eucrim 2019 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM

Focus: Evidence Gathering – Current Legal Issues Dossier particulier: Recueil de preuves – questions juridiques actuelles Schwerpunktthema: Beweissammlung – Aktuelle Rechtsfragen

Guest Editorial Ladislav Hamran

Legal and Practical Challenges in the Application of the European Investigation Order José Eduardo Guerra and Christine Janssens

The European Investigation Order and Its Relationship with Other Judicial Cooperation Instruments Jorge A. Espina Ramos

Access to the Case Materials in Pre-Trial Stages Anneli Soo, PhD and Anna Pivaty, PhD

Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)? Adam Juszczak and Elisa Sason 2019/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim.

Contents

News* Articles

Evidence Gathering – European Union Current Legal Issues

Foundations Procedural Criminal Law 46 Legal and Practical Challenges in the 2 Fundamental Rights 23 Procedural Safeguards Application of the European Investigation 5 Security Union 25 Data Protection Order – Summary of the Eurojust Meeting 7 Area of Freedom, Security 27 Victim Protection of 19–20 September 2018 and Justice 29 Freezing of Assets José Eduardo Guerra and Christine 8 Schengen Janssens 8 Legislation Cooperation 30 Police Cooperation 53 The European Investigation Order and Its Institutions 31 Customs Cooperation Relationship with Other Judicial Coopera- 10 European Court of Justice (ECJ) 31 European Arrest Warrant tion Instruments – Establishing Rules on the 10 OLAF 36 European Investigation Order Scope and Possibilities of Application 11 Eurojust 38 Law Enforcement Cooperation Jorge A. Espina Ramos 12 Europol 13 Frontex 60 Access to the Case Materials in Pre-Trial 14 Agency for Fundamental Rights (FRA) Stages – Critical Questions of Article 7 Council of Europe of Directive 2012/13/EU on the Right to Specific Areas of Crime / Information in Criminal Proceedings Substantive Criminal Law Anneli Soo, PhD and Anna Pivaty, PhD 15 Protection of Financial Interests Foundations 17 Money Laundering 43 Human Rights Issues 66 Fighting Terrorism through the European 18 Non-Cash Means of Payment Public Prosecutor’s Office (EPPO)? 19 Organised Crime Specific Areas of Crime What future for the EPPO in the EU’s 19 Cybercrime 43 Corruption Criminal Policy? 21 Racism and Xenophobia 45 Money Laundering Adam Juszczak and Elisa Sason

* The news contain Internet links referring to more detailed information. As of 2018, these links are being embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Guest Editorial

Dear Readers,

Twenty years have passed since the EU heads of state and gov- tical and legal problems increased ernment came together in Tampere and agreed that the princi- from 217 cases in 2013 to 410 ple of mutual recognition should become the cornerstone of newly registered cases in 2018. judicial cooperation in criminal matters between the EU Mem- Particularly in recent years, ECJ ber States. This was followed by the adoption of an ambitious case law raised new questions, and list of mutual recognition instruments for the pre-trial, trial, practitioners often struggled with and post-trial phases, which all reflect the same basic notions: requests for additional information direct contact between judicial authorities, uniform templates, and to meet deadlines. In 2018, short deadlines, a duty to recognise and execute (subject to Eurojust also opened 830 new limited grounds for refusal), and a presumption of mutual trust. cases on the EIO. The outcome report of the Eurojust Meeting on But what do twenty years of experience with the mutual rec- the EIO − summarized further on ognition principle tell us? In the past two decades, judicial in this journal − provides a good authorities have applied mutual recognition in practice when overview of some of the main issuing and executing European Arrest Warrants (EAWs), Eu- issues that mutual recognition Ladislav Hamran ropean Investigation Orders (EIOs), and freezing, confiscation, has triggered. Similarly, the first and supervision orders. Despite its advantages, there ensued preliminary ruling (Case C-324/17 Gavanozov) is currently challenges and limits to this principle that were not always pending before the ECJ and raises relevant questions on the readily apparent. The authorities learned how differences be- meaning of mutual recognition and fundamental rights. It will tween national legal systems complicate mutual recognition, be very interesting for practitioners to see how ECJ case law but also how these differences can be overcome. The jurispru- develops in the field of the EIO. dence of the European Court of Justice (ECJ) provided insight into how key legal issues need to be interpreted in light of the Applying the mutual recognition principle is not only about mutual recognition principle. overcoming legal challenges. Efficient cooperation also re- quires judicial authorities to have the necessary practical There now exists a deeper understanding that mutual recogni- means at their disposal, and a fundamental requirement for tion is based on mutual trust, but not on blind trust. Often, cross-border cooperation is a secure communication chan- additional information needs to be requested and there is a nel. Against this background, Eurojust recently launched an stronger awareness that mutual recognition is not only aimed initiative to develop a digital infrastructure to support the ex- at facilitating cooperation between authorities, but also at change of operational information and evidence between ju- protecting individual rights. Perhaps most significantly, we dicial authorities across the EU, between judicial authorities have come to realise that mutual recognition is not a miracle and Eurojust, and between Eurojust and other JHA Agencies. solution. While it can be efficient and effective, it can also This infrastructure will allow judicial authorities to identify be cumbersome and complicated. Even though direct contact connections between proceedings in different Member States with colleagues abroad is a great starting point, it is not always more easily and to communicate more efficiently with Euro- sufficient. Fortunately, when judicial authorities need help in just on cases requiring its support. Together with the secure applying the principle of mutual recognition, they have Euro- online portal currently being developed by the Commission, just’s support at their disposal. I am convinced that it will soon greatly facilitate judicial co- operation. Facilitating the execution of requests and decisions based on mutual recognition is at the heart of Eurojust’s work. The Ladislav Hamran, number of EAW cases where Eurojust helped overcome prac- President of Eurojust

eucrim 1 / 2019 | 1 News Actualités / Kurzmeldungen

be guided by the principles enshrined in Art. 21(1) TEU. EU agencies operating in the sphere of justice and home affairs and/or those whose activities could have an impact on the rights and principles deriving from the Charter should adopt internal European Union* fundamental rights strategies and pro- mote regular fundamental rights and Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) Charter training sessions for their staff at all levels. The Commission is called on to strengthen its awareness-raising activi- ties concerning the Charter, with the full Foundations „„Strengthening the integration of the involvement of civil society organisa- Charter in the legislative and decision- tions, and to promote and fund Charter- making processes; targeted training modules for national Fundamental Rights „„Mainstreaming the Charter into EU judges, legal practitioners as well as policies; civil servants. In this context, the Com- EP: Potential of Charter Must „„The Charter and the EU Agencies; mission should give full visibility to the Be Strengthened „„Implementation of the Charter at na- FRA’s recently published Handbook on The European Union must take resolute tional level; Applying the Charter of Fundamental steps to strengthen its own engagements „„More consistent interpretation of the Rights of the European Union in law and in guaranteeing the enjoyment of all of Charter. policymaking at national level. Where the rights of the Charter of Fundamental MEPs stress that the EU’s legisla- needed, the Commission must safeguard Rights, including social rights. This is tive proposals must fully comply with fundamental rights through infringe- one of the main requests of a EP resolu- the Charter; therefore, they advocate for ment proceedings. tion of 12 February 2019 “on the imple- enhanced forms of consultation, com- Member States are encouraged to reg- mentation of the Charter of Fundamental prehensive impact assessments, and ularly exchange information and experi- Rights of the European Union in the EU legal scrutiny with the involvement of ence on the use, application and over- institutional framework.” The non-legis- independent experts in the field of fun- sight of the Charter, and to mainstream lative resolution was adopted by 349 to damental rights. The EU’s Fundamental the examples of best practice already 157 votes (with 170 abstentions). Rights Agency should have a more vital developed at national level. Member The resolution notes that there is a role in the legislative process. States should also review their proce- persistent awareness-gap concerning the The resolution supports the introduc- dural rules on legal scrutiny and impact Charter, its scope and degree of applica- tion of strong and consistent fundamen- assessments of bills from the perspective tion among both rights-holders who ben- tal rights clauses into the operational of the Charter. (TW) efit from its protection and legal and hu- texts of the draft regulations establish- man rights experts. It also criticises that ing EU funds. It also calls on the EU national action is scarce to remedy such institutions and bodies to make due re- a deficiency. The resolution addresses gard to fundamental rights assessments * If not stated otherwise, the news reported in the importance of the Charter in the fol- if economic decisions are taken. Union’s the following sections cover the period 1 Janu- lowing matters: action on the international scene must ary – 31 May 2019.

2 | eucrim 1 / 2019 Foundations

EP: More Must Be Done for as requested in two resolutions in 2016 „„Promotion: This pillar involves build- Effective Protection of Rule of Law and 2018 (cf. eucrim 3/2018, p. 144, and ing up knowledge and a “common rule and European Values eucrim 4/2016, p. 154). of law culture;” it includes increased On 16 January 2019, the European Par- In the other areas, the resolution, inter awareness raising in the general pub- liament called on all relevant actors at alia, denounces the increasing restric- lic and deepened cooperation with the EU and national level, including govern- tions to freedom of speech and freedom Council of Europe. ments, parliaments and the judiciary, to of assembly in the EU. It is also stressed „„Prevention: The resilience of key sys- step up efforts to uphold and reinforce that whistleblowing is crucial for inves- tems and institutions must be built up the rule of law. tigative journalism and press freedom. by the EU, so that it is prepared when The statement was made within a MEPs condemn the rise of far-right political stress arises. An in-depth un- non-legislative resolution on the situa- movements and trivialisation of hate derstanding of the developments in the tion of fundamental rights in the Euro- speech. MEPs also point to abuses and Member States is necessary for this pur- pean Union in 2017. The resolution was human rights violations suffered by mi- pose; areas of relevance include national adopted with 390 votes to 153 and 63 grants and refugees in some Member checks and balances, judicial independ- abstentions. States, in particular with regard to ac- ence, the quality of public administra- Beside the rule of law, democracy, cess to territory, reception conditions, tion, anti-corruption policies, etc. In and fundamental rights, the resolution asylum procedures, immigration deten- addition, extensive cooperation and dia- also addresses the following aspects: tion and the protection of vulnerable logue can help resolve issues early on „„Right of migrants and refugees; persons. In the context of migration, the and foster reform processes. „„Women’s rights; interoperability of large-scale informa- „„Response: If national rule-of-law „„Media freedom, freedom of expres- tion systems is acknowledged under the safeguards are incapable of solving sion and freedom of assembly; condition that it preserves the necessary threats to the rule of law, it is the com- „„Racism, xenophobia, discrimina- safeguards. mon responsibility of the EU institutions tion, hate speech and other forms of in­ Finally, the resolution recommends and Member States to take steps to rem- tolerance. that the EU’s Fundamental Rights Agen- edy the situation. The Communication As regards the rule of law, MEPs cy should be more involved if a legis- suggests a tailored approach. Actions condemn the efforts of some Member lative file raises serious fundamental may vary, depending on circumstances. State governments to weaken the sepa- rights issues. (TW) One proposal is to cut EU money when ration of powers and the independence rule-of-law deficiencies occur (see eu- of the judiciary. They express concern Commission Triggers Debate on Future crim 1/2018, pp. 12–13). In addition, the that – despite the fact that most Member EU Rule-of-Law Toolbox 2014 Rule of Law Framework could be States have adopted legislation to ensure On 3 April 2019, the Commission pub- refined to include clear timelines for the judicial independence and impartiality, lished a Communication entitled “Fur- length of dialogue. in compliance with Council of Europe ther strengthening the Rule of Law with- The European Parliament, the Coun- standards – problems remain in the way in the Union.” The Communication aims cil, and other stakeholders have been these standards are applied, leaving na- at triggering a reflection process on how asked to reflect on several questions tional judiciaries open to political influ- the EU toolbox for defending and main- with regard to each of the three pillars. ence and fuelling public perceptions of taining the fundamental value of the rule The Commission will publish more con- interference in the judicial process and of law in the EU Member States can clusions and proposals at the end of June bias among individual judges. It is also continue to be developed in the future. 2019. Additional background informa- pointed out that the separation of powers The Communication first recaps the core tion on the rule-of-law process can be and the independence of the judiciary tools that the EU presently has at its dis- found on a special Commission website. are essential to ensure the effective func- posal to ensure that the rule of law is up- (TW) tioning of the rule of law in any society. held, e.g., the Rule of Law Framework The EP recalls the need for an im- (introduced in 2014), the Article 7 TEU Romania to be Placed Under partial and regular assessment of the procedure, infringement proceedings, Rule-of-Law Monitoring situation with regard to the rule of law, the European Semester monitoring, and After Poland and Hungary, Romania is democracy and fundamental rights in all the EU Justice Scoreboard. likely to become the third EU country the Member States. In this context, it re- After assessing the experience made that may face the consequences of the iterates the need for concluding a Union so far, the Communication lists three EU EU’s Article 7 procedure (for this pro- Pact for democracy, the rule of law and pillars to better enforce the rule of law in cedure, see eucrim 2/2018, p. 80 and fundamental rights (EU Pact for DRF), the Union: the article by Cassese, eucrim 1/2018,

eucrim 1 / 2019 | 3 NEWS – European Union p. 72). After the Romanian Parliament a positive development, but the Polish second subparagraph of Article 19(1) passed a highly contentious justice re- authorities are encouraged to address the TEU. Irremovability, i.e., the protection form on 24 April 2019, the Commis- remaining issues raised by the Commis- of judges against removal from office, sion sent a warning letter to Romania on sion. is one of the guarantees that is essential 10 May 2019. The Article 7 procedure identifies a for judicial independence. The principle The ruling Social Democrat party persistent breach of the EU’s founding was violated in the given case because pushed the bill through in parliament, values by a Member States; it can lead lowering the retirement age of Polish as a result of which the statute of limi- to the suspension of certain rights of the Supreme Court judges from 70 to 65 tations for some criminal offences is Member State. The procedure against has a considerable impact on the com- shorter, lower sentences for some of- Poland was opened by the Commission position of the Supreme Court (27 of 72 fences have been introduced, and negli- on 20 December 2017. The procedure judges are affected), the measure is not gence in the workplace decriminalised. against Hungary was initiated by the temporary, and it applies retroactively. Critics believe that the reform de facto European Parliament on 12 September Societal and economic changes may jus- leads to impunity for high-ranking offi- 2018. Since then Council is dealing with tify adjustments to the retirement ages cials who are allegedly involved in cor- matter, but – to date – without concrete of judges, but they cannot compromise ruption and fraud cases. results. the independence and irremovability of The Commission sees threats not Furthermore, the Commission judges. only to judicial independence, but also launched infringements proceedings In addition, the requirement of ju- to the effective fight against corruption, against Poland before the CJEU be- dicial independence was violated, be- including the protection of the financial cause of the Polish Supreme Court’s re- cause an extension of the mandate can interests of the EU as a consequence of form (see also eucrim 4/2018, 191 and only be granted by the Polish President, the new Romanian legislation. It warned 2/2018, 80). (TW) whose power to decide on extensions/ the Romanian government that it will renewals is inordinately broad. The ex- trigger the rule-of-law mechanism with- AG: Polish Supreme Court Reform tension decision is not subject to judi- out delay and that it will suspend the Co- is Against EU Law cial review and is carried out without operation and Verification mechanism Polish legislation lowering the retire- binding criteria, however, meaning that (CVM). The CVM is a specific frame- ment age of Supreme Court judges vio- Supreme Court judges are exposed to work for the Commission to regularly lates EU law, according to the opinion external intervention and pressure from monitor progress made after Romania’s of Advocate General Evgeni Tanchev. the President. This impairs the objective accession to the EU in 2007. It was in- The opinion was released on 11 April independence of the highest court and tended to help overcome several short- 2019 and concerns one of three in- influences the judges’ independent judg- comings that had been identified in rela- fringement procedures that have, in the ment and decisions. (TW) tion to implementation of the EU acquis. meantime, been launched by the Com- The Commission warned Romania mission against recent judicial reforms Commission Launches Another that the country’s envisaged accession in Poland. The case is referred to as Infringement Procedure Against Poland to the Schengen area would be impeded C-619/18. By order of 15 November The Commission has targeted another if the controversial criminal law reforms 2018, the President of the Court granted aspect of judicial reform in Poland. On are promulgated. (TW) the Commission’s request to decide this 3 April 2019, the Commission launched action under an expedited procedure. On a new infringement procedure against Council Does Not Reach Progress in 17 December 2018, the CJEU already Poland. It addresses the recently intro- Art. 7 TEU Procedure Against Poland granted interim measures that, inter alia, duced disciplinary regime for judges. and Hungary obliged Poland to suspend application of The Commission believes that the At its meeting of 19 Feburary 2019, the its legislation on lowering the retirement disciplinary regime is contrary to the ob- General Affairs Council dealt with the age for Supreme Court judges (see eu- ligations arising from Art. 19(1) TEUI Article 7 TEU procedure concerning Po- crim 4/2018, 191). in conjunction with Art. 47 CFR, which land and Hungary. Statements of Mem- In preparing the Court’s final decision enshrine the right to an effective rem- ber States on the rule of law situation in on the infringement action, AG Tranchev edy before an independent and impartial these two countries were, however, cau- argued that the contested measures court. tious. The Foreign Affairs Ministers of violate the principle of irremovability First, the new rules can subject ordi- the EU Member States considered that of judges, the observance of which is nary court judges to disciplinary inves- recent legislative changes concerning necessary to meet the requirements of tigations, procedures, and, ultimately, to the Supreme Court law in Poland were effective judicial protection under the sanctions on account of the content of

