nach Auffassung des Europäischen Gerichtshofs das vom Rat der Organe der EG zur Harmonisierung des Strafrechts der vorgebrachte Argument, strafrechtliche Kompetenzen seien Mitgliedstaaten ausgesprochen. der Europäischen Union (Art. 29, 30, 31 I lit.-e EU) vorbe- halten, nicht. Da sowohl die Ausführungen des Gerichts zum Der EuGH hat in seinem Urteil judiziert, dass die Gemein- Verhältnis der ersten zur dritten „Säule“ als auch zur Frage, ob schaft befugt sei, „Maßnahmen in Bezug auf das Strafrecht strafrechtliche Kompetenzen stillschweigend auf die Organe der Mitgliedstaaten zu ergreifen, die seiner Meinung nach er- der EG übertragen werden könnten, nicht speziell die europä- forderlich4 sind, um die volle Wirksamkeit der von ihm zum ische Umweltpolitik betrafen, sondern seit jeher gegen straf- Schutz der Umwelt erlassenen Rechtsnormen zu gewährleis­ rechtliche Kompetenzen der EG eingewendet werden, muss ten, wenn die Anwendung wirksamer, verhältnismäßiger und gefragt werden, ob die Entscheidung des EuGH auf andere abschreckender Sanktionen durch die zuständigen nationalen Politikbereiche transferiert werden kann. Behörden eine zur Bekämpfung schwerer Beeinträchtigungen der Umwelt unerlässliche Maßnahme darstellt“ (EuGH, C-176/03, Rz. 48). Jedenfalls dürften Gemeinschaftsrechtsak- II. Transfer der Rechtsprechung des EuGH auf die finanziellen te die Strafbarkeit besonders schwerer Beeinträchtigungen der Interessen der EG Umwelt regeln, die den Mitgliedstaaten die Wahl der anwend- baren strafrechtlichen Sanktionen überlassen, diese müssten Besonders kontrovers wird die Zulässigkeit strafrechtlicher wirksam, angemessen und abschreckend sein. Kompetenzen der EG im Bereich der finanziellen Interessen der EG diskutiert.5 Mit dem Amsterdamer Vertrag wurde eine eigene Ermächtigungsgrundlage zum Schutz ihres Budgets in I. Befugnis der EG zum Erlass kriminalstrafrechtlicher Vor- den Vertrag zur Gründung der Europäischen Gemeinschaft schriften nur unter der Voraussetzung ihrer Erforderlichkeit? eingefügt: Art. 280 IV 1 EG-Vertrag erlaubt es dem Rat, zur Gewährleistung eines effektiven und gleichwertigen Schutzes Das Urteil des EuGH vom 13.9.2005 erweckt den Eindruck, in den Mitgliedstaaten gemäß dem Verfahren des Art. 251 nach als ob sogar die Einführung strafrechtlicher Verordnungen bei Anhörung des Rechnungshofs die erforderlichen Maßnahmen entsprechend starken Beeinträchtigungen von Rechtsgütern zur Verhütung und Bekämpfung von Betrügereien, die sich