4 | eucrim 1 / 2019 Foundations their judicial decisions. Second, the new- including the voting rights of that coun- one or more of the following elements: ly created Disciplinary Chamber, which try in the Council. (TW) „„the sovereignty of the state; has been empowered to review decisions „„the integrity of its territory, its institu- in disciplinary proceedings against judg- CCBE: Recommendations on Protection tions and its critical infrastructure; es, is not a court “established by law.” of Fundamental Rights in “National „„the protection of the democratic order Regarding the disciplinary proceedings, Security” Context of the state; the Commission criticises the undue re- The concept of “national security” is of- „„the protection of its citizens and resi- striction of judges’ procedural rights and ten used in modern democratic societies dents against serious threats to their life, the rights of the defence. to justify intrusive surveillance meas- health and human rights; A second line of argumentation by the ures or other interference in an individ- „„the conduct and promotion of its for- Commission involves non-compliance ual’s fundamental rights. A universally eign relations and commitment to the with Art. 267 TFEU – the right of courts accepted definition of national security peaceful coexistence of nations.” to request preliminary rulings from the is lacking, however, which makes it dif- The CCBE does not stop at the defi- CJEU. According to the new discipli- ficult for courts to review state actions nition, however, but emphasises that nary regime, judges may even face dis- by adequately applying the necessity “procedural justice” is also needed. This ciplinary proceedings for their decisions and proportionality test. Therefore, the means that state authorities must heed to refer questions to the European court. Council of Bars and Law Societies of rule-of-law principles if they invoke the Poland now has two months to react Europe (CCBE) published a paper at the rationale of “national security” and citi- to the letter of formal notice in which the beginning of April 2019, which seeks zens must receive a clear and fair proce- Commission opened the new infringe- to clarify the concept of “national se- dure in the event of infringements of their ment procedure. curity” as a justification ground. It also fundamental rights. In this context, the This is the third infringement proce- makes concrete recommendations as to CCBE makes four recommendations: dure against Poland. On 29 July 2017, how the invocation of national security „„Need for legislative control; the Commission launched an infringe- by the executive can adhere to the rule „„Judicial and independent oversight; ment procedure against the Polish Law of law. The paper is available in English „„Effective legal remedies and sanc- on Ordinary Courts, on the grounds of and French. tions; its retirement provisions and their im- After explaining the background and „„Protection of the professional secrecy pact on the independence of the judici- context of the subject matter and de- and legal professional privilege. ary. The case was referred to the CJEU scribing the existing legal instruments The CCBE concludes that its contri- on 20 December 2017 (Case C-192/18). and case law at the European level, the bution is designed to enable “democratic On 2 July 2018, the Commission paper presents the results of a survey societies (to) respond to internal and ex- launched an infringement procedure conducted with a representative sam- ternal threats (…), whilst yet upholding against the Polish Law on the Supreme ple of members of bars and societies the democratic values on which they are Court, on the grounds of its retirement (Austria, Belgium, the Czech Republic, founded.” (TW) provisions and their impact on the in- France, Germany, Greece, Hungary, Ita- dependence of the Supreme Court. ly, Poland, Spain, and the United King- The case was referred to the CJEU on dom). The survey included questions on Security Union 24 September 2018 (Case C-619/18). the legal concept of national security, The CJEU granted the Commission’s on how the concept is employed, on Commission Takes Stock of Security application on interim measures by or- whether national security is defined in Union Progress der of 17 December 2018 (see eucrim the law, and under what circumstances On 20 March 2019, the European Com- 4/2018, 191). the term is invoked. The conclusion is mission presented its 18th “progress re- In addition to the infringement pro- drawn that the concept of “national se- port towards an effective and genuine cedures, the above-mentioned Article curity” is not precisely defined in most Security Union.” Within the framework 7 procedure is still ongoing. It allows states’ legal systems, but, when the state of this series (see also eucrim 3/2016, the Council to determine the clear risk wishes to overcome legal restrictions, all 123), this report especially takes stock of a serious breach of the rule of law by legal systems use the concept. of the progress made on the main build- Poland. The procedure may end with Against this background, the fol- ing blocks of the EU’s Security Agenda the Council triggering a sanctioning lowing definition of national security − prior to the European Parliament (EP) mechanism: certain rights deriving from is suggested: “(N)ational Security is elections in May 2019. The report also application of the EU treaties to the EU understood as the internal and external highlights the need for further action in country in question may be suspended, security of the state, which consists of the near future.

eucrim 1 / 2019 | 5 NEWS – European Union

The report notes that 15 of 22 leg- in which an increased number of Euro- in the US criminal justice system as an islative priority files presented by the peans expressed concern over falling example of algorithmic fairness – in Commission have been agreed upon by victim to various forms of cybercrime. view of the authors, algorithmic fairness the EP and the Council. These include For example, seven in ten respondents is a guiding principle for transparency restrictions on the marketing and use of fear become the victim of devices in- and accountability. explosives precursors and the interoper- fected with malicious software, of iden- As regards governance frameworks, ability of the EU information systems. tity theft, or of bank card/online banking the study explains a number of funda- Good progress has also been made on fraud. (TW) mental approaches to technology gov- the Commission proposal to strengthen ernance, provides a detailed analysis the security of identity cards and resi- EP-Studies on Algorithmic Decision- of several categories of governance op- dence documents. The removal of ter- Making tions, and reviews specific proposals for rorist content online (see eucrim 4/2018, The European Parliamentary Research the governance of algorithmic systems 199) and the reform of the European Service published two studies dealing as discussed in the existing literature. Border and Coast Guard remain high on with algorithms used in systems to sup- The study breaks down the assessments the legislative agenda. port decision-making. The studies were into four policy options: Steady progress has also been made designed to provide a basis for future de- „„Awareness raising: education, watch- in building up electoral resilience. Meas- bates in the European Parliament on the dogs, and whistleblowers; ures include the introduction of stricter issue of algorithmic decision-making „„Accountability in public-sector use of rules on political party funding. One im- systems. algorithmic decision-making; portant issue in the context of electoral The first study, “Understanding algo- „„Regulatory oversight and legal liabil- resilience is the fight against disinforma- rithmic decision-making: Opportunities ity in the private sector; tion. Here, the Commission points out a and challenges,” focuses on the techni- „„Global dimension of algorithmic gov- recently introduced Rapid Alert System cal aspects of algorithmic decision sys- ernance. and its regular monitoring of the code of tems (ADS) and explores the benefits Each option addresses a different as- practice against disinformation, which is and risks of ADS for individuals, for the pect of algorithmic transparency and ac- implemented by online platforms, e.g., public sector, and for the private sector. countability and includes concrete rec- Google, Facebook, and Twitter. A spe- The study also includes examples of ommendations for policy-makers. (TW) cific progress report on the code of prac- ADS in criminal justice, e.g., predictive tice was published on 20 March 2019. policing, risk assessments for recidi- EU Law Enforcement Emergency In the area of enhancing critical in- vism, and the use of ADS for sentenc- Response Protocol frastructure, the Commission plans to ing. In conclusion, the study puts for- In order to provide law enforcement au- concentrate on common security stand- ward various options for policymakers thorities in the EU with a tool for im- ards for 5G networks, which are set to and the public to address precautionary mediate response to major cross-border become the backbone of future global measures that meet the raised challeng- cyber-attacks, the Council of the EU telecommunications. es. These options include: adopted an EU Law Enforcement Emer- As regards the fight against terror- „„Developing and disseminating gency Response Protocol. The Protocol, ism, the Commission report stresses knowledge about ADS; on which Europol reported in March the enhanced security of public spaces, „„Publicly debating the benefits and 2019, is part of the EU Blueprint for where a set of “good practice” has been risks of ADS; Coordinated Response to Large-Scale established by the Commission in close „„Adapting legislation to enhance the Cross-Border Cybersecurity Incidents cooperation with public authorities and accountability of ADS; and Crises of September 2017. It sets private companies. Better support for „„Developing tools to enhance the ac- out a multi-stakeholder process with victims of terrorism remains vital. The countability of ADS; seven possible core stages beginning Commission plans to fund a new EU „„Effectively validating and monitoring with the early detection and identifica- Centre of Expertise – a platform for measures for ADS. tion of a major cyber-attack. The next practitioners dealing with victims of ter- The second study develops policy op- steps include threat classification, an rorism; the centre is to be established in tions for a governance framework for al- emergency response coordination cen- 2019. gorithmic accountability and transparen- tre, early warning notification, a law Lastly, the Commission emphasised cy. It analyses social, technological, and enforcement operational action plan, that Internet security and cybercrime regulatory challenges posed by algorith- investigation and multi-layered analysis, remains an area of concern. It refers to mic systems. The study, inter alia, deals and ultimately, emergency response pro- a Eurobarometer survey of March 2019 with algorithm-based decision-making tocol closure.

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The protocol determines the proce- States, they take up to one year on aver- „„As a good practice to improve citi- dures, roles and responsibilities of key age; they take around two years on aver- zen-friendly justice, access mechanisms players both within the EU and beyond. age in a number of other Member States. have been put in place for court users to It sets out secure communication chan- hhQuality in terms of accessibility obtain clarification on court decisions. nels and 24/7 contact points for the ex- „„Almost all EU Member States pro- Only some EU Member States provide change of critical information; as well as vide some online information on their these mechanisms; the overall coordination and de-conflic- judicial systems; however, differences „„Those Member States facing efficien- tion mechanism. remain as regards information content cy challenges are currently not using The scope of the protocol only cov- and adequacy for the people’s needs; timing standards; ers “cyber security events of a malicious „„Over the years, legal aid for consum- „„Standards for backlogs are still not as and suspected criminal nature” and does ers has become less accessible in some widespread as those fixing time limits not include incidents or crises caused EU Member States; and timeframes; by a natural disaster, man-made error or „„In some Member States, there are dis- „„Only a few Member States have con- system failure. (CR) suasive effects compromising access to tinuous monitoring mechanisms for pre- justice for people in poverty. defined timeframes. hhQuality in terms of resources As regards the independence of jus- Area of Freedom, Security „„Overall, in 2017, general government tice, the Scoreboard mainly measures and Justice total expenditure on law courts remained perceived independence by EU citizens mostly stable in Member States; and companies. Data are obtained by 2019 EU Justice Scoreboard: „„In half of the Member States, over means of several surveys, conducted, Downward Trend for Judicial 50% of the judges regularly participate e.g., by Eurobarometer and the World Independence in continuous training measures on EU Economic Forum. The 2019 Justice On 26 April 2019, the Commis- law or the law of another EU Member Scoreboard concludes that, although the spot sion published the 2019 EU Jus- State; perception of judicial independence im- light tice Scoreboard. The Score- „„The percentage of regular training proved in about two-thirds of Member board presents an annual comparative in other skills, such as judgecraft, IT, States compared to 2016, the perception overview of indicators relevant for the court management, and judicial ethics, of judicial independence by businesses independence, quality, and efficiency of remains very heterogeneous within the and the general public decreased in justice (for the Justice Scoreboards of EU Member States. about three fifths of all Member States previous years, see eucrim 2/2018, 80– hhQuality in terms of assessment tools compared to the 2017 Scoreboard. The 81, and eucrim 2/2017, 56). The param- „„Several Member States extended most frequently stated reason for the eters are an essential tool for measuring monitoring to more specific elements perceived lack of independence of courts the effectiveness of national justice sys- and some involved more specialised and judges is interference or pressure tems. The data are important for the EU court staff for quality compared to past from government and politicians. The − not only to lay the basis for good in- years; second most frequently stated reason is vestments and to attract businesses, but „„Compared to previous years, there pressure from economic or other specific also to monitor the rule-of-law value. was no improvement in implementing interests. Both reasons stated above are In general, the 2019 Scoreboard indi- ICT case management systems in many noteworthy for those Member States in cates positive trends as regards the effi- Member States; which perceived judicial independence ciency of justice systems and the quality „„Surveys among court users and legal is very low. of justice: professionals have decreased, with more For the first time, the 2019 EU Justice hhEfficiency Member States opting not to conduct Scoreboard includes information on dis- „„In almost all EU Member States, the any surveys. ciplinary regimes for judges in the vari- length of first-instance court proceed- hhQuality in terms of setting standards ous national systems. It also provides ings remained stable or even decreased „„For the first time, the 2019 Justice information on the appointment and dis- since 2010; Scoreboard includes data on standards missal of prosecutors. These data are im- „„Those Member States facing substan- regarding the quality of judgments. portant indicators for the independence tial challenges showed an increase in the Standards vary considerably among the of justice systems in the EU. length of proceedings in 2017; EU Member States, but most provide The EU Justice Scoreboards will also „„The length of proceedings specifi- some kind of professional training for feed the so-called European Semester, cally as regards money laundering cases judges on the structure, style of reason- where the European Commission car- varied: in approx. half of the Member ing, and drafting of judgments; ries out a detailed analysis of EU Mem-

eucrim 1 / 2019 | 7 NEWS – European Union ber States’ plans for macroeconomic, will it now do. Further explanations on the ETIAS Central Unit and establishing budgetary, and structural reforms. It the legal context and policy background a recruitment plan for the Unit. issues recommendations on a country- detail the impact of the regulations in Europol has participated in implemen- by-country basis for a period of 12–18 case of “no deal” and give an overview tation meetings and conducted an internal months to be adopted by the Council. If of whether EU rules continue to apply or business analysis elaborating the opera- the results indicate poor performance in are to be revoked. This includes the fact tional processes in which it is expected individual Member States, the Commis- that the UK will no longer be a party of to be involved. It has also already taken sion will take a closer look at their legis- Europol and Eurojust, for instance. an initial technical step by making its data lation and institutions. (TW) As regards extradition, the Regula- available for the European Search Por- tions point out that they will provide the tal and for the future cross-checking of Brexit: UK Government Prepares No legislative underpinning for the UK to ETIAS travel applications. (CR) Deal Scenario in the Areas of Security transition its cooperation with Member and Criminal Justice States to a non-EU mechanism. This The British government tabled “Regu- means that the UK will no longer oper- Legislation lations” that contain legislative amend- ate the European Arrest Warrant after ments and regulatory measures in the Brexit end of March 2019 without a Updated Rules on European Citizens’ area of security, law enforcement and transitional agreement. Lawyer Rebecca Initiatives criminal justice. They are to ensure that Niblock from Kingsley Napley analysed At the end of March 2019, the Council the UK’s statute book continues to func- the regulations in relation to extradition and the European Parliament passed a tion effectively, should the UK leave the at the blog “Lexology.” She argues that Regulation that reforms the European EU without an agreement in March 2019. the chosen option of falling back to the citizens’ initiative. The European citi- The Regulations will address failures of 1957 European Convention on Extradi- zens’ initiative is a democratic partici- retained EU law to operate effectively tion poses numerous problems. (TW) pation tool by which citizens may influ- or address other legislative deficiencies ence EU policy. If the Commission has arising from the UK’s withdrawal from the power to propose legislation, e.g., on the EU. It is told that they “will provide Schengen the environment, transport, agriculture, legal and operational certainty.” energy, or trade, a successful initiative The instrument deals with the whole ETIAS Implementation: Progress may demand the Commission to take array of security, law enforcement and by Frontex and Europol legislative action. Supporters of an ini- criminal justice issues, such as: At the beginning of May 2019, both tiative must total at least one million and „„Counter-terrorism; Frontex and Europol submitted progress come from at least one quarter of EU „„Cross-border surveillance; reports to the European Parliament and Member States. The basic rules are laid „„Eurojust; the Council of the EU on the preparatory down in a Regulation of 2011. „„Europol; status of the European Travel Informa- The new Regulation aims at making „„European Judicial Network; tion and Authorisation System (ETIAS). the European citizens’ initiative more „„ECRIS; For the legal framework of ETIAS, see accessible, less burdensome, and easier „„Exchange of information and intelli- eucrim 2/2018, 82, 84. to use. It introduces a central online gence between law enforcement authori- According to Frontex, the Agency system available to organisers free of ties and disclosure in foreign proceedings; has already made the following prepara- charge. Support for an initiative can be „„Extradition; tions: provided electronically. „„Mutual legal assistance in criminal „„Created a task force for management Assistance for organisers has been im- matters; of the ETIAS and an interoperability proved and the translation of all initiatives „„Joint Investigation Teams; programme; into all EU languages ensured. Support re- „„Passenger name record data; „„Analysed the relevant regulations to quirements have also been lowered, e.g., „„Prüm cooperation; identify its detailed responsibilities; supporters can back initiatives regardless „„Schengen Information System; „„Contributed to the Commission’s of their country of residence and fewer „„Proceeds of crime; drafting of delegating acts and imple- personal data need to be provided. Mem- „„Serious crime and fraud. menting decisions; ber States are encouraged to give young An Explanatory Memorandum ex- „„Organised a high-level seminar for supporters more possibilities to partici- plains topic by topic (1) what did any EU Member States. pate, i.e., in accordance with their national relevant EU law do before Brexit day, Additional tasks for 2019 include fur- laws, the minimum age for supporting an (2) why is it being changed, and (3) what ther designing the operational model of initiative may be set at 16 years.

8 | eucrim 1 / 2019 Foundations

In addition, the follow-up process for from at least seven different Member A more efficient tax policy would also initiatives has been improved. One ex- States. If this is successful, the Commis- increase annual revenues within the EU ample is the extension of the examina- sion must decide whether to follow the and enhance economic growth. tion period from 3 to 6 months, which request or not. In either case, the Com- The Commission suggests a roadmap ensures that there is enough time for mission must provide a reasoning for its for a progressive and targeted transition EP hearings, Commission analyses, and decision. to QMV under the ordinary legislative other debates. The initiative accompanies the Com- procedure in certain areas of shared EU The new rules will apply as of 1 Janu- mission’s Communication to reflect on taxation policy. This is considered nec- ary 2020. (TW) future EU measures to ensure rule-of- essary for the following reasons: law values, the Commission’s decision „„Citizens demanding action; European Citizens’ Initiative on Respect to launch another infringement proceed- „„Improved cooperation; for the Rule of Law Admitted ing against Poland for not respecting the „„More democratic decision-making; On 3 April 2019, the Commission reg- rule of law in its recent justice reform on „„Stronger Single Market; istered a European citizens’ initiative disciplinary proceedings against judges, „„Fairer taxation; called “Respect for the rule of law with- and the adoption of new, more user- „„The EU becoming a global leader in a in the European Union.” friendly rules on European citizens’ ini- fairer tax environment. The European citizens’ initiative is a tiatives by the EP and the Council. (TW) The Commission suggests four steps democratic participation tool by which for a fairer and more efficient taxation citizens may influence EU policy. It was Roadmap Proposed for New Decision- policy: introduced by the Lisbon Treaty. If the Making Procedure in EU Tax Policy „„Step 1: combating tax evasion/fraud. Commission has the power to propose On 15 January 2019, the European Com- Member States would agree to move to legislation, a successful initiative may mission kicked off a policy debate on QMV decision-making for measures that demand that the Commission to take reforming the EU’s decision-making in improve cooperation and mutual assis- legislative action. taxation. This area is currently subject tance between Member States in fighting The “Rule of Law” initiative aims to a special legislative procedure, the tax fraud/tax evasion and for administra- at creating “an objective and impartial Council being the sole legislator and tive initiatives for EU businesses, e.g., evaluation mechanism to verify the appli- deciding by unanimity. The European harmonised reporting obligations; cation of the European Union’s values by Parliament is consulted only, i.e., the „„Step 2: tax as supporting policy in all the Member States.” The Commission Council is not legally obliged to take the other areas. QMV would be introduced is called upon to “provide the European Parliament’s opinion into account. to advance tax measures as a support Union with general legislation […] to The Commission’s Communication tool for other policy goals, e.g., fighting verify the practical application of national “Towards a more efficient and demo- climate change, protecting the environ- provisions relating to the rule of law.” In cratic decision making in EU tax policy” ment, and improving public health; addition, the organisers aim to “facilitate (COM(2019) 8) lists the disadvantages „„Step 3: further harmonisation of tax the enforcement of European laws on of the current system and the advantages policy. QMV would be used to help judicial cooperation in criminal matters of a future qualified majority voting pro- modernise already harmonised EU rules, (e.g. the European Arrest Warrant)” and to cedure (QMV) in the Council under the e.g., VAT and excise duty rules. Faster strengthen the role of the European Union ordinary legislative procedure, i.e., the decision-making in these areas would al- Agency for Fundamental Rights. EP having an equal say alongside the low Member States to keep up with the The Commission held that all admissi- Council. latest technological developments and bility criteria had been fulfilled. In particu- In the past, unanimity created unnec- market changes, which would benefit lar, the EU Treaties give the Commission essary delays and was a tool to obtain EU countries and businesses alike; the necessary legislative competences. concessions. Often, objections by Mem- „„Step 4: tax initiatives necessary for The Commission is allowed to launch ber States’ delegations were not related Single Market. A shift to QMV is en- legislative proposals on evaluation of the to the tax matter in question. This is ap- visaged for major tax projects, e.g., the Member States’ implementation of Un- parent in the EU Savings Directive, for Common Consolidated Corporate Tax ion policies in the area of freedom, secu- example, which took 26 years from pro- Base (CCCTB) and a new system for rity and justice. It may also draft laws on posal to adoption. taxation of the digital economy, which strengthening the European Union Agen- The Commission also demonstrates are urgently needed to ensure fair and cy for Fundamental Rights. that a definitive VAT regime could also competitive taxation in the EU. The organisers now have one year to help stop carousel fraud and save the EU The Commission suggests that deci- collect 1 million statements of support taxpayer €50 billion in losses per year. sions on Steps 1 and 2 should be taken

eucrim 1 / 2019 | 9 NEWS – European Union swiftly. Steps 3 and 4 should be devel- The absolute numbers of profession- the General Court on a decision of an oped by the end of 2025. als trained have increased for all profes- independent board of appeal of one of The Commission also stresses that sions (except bailiffs). Judges and pros- the following will not proceed unless its proposals entail neither a change of ecutors received far more training on the Court of Justice first decides that it EU competencies nor of Treaty provi- EU law or the national law of another should be allowed: sions. The shift to QMV and the ordi- Member State than members of the other „„The European Union Intellectual nary legislative procedure is already professions. Property Office (EUIPO); allowed under certain circumstances by In most Member States that delivered „„The Community Plant Variety Office the so-called “passerelle clauses,” e.g., data, the total number of lawyers trained (CPVO); Art. 48(7) TEU. increased. The report states, however, „„The European Chemicals Agency The Commission calls on EU Mem- that the situation of lawyers’ trainings (ECHA); ber States, the EP, and all stakeholders remains widely unsatisfactory. „„The European Union Aviation Safety to engage constructively in a debate on It should be noted that the figures Agency (EASA). QMV in EU tax policy. In particular, EU are meaningful to a limited extent only, To be admissible, such appeals must leaders are invited to endorse the pro- since data are not or not fully provided now be accompanied by a request clear- posed roadmap and to make timely deci- by all Member States and data on pri- ly setting out the significant issue raised sions on use of the relevant legal provi- vate providers of training for lawyers are by the appeal with respect to the unity, sions set out in the Treaties. (TW) lacking. consistency, or development of EU law. The report concludes that there is (CR) Record of Legal Practitioners’ Trainings still room for improvement. The Com- in 2017 mission is set to present a robust evalua- Record Number of Cases in 2018 In 2017, over 180,000 legal practition- tion of the 2011 strategy and bring forth According to its judicial statistics for the ers (judges, prosecutors, court staff, recommendations for the future in 2019. year 2018, the Court of Justice and the lawyers, bailiffs and notaries) took part For the debate on the rehaul of the train- General Court completed a record num- in training activities on EU law or the ing strategy, see also eucrim 1/2018, ber of 1769 cases in 2018 – this marked law of another Member State. With this 4–5. a new record in the courts’ productivity. record number over all seven years since All reports on European judicial The previous two years had seen approx. reporting on European judicial training training can be consulted via the EU’s 1600 completed cases per annum. In ad- since 2011, the EU reached its goal to e-justice portal. (TW) dition, the number of pending cases also let attend half of all legal practitioners in dropped to 2334 cases in 2018 compared the EU (i.e. around 800,000) training by to 2420 in 2017. 2020. Hence, the target set in the Euro- At the same time, the number of cases pean Judicial Training Strategy of 2011 Institutions brought before the Court of Justice once has been achieved two years ahead of again increased in 2018, with 849 new schedule. European Court of Justice (ECJ) cases representing an increase of 15% This is the main result of the Euro- compared to 2017. The majority of these pean Commission’s report on training New Rules for Repetitive Appeals cases were references for preliminary for EU legal practitioners in 2017, which With effect from 1 May 2019, the Proto- rulings, with 568 requests representing was published end of December 2018. col on the Statute of the Court of Justice 70% of the cases pending before the According to the report, the 2017 fig- of the European Union and the Rules of Court of Justice. As regards the process- ures show an upward trend in the num- Procedure of the Court of Justice have ing time for references for a preliminary bers of practitioners trained on EU law. created new rules for appeals brought ruling, statistics indicate a slight in- The participation rate varies, however, in cases that have already been consid- crease from 15.7 months to 16 months across the different legal professions ered twice ˗ initially by an independent in 2018. (CR) and Member States. Whereas the degree board of appeal, then by the General of training remains stable for judges and Court. Under the new procedure, the prosecutors, there is more fluctuation for Court of Justice will now only allow an OLAF court staff, lawyers and notaries. The appeal to proceed, wholly or in part, if report contains detailed breakdowns. it raises a significant issue with respect Investment Fund Misuse in Romania These include training participation by to the unity, consistency, or develop- On 9 April 2019, OLAF reported on a profession, length of training, training ment of EU law. In concrete terms, an successful operation led by the Romani- topics and quality indicators. appeal brought against a decision of an National Anti-Corruption Directorate

10 | eucrim 1 / 2019 Institutions

(DNA). With OLAF’s support, investi- money laundering (432). 545 of these Looking ahead, the new Eurojust gators revealed a kickback scheme being cases also involved third states. In total, Regulation will become applicable in used by an organised criminal group that Eurojust dealt with over 6500 cases in December 2019, changing Eurojust involved corruption, influence peddling, 2018, the largest number in its history. from the European Union Judicial Co- and money laundering. Losses in EU Furthermore, 85 new Joint Investigation operation Unit to the EU Agency for investment funds amounted to over €2 Teams (JITs) were signed off in 2018. Criminal Justice Cooperation. million. Eurojust financially supported ‘Operation Pollino’ serves as an ex- Lastly, the report is critical of the the operation activities of the Joint In- ample of a major organised crime inves- budgetary reductions foreseen for Euro- vestigation Team. (TW) tigation that was conducted in 2018 and just in 2019 and to its Multi-Annual Fi- shows how Eurojust works. nancial Framework, which poses a real International Operation Against Looking at priority areas such as challenge for the Agency and its increas- Fake Shampoo counter-terrorism, cybercrime, and mi- ing number of cases. On 18 February 2019, OLAF reported grant smuggling, Eurojust worked on a successful international operation 191 terrorism cases, 219 cybercrime Eurojust Newsletter Available which searched and seized 400 tons cases, and 157 migrant smuggling cases Eurojust has started to publish a quar- of counterfeit shampoo having an es- in these areas. 28 coordination meetings terly newsletter outlining the Agency’s timated retail value of €5 million. The were organised at Eurojust on cyber- recent work and latest publications. fake haircare products stem from China crime cases alone. In the area of counter- The very first edition covers the pe- and were shipped over different ports terrorism, 2018 saw a proposal to set up riod from January to March 2019, pre- in China and Korea to Latin America. a European Judicial Counter-Terrorism senting the highlights of Eurojust’s OLAF was able to keep track on the Register at Eurojust, with the aim of casework, articles, reports, and other shipment with special software. With detecting possible links between ongo- published documents. It also covers key OLAF’s coordination and the support ing investigations conducted in differ- events during that period. The newslet- of the Spanish customs service, the ent Member States and identifying the ter includes a brief outlook on the key Columbian and Mexican authorities coordination needs between all judicial developments to be expected in the sec- stopped the cargo before it could reach authorities concerned. ond quarter. (CR) its end destination in Venezuela where Developments with regard to Euro- the products were to be distributed. just’s cooperation with third States in- Cooperation Between Eurojust Hence, import into the European mar- cluded the deployment of Liaison Offic- and Georgia ket could be prevented. ers of the Ukraine and North Macedonia On 29 March 2019, Eurojust and Geor- OLAF stressed that the trade with at Eurojust. Contact points from Nige- gia signed a cooperation agreement to counterfeit products not only leads to ria, Iran, Mauritius, and South Africa strengthen their fight against cross-bor- significant losses of tax revenue. The recently joined Eurojust’s international der organised crime. smuggling of counterfeit products also judicial contact point network. Albania The agreement allows for Eurojust harms the European economy, damages signed a cooperation agreement, and and Georgia to exchange judicial in- legitimate business and stifles innova- first steps were also taken to strengthen formation and personal data in criminal tion, putting many jobs at risk. Counter- cooperation with Libya. Furthermore, investigations and prosecutions across feiting also poses serious risks to health negotiations for a cooperation agree- Europe and gives Georgia access to Eu- and safety as well as the environment. ment with Frontex were started. rojust’s information systems. Further- (TW) Eurojust’s support in the area of mu- more, Georgia will be able to appoint a tual recognition and the use of judicial Liaison Officer to Eurojust. cooperation tools in 2018 amounted to The cooperation agreement is the first Eurojust assistance in over 1000 European Inves- one signed between Eurojust and a State tigation Orders and 700 European Arrest of the South Caucasus region. (CR) Eurojust Annual Report 2018 Warrants. At the beginning of April 2019, Eurojust In 2018, Eurojust presented a general New National Member for Latvia published its Annual Report for the year proposal on Digital Criminal Justice. On 1 May 2019, Ms Dagmāra Skudra 2018. The proposal aims at answering the need took up her position as National Mem- In 2018, Eurojust once again saw an in- to keep pace with the growing intercon- ber for Latvia at Eurojust. She previ- crease in its casework, with 3317 new nectivity and digitalisation of coopera- ously held the position of Deputy to the cases. The majority of cases dealt with tion among law enforcement agencies in National Member of Latvia at Eurojust fraud (907), drug trafficking (451), and Europe. from 2004–2013.