104 | eucrim 3–4 / 2006 Zulässigkeit der Einführung strafrechtlicher Verordnungen gegen die finanziellen Interessen der Gemeinschaft richten, men der „dritten Säule“ ihrer großen Verantwortung lange zu beschließen. Für eine Übertragung der Rechtsprechung des nicht bewusst geworden sind,6 ist jedoch nur ein Problem des EuGH zu strafrechtlichen Kompetenzen der EG-Organe auf effektiven Schutzes der Gemeinschaftsfinanzen. Selbst wenn die Finanzinteressen der EG spricht schon die ausdrückliche es gelingen würde, einzelne Vorschriften der einzelstaatlichen Argumentation des Gerichts mit der Unberührtheitsklausel des Strafgesetzbücher zu vereinheitlichen, könnten punktuelle Art. 280 IV 2 EG-Vertrag. In Art. 280 IV 2 des EG-Vertrages rechtsharmonisierende Maßnahmen bei realistischer Betrach­ heißt es: „Die Anwendung des Strafrechts der Mitgliedstaaten tung nicht die uneinheitliche Bestrafung von Betrügern ver- und ihre Strafrechtspflege bleibt von diesen Maßnahmen unbe- hindern, da die Strafbarkeit einer Person immer noch von rührt.“ Hierzu hat das Gericht ausgeführt: „Dass die Art. 135 allgemeinen Regeln und den Strafverfahrensrechten, die sich EG und 280 IV EG die Anwendung des Strafrechts und des höchst unterschiedlich gestalten, mit beeinflusst wird.7 Zum Strafverfolgungsrechts in den Bereichen der Zusammenarbeit anderen gerät das Ziel einer gleichmäßigen Sanktionierung im Zollwesen und der Bekämpfung der gegen die finanziellen dadurch in Gefahr, dass die EG-Staaten bei einem hinreichen­ Interessen der Gemeinschaft gerichteten Handlungen den den Umsetzungsspielraum selbst entscheiden können, wie sie Mitgliedstaaten vorbehalten, steht dem nicht entgegen. Die- der Richtlinie nachkommen.8 Schließlich sind Richtlinien nur sen Vorschriften lässt sich nämlich nicht entnehmen, dass im hinsichtlich des zu erreichenden Ziels für die Mitgliedstaaten Rahmen der Durchführung der Umweltpolitik jede strafrecht- verbindlich (Art. 249 III EG). liche Harmonisierung, und sei sie auch so begrenzt wie die des Rahmenbeschlusses, unzulässig wäre, selbst wenn sie zur Da Harmonisierungsbemühungen aus diesen Gründen nicht Sicherstellung der Wirksamkeit des Gemeinschaftsrechts er- per se erstrebenswert sind, wird die Diskussion um die Reich- forderlich ist.“ weite der neuen Ermächtigungsgrundlage des Art. 280 IV EG davon bestimmt, ob die dem Rat verliehene Befugnis „zur Ver- hütung und Bekämpfung von Betrügereien durch erforderliche III. Das Interesse an der heiklen Frage der Strafrechtskom- Maßnahmen“ künftig sogar die Kompetenz zur Statuierung petenz der EG zum Schutz des Haushalts vor Betrügereien unmittelbar anwendbarer strafrechtlicher Vorschriften im Ver- ordnungswege beinhaltet. Das akute Interesse an strafrechtlichen Verordnungen der EG für den Schutz ihrer finanziellen Interessen beruht auf dem Dass es sich hierbei keineswegs um eine Phantomfragestellung starken Bedarf hiernach: Will die Europäische Gemeinschaft handelt, beweist der Umstand, dass momentan bereits heftig infolge des enormen Schädigungsausmaßes nicht weiter an und kontrovers über die Frage diskutiert wird,9 ob es mög- Glaubwürdigkeit verlieren, muss der EG-Haushalt – endlich – lich ist, rechtspolitische Vorschläge, wie das „Corpus Juris effektiv geschützt werden. Um Herr der Lage zu werden und der strafrechtlichen Regelungen zum Schutz der finanziellen die hohe kriminelle Anziehungskraft dieses Bereichs zu been- Interessen der Europäischen Union“10, in geltendes Gemein- den, muss aus Abschreckungsgründen auch zu kriminalstraf- schaftsrecht umzusetzen. Zwar ist die Frage, wie das „Corpus rechtlichen Maßnahmen gegriffen werden. Juris“ in Kraft gesetzt werden kann, von den Verfassern des Projekts offen gelassen worden. Das Europäische Parlament, Die Mitgliedstaaten konnten durch ihre Strafgesetzbücher den welches zu dieser Studie den Auftrag erteilt hatte, hat die Schutz der Finanzinteressen der EG nicht effektiv gewährlei- Kommission aber bereits aufgefordert, die Möglichkeit der sten. Daher sollte die EG dazu übergehen, ihre finanziellen Umsetzung einzelner Rechtsvorschriften zu prüfen.11 Sollte Interessen selbst durch unmittelbar anwendbare Rechtsvor- der Weg einer gemeinschaftlichen Verordnung gewählt werden, schriften zu schützen. Selbst wenn sich die Organe der Eu- wie vom Europäischen Parlament in der „Empfehlung 1“ der ropäischen Gemeinschaft nämlich entschließen, vermehrt „Entschließung des Parlaments an die Kommission zur Ein- Gebrauch von ihrer Befugnis zu machen, Richtlinien zur Ge- führung eines strafrechtlichen Schutzes der finanziellen Inte- währleistung eines gleichwertigen strafrechtlichen Schutzes ressen der Union“12 sowie vom Überwachungsausschuss in der des Gemeinschaftshaushalts zu erlassen, so wäre dies zugege- „Stellungnahme 5/99 zu den Auswirkungen einer möglichen benermaßen ein gangbarer Weg, um den fehlenden politischen Umsetzung des Corpus Juris“13 vorgeschlagen – wobei Art. Willen der Mitgliedstaaten, die Rechtsangleichung auf dem 280 IV EG als geeignete Rechtsgrundlage angesehen wird – so Gebiet ihres eigenen Strafrechts zu fördern, zu bekämpfen. würde aufgrund der darin enthaltenen echten Strafvorschriften In diesem Falle wäre es nämlich möglich, die EG-Staaten zur ein supranationales Kriminalstrafrecht geschaffen. Durchsetzung der Gemeinschaftsrechtsordnung durch Ein- leitung von Vertragsverletzungsverfahren gemäß Art. 226 ff. Ferner schlug die Kommission im Rahmen der Vertragsver- EG dazu zu zwingen, die sekundärrechtlichen Richtlinien zur handlungen des Vertrags von Nizza bereits einen neuen „Arti- einheitlichen Strafbarkeit in ihre nationalen Gesetze zu trans- kel 280-a“ vor.14 Auf Grundlage des geplanten Artikels 280-a formieren. sollten auch originäre Straftatbestände festgelegt werden. Die- ser Vorschlag setzte sich jedoch nicht durch, und es verblieb Die sich am fehlenden Willen zur Umsetzung von Rechts- bei der Version des Art. 280 EG-Vertrag in der Version von akten zur Betrugsbekämpfung wiederspiegelnde mangelnde Amsterdam. Unterstützung der Mitgliedstaaten, die sich auch im Rah-

eucrim 3–4 / 2006 | 105 Kompetenzen der EG für das Strafrecht

IV. Das kompetenzbegrenzende Argument „nulla poena sine schaftsausübung auf einen Willen oder eine Entscheidung des lege parlamentaria“ Volkes zurückzuführen ist.18 Es gehört zu den Grundvorausset­ zungen der Demokratie, dass alle Gewalt vom Volke ausgeht. Bedauerlicherweise hat sich der EuGH in seiner grundle- Bei Gesetzen, die mit einer hohen Belastung für den Einzelnen genden Entscheidung vom 13.9.2005 nicht mit dem gewich- verbunden sind, hält man aber die Existenz einer Legitima- tigsten, gegen eine Strafrechtskompetenz vorgebrachte Argu- tionskette vom „Regierten auf den Regierenden“19 nicht für ment befasst, Strafrechtsbestimmungen könnten aufgrund des ausreichend, gefordert werden darüber hinaus gehende, beson- Demokratiedefizits innerhalb der Europäischen Gemeinschaft ders strenge Legitimationsanforderungen.20 Um so tiefer sich nicht ausreichend demokratisch legitimiert werden.15 die Intensität eines hoheitlichen Eingriffs für das Volk darstel- len kann, je direkter ist das Handeln des Hoheitsträgers auch 1. Bisherige Auffassung des Europäischen Gerichtshofs durch das Volk zu legitimieren.