eucrim 1 / 2019 | 11 NEWS – European Union

Before joining Eurojust, Ms Skudra vantages of a number of possible work­ Perseuss to enhance their efforts to com- was Deputy Prosecutor General and arounds like guessing the key. bat online fraud. Perseuss is a global Head Prosecutor of the Department of Ultimately, the report looks at pos- platform based on fraud records of mer- Analysis and Management with the Lat- sible future developments with respect chants from across the globe who aim vian Prosecutor General’s Office. (CR) to encryption, e.g., quantum comput- to share fraud intelligence. Europol and ing, artificial intelligence, 5G commu- Perseuss have already successfully co- New Eurojust National Member nication technology, and steganography. operated in operations such as the Glob- for Estonia (CR) al Airline Action Days (GAAD) where This March, a new National Member Perseuss assisted with the detection of for Estonia, Laura Vaik, took office at Second EuroMed Forum airline fraudsters. (CR) Eurojust. Prior to her position as Esto- From 30–31 January 2019, Prosecutors nian National Member, Ms Vaik served General from Europe and Mediterra- FinCEN Liaison Officer at Europol as State Prosecutor in the Prosecution nean countries took part in the second On 21 February 2019, representatives Department and in the Internal Control EuroMED Forum of Prosecutors hosted of Europol and the Financial Crimes Department of the Prosecutor’s General by Eurojust in The Hague. This year’s Enforcement Network (FinCEN) of the Office of Estonia. During that time, she Forum dealt with issues such as the fight United States Department of the Treas- was already seconded as national expert against terrorism and organised crime ury met to discuss possibilities for fur- to the Estonian Desk at Eurojust. (CR) as well as personal data protection. Fur- ther cooperation, especially with regard thermore, members of the Forum agreed to the exchange of financial information. Eurojust/Europol Report on Encryption on guidelines for setting up the princi- The agencies agreed on the deployment On 11 January 2019, Eurojust and Eu- ples of collaboration, communication, of a FinCEN Liaison Officer to Europol ropol published their first joint report and continuation of the Forum. to support and coordinate the coopera- on encryption offering an overview of Among the Mediterranean countries tion between FinCEN, Europol, and EU the state of play in this area. Encryption represented were Algeria, Egypt, Israel, Member States. is defined as the process of converting Jordan, Lebanon, Morocco, the Pales- FinCEN carries out its mission by data, such as messages or pieces of in- tinian National Authority, and Tunisia. receiving and maintaining financial formation, in a way that prevents unau- (CR) transactions data, which are analysed thorised access. and disseminated for law enforcement The report is primarily directed at purposes. It also regulates banks and policymakers. It gives an introduction Europol other financial institutions as far as the to the basics of encryption, products and combating (detection, reporting and pre- services using encryption, the encryp- Cooperation with the European vention) of money laundering and the tion challenge for law enforcement and Merchant Risk Council countering of terrorism financing are prosecution, and a look forward. On 5 April 2019, Europol’s EC3 and the concerned. (CR) With regard to the basics of encryp- European Merchant Risk Council (MRC tion, the report explains the differences Europe) signed a Memorandum of Un- between symmetric and asymmetric en- derstanding to combat serious organised EMSC Activity Report 2018 Published cryption as well as cryptographic hash crime, especially in the area of e-com- On 25 March 2019, Europol’s Europe- functions. merce fraud. an Migrant Smuggling Centre (EMSC) Looking at products and services us- MRC is an independent, non-profit published its activity report for the year ing encryption, it outlines the use of en- business association that promotes col- 2018. cryption in voice communications, full laboration between eCommerce pay- The EMSC was set up in February disk encryption, e-mails, file sharing, ment systems and risk professionals. It 2016 to support Member States’ investi- and self-destructing and anonymous ap- supports over 500 member companies, gations and to increase cooperation and plications. representing a variety of industries, coordination among law enforcement Analysing the challenges for law en- technologies, services, and solutions. agencies. forcement and the prosecution reveals The focus is on optimizing payments According to the report, with re- that it is becoming progressively more and reducing eCommerce fraud. (CR) gard to migrant smuggling in 2018, the difficult for law enforcement to gain ac- EMSC handled 3657 new cases and cess to encrypted data in the context of Cooperation with Perseuss 18,234 messages received by Europol’s investigations. Hence, the report offers On 28 February 2019, Europol signed Secure Information Exchange Network insight into the advantages and disad- a Memorandum of Understanding with Application (SIENA). It also took part

12 | eucrim 1 / 2019 Institutions in 39 Action Days against migrant Results of Action Week Against Human tion in which law enforcement, customs smuggling. Even more new cases were Trafficking and health regulatory authorities from received with regard to trafficking in hu- From 8–14 April 2019, Europol – to- 16 countries participated. Seized prod- man beings (1601 cases). gether with 23 EU Member States, ucts included not only opioid medicines, According to the migrant smuggling Iceland, Norway, and Switzerland – but also performance and image enhanc- intelligence picture, the overall migra- conducted an action week against traf- ing drugs and pharmaceutical products tion flow towards Europe decreased in ficking in human beings for the purpose used for the treatment of major illnesses. 2018. At the same time, facilitated sec- of labour exploitation. The action result- (CR) ondary movements increased. Common ed in 46 arrests and the identification of modi operandi for secondary move- 323 potential victims. During the opera- ments observed in 2018 were − often life tion, more than 50,000 persons and over Frontex threatening − concealment methods, in- 17,000 vehicles were checked. Visits tra-Schengen flights by means of fraud- were made to 5000 business premises Patrol Cars Started Operating ulent documents, and misuse of asylum and other locations. (CR) At the end of May 2019, for the first time procedures. In the future, the report sees in its history, Frontex started to operate continued migratory pressure from Afri- Joint Cybercrime Action Taskforce its own patrol cars in various field de- can countries. New anonymising tech- Enlarged ployments at Europe’s borders. nologies are increasingly impeding the Sweden and Poland have joined Eu- The patrol cars are a first step towards tracing or monitoring of criminal targets ropol’s Joint Cybercrime Action Task- Frontex operating its own equipment by law enforcement agencies. force (J-CAT). J-CAT operates within rather than relying on equipment from Recent trends with regard to traffick- Europol’s European Cybercrime Centre the EU Member States. This relieves the ing in human beings see persons be- (EC3) and aims to enhance collaboration pressure on Member States participat- ing trafficked not only for the purpose between law enforcement authorities in ing in the agency’s activities and enables of sexual exploitation but also for the tackling major cybercrime threats and Frontex to react more quickly to any de- purpose of labour exploitation, forced facilitating cross-border investigations. velopments at the EU’s external borders. begging (including disabled victims), The 24/7 taskforce primarily deals with Other Frontex equipment planned for the forced sham marriages between EU cyber-dependent crimes, cross-crimal future include own vans, vessels, planes, and third-country nationals, and, to a facilitators, transnational payment fraud, and remotely piloted aircraft. (CR) lesser extent, social benefit fraud. With and child sexual exploitation. It was regard to labour exploitation, the report launched in September 2014 and today First Operation Outside the EU expresses hope that the creation of the comprises cyber liaison officers from 15 On 21 May 2019, Frontex launched European Labour Agency will contrib- countries (nine EU Member States and its first full-fledged joint operation out- ute to an improved response to these six non-EU countries) and 17 law en- side the European Union. This first op- developments. forcement agencies. eration in Albania aimed at supporting Lastly, the report sets out the EMSC’s For 2019, J-CAT is planning four we- Albanian border guards with border response to these crimes in the form of binars in cooperation with CEPOL to control and at combating cross-border coordinated, EU-wide investigations. raise awareness among law enforcement crime. The approach focuses on high-value tar- agencies about the taskforce and how to For the operation, 50 officers from 12 gets (HVT), namely those individuals cooperate with it. (CR) EU Member States, 16 patrol cars, and that constitute the highest risk of serious one thermo-vision van were deployed to and organised crime in the EU. In addi- Operation MISMED 2 Albania’s border with Greece. tion, the EMSC supports regional, oper- At the beginning of March 2019, Eu- This new cooperation procedure was ational platforms. Ultimately, an Infor- ropol reported that operation MISMED made possible by a status agreement on mation Clearing House (ICH) has been 2 resulted in the seizure of illegally traf- border cooperation between the EU and established to enhance the intelligence ficked medicines worth more than €165 Albania on actions carried out by the Eu- picture on organised migrant smuggling million, 435 arrests, and the disruption ropean Border and Coast Guard Agency from source and transit countries. of 24 organised crime groups. The inter- in the Republic of Albania. It came into Looking at the future, the EMSC will national operation (carried out between force on 1 May 2019. The agreement continue focusing on the identification of April and October 2018) was led by the covers all necessary aspects for carrying HVTs. Furthermore, a Joint Liaison Task French Gendarmerie Nationale and the out actions (joint operations, rapid bor- Force on migrant smuggling (JLTF-MS) Finnish customs service. Europol active- der interventions, and return operations) will be established at Europol. (CR) ly supported and coordinated the opera- on the part of the Agency in the territory

eucrim 1 / 2019 | 13 NEWS – European Union of Albania. Executive powers are given on the European Commission’s proposal joying the right of free movement under to team members, i.e., Agency staff, to revise the European Border and Coast EU law. (CR) border guards, and other relevant staff Guard Regulation. (CR) from participating Member States. An Illegal Border Crossings in 2018 operational plan must be established de- Risk Analysis for 2019 In 2018, the number of illegal border- tailing the organisational and procedural On 20 February 2019, Frontex published crossings at Europe’s external borders aspects for each operation. (CR) its Risk Analysis for the year 2019. − at an estimated 150,000 − was at According to the report, illegal its lowest in five years. This drop was Liaison Officer for Portugal and Spain border-crossings in 2018 amounted to caused mainly by the Central Mediter- Deployed 150,114 – 27% less than in 2017. The ranean route to Italy seeing the lowest Within its strategy to deploy liaison of- report sees the primary reason for this number of irregular entries since 2012. ficers to enhance the cooperation be- decrease in the dramatic fall in the num- However, the number of migrants taking tween Frontex and national authorities ber of migrants on the Central Medi- the Western and Eastern Mediterranean responsible for border management, re- terranean route. As a consequence, the routes increased in 2018, with the West- turns and coast guard functions, Frontex spotlight moved onto the Western Medi- ern Mediterranean route now being the introduced its liaison officer for Portu- terranean route, which had become the most active migratory route into Europe. gal and Spain at the beginning of March most frequently used route into Europe (CR) 2019. (CR) in 2018. The implementation of a relo- cation and return programme in Turkey Annual Report of the Consultative for irregular Syrian migrants marked Agency for Fundamental Rights (FRA) Forum Published the most significant development of the On 1 March 2019, the Frontex Consulta- Eastern Mediterranean route in 2018. Fundamental Rights in the “Hotspots” tive Forum on Fundamental Rights pub- It was also observed that the visa-free In 2016, FRA had published an Opinion lished its annual report for the year 2018. entry to the Russian Federation for the on fundamental rights in the “hotspots” The report still sees inadequat staffing of FIFA World Cup for those in possession set up in Greece and Italy formulating the Agency’s Fundamental Rights Office of match tickets in 2018 created a tem- “21 individual opinions to address the and raises concerns with respect to the porary opportunity to reach the EU’s ex- fundamental rights shortcomings identi- independence of this office. The report ternal borders. fied in the implementation of the hotspot also regrets that the revision of the 2011 Looking at migrants’ nationalities, approach in Greece and Italy”. Fundamental Rights Strategy was not a the report finds Syrian, Moroccan, Af- In March 2019, FRA published an up- priority of 2018. ghan, and Iraqi migrants to be the top date of the 2016 Opinion. Out of the 21 With regard to the Forum’s activi- four nationalities in 2018. issues outlined in 2016, only three were ties, the report sets out its work to en- Secondary movements continued on properly addressed. For eight opinions, hance child protection and safeguarding a large scale during 2018. Accordingly, the update sees developments, however, in Frontex operations, and to address the report finds a 13% increase in the without yet resulting in significant im- gender considerations, for example by inland detection of people smugglers as provements on the ground. No signifi- collecting sex- and age-disaggregated well as a significant increase in docu- cant progress was made for 10 out of the data. In addition, the Forum had issued ment fraud, which reached its highest 21 issues outlined in 2016. several recommendations in 2018, i.e. level since 2013. Issues properly addressed were the on statelessness in Frontex activities, With 148 121 effective returns of excessive use of force to take finger- on the Agency’s serious incident report- migrants who were not granted asylum prints, training for escorts deployed for ing mechanism for alleged breaches of or subsidiary protection, the number of readmissions, and the independent mon- fundamental rights, and the Agency’s effective returns in 2018 once again fell itoring of return and readmission opera- complaints mechanism. The Forum short of the 286 875 decisions issued by tions. also provided support with regard to the Member States to return migrants. By contrast, no significant improve- Agency’s training products and courses. Ultimately, the report underlines the ments at all have been achieved with re- Looking at 2019, the report already increasing workload for border guards gard to the following issues: underlines the changes that may arise in Member States who were faced with „„Systemic delays in registering asylum due to the end of the term of office of the another increase in entry and exit checks applications of certain nationalities in current Forum by mid-2019. Further- due to yet another rise in passenger flows the Greek hotspots; more, it outlines the importance of the [in 2018] and the 2017 expansion of sys- „„Delays with regard to the asylum pro- Forum’s participation in the discussions tematic checks on those passengers en- cedure of unaccompanied children;

14 | eucrim 1 / 2019 Specific Areas of Crime / Substantive Criminal Law

„„Legal support for asylum applicants challenges of an evolving and chang- guiding principles and the fraud risk as- in the Greek hotspots; ing fraud landscape, e.g., new funding sessment are: „„Material reception conditions; schemes and fraud trends, development „„Integrity and compliance; „„Systematic vetting procedures to en- of IT tools, etc. „„Know-how and equipment; sure that individuals with a child abuse Adaptations were also necessary in „„Transparency; past do not engage with children in the view of preparations for the new multi- „„Legal framework; hotspots; annual financial framework (MFF) and „„Fighting revenue fraud. „„Lack of information on procedures two key legal developments in the EU’s All seven objectives are spelled out and rights; fight against fraud and financial irregu- more clearly in an Annex to the Com- „„Risk of gender-based violence due to larities in 2017: the adoption of the Di- mission Communication on the new inappropriate camp design and manage- rective on the fight against fraud to the Anti-Fraud Strategy. An Action Plan fur- ment; Union’s financial interests by means of ther implements the strategy by detailing „„Risk of abuse and violence for chil- criminal law (see eucrim 2/2017, 63–64) individual actions by which to achieve dren; and the Regulation establishing the Eu- the objectives in the anti-fraud cycle, i.e. „„Community engagement and out- ropean Public Prosecutor’s Office (see prevention and detection, investigations, reach through regular meetings with eucrim 3/2017, 102–104). corrective measures and sanctions, and asylum seekers and migrants hosted in The Communication briefly takes reporting. This Action Plan will run until the hotspots; stock of implementation and evaluation the next CAFS update, which is sched- „„Placement in pre-removal detention. of the 2011 CAFS. Details of this evalu- uled for the mid-term review in the up- Therefore, the report strongly asks ation, which also involved the executing coming MFF. for the support of the EU and other EU authorities, are contained in an accom- By placing importance on reinforcing Member States to take the load off these panying staff working document – the the Commission’s corporate oversight hotspots. (CR) “Fraud Risk Assessment.” The 2019 of fraud issues, OLAF will play a much CAFS takes up central weaknesses iden- stronger advisory and supervisory role tified by the fraud risk assessment, i.e.: in the future. OLAF is to conduct man- „„Gaps in IT-supported collection and datory reviews of the anti-fraud strate- Specific Areas of Crime / strategic analysis of fraud-related data; gies of all Commission Directorates and Substantive Criminal Law „„Lack of relevant and reliable indica- monitor their implementation. Stronger tors to successfully fight against fraud; liaisons with all departments, especially Protection of Financial Interests „„Potential for more effective central with the Heads of the Commission’s cen- coordination and oversight. tral services (Secretariat-General, Legal Commission Presents New Anti-Fraud Some of these shortcomings were Service, DG Human Resources, and DG Strategy also addressed in a special report by the Budget), is also planned. In addition, the

spot More consistency, better coordi- European Court of Auditors of 10 Janu- Commission will strengthen its follow- nation, and more data-driven ary 2019. Key recommendations in this up of OLAF’s recommendations in order light anti-fraud measures – these are report also taken up in the 2019 CAFS. to ensure better implementation. the main elements of the Commission’s While the overall objectives and Ultimately, OLAF is designated as new Anti-Fraud Strategy (CAFS) that guiding principles of the 2011 CAFS re- the EU’s lead service in the conception was tabled on 29 April 2019 in the form main fully relevant, the 2019 CAFS sets and development of European anti-fraud of a Communication (COM(2019) 196 out two priority objectives: policy. Its role in corporate management final). The CAFS is an internal policy „„Data collection and analysis, with the will also become stronger. In this way, document that aims at enhancing action aim of better understanding fraud pat- the 2019 CAFS complements the so- to protect the EU budget. It is binding terns, fraudsters’ profiles, and systemic called “Governance Package” that was for the Commission services and execu- vulnerabilities relating to fraud affecting presented by the Commission in No- tive agencies in their fight against fraud the EU budget; vember 2018. (TW) and corruption affecting the EU’s finan- „„Coordination, cooperation, and pro- cial interests. cesses with the aim of optimising coor- ECA: Action is Needed in the EU’s Fight In essence, the new CAFS updates dination, cooperation, and workflows in Against Fraud the Anti-Fraud Strategy of 2011 (2011 the fight against fraud, especially among In a special report of 10 January 2019, CAFS). The 2019 CAFS takes into ac- Commission services and executive the European Court of Auditors (ECA) count the 2011 CAFS review and also agencies. details weaknesses of the Commission’s makes necessary adaptations to meet the Further objectives deriving from the fight against fraud in EU spending.

eucrim 1 / 2019 | 15 NEWS – European Union

OLAF’s administrative investigations national authorities, but the scheme did dangering the independence of judiciary, have resulted in recovery of less than a not put in place any mechanism enabling failing to prevent, correct and sanction third of the unduly paid funds, the report the EPPO to urge Member States to allo- arbitrary or unlawful decisions by public states. Furthermore, only in about 45% cate the necessary resources to the new authorities, limiting the availability and of cases, OLAF investigations result in body. effectiveness of legal remedies, and meas- the criminal prosecution of suspected Commissioner for Budget, Guenther ures that weaken the protection of the con- fraudsters. H. Oettinger, rejected the auditors’ alle- fidential communication between lawyer The ECA further reprimands the gations according to a news report from and client are listed as a criteria for pos- Commission for not having comprehen- euractiv. He underlined that the Com- sible generalised deficiencies. sive and comparable data on the scale, mission has “zero tolerance for fraud „„The risks for the financial interests nature and causes of fraud. The Com- and corruption with EU funds.” Further- of the EU are linked to the Copenhagen mission has so far also not carried out more, “there is nothing new in the anti- criteria – the essential conditions which any assessment of undetected fraud. fraud policy recommendations that ECA each candidate country must fulfil before There is no detailed analysis to identify tabled”. “Most areas of improvement it can become a EU Member. These cri- what causes some recipients of EU mon- have long been identified and tackled teria include: the stability of institutions ey to behave fraudulently. This lack of already, or we are about to,” Oettinger guaranteeing democracy, the rule of law, information reduces the practical value said. human rights and respect for and protec- of the Commission’s strategic plans, As regards the ECA’s critics over the tion of minorities, a functioning market which partially need to be updated. EPPO, Oettinger pointed out that the economy and the capacity to cope with Incoherencies further exist in the new European Public Prosecutor’s Of- competition and market forces, and the internal governance structures of the fice will be up and running by 2020, and ability to take on the obligations of Un- Commission to detect and report fraud. that it will not need to rely upon tradi- ion membership. Furthermore, the Commission does not tional instruments of EU law for coop- „„The assessment of generalised defi- fully verify the reliability of fraud infor- eration among judicial authorities of dif- ciencies is clarified. To that end, the EP mation from the Member States. ferent member states. (TW) proposes that the Commission takes into In sum, Juhan Parts, the responsible account all relevant information, includ- rapporteur at the ECA, said that anti-fraud EP Generally Supports Link Between ing information coming from the Parlia- activities to date are still insufficient. Non-Respect of Rule of Law and Loss ment and from bodies such as the Venice The report recommends the Commis- of EU Money Commission of the Council of Europe. sion doing the following: On 19 January 2019, the European Par- The Commission must also take into ac- „„Putting in place a robust fraud report- liament adopted its position to the regu- count the criteria used in the context of ing and measurement system, providing lation on the protection of the Union‘s accession negotiations. information on the scale, nature and root budget in case of generalised deficien- „„The Commission should be assisted causes of fraud; cies as regards the rule of law in the in its assessment by a panel of independ- „„Clearly referring to fraud risk man- Member States. In essence, the EP backs ent experts for which also representatives agement and prevention in one Com- the idea of the Commission in its pro- of relevant organisations and networks can missioner’s portfolio and adopting a posal of 2 May 2018 (see eucrim 1/2018, be invited as observers (new Art. 3a). renewed anti-fraud strategy based on a 12) that the EU may take appropriate „„Final beneficiaries should be better comprehensive risk analysis; measures in connection with EU funding protected. Hence, the EP suggests that the „„Intensifying its fraud prevention ac- against a Member States where general- Commission should take all appropriate tivities and tools; ised deficiencies as regards the rule of measures to assist final beneficiaries in „„Reconsidering OLAF’s role and re- law persist. The measures may include enforcing their claims when legal obli- sponsibilities in light of the establish- suspending, reducing and restricting ac- gations are not respected. ment of the European Public Prosecu- cess to EU funding in a manner propor- „„The EP must have a strengthened po- tor’s Office (EPPO) and giving OLAF a tionate to the nature, gravity and scope sition in the procedure of appropriate strategic and oversight role in EU anti- of the deficiencies. measures in which the EP has – as the fraud action. The EP, however, makes a number Council – a right to reject. As regards the EPPO, the ECA con- of proposals for amendments. These in- Other amendments relate to the im- siders its establishment a step into the clude the following: provement of the certainty of the proce- right direction, but also warns of several „„The notion of “generalised deficien- dure by including indicative deadlines risks. These include that detection and cy” as to the rule of law is defined more for the Commission to react to informa- investigation is heavily dependent on precisely (new Art. 2a). It includes en- tion received from Member States.

16 | eucrim 1 / 2019 Specific Areas of Crime / Substantive Criminal Law

The Council has not adopted a gen- also be inserted into the operative parts „„Monitoring of access and searches; eral approach on the proposal yet. (TW) of legal acts. „„Requests for information to an FIU Since a new central database is be- by competent authorities; EDPS Opinion Combating VAT Fraud ing created, the opinion recommends „„Exchange of information between Related to E-Commerce that the Commission follow the EDPS FIUs of different Member States; On 14 March 2019, the European Data “Guidelines on the protection of person- „„Exchange of information between Protection Supervisor (EDPS) issued an al data in IT governance and manage- Europol and FIUs; opinion on a legislative initiative that ment of EU institutions” if the system is „„Processing of sensitive personal data. aims at curbing VAT fraud in the area of implemented and technical details have It is now up to the Council to for- e-commerce. The initiative was tabled to be specified. mally adopt the text of the new legisla- by the Commission in December 2018 Ultimately, the EDPS opinion offers tion. Once the directive enters into force, and consists of two proposals, one for a guidance on how to define the restriction Member States will have 24 months to directive amending Directive 2006/112/ on the data subject’s rights in the pro- implement it into their national legisla- EC (COM(2018) 812 final) and another posed legislative acts. (TW) tion. (TW) for a regulation amending Regulation (EU) No 904/2010 (COM(2018) 813 fi- Strengthening European Supervision nal). The proposals would create the fol- Money Laundering on Anti-Money Laundering – lowing obligations for Member States: EP and Council Agree „„Ensuring that payment service pro- Directive on Better Law Enforcement In March 2019, the European Parliament viders keep records on cross-border pay- Access to Financial Information and the Council reached a provisional ment transactions, so that tax authorities on Way agreement on the reform of European are able to detect VAT fraud; The Council and European Parliament rules that aim to strengthen the mandates, „„Enabling competent national authori- went ahead with the Commission’s pro- governance, and financing of the Europe- ties to collect, exchange, and analyse in- posal for a directive laying down rules an Supervisory Authorities (ESAs). The formation on payment transactions; facilitating the use of financial and other reform will give the ESAs greater respon- „„Establishing a central electronic in- information for the prevention, detec- sibility for ensuring the convergence of formation system (CESOP) where in- tion, investigation or prosecution of financial market supervision. formation stored at the national level certain criminal offences and repeal- The so-called European System of Fi- is transmitted by Member States and ing Council Decision 2000/642/JHA nancial Supervision review package (the would then be accessible by Eurofisc (COM(2018) 213, eucrim 1/2018, 13–14). ESFS package) was complemented by liaison officials. Eurofisc would analyse On 12 February 2019, the Romanian an anti-money laundering/anti-terrorist the information contained therein with Council Presidency and the European financing (AML/CFT) component in the purpose of investigating tax fraud. Parliament reached an informal agree- September 2018 by the Commission The EDPS makes specific recom- ment on the directive. It will comple- (see eucrim 2/2018, 94). This com- mendations on various parts of the Com- ment existing EU anti-money launder- ponent mainly aims to strengthen the mission proposal. The recommendations ing rules by giving law enforcement role of the European Banking Author- aim at reducing the impact of the envis- authorities and asset recovery authori- ity (EBA) in preventing and mitigating aged legislation on fundamental rights, ties direct, immediate, and timely access risks of money laundering. thus ensuring compliance with the EU’s to national, centralised bank account On 16 April 2019, the European Par- data protection legal framework. registries and data retrieval systems. It liament adopted a legislative resolu- The EDPS welcomes the Commis- will also improve cooperation between tion on the package at first reading. As sion’s approach towards limiting the the national authorities, Europol, and the regards the AML/CFT section, the text processing of data to the purpose of Financial Intelligence Units (FIUs). reinforces the EBA’s mandate and pow- fighting tax fraud and also limiting the On 17 April 2019, the plenary of the ers, e.g., by: collection and use of personal data to the European Parliament adopted a legisla- „„Strengthening the provision of infor- online business (payees) and not extend- tive resolution on the directive at first mation to the EBA by competent nation- ing them to the consumers (payers). This reading. Amendments to the original al authorities; approach should not be watered down Commission proposal include the fol- „„Developing common regulatory and during negotiations with the Council. lowing: supervisory standards with the aim of The EDPS recommends, however, that „„Purpose of the Directive; improving the prevention of and fight specification of the purpose should not „„Access by competent authorities to against money laundering and terrorist only be mentioned in the recitals, but bank account information; financing in the financial sector;

eucrim 1 / 2019 | 17 NEWS – European Union

„„Conducting peer reviews of compe- ed act, the act must be approved by the to new technologies involving payment tent authorities and risk assessment ex- Council and the European Parliament. instruments that are beneficial to busi- ercises; The list is a continuous bone of con- ness and consumers, on the one hand, but „„Assessing the strategies, capacities, tention. Whereas MEPs backed the also increasingly benefit criminals, on the and resources of the competent authori- Commission’s position, Member States’ other. As a result, the new rules must also ties dealing with emerging risks related governments fear political pressure of be seen in the context of the EU’s efforts to money laundering and terrorist fi- important trade partner, such as Saudi to provide better cybersecurity. nancing; Arabia or the U.S. (with four U.S. ter- Directive 2019/713 includes com- „„Giving the EBA a leading role in the ritories on the Commission’s list). (TW) mon definitions in the areas of fraud and coordination and cooperation between the counterfeiting of non-cash means of EU authorities and national authorities, New Infringements Proceedings payment. Criminal liability has now also including those in third countries. for Incorrect Transposition of 4th AML been extended to virtual currencies (in- It is now up to the Council to formal- Directive sofar as they can be commonly used to ly adopt the new legislation. (TW) In January 2019, the Commission has make payments) and digital wallets. launched or went ahead with further The Directive defines the constituent Council Opposes Commission’s AML infringement proceedings against EU elements of criminal conducts, which Blacklisting of Third Countries Member States for not having correct- have been categorized as follows: At the meeting of 7 March 2019, the ly transposed the fourth Anti-Money- „„Fraudulent use of non-cash payment JHA Council unanimously rejected a list Laundering Directive. The infringement instruments; of 23 “high-risk third countries” in the proceedings are in different stages. They „„Offences related to the fraudulent use area of money laundering and terrorist concern Germany, Belgium, Finland, of corporal non-cash payment instru- financing. The list was put forward by France, Lithuania, Portugal, Bulgaria, ments; the Commission on 13 February 2019. Cyprus, Poland and Slovakia. Infringe- „„Offences related to fraudulent use of The list aims to protect the EU finan- ment proceedings against other states non-corporal non-cash payment instru- cial system by better preventing money are ongoing (see eucrim 3/2018, 152 and ments; laundering and terrorist financing risks. 2/2018, 93). (TW) „„Fraud related to information systems; As a result of the listing, banks and „„Tools used to commit offences. other entities covered by EU anti-mon- The Directive clarifies that incite- ey laundering rules will be required to Non-Cash Means of Payment ment, aiding and abetting, and attempt apply increased checks (due diligence) of any of the above-mentioned offences on financial operations involving cus- New Directive Criminalises Fraud must also be made punishable as a crim- tomers and financial institutions from and Counterfeiting of Non-Cash Means inal offence. these high-risk third countries to better of Payment As another main element, the Direc- identify any suspicious money flows. spot The European Parliament and tive lays down minimum rules for sanc- The list was adopted on the basis of the the Council established new tions and penalties for natural and legal light fifth anti-money laundering directive rules on combating fraud and persons. The Directive follows the com- that came into force in July 2018 (see the counterfeiting of non-cash means of mon EU approach of defining minimum/ eucrim 2/2018, 93). It is the result of an payment. Directive 2019/713 was pub- maximum terms of penalties. Depend- autonomous, in-depth assessment of the lished in Official Journal L 123/18 of ing on the offence, maximum terms of Commission. 10 May 2019. The Directive goes back imprisonment for natural persons range The Council justified its rejection by to a Commission proposal of September from at least one to three years. More stating that it “cannot support the current 2017 (see eucrim 3/2017, 109 and eu- severe penalties apply if a crime is com- proposal that was not established in a crim 1/2018, 17). It replaces Council mitted within the framework of a crimi- transparent and resilient process that ac- Framework Decision 2001/413/JHA and nal organisation (as defined in Frame- tively incentivises affected countries to therefore “lisbonizes” another area of work Decision 2008/841/JHA). take decisive action while also respect- substantive criminal law. The Directive also includes rules on ing their right to be heard.” The Directive above all harmonizes the following issues: The Commission must now draft a the criminal conduct of natural or legal „„Jurisdiction and conflicts of jurisdic- new list of high-risk third countries that persons in relation to non-cash means of tion; takes into account the Member States’ payment. The reform of the Framework „„Investigative tools to effectively in- concerns. Although the Commission has Decision was considered particularly nec- vestigate fraud and the counterfeiting of the power to draw up the list by delegat- essary in order to update the EU response non-cash means of payments;