Zuletzt hat der Gerichtshof der Europäischen Gemeinschaft Gerade für die Normierung kriminalstrafrechtlicher Sankti- in seiner Entscheidung in den verbundenen Rechtssachen onen, die die Spitze der Eingriffsschärfe für den Bürger dar- C-164/97 und C-165/97, die nicht strafrechtliche Kompetenzen stellen und folgerichtig eine Ausnahmestellung in den einzel- der EG betraf, ausgeführt, dass bei zwei grundsätzlich in Be- staatlichen Rechtssystemen der Mitgliedstaaten für sich in tracht kommenden Rechtsgrundlagen die „demokratiefreund- Anspruch nehmen,21 bedarf es demnach einer unmittelbaren lichste Kompetenzgrundlage“ anwendbar sei, also diejenige, Legitimation,22 die nur durch ein Parlamentsgesetz gewähr- die das Europäische Parlament am meisten beteiligt.16 Wäh- leistet ist,23 vorausgesetzt das jeweils entscheidungsbefugte rend der Rat zwei Änderungsverordnungen zum Schutz der Parlament würde selbst den elementaren Prinzipien der De- Umwelt auf Art. 43 EGV gestützt hatte, plädierte das Euro- mokratie genügen. Derart hochgesteckte Anforderungen päische Parlament für die Heranziehung einer Ermächtigungs­ hinsichtlich der Legitimation von Strafgesetzen finden sich grundlage, die zur Anwendung des Zusammenarbeitsverfah- in den Rechtsordnungen der Mitgliedstaaten wieder. Nach rens führt, also eines Rechtsetzungsverfahrens, welches das Art. 6 II EU finden die allgemeinen Grundsätze des Gemein- Parlament im Verhältnis zum bloßen Anhörungsrecht wesent- schaftsrechts auf der Grundlage der mitgliedstaatlichen Verfas­ lich stärker beteiligt. sungsüberlieferungen Berücksichtigung. Nach der gängigen Praxis des Europäischen Gerichtshofes werden allgemeine Wenn der Europäische Gerichtshof aus rein demokratischen Rechtsgrundsätze nicht nur zur Ausrichtung des Handelns der Erwägungen in der verbundenen Rechtssache („Parlament ./. Organe der Gemeinschaft herangezogen, sondern auch zur Rat“) bei sich partiell überschneidenden Kompetenznormen Auslegung von Primärrecht selbst.24 Es verbietet sich ein Ver- jeweils das Entscheidungsverfahren, das für das Volksvertre­ ständnis einer Kompetenzgrundlage, die die Grundprinzipien tungsorgan auf europäischer Ebene günstiger ist, für einschlä- in ihr Gegenteil verkehren würde und gar außer Kraft setzten. gig erachtet, so scheint es nach der Ansicht des EuGH in der Konsequenz des Demokratieprinzips zu liegen, dass ein be- Demokratische Überlegungen zwingen also dazu, von einem stimmtes Beteiligungsrecht dieses Rechtsetzungsorgans in allgemeinen Rechtsgrundsatz des Gemeinschaftsrechts des einzelnen Fällen zu gewährleisten ist. Bei sich teilweise de- Inhalts auszugehen, dass mit der zunehmenden Intensität ckenden Kompetenzgrundlagen gibt sich der Gerichtshof nicht eines Rechtsaktes auch das Ausmaß der demokratischen Le­ mit einem Mindestmaß demokratischer Legitimierung von gitimierung zuzunehmen hat. Für eine Kompetenz zur Normie- Rechtsakten durch das jeweils schwächere Mitwirkungsrecht rung von Kriminalstrafrecht und damit von Bestimmungen, die des Europäischen Parlaments zufrieden, sondern wendet stets die Spitze der Eingriffsschwere darstellen, hat dies unmittelbar das demokratischere Verfahren an. Für bestimmte Materien zur Folge, dass nur ein die europäischen Bürger unmittelbar des Europarechts hält der Europäische Gerichtshof demnach repräsentierendes, selbst den Grunderfordernissen der Demo- die hinreichende Mitwirkung eines speziellen EG-Organs für kratie gehorchendes Organ befugt sein kann, dahin gehende notwendig, um der Norm die erforderliche demokratische Le- Rechtsakte zu statuieren. Es besteht also ein ungeschriebener gitimität zu verleihen. Genau diese Sichtweise ist wesentlicher „nulla poena sine lege parlamentaria“-Grundsatz mit dem Inhalt, Inhalt des „nullum crimen sine lege parlamentaria“-Prinzips. dass Kriminalstrafgesetze nur durch ein Gesetz des Parlaments selbst, oder nachdem dasselbe im Vorhinein inhaltlich ausrei- 2. Der Parlamentsvorbehalt für kriminalstrafrechtliche chend darauf einwirken konnte, beschlossen werden dürfen. Vorschriften Bei der genauen Beurteilung des noch ausreichenden Grades Die entscheidende kompetenzeinschränkende Auslegung des des Mitwirkungsumfangs des Europäischen Parlaments ist als Art. 280 IV 1 EG ergibt sich demnach aus demokratischen Ge- Maßstab oder Hilfsmittel die Einflussmöglichkeit der natio- sichtspunkten. Für kriminalstrafrechtliche Vorschriften ist ein nalen Parlamente der Mitgliedstaaten bei der Strafgesetzge- Parlamentsvorbehalt („nulla poena sine lege parlamentaria“) bung heranzuziehen, da andernfalls eine partielle Übertragung zu fordern.17 Derartige Überlegungen resultieren aus der Tatsa- der Gesetzgebungszuständigkeit an die EG für strafrechtliche che, dass in einer Demokratie stets eine ununterbrochene Legi- Belange zwangsläufig mit dem unerträglichen Umstand ver- timationskette vorausgesetzt wird, bei der die politische Herr- bunden wäre, dass auf europäischer Ebene die demokratische