18 | eucrim 1 / 2019 Specific Areas of Crime / Substantive Criminal Law

„„Exchange of information by national the EMPACT Joint Action days. Fur- tonomy, and the EU needs to do more. points of contact that are available 24/7; thermore, 1137 suspects were arrested This is the main outcome of a briefing „„Establishment of channels that facili- and 337 victims of human trafficking paper by the European Court of Auditors tate reporting of the offences described identified. EMPACT’s priority areas of (ECA) that was published on 19 March in the Directive; crime in 2018 included cybercrime, drug 2019. „„Encouragement for financial institu- trafficking, the facilitation of illegal im- The briefing paper provides an over- tions and other legal persons to report migration, organised property crime, view of the EU’s cybersecurity policy suspected fraud or counterfeiting to law trafficking in human beings, excise and landscape and identifies major challeng- enforcement authorities. MTIC fraud, illicit firearms trafficking, es to effective policy delivery. It covers The Directive also strengthens the environmental crime, criminal finances, network and information security, cy- assistance to and support of victims – and money laundering as well as docu- bercrime, cyber defence, and disinfor- provisions that were mainly shaped by ment fraud. mation. The majority of research was the European Parliament during the ne- Furthermore, in January 2019, the carried out between April and Septem- gotiations. It adapts the rights of victims 2019 Operational Action Plan for the ber 2018; developments up to December under Directive 2012/29 to the special EMPACT priority “Criminal Finances, 2018 were taken into account. needs of victims of fraud in conjunc- Money Laundering and Asset Recov- The challenges are grouped into four tion with non-cash means of payment. ery” was kicked off with a meeting at clusters: In this context, the Directive, inter alia, Europol. The action plan outlines 19 ac- „„The policy framework; obliges Member States to ensure that tions targeting criminal finances, money „„Funding and spending; natural and legal persons can obtain spe- laundering, and asset recovery. The „„Building cyber-resilience; cific information and advice on how to actions will be carried out throughout „„Responding effectively to cyber inci- protect themselves against the negative Europe. The action plan intends to co- dents. consequences of the offences, e.g., repu- ordinate law enforcement work in this Each chapter ends with reflection tational damage. A list of dedicated in- criminal area. The meeting was attended points that are addressed to policymak- stitutions that deal with different aspects by financial crime investigators from 25 ers, legislators, and practitioners. of identity-related crime and victim EU Member States as well as specialists The authors of the briefing paper con- support is also provided. Furthermore, from Europol, CEPOL, and the Euro- clude that the EU’s ambition to become Member States are encouraged to set up pean Commission. the world’s safest digital environment is single, national online information tools EMPACT is an acronym for the Eu- a monumental task. In order to achieve to facilitate access to assistance and sup- ropean Multidisciplinary Cooperation accountability, the EU needs to shift to- port for victims whose personal data Platform Against Criminal Threats. It of- wards a performance culture with em- were misused. fers an ad hoc management environment bedded evaluation practices. Member States must implement the to develop activities in order to achieve Gaps remain in existing legislation provisions of the Directive by 31 May pre-set goals. EMPACT enlists the sup- that is not being consistently transposed 2021. The Commission has been called port of several EU Member States, EU by the EU Member States. As a result, upon to submit an implementation report institutions, and agencies as well as third legislation cannot reach its full potential. by 31 May 2023 and carry out an evalu- countries, international organisations, Another significant challenge is to ation on the impact of the Directive by and other public and private partners overcome fragmented spending in the 31 May 2026. (TW) aiming to address the main threats of or- cybersecurity research field. There is ganised and serious international crime. no clear picture of funding and spend- The multiannual EU’s Policy Cycle pri- ing. Investments must be aligned with Organised Crime oritises the threats. In March 2017, the strategic goals. The paper also addresses policy cycle was renewed for the 2018– constraints in the adequate resourcing of EMPACT 2018 Results and 2019 2021 period. (CR) the EU’s relevant cybersecurity agencies Operational Action Plan on Financial which entails difficulties in attracting Crime and retaining talents. In December 2018, the European mul- Cybercrime As regards building cyber-resilience, tidisciplinary platform against criminal the ECA notes that there is a global threats (EMPACT) published its results ECA Dissatisfied with EU’s weakness in cybersecurity governance, for the year 2018, stating that 1026 in- Cybersecurity Performance which impairs the global community’s vestigations had been initiated with Multiple challenges exist to strengthen ability to respond to and prevent cyber- over €1.4 million seized in cash during EU’s cybersecurity and its digital au- attacks. Governance issues also impede

eucrim 1 / 2019 | 19 NEWS – European Union the EU’s aim to take a coherent approach. tices and malicious artefacts. The com- com Crime Report 2019. Trend Micro is The ECA recommends improving skills bination of cyberthreat intelligence and a global provider of enterprise data secu- and awareness across all sectors in order traditional intelligence has also proven rity and cybersecurity solutions. to overcome the growing global skills to be a successful approach that is to be The report intends to help stakehold- shortfall. This must be flanked by better pursued further. Increased training ef- ers in the industry navigate the telecom information exchange and coordination forts resulted in better skills and capa- threat landscape. It offers an overview between the public and private sectors. bilities which is an important factor in of how telecom fraud/crimes translate For an effective response to cyber-at- building up cyber-resilience. into monetary gains for criminals and tacks, key challenges for the EU remain The identified trends and the need explains key concepts of the telecom in- rapid detection and response as well as for targeted actions led the ELT 2018 to frastructure. protection of critical infrastructure and make several conclusions in the areas At the heart of the report are threats societal functions. In the latter context, of policy, business, and research/educa- concerning infrastructure attacks and further challenges are posed by potential tion: network-based telecom frauds. The re- interference in electoral processes and „„The EU must increase its personnel port also offers a number of case studies disinformation campaigns, especially in and technical capabilities in cyberthreat of relevant telecom fraud cases to dem- view of European Parliament elections. intelligence; onstrate how these attacks play out in (TW) „„Regulatory barriers to collecting real-world situations. (CR) cyberthreat intelligence should be re- ENISA Report on Cyberthreat moved; Cryptocurrency Mixing Service Landscape „„Businesses should make cyberthreat Taken Down The cyberthreat landscape changed sig- intelligence available to a greater num- On 22 May 2019, one of the world’s nificantly in 2018; the risk of becoming ber of stakeholders, especially those leading cryptocurrency mixing services the victim of a cyberattack remains high. who lack technical knowledge; ‘Bestmixer.io’ was shut down in a joint This is one of the main conclusions of „„Businesses should counteract risks action of the Dutch Fiscal Information the 2018 Threat Landscape Report by and threats along the entire supply chain; and Investigation Service (FIOD) in the European Union Agency for Net- „„Accurate information on incidents cooperation with authorities in Luxem- work and Information Security (ENI- and information from related disciplines bourg and at Europol. SA). The report (in short “ETL 2018”) is crucial for knowledge of cyberthreat A cryptocurrency mixing service of- was released on 28 January 2019. intelligence; vendors and researchers fers to mix potentially identifiable cryp- The ETL 2018 gives an overview of must find ways to enlarge the scope of tocurrency funds with other funds in or- cyberthreat intelligence and provides cyberthreat intelligence; der to obscure the trail back to the fund’s in-depth analyses of the top 15 cy- „„Knowledge management should be original source. berthreats, e.g,. malware, web-based at- standardised, e.g., by standard vocabular- Bestmixer.io was one of the three tacks, phishing, and botnets. In addition, ies, standard attack repositories, or auto- largest mixing services for cryptocur- the report includes analyses on trends mated information collection methods; rencies, with an annual turnover of at and motives in relation to threat agents „„Research should be carried out par- least US-$200 million (approx. 27,000 and attack vectors. ticularly in the areas of attack practices, bitcoins). It offered services for mixing In 2018, the motives and tactics of malware, malicious infrastructures, and the bitcoins, bitcoin cash, and litecoins. the most daunting threat agent, namely threat agent profiling. Customers remained anonymous. cyber-criminals and state-sponsored ENISA’s Executive Director Udo Investigations undertaken so far re- agents, continued to develop. Cyber- Helmbrecht said that the ETL 2018 veal that many of the mixed cryptocur- jacking is new on the list of the top 15 “provides recommendations as to how rencies on Bestmixer.io had a criminal threats. State-sponsored agents increas- the digital single market can prepare an origin or destination, probably to con- ingly tend to apply low-profile social adequate response to cyber threats, with ceal and launder criminal flows of mon- engineering attacks, thus shifting away certification and standardisation at the ey. (CR) from using complex malicious software forefront.” (TW) and infrastructures. Malware Group Dismantled On the positive side, the report states Cyber-Telecom Crime Report 2019 In mid-May 2019, GozNym, a cyber- that defence against cyberattacks and Published criminal network offering cybercrime cybercrime has progressed. In particular, In April 2019, Europol’s European Cy- as a service was able to be dismantled threat agent profiling has led to a more bercrime Centre (EC3) and Trend Micro through an international operation be- efficient identification of attack prac- Research published a joint Cyber-Tele- tween Bulgaria, Georgia, Germany,

20 | eucrim 1 / 2019 Specific Areas of Crime / Substantive Criminal Law

Moldova, Ukraine, and the USA. Crimi- of trilogue negotiations is expected after The EDPS generally supports the nal services offered by GozNym in- the new European Parliament becomes proposal’s objective to set up binding, cluded, for instance, bulletproof hosters, operational in autumn 2019 following harmonised rules for host service pro- money mule networks, crypters, spam- the May 2019 elections. viders (HSPs), who offer services within mers, coders, organizers, and technical The proposed EU legislation is ad- the territory of the Union, in order to support. dressed to hosting service providers prevent the dissemination of terrorist By means of a complex system of re- operating in EU territory. They will be content through their platforms and to cruited cybercriminals and spammers, obliged to take down terrorist content ensure its swift removal. The EDPS, the head of GozNym controlled more or disable access to it within one hour however, sees several possible improve- than 41,000 victim computers infected of receiving a removal order from the ments that could reduce conflicts over with GozNym malware. The malware authorities. If they fail to comply, they the fundamental rights to privacy and to captured the victims’ online banking may be liable to a penalty of up to max. the protection of personal data. login credentials with the aim of fraudu- 4% of their global turnover for the previ- The EDPS calls on the legislator to lently gaining unauthorised access to ous year. In addition, they are to apply clearly describe all actions to be taken their online bank accounts. (CR) certain duties of care to prevent the dis- by HSPs pursuant to the proposal and semination of terrorist content on their to ensure adequate oversight by clearly Dark Web Marketplaces Taken Down Internet platforms and to take proactive identified, competent public authorities. At the beginning of May 2019, two major measures. The EDPS feels that this precision would dark web marketplaces, the “Wall Street The Council already agreed on its help address concerns about the “priva- Market” and the “Silkkitie” (known as general approach at the beginning of De- tisation” of law enforcement and be in the Valhalla Marketplace), were taken cember 2018 (see eucrim 4/2018, 199). keeping with the principles of quality of down in an international operation be- At first reading, the plenary of the law and economic certainty. tween Dutch, Finnish, French, German, European Parliament adopted a legis- The legislator should hence be as spe- and several US authorities together with lative resolution on 17 April 2019. It cific as possible as regards the informa- the support of Europol and Eurojust. backs the position elaborated by Daniel tion in the removal order issued by law Wall Street Market was the world’s Dalton (UK, European Conservatives enforcement authorities. second largest dark web market, aiming and Reformists Group) as the main rap- Beyond these general remarks, the at international trade in criminal goods, porteur in the LIBE committee. Essen- EDPS specifically recommends that the drug trade (including cocaine, heroin, tial amendments compared to the Com- definitions “terrorist content,” “dissemi- cannabis, and amphetamines), stolen mission proposal relate to purpose and nation of terrorist content,” and “host data, fake documents, and malicious scope of the Regulation, the definition service providers” should be made more software. The marketplace had over of terrorist content, due diligence obli- consistent and be aligned with existing 1,150,000 customer accounts, 5400 reg- gations and removal orders, proactive EU law, e.g., Directive 2017/541 on istered sellers, and 63,000 sales on offer. measures, transparency obligations, and combating terrorism. Silkkitie had been in operation since sanctioning. As regards the obligation for HSPs 2013, mainly offering narcotics and oth- MEPs clarified that the new EU legis- to carry out a takedown decision within er illicit goods. (CR) lation does not entail a general monitor- one hour after receipt of a removal or- ing obligation for online platforms and der from the competent authorities, the does not force them to use filters. MEPs EDPS points out that this could be es- Racism and Xenophobia also stressed that the new rules must pecially challenging for small- and me- safeguard free speech and press free- dium-sized companies. It may deprive EP Adopts Position on Proposed dom. (TW) HSPs from carrying out a meaningful Regulation of Terrorist Content Online check on the removal order. The Commission proposal for a Regu- EDPS Comments on Terrorist Content One focus of the EDPS’ comments lation on preventing the dissemination Online Regulation is on the obligation for HSPs to take of terrorist content online of September On 12 February 2019, the European Data proactive measures. EU rules must take 2018 (see eucrim 2/2018, 97–98 and the Supervisor (EDPS) tabled “formal com- into account the principles of neces- article by G. Robinson, eucrim 4/2018, ments” on the Commission proposal for sity and proportionality. This can be 234) underwent scrutiny by the Union a regulation on preventing the dissemi- achieved by introducing two obliga- legislators, i.e., the Council and the nation of terrorist content online (see tions when HSPs put in place proactive European Parliament. Both institutions eucrim 2/2018, 97–98 and the article by measures, i.e., HSPs should do the fol- proposed several amendments. The start G. Robinson, eucrim 4/2018, 234). lowing:

eucrim 1 / 2019 | 21 NEWS – European Union

„„Perform and make public a risk as- „„Clear definition of vague legal con- thermore, the focus of the instrument is sessment on the level of exposure to cepts, such as “terrorist information,” actually on the prevention of risks of ter- terrorism content (also based on the “terrorist acts,” “terrorist groups,” and rorist content and law enforcement, so number of removal orders and referrals “glorifying terrorism;” that the instrument cannot but be based received); „„Although technical means of preven- on one of the provisions of Title V, i.e., „„Draw up a remedial action plan to tion (e.g., algorithms) are useful, accu- the area of freedom, security and justice. tackle terrorist content proportionate to rate assessment of content by means of Finally, the Commission had not suffi- the level of risk identified. human, not technical (e.g., algorithmic), ciently taken into account the CJEU case The EDPS eyes the elements of the interventions for prevention purposes; law which acknowledges that measures proposal that include use of automated „„No censorship or forced self-censor- of public security and law enforcement tools in the context of proactive meas- ship on the Internet; cannot be based on internal market. ures. He stresses that EU legislation can- „„Legislation must be aligned to the Second, the DAV notes that the defi- not lead to “automated individual deci- needs of small- and medium-sized com- nition of “terrorist content” remains sion-making” (prohibited by the GDPR). panies that regularly do not have the vague and unclear. Due to the ambigui- Therefore, removals based on automated technical, human, or financial capacities ties, hosting service providers may feel tools must always be subject to human to act effectively against terrorist con- compelled to remove information from oversight and verification where appro- tent; the Internet “in case of doubt.” This con- priate. Reporting obligations for HSPs „„Users must be clearly reminded of the stitutes a serious threat to freedom of also need to be introduced in order to en- existing national rules on the production expression. sure that automated tools do not produce of terrorist content. The right to appeal Finally, the DAV criticises the plans discriminatory, untargeted, unspecific, against an administrative decision must for the removal orders, referrals and pro- or unjustified results. be guaranteed, along with a clear expla- active measures. The DAV sees here in- Furthermore, the EDPS recommends nation of this right and online tools for fringements of the companies’ freedom reconsidering the rules on mandatory its exercise. to conduct business. The statement also preservation of terrorist content and “re- Since the proposed Regulation is clarifies that the instrument transfers lated data” since they are not compatible based on the EU’s competence to ap- tasks of the state to private entities with- with the CJEU’s case law on data reten- proximate rules for the functioning of out providing for the necessary flanking tion. the internal market (Art. 114(1) TFEU), measures. (TW) Ultimately, the EDPS takes issue with the EESC must be consulted. However, the envisaged complaint mechanism its opinion is not binding for the EU co- Commission: Code of Conduct with within the HSPs. Though welcome, EU legislators, namely the European Parlia- IT Companies to Tackle Hate Speech legislation should introduce deadlines ment and the Council. (TW) is Evolving Positively for HSPs by which a decision on a com- On 4 February 2019, the Commission plaint must be taken. (TW) DAV: Commission’s Plans to Remove presented its fourth evaluation of the Terrorist Content Online May Infringe Code of Conduct on Countering Illegal EESC Opinion on Terrorist Content Freedom of Expression Hate Speech Online. The Code of Con- Online Regulation In January 2019, the German Bar As- duct was launched on 21 May 2016 and In an opinion published in the Official sociation (Deutscher Anwaltverein – aims that requests to remove racist and Journal C 110/67 of 22 March 2019, the DAV) tabled a critical statement on the xenophobic Internet content are dealt European Economic and Social Com- Commission’s proposal for a regulation quickly by the major IT companies (see mittee (EESC) largely welcomed the on preventing the dissemination of ter- also eucrim 2/2016, p. 76; for last years’ initiative for a regulation on preventing rorist content online (for the proposal, evaluation, see eucrim 1/2018, p. 18). the dissemination of terrorist content on- see eucrim 2/2018, 97–98 and G. Robin- Currently, nine companies adhere to line (see eucrim 2/2018, 97–98 and the son, eucrim 4/2018, 234–240). the Code, namely Facebook, YouTube, article by G. Robinson, eucrim 4/2018, First, the DAV has considerable Twitter, Microsoft, Instagram, Google+, 234). The new rules must uphold the doubts as to whether the EU has suf- Dailymotion, Snapchat, and Webedia. right to freedom at stake, which es- ficient competence to adopt such legal The evaluation report confirms that sentially means that access to effective instrument. The Commission has par- the Code of Conduct delivered con- legal protection and to fair and prompt ticularly not proved that a regulation can tinuous progress and the IT companies proceedings must be ensured. be based on Art. 114 TFEU and is nec- meanwhile provide a swift response The EESC, inter alia, recommends essary to achieve the articles’ objectives to notified illegal hate speech online. the following: of functioning the internal market. Fur- About 89% of the notifications are as-

22 | eucrim 1 / 2019 Procedural Criminal Law

sessed within 24 hours. The IT compa- ants could be convicted of VAT evasion. „„Member States must, however, coun- nies fully meet the target of reviewing The court observed that interception of ter fraud and other illegal activities af- the majority of notifications within 24 defendants’ telecommunication were fecting the EU’s financial interests hours. On average, IT companies are authorised by a court that had no longer through effective, and deterrent meas- removing almost 72% of illegal hate jurisdiction after a reform of the Bulgar- ures; speech incidents notified to them by the ian Code of Criminal Procedure in 2012. „„There is a direct link between the col- NGOs and public bodies participating in The court added, however, the follow- lection of VAT revenue (in compliance the evaluation. If it comes to serious cas- ing: with the EU law) and the availability to es of deemed illegal hate speech, such „„None of the authorisations were rea- the EU budget of the corresponding VAT as calls for murder or holocaust denial, soned; resources; the average removal rate is even higher. „„The interceptions felt into a transi- „„Criminal penalties may be essential Other major results of the evaluation in- tional phase before and after the reform to combat certain serious cases of VAT clude the following: of the Code of Criminal Procedure, and evasion in an effective and dissuasive „„There is no sign of over-removal; transitional rules were unclear that gov- manner as required by the PIF Conven- „„The actions on promoting positive erned the transfer of the jurisdiction to tion; narratives of tolerance and pluralism the courts competent to authorise “spe- „„Infringements of EU law must be pe- were positive; cial investigation methods” after the re- nalised under (procedural and substan- „„More efforts are needed on transpar- form; tive) conditions, which are analogous ency and feedback to users. „„In the case of Mr Dzivev, only the in- to those applicable to infringements of The Code of Conduct is a self-reg- terceptions of telecommunications initi- national law of a similar nature and im- ulatory instrument and not binding. It ated on the basis of authorisations grant- portance; in any event, these conditions must be considered an additional tool of ed by the court which lacked jurisdiction must make the penalty effective, propor- the EU’s and Member States’ efforts to clearly establish the commission of the tionate and dissuasive; tackle the proliferation of hatred online. tax offences he was accused for. „„Rules of national criminal procedure (TW) Against this background, the refer- must permit effective investigation and ring court wonders whether reliance on prosecution of offences linked to such the illegally obtained evidence (here: conduct. wiretapping) would counteract the Although the Member States have Procedural Criminal Law Member States obligations in particular procedural and institutional autonomy from Art. 325 TFEU and Art. 2(1), 1(1) to counter infringements of harmonised Procedural Safeguards (b) of the Convention on the protection VAT rules, this autonomy is, inter alia, of the European Communities’ financial limited by the principle of effective- CJEU: Rules on Exclusion of Unlawfully interests (“PIF Convention”) that, as es- ness. National courts may be obliged to Obtained Evidence Precede Anti-Fraud tablished by previous CJEU case law, disapply national provisions which, in Obligations require the effective criminalisation of connection with (criminal) proceedings

spot Do Art. 325 TFEU and the PIF VAT fraud. concerning serious VAT infringements, Convention – read in the light of hhThe CJEU’s Decision and Reasoning prevent the application of effective and light the principle of effective prose- At first, the CJEU reiterated the main deterrent penalties. cution of VAT offences – restrict the ap- aspects from previous case law regarding The CJEU, however, stresses that plicability of national rules on the inad- the obligations stemming from Art. 325 these obligations have their limits, i.e. missibility of evidence? This question TFEU. Reference is particularly made to “the effective collection of the Euro- was at the centre of the CJEU’s judg- the decisions in WebMindLicences (C- pean Union’s resources does not dis- ment of 17 January 2018 in the case 419/14; cf. V. Covolo, eucrim 3/2016, pense national courts from the necessary C-310/16 (criminal proceedings against 146); M.A.S. and M.B. (C-42/17, cf. eu- observance of the fundamental rights Peter Dzivev, Galina Angelova, Georgi crim 4/2017, 168); Scialdone (C-574/15, guaranteed by the Charter and of the Dimov, Milko Velkov). cf. eucrim 2/2018, 95); and Kolev and general principles of EU law, given that hhFacts of the Case and Legal Question Kostadinov (C-612/15, cf. eucrim the criminal proceedings instigated for The judgment concerned a request 2/2018, 99): VAT offences amount to an implementa- for a preliminary ruling from the Spet- „„The procedure for taking evidence tion of EU law, within the meaning of sializiran nakazatelen sad (Specialised and the use of evidence in VAT-related Article 51(1) of the Charter. In criminal Criminal Court, Bulgaria). The referring criminal proceedings is within the com- law, those rights and those principles court had to decide whether the defend- petence of the Member States; must be respected not only during the

eucrim 1 / 2019 | 23 NEWS – European Union criminal proceedings, but also during in recent judgments (see above) that cate on the legality of a pre-trial deten- the stage of the preliminary investiga- clarified the borders between proce- tion decision without the opportunity to tion, from the moment when the person dural and institutional autonomy of make a request for a preliminary ruling concerned becomes an accused.” the Member States to counter fraud to the CJEU or to wait for its reply. In The authorities must act within the affecting the EU’s financial interests this context, the CJEU refers to the ur- legal limits because they must observe and common obligations stemming gent procedure before the Court which the principles of legality and the rule of from EU law, including the principles constitutes an implementation of the law. In addition, the interception of tel- of effectiveness, proportionality and right of all persons to have their case ecommunications amount to an interfer- equivalence. The judgment is a further heard within a reasonable time. In ad- ence with the right to a private life, and “brick in the wall” as regards the ques- dition, the CJEU stresses that judges must therefore observe the requirements tion which procedural rules remain cannot be exposed to disciplinary sanc- of Art. 7 CFR. untouched by EU law. After the force tions for exercising their choice to send Transferring these yardsticks to the of res judicata in XC and Others (C- a request for a preliminary ruling to the present case, the CJEU concludes that 234/17, cf. eucrim 3/2018, 142), the CJEU or not. This choice is an important “it is common ground that the intercep- CJEU adds the rules on the exclusion element of judicial independence. tion of telecommunications at issue in of evidence to its list of important prin- As to the material question, by re- the main proceedings was authorised by ciples of national procedural law that ferring to its judgment in Milev II, the a court which did not have the necessary precede the effectiveness of EU law. CJEU clarifies that Directive 2016/343 jurisdiction. The interception of those (TW) in Articles 4 and 6 as well as Recital 16 telecommunications must therefore be widely exempts pre-trial detention from regarded as not being in accordance CJEU: EU Law Does Not Govern its scope. Therefore, secondary EU law with the law, within the meaning of Arti- the Procedure for Reviewing Pre-Trial does not include rules on how to review cle 52(1) of the Charter.” Detention Decisions the legality of pre-trial detention, i.e., to As a result, EU law cannot require a Directive 2016/343 on the strengthening which extent a national court is obliged national court to disapply the national of certain aspects of the presumption of to compare the elements of incriminat- rules on the exclusion of illegally ob- innocence does not govern the rules on ing and exculpatory evidence presented tained evidence, even if the evidence how to examine evidence for confirming to it and to provide reasoning via-à-vis could “increase the effectiveness of or maintaining pre-trial detention. The the objections of the defence counsel. criminal prosecutions enabling national CJEU reiterated this position as already However, that decision may not pre- authorities, in some cases, to penalise stated in its judgment of 19 September sent the person detained as being guilty. non-compliance with EU law”. 2018 in case C-310/18 PPU (Milev II, (TW) The CJEU added that the following see eucrim 3/2018, 155). aspect pointed out by the referring court In the case at issue (C-8/19 PPU, AG: Italian Rules Restricting are irrelevant: RH), the referring Bulgarian Specialised Negotiated Settlements in Line „„The unlawful act committed was due Criminal Court had difficulties in formu- with EU Law to the imprecise nature of the provision lating reasonable grounds for upholding Procedural rules of national law that transferring power to the competent pre-trial detention against RH (who was limit the accused person’s possibility court; suspected of being part of a criminal to request a negotiated penalty to the „„Only the interception of telecommu- gang organized in order to commit mur- beginning of the trial are in conformity nications initiated on the basis of au- ders) on account of the Directive’s aim with EU law, according to the opinion of thorisations granted by a court lacking that a person should not be presented as Advocate General (AG) Bobek in Case jurisdiction could prove the guilt of one guilty. Furthermore, the referring court C-646/17 (criminal proceedings against of the four defendants in the main pro- raised the question of compatibility of Gianluca Moro). Neither the provisions ceedings. Bulgarian case law with EU law because of Directive 2012/13/EU on the right to hhPut in Focus the possibility to make preliminary rul- information in criminal proceedings In sum, the CJEU follows the – much ing references to the CJEU is limited due nor Art. 48(2) of the Charter alter this more detailed – opinion of AG Bobek of to the obligation to adjudicate a criminal finding. 25 July 2018. case within a reasonable time. In the case at issue that was referred The judgment summarises the cor- The CJEU first examined the latter by the Tribunale di Brindisi, Italy, the nerstones of the CJEU case law in question and stressed that national leg- defendant (Mr. Moro) had been charged relation to the protection of the finan- islation is not acceptable if it results in with the criminal offence of handling cial interests. It was mainly developed the national court’s obligation to adjudi- proceeds of crime. After the start of the

24 | eucrim 1 / 2019 Procedural Criminal Law trial, he was informed that the acts of to, and dispute the accusation (and the terns, in order to identify persons that which he was accused must be reclassi- change thereto), but does not entail the allegedly committed certain serious fied and that the charge could be modi- obligation for the national courts to pro- crimes as defined in the German Act on fied to the criminal charge of theft. The vide all information on any and every the Processing of Air Passenger Data. defendant then applied for a negotiated consequence of that change. The notion The PNR can be stored for a period of penalty, known as “patteggiamento.” of the “fairness of the proceedings” does five years. The Act implements EU Di- Under Italian law, however, such an ap- not alter this result because it correlates rective 2016/681 of 27 April 2016 “on plication is only admissible before the with the material scope of the rights en- the use of passenger name record (PNR) trial proceedings have been opened if shrined in the Directive. data for the prevention, detection, inves- a mere legal reclassification of the acts Ultimately, the AG examined the im- tigation and prosecution of terrorist of- occurs. At a later stage, the application plications of Art. 48(2) of the Charter fences and serious crime” (see eucrim is possible if the change is only of fac- and concludes that it cannot be used to 2/2016, 78). tual nature which was not the case here. expand the scope and content of the pro- The actions of the GFF encourage The referring court was unsure whether cedural obligations defined in the respec- the German courts to file references this legal situation is in line with the tive EU secondary law. In other words: for preliminary rulings to the European provisions of Directive 2012/13 and there is no obligation beyond what al- Court of Justice. The judges in Lux- Art. 48(2) of the Charter. ready exists in Directive 2012/13. embourg are to verify whether the EU The AG first examined the general As a result, EU law does not preclude PNR Directive complies with the EU’s applicability of Directive 2012/13, es- procedural rules such as the ones at is- fundamental rights. The GFF argues pecially since the Italian government put sue, which allow the accused person to that the retention of PNR data of any- forth that the Directive is only applica- request a negotiated penalty after the one for a long period of time breach- ble if there is a cross-border element in beginning of the trial only if there is a es the fundamental rights enshrined the main proceedings. The AG rejected change in the accusation that is of fac- in Arts. 7 and 8 CFR. It is submitted this objection by arguing that the Direc- tual nature and not when the change is that this position is also backed by the tive is also applicable to cases that have of a legal nature. (TW) 2017 CJEU judgment that declared the a purely national dimension. Beside the agreement between the EU and Canada wording, it is in particular the Directive’s on the exchange of PNR data void (see objective of the Directive that does not Data Protection eucrim 3/2017, 114–115). limit it to cross-border situations: the Di- The GFF closely cooperates with rective pursues the harmonization of the Collection of PNR Data Under Judicial the Austrian organisation “epicenter. Member States’ criminal law systems in Scrutiny in Germany works,” which lodged data protection order to create a common playing field The debate on the retention of pas- complaints against PNR in Austria. in which certain minimum standards are senger name records (PNR) data has The complainants point out that there guaranteed. gained new momentum in Germany. is no evidence that the retention of PNR Second, the AG agrees with the po- On 14 May 2019, the “Gesellschaft für has led to tangible results in detecting sition of several Member States and the Freiheitsrechte” (GFF) informed the criminals or suspicious air movements. Commission that the legal question at is- public that it brought actions before Data on first experiences with the PNR sue, i.e., the consequences of the legal the administrative court of Wiesbaden scheme in Germany underpin this find- (re)classification of the accusation, is and other local civil law courts in or- ing. In a response of 17 April 2019 to not governed by the provisions of Direc- der to tackle the collection, use, and questions from MPs representing the tive 2012/13. Challenging the ability to processing of PNR data by the German left-wing party “Die Linke,” the Ger- apply for a negotiated penalty at a given authorities. As from May 2018, airlines man Federal Ministry of the Interior stage of the criminal procedure would are obliged to transmit dozens of PNR confirmed that, up to 31 March 2019, be an overinclusion into the Directive. to the centralised Passenger Informa- the automated “comparison processing The AG especially focuses on Art. 6(4) tion Unit, which belongs to the Federal system” had led to 94,098 hits − after of the Directive, which regulates the ac- Police Office (Bundeskriminalamt − an individual, manual assessment of the cused person’s right to be informed of BKA), if they operate third-country or hits by law enforcement officers, how- any changes in the accusation, “where intra-EU flights. ever, follow-up measures (arrest, open this is necessary to safeguard the fair- The BKA is entitled to check the data or covert controls) were only undertaken ness of the proceedings.” According to against police search databases (i.e., the in 277 cases. Critics therefore remark the AG, Art. 6(4) intends to enable the German INPOL system or the Schengen that almost all hits turned out to be waste accused person to understand, respond Information System) and against pat- data. (TW)