106 | eucrim 3–4 / 2006 Zulässigkeit der Einführung strafrechtlicher Verordnungen

Legitimation im Vergleich zu gesetzgeberischen Akten der Na- Europäischen Parlaments einstimmig nominiert (Art. 247 III tionalstaaten über diese Materie schwächer ausgeprägt wäre UA 1 EG), womit die demokratische Legitimation des Rech- und demnach abnehmen würde. Ein deutliches Zurückbleiben nungshofes äußerst schwach und allenfalls mehrfach indirekt hinter diesen hochgesteckten Anforderungen führte dazu, dass ist. auf europäischer Ebene dem „nulla poena sine lege parlamen- taria“-Grundsatz nicht in hinreichendem Umfang Rechnung 4. Das Demokratiedefizit struktureller Natur getragen würde. Um dieses Ergebnis zu verhindern, müssen die Ermächtigungsgrundlagen des EG-Vertrages daher ein- Die im Vertrag von Amsterdam vorgenommene Verlagerung schränkend ausgelegt werden. von Kompetenzen zu Gunsten des Europäischen Parlaments, die auch als „Legitimation durch Verfahren“26 bezeichnet Auch nach Inkrafttreten des Vertrags von Amsterdam liegen wird, kann jedoch nicht über die internen Defizite des Parla- echte Kriminalstrafgesetze zum Schutz der EG-Finanzinteres- ments selbst hinwegtäuschen, die um vieles schwerer wiegen. sen daher außerhalb des Kompetenzbereichs der Organe der Das Europäische Parlament genügt nämlich nicht nur wegen Europäischen Gemeinschaft. Eine einschränkende Interpre- seines externen Demokratiedefizits den Mindestlegitimierungs­ tation von Ermächtigungsgrundlagen hat vor diesem Hinter- anforderungen nicht, die an Strafgesetze zu stellen sind. Das grund im Hinblick auf Gesetze zu erfolgen, die eine besondere Organ läuft ferner sowohl hinsichtlich seiner Zusammenset- Eingriffsintensität aufweisen. zung als auch seines Zustandekommens den Grunderforder- nissen der Demokratie zuwider. Man bezeichnet dieses zusätz- 3. Das „äußere Demokratiedefizit“ lich hinzutretende Demokratiedefizit als struktureller Natur.