eucrim 1 / 2019 | 25 NEWS – European Union

Report gimes if they entail a general and indis- criminate retention of data (see eucrim “Freedom AND Security – Killing the zero sum process #kill0sum” 4/2016, 164). 22–23 November 2018, The Hague Recently, several requests for prelimi- Europol published a conference report of an inspiring, not conventional data protec- nary rulings were submitted to the CJEU tion conference that took place in the Europol headquarters in autumn 2018. by Member States’ supreme or constitu- Speakers and participants came from different sectors all over the world, including tional courts (by Belgium, France, and practicing officials and lawyers, data protection officers, academics, policy makers, members of civil society organisations, and staff from private enterprises. The event Estonia). They seek clarification on the also convened members of EDEN, the Europol Data Protection Experts Network. limits of retention of e-communication Daniel Drewer, Data Protection Officer of Europol, welcomed the guests by explaining data in view of Art. 15 of the EU’s the idea behind the conference. It posits that any notion of balancing “freedom versus e-privacy Directive 2002/58/EC (cf. security” wrongfully implies a unitary dial: if we turn up freedom, we get less security, case C-520/18; case C-511/18; and case and if we turn down freedom, we get more security. Freedom and security are viewed C-746/18). The CJEU will therefore have as a zero-sum trade-off. There is no doubt that there is a relation between freedom and security: A change to one will sometimes affect the other. But often it is also pos- new opportunities to shape its case law sible to increase security without decreasing freedom, and sometimes a decrease in in the field of data retention. (TW) our freedoms leads to no meaningful increase in security. The EDEN conference aimed at developing a platform for an open discussion on the EDPS Criticises Commission topic of data protection in a law enforcement context. Hence, many assumptions and Interoperability Plans by ETIAS prejudices were challenged. The European Data Protection Supervi- The conference report summarises the main statements and results of the different panels that included: sor (EDPS) criticised the way the Euro- pean Commission prepares the intercon- „„Keynote speech of the Assistant Supervisor at the EDPS; nection between the European Travel „„Impact of GDPR on law enforcement; Information and Authorisation System „„Data as the new oil? Risks and opportunities for citizens and law enforcement; (ETIAS) established in late 2018 (see „„Data as the hostage – ransomware is still alive! eucrim 2/2018, 82/84) and the other „„The take-down of Hansa – at times the Darknet ain’t that dark! four EU information systems, i.e., the „„The death of data retention at EU level – the mass surveillance scandal fallout and its detrimental consequences for law enforcement; SIS, ECRIS-TCN, VIS, and EES. On „„Data protection by design for cooperation between law enforcement and intelli- 13 March 2019, the EDPS commented gence services; on two Commission proposals presented „„From law enforcement fiction to future – will there be any privacy left in 2030, any- on 7 January 2019 that changed regula- way? tions of the information systems in order The next EDEN conference will take place in Copenhagen. (TW) to make them ready for interoperability with ETIAS. The EDPS disagrees with the Com- mission’s stance that the proposals only Retention of Telecommunications Data In April 2019, the Council Working contain “limited technical adjustments.” Continue to Be on the Text Bench Party DAPIX discussed Council conclu- The EDPS believes that the Commission After the Council launched a reflection sions that called on the Commission to proposals do not sufficiently protect the process on the retention of telecommu- start a series of consultations with rele- purpose limitation principle, especially nications data, and after an exchange vant stakeholders and to prepare a “com- as regards interconnectivity with the of views on the state of play and the prehensive study” on possible solutions ECRIS-TCN. The ECRIS-TCN stands way forward at the JHA Council meet- for the retention of telecommunications for the reform of the European Criminal ing of 6–7 December 2018 (see eucrim data for law enforcement purposes. The Record System, which will also include 4/2018, 201), work continued on the study should also include concepts that information on convicted third-country technical and working levels. Under meet the requirements of the CJEU’s nationals and stateless persons. The Europol’s coordination, experts agreed case law on the various interference lev- Council and the European Parliament on a number of aspects to be considered els of the data retention regime. In 2014, already reached agreement on the new in a possible future, new EU data reten- the CJEU had declared the 2006 EU rules, which are currently being formal- tion law. These aspects include a matrix data retention directive void (see eucrim ly finalised. of limited data categories, the length of 1/2014, 12). Subsequently, in 2016, the The EDPS recalls that ECRIS-TCN the retention period, rules on erasure, CJEU prohibited Member States from contains very sensitive data and is a tool data security, etc. maintaining national data retention re- to support judicial cooperation. Using it

26 | eucrim 1 / 2019 Procedural Criminal Law for border management purposes would They are not obliged to do so, however, open letter that calls on a robust protec- entail a major change of the system’s particularly if the offence cannot be ef- tion for persons choosing public report- purpose as defined in the constituent le- fectively remedied internally or if the ing of unlawful or wrongful acts. gal act (as currently agreed). If the EU reporting person considers that there is a The letter, which was co-signed by pushes through the Commission propos- risk of retaliation. Whistleblowers who four other European media associations, al, this would mean a “function creep.” disclose information publicly are also criticises the Commission’s proposal of This means that the use of a system or protected if no appropriate action was April 2018 (see eucrim 1/2018, 27, and database is gradually extended beyond taken in response to their initial report G. Georgiadou, eucrim 3/2018, 166) for the purpose for which it was originally or if they believe there is an imminent unsatisfactorily protecting whistleblow- intended. The EDPS is concerned about danger to the public interest or a risk of ers who exercise their right to freedom this trend. He calls on the Commission retaliation. of expression. The EFJ rebuffs the tiered to carry out a proper data protection as- To meet demands from lawyers’ or- approach and the order of priority be- sessment of its proposals − to be con- ganisations, it was clarified that the Di- tween internal and external channels. ducted in full transparency. (TW) rective does not affect the protection of Investigative journalists would fail to confidentiality of communications be- work properly. tween lawyers and their clients. According to the letter, “such layered Victim Protection Compared to the Commission pro- administrative burdens which fall on posal, further important amendments the whistleblower would unavoidably EP and Council Agree on Directive relate to safeguards against retaliation. have a deterrent effect on the latter and Protecting Whistleblowers Accordingly, the scope of the Directive would de facto act as an obstacle for the The European Parliament and the Coun- has been extended to facilitators and to whistleblower to report to the media. cil reached a compromise on new EU third persons connected with reporting This would have a negative impact on legislation as regards the protection of persons who may suffer retaliation in a media freedom in Europe and on the whistleblowers. The initiative for a di- work-related context, such as colleagues citizens’ fundamental right to receive rective that aims to lay down uniform or relatives. and impart information, as guaranteed minimum standards for the protection of Member States will be obliged to by the European Charter of Fundamen- persons who report unlawful activities guarantee whistleblowers access to com- tal Rights.” or abuse of EU legislation goes back to prehensive and independent informa- The drop of the three-tiered approach a Commission proposal of 23 April 2018 tion. Whistleblowers must also be able is one of the most controversially dis- (see eucrim 1/2018, 27; for the debate, to obtain advice on available procedures cussed issues, not only among the EU see eucrim 3/2018, 157–159). and remedies free of charge as well as institutions, but also among civil society The directive applies to a wide range legal aid during proceedings. During le- stakeholders (see further eucrim 3/2018, of areas, including: gal proceedings, they may also receive 157–159) (TW). „„Public procurement; financial and psychological support. „„Financial services; The new EU legislation on the pro- Special Advisor Recommends New „„Money laundering; tection of whistleblowers must now be Strategy for EU Victims’ Rights „„Product and transport safety; formally adopted in the Council and will Victims still face many difficulties when „„Nuclear safety; undergo linguistic review before pub- accessing justice and compensation. „„Public health; lication in the Official Journal. Once it The difficulties are often due to a lack „„Consumer and data protection. enters into force, Member States will of information, insufficient support, and Which rules should be established have two years to implement the Direc- overly restrictive eligibility criteria or in view of the reporting channels was a tive into their national legislation. (TW) procedural hurdles. For persons who be- main point of discussion up to the last come victims of crime when travelling moment. Although the majority of Mem- Journalists Call for Drop of Tiered to another EU country, it can be even ber States favoured a strict three-tiered Reporting Approach in Draft more difficult to receive compensation. approach, which included the obligation Whistleblowers Directive These statements have been included for whistleblowers to use internal report- On 17 January 2019 – on the eve of the in the report “Strengthening Victims’ ing channels first, the European Parlia- final deliberations in the Council that led Rights: From Compensation to Repara- ment could push through its flexible ap- to the adoption of its general approach tion – For a new EU Victims’ rights strat- proach. Accordingly, whistleblowers are on the directive on the protection of egy 2020–2025.” The report was drafted “encouraged” to use internal channels whistleblowers – the European Federa- by former Belgian Vice-Prime Minister before resorting to external reporting. tion of Journalists (EFJ) re-published an Joëlle Miquet, who was appointed Spe-

eucrim 1 / 2019 | 27 NEWS – European Union

cial Advisor to the President of the Euro- „„Offender compensation; „„Better protection during court pro- pean Commission Jean-Claude Juncker „„Support services. ceedings, i.e., through measures to on compensation for victims of crime. In conclusion, Miquet calls for swift separate offenders and victims during The report was presented on action in order to reaffirm and rein- proceedings in order to prevent further 11 March 2019 – the 15th Remembrance force the EU and national commitments trauma. Day for Victims of Terrorism. It takes a strengthening victims’ rights. It is im- „„Women who fear of violence from holistic approach to compensation, i.e., portant “to show and prove to European their partners should receive greater po- it is not limited to the pecuniary aspects citizens that they are living in a Human- lice protection, i.e., through the system- of compensation or the compensation istic Europe that protects, cares, repairs, atic use of barring and court orders. procedure, but also tackles the reasons connects, supports and offers a new be- „„Victims should be better compensat- why victims have difficulties in claiming ginning for everybody.” ed for suffering endured and better in- compensation. The Commission will now assess the formed about their rights to compensa- The report first carries out a problem recommendations and examine whether tion. Training for judges should include analysis, which is grouped into seven measures should be taken at the national the importance of compensation as part thematic chapters: and European levels to improve victims’ of the sentencing. „„Lack of/Access to information and to access to justice and compensation. „„Offenders should receive rehabili- guidance; (TW) tation measures, such as anti-violence „„State compensation; training, probation, and victim-offender „„Offender compensation; FRA Reports on Victims’ Rights mediation. These measures would also „„Procedural obstacles (length of pro- At the end of April 2019, FRA published benefit society as a whole, as they would cedures, complexity, costs); a set of four reports on justice for vic- help prevent further violence and make „„Cross-border and international vic- tims of violent crimes. The set of reports offenders more accountable for their ac- timisation; deals with access to justice from four tions. „„Free support services; different perspectives: „„Special training should be offered to „„Insurance. „„Victims’ rights as a standard of crimi- the judiciary and to the police in order The report also dedicates a chapter to nal justice; to encourage understanding and empa- the specific needs and problems of spe- „„Justice in criminal proceedings; thy when dealing with victims and, con- cific categories of victims, i.e., victims „„Sanctions; sequently, to better recognise victims’ of terrorism, trafficking in human be- „„Justice for women who are victims of rights. ings, and gender violence. partner violence. „„Healthcare providers should be Miquet also takes stock of numerous The reports are based on conversa- trained to better identify and act on inci- best practices in terms of victims’ rights tions with victims, workers at victim dents of abuse. The police should be ed- and compensation at the national and support organisations, police officers, at- ucated on the need to intervene in order EU levels. She points out that a future torneys, prosecutors, and judges in Aus- to prevent women from further suffering EU strategy on victims’ rights should tria, France, Germany, the Netherlands, at the hands of their partners. build on these achievements; however, Poland, Portugal, and the UK. They aim When presenting the report, FRA Di- best rules are only as good as their im- at providing practical guidance for poli- rector Michael O’Flaherty stated that plementation and application in practice. cymakers on how to improve the help too many victims of violent crime are The Special Adviser calls on the EU for victims. not involved in criminal proceedings. to set up a new victims’ rights strategy Key recommendations of the reports More efforts should also be taken to to tackle the identified problems in a ho- include the following: avoid further victimisation. (CR) listic manner: first, immediate practical „„Provide for more effective and com- measures without changing EU legisla- prehensive backing to address the piece- AG: New Examination of Victim tion and, second, recommendations re- meal approach to support. This can be of Crime Possible if Judges‘ Bench quiring legislative EU changes. achieved through better coordination Changed The report advocates this strategy, between the police and support services Victims of crime may give evidence which is composed of 41 detailed recom- in order to enable swift and effective re- before the criminal court again if it has mendations around six thematic blocks: ferrals. Member States are called on to a new composition. This is the main „„Better cooperation; provide adequate staffing and funding conclusion of Advocate General Yves „„Training; for support services, including free legal Bot in his opinion of 14 March 2019 „„Information; aid, counselling, and advice on victims’ in case C-38/18 (criminal proceedings „„State compensation; rights. against Massimo Gambino and Shpe-

28 | eucrim 1 / 2019 Procedural Criminal Law tim Hyka). The opinion is not yet avail- dealt in the case C-97/18 (ET). The replace that order. It must therefore be able in English. Court’s judgment is based on a refer- examined whether these rules preclude a In the criminal proceedings before ence for preliminary ruling from the measure as that in question. the referring Tribunale di Bari, Italy, Rechtbank Noord-Nederland (District In this context, the CJEU observed the hearing of the victim of crime as a Court, Northern Region, Netherlands) that the term of imprisonment is applied witness had to be carried out a second and concerned the interpretation of as a leverage against a person who is not time because one of the three judges was Art. 12 of the Framework Decision (FD) willing, but capable to pay the amount replaced by another judge after the first 2006/783/JHA on the application of the owed. The person concerned may, at examination. The defence counsel of the mutual recognition principle to confisca- any time, be freed from imprisonment accused persons did not consent to the tion orders. if he/she pays the debt; furthermore, the court reading the written record of the In the case at issue, the Netherlands measures is limited in time and duration oral evidence previously given by that took over the enforcement of a confis- depends, inter alia, on partial payments victim. According to the Italian Code cation order that was imposed on ET by possibly made. The adoption of such of Procedure, a new examination of the the Court of Appeal, Antwerp, Belgium. imprisonment is neither an alternative victim as a witness is necessary in this The Dutch public prosecutor sought to the order nor an additional sanction. case, in order to maintain the principle leave to enforce a term of imprisonment Consequently, it does not require the pri- of presenting