Den besonders hochgesteckten Legitimitätsanforderungen Die Verstöße gegen die Wahlrechtsgleichheit, die die Wahlent- können jedoch weder das Europäische Parlament noch die scheidung der Bürger Europas erheblich verzerren, sowie die übrigen Rechtsetzungsorgane auf EG-Ebene derzeit genügen. zunehmende Bürgerferne der Europaabgeordneten schwächen Zwar wurden durch den Amsterdamer Vertrag bedeutende die Legitimation des Parlaments. Fortschritte zum Abbau des „äußeren Demokratiedefizits“25 durch die Kompetenzausweitung des einzig unmittelbar vom Einem bezüglich seiner Organisation den Grundanforderungen Bürger gewählten Organs erzielt. Durch die Ausdehnung des der Verfassungsprinzipien der Mitgliedsländer nicht gerecht – das Europäische Parlament am intensivsten in die Legisla- werdenden Organ kann guten Gewissens keine Kompetenz tive einbindenden – Mitentscheidungsverfahrens auf Maß- für Rechtsakte zugestanden werden, die die Freiheit des Ein- nahmen des Art. 280 IV 1 EG wäre eine Beteiligung eines zelnen gravierend einschränken können. Maßnahmen krimi- Parlaments an Strafgesetzen zwar prinzipiell gegeben. Die nalstrafrechtlicher Natur können aufgrund des andauernden Mindesterfordernisse in verfahrensrechtlicher Hinsicht für „doppelten“ Demokratiedefizits nicht im Rahmen des Art. 280 eine demokratische Legitimation von Strafgesetzen, die die IV EG ergehen. Lehre vom „nulla poena sine lege parlamentaria“ fordert, sind aber gleichwohl unterschritten: Es überwiegt weiterhin die dominierende Stellung des allenfalls mittelbar demokratisch V. Fazit legitimierten Rates bei der Rechtsetzung. Die Rolle des Euro- päischen Parlaments im Mitentscheidungsverfahren kann zum Dass der EuGH in seinem Urteil von September 2005 das De- anderen noch nicht mit den Aufgaben, die Volksvertretungen mokratiedefizit nicht thematisiert oder gar gegen eine straf- üblicherweise besitzen, verglichen werden. Demnach wäre rechtliche Richtlinienkompetenz angeführt hat, mag auf den eine Strafrechtskompetenz der EG direkt damit verbunden, ersten Blick Verwirrung hervorgerufen haben. Im Grundsatz dass ein günstigstenfalls äußerst schwach demokratisch legi- hat der EuGH vor allem in den Rechtssachen C-164/97 und timiertes Organ, der Rat als schwerpunktmäßig zuständige In- C-165/97 nämlich das Erfordernis besonders hochgesteckter stitution, die gesetzgeberische Entscheidung über diese Belan- demokratischer Anforderungen, die in einer umfassenden ge einer direkt legitimierten Volksvertretung, den nationalen Mitwirkungsbefugnis einer unmittelbar legitimierten europä- Parlamenten, abnehmen könnte. Eine auch nur partielle Kom- ischen Institution bei der Rechtsetzung bestehen, anerkannt. petenzübertragung hätte demnach unmittelbar eine Zuständig- keitsverschiebung der Legislative auf ein Organ der Exekutive Dass der EuGH in seinem Urteil vom 13.9.2005 keine kom- für Materien zur Folge, die nach den Grundüberzeugungen der petenzbegrenzende Auslegung aus demokratischen Gesichts- parlamentarischen Demokratien in den Kernbereich der Rech- punkten vorgenommen hat, erklärt sich jedoch damit, dass die te des Parlaments fallen. innerstaatliche Strafnorm bei Richtlinien der EG – rein for- mell – von den unmittelbar gewählten nationalen Parlamenten Auch wenn die Entscheidung der Vertragsautoren, den Rech- demokratisch legitimiert wird. Bei strafrechtlichen Verord- nungshof nun bei Maßnahmen im Rahmen des Art. 280 IV 1 nungen der EG zum Schutz der Finanzinteressen der EG stellt EG anzuhören, fachlich als Bereicherung gelobt werden muss, sich dies anders dar. Dahin gehende unmittelbar anwendbare kann sie die Legitimation von Rechtsakten nicht stärken: Die Vorschriften würden gegen den Grundsatz „nulla poena sine Mitglieder dieses Organs werden vom Rat nach Anhörung des lege parlamentaria“ verstoßen.

eucrim 3–4 / 2006 | 107 Kompetenzen der EG für das Strafrecht

Dr. Ingo E. Fromm Rechtsanwalt in der Kanzlei Caspers & Mock, Koblenz. Fachanwalt für Strafrecht, Promotion 2003 über das Thema: Der strafrechtliche Schutz der Finanzinteressen der EG http://www.caspers-mock.de

1 Hefendehl, ZIS 2006, S. 161 (164). tische Willensbildung – Die Staatsorgane des Bundes, 1998, Bd. II, § 30 Rn 15; 2 Satzger, Journal for European Criminal Law, Heft 1, 2006, S. 27 ff. Grabitz/Schmuck/Steppat/Wessels, Direktwahl und Demokratisierung – Eine Funk­ 3 Hefendehl, ZIS 2006, S. 161 (167). tionenbilanz des Europäischen Parlaments nach der ersten Wahlperiode, 1988, 4 Hervorhebung des Verfassers. S. 37; Ress, Über die Notwendigkeit der parlamentarischen Legitimierung der 5 Fromm, Der strafrechtliche Schutz der Finanzinteressen der EG, Diss., 2004. Rechtsetzung der Europäischen Gemeinschaften, S. 625 ff., in: Fiedler/Ress (Hrsg.), 6 Betrugsbekämpfung, Jahresbericht der Kommission 1997, S. 4, 9; Tiedemann, Verfassungsrecht und Völkerrecht, Gedächtnisschrift für Geck, Wilhelm Karl, 1989, AGON 1997, Nr. 17, S. 12. S. 625 (641). 7 Kühl, ZStW 109 (1997), S. 777 (784); Zieschang, ZStW 113 (2001), S. 255 (268). 19 C. Schmitt, Verfassungslehre, 8. Aufl. 1993, S. 234. Ähnlich Stern, Das 8 Dannecker, Strafrecht der Europäischen Gemeinschaft, S. 60; Huthmacher, Der Staatsrecht der Bundesrepublik Deutschland, § 18 II 4, S. 604, der von der Vorrang des Gemeinschaftsrechts bei indirekten Kollisionen, S. 223; Weigend, ZStW „Bestellung der Herrschenden durch das Volk“ spricht. 105 (1993), S. 774 (782, 799). 20 Böse, Strafen und Sanktionen im Europäischen Gemeinschaftsrecht, Diss., 1996, 9 White, Protection of the Financial Interests of the E.C. – the Fight Against Fraud S. 90; Perron, Strafrechtsvereinheitlichung in Europa, in: Dörr/Dreher (Hrsg.), Europa and Corruption, S. 196; dies, What Shape the Legal Space after Amsterdam? AGON als Rechtsgemeinschaft, 1997, S. 135 (140); Sforza, La direttiva 89/ 392/ CEE sulle 1997, Nr. 16, S. 3 (6). macchine utensili: un ulteriore esempio di „diritto penale comunitario“? RIDPP 1993, 10 Abgedruckt bei Delmas-Marty (Hrsg.), Corpus Juris der strafrechtlichen Re­ S. 316. gelungen zum Schutz der finanziellen Interessen der Europäischen Union, S. 30 f.f 21 Musil, NStZ 2000, S. 68 (69). 11 Entschließung des Europäischen Parlaments zur Schaffung eines europäischen 22 Eisele, Jura 2000, S. 896 (897); Jung, JuS 2000, S. 417 (424); Pühs, Der Vollzug Rechtsraums zum Schutz der finanziellen Interessen der Europäischen Union vor von Gemeinschaftsrecht, Diss., 1997, S. 277; Vollbrecht, Warenverkehrslenkung internationaler Kriminalität (B4-0457/97)“, ABl. 1997, C 200, S. 158. nach dem Außenwirtschaftsgesetz im Rahmen des europäischen 12 EP Dok. A 5-0002/2000, S. 1 ff. Gemeinschaftsrechts, Diss., 1987, S. 197. 13 Tätigkeitsbericht: Juli 1999–Juli 2000 vom 25.8.2000, S. 60 ff. (DV/420021DE.doc). 23 Gröblinghoff, a.a.O., S. 113; Heitzer, a.a.O., S. 165; Hirsch, in: Sieber 14 Ergänzender Beitrag der Kommission zur Regierungskonferenz über die (Hrsg.), Europäische Einigung und Europäisches Strafrecht, 1993, S. 119 (122); institutionellen Reformen Mitteilung der Kommission, KOM (2000) 608 endg. Kadelbach, in: van Gerven/Zuleeg (Hrsg.), Sanktionen als Mittel zur Durchsetzung 15 Fromm, Der strafrechtliche Schutz der Finanzinteressen der E.G., Diss., 2004, des Gemeinschaftsrechts, S. 81 (83); Kathrein, ÖJZ 1994, S. 785 (794); Moll, S. 227–270. Europäisches Strafrecht durch nationale Blankettstrafgesetzgebung? Eine 16 EuGH (Parlament ./. Rat), NVwZ 1999, S. 1212 (1213 Rz. 14); dazu Burgi, Kern­ Untersuchung zur strafrechtskonstituierenden Wirkung des EG-Rechts unter fragen des Europarechts in der Rechtsprechung von EuGH und EuG im Jahre 1999, besonderer Berücksichtigung der allgemeinen verfassungsrechtlichen Anforderungen JZ 2000, S. 979 (981); Callies, Anm. zum Urteil des EuGH in der verb. Rs. C-164/97, an Blankettverweisungen, Diss., 1998, S. 258; Oppermann, Europarecht, Rn 698; C-165/97, ZUR 1999, S. 224 f.; Heselhaus, NVwZ 1999, S. 1190 ff. und Krämer, Pabsch, Der strafrechtliche Schutz der überstaatlichen Hoheitsgewalt, S. 179; EuGRZ 2000, S. 265 (278). Sieber, RSCDPC 1993, S. 249 (263); Theato, The European Parliament in the fight 17 Gröblinghoff, Die Verpflichtung des deutschen Strafgesetzgebers zum Schutz against fraud, in: Commission of the European Communities, The Legal Protection of der finanziellen Interessen der Europäischen Gemeinschaften, Diss., 1996, S. 112; the Financial Interests of the Community: Progress and prospects since the Brussels Heitzer, Punitive Sanktionen im Europäischen Gemeinschaftsrecht, Diss., 1997, seminar of 1989, 1994, S. 9 (11). S. 156; Spannowsky, JZ 1994, S. 326 (329); Vogel, Die Kompetenz der EG zur 24 EuGH, Rs. 3/59 (Deutschland ./. Hohe Behörde), Slg. VI, S. 121 (139); EuGH, Einführung supranationaler Sanktionen, in: Dannecker (Hrsg.), Die Bekämpfung Rs. 13/61, (Kledingverkoopbedrijf de Geus en Uitdenbogerd), Slg. VIII, S. 97 (113); des Subventionsbetrugs im EG-Bereich, 1993, S. 170 (183). A.A.: Satzger, Die EuGH, Rs 138/79 (Roquette Frère ./. Rat), Slg. 1980, S. 3333 (3360 Rz 33), und Rs Europäisierung des Strafrechts, Kap. 2. B. IV. 3) a) (2) (ii) (b); Streinz, ZLR 1994, 139/79 (Maizena ./. Rat), Slg. 1980, S. 3393 ff., Rz 34; Rs. C-300/89, Slg. 1991, I, S. 537 (547). S. 2867. 18 Böckenförde, Demokratische Willensbildung und Repräsentation, in: Isensee/ 25 Emmert, Europarecht, S. 195. Kirchhof, Handbuch des Staatsrechts der Bundesrepublik Deutschland, Demokra­ 26 Wessels, Integration 1997, S. 117 (131).

108 | eucrim 3–4 / 2006 Imprint:

Published by: Max Planck Society for the Advancement of Science c/o Max Planck Institute for Foreign and International Criminal Law represented by Director Prof. Dr. Dr. h.c. Ulrich Sieber Guenterstalstrasse 73, 79100 Freiburg i.Br./Germany Tel: +49 (0)761 7081-1, Fax: +49 (0)761 7081-294 Email: [email protected] Internet: http://www.mpicc.de Official Registration Number: VR 13378 Nz (Amtsgericht Berlin Charlottenburg) VAT Number: DE 129517720 ISSN: 1862-6947

Editor in Chief: Prof. Dr. Dr. h.c. Ulrich Sieber Editorial Board: Luc Bihain, Université de Liège, Belgique; Julian Owen, Office for Criminal Justice Reform, United Kingdom; Dr. Tuomas Pöysti, Ministry of Finance, Finland; Lorenzo Salazar, Commission Européenne, Belgique; Prof. Rosaria Sicurella, Università degli Studi di Catania, Italia Managing Editor: Thomas Wahl, Max Planck Institute for Foreign and International Criminal Law, Freiburg Editorial Assistants: Julia Macke, Peggy Pfützner (LL.M.), Sarah Kiesel, all Max Planck Institute for Foreign and International Criminal Law, Freiburg Language Consultant: Indira Tie, Certified Translator, Max Planck Institute for Foreign and International Criminal Law, Freiburg Typeset: Petra Lehser, Ines Hofmann, Max Planck Institute for Foreign and International Criminal Law, Freiburg Produced in Cooperation with: Vereinigung für Europäisches Strafrecht e.V., Wuerzburg Layout: JUSTMEDIA Design, Cologne Printed by Stückle Druck und Verlag, Ettenheim/Germany

The publication is co-financed by the European Commission, European Anti-Fraud Office (OLAF), Brussels

© Max Planck Institute for Foreign and International Criminal Law 2006. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical photocopying, recording, or otherwise without the prior written permission of the publishers. The views expressed in the material contained in eucrim are not necessarily those of the editors, the editorial board, the pub- lisher, the Commission or other contributors. Sole responsibility lies with the author of the contribution. The publisher and the Commission are not responsible for any use that may be made of the information contained therein.

Subscription: eucrim is published four times per year and distributed electronically for free. In order to receive issues of the pe- riodical on a regular basis, please write an e-mail to: [email protected]. For cancellations of the subscription, please write an e-mail to: [email protected].

For further information, please contact: Thomas Wahl Max Planck Institute for Foreign and International Criminal Law Guenterstalstrasse 73, 79100 Freiburg i.Br./Germany Tel: +49(0)761-7081-227 or +49(0)761-7081-1 (central unit) Fax: +49(0)761-7081-294 e-mail: [email protected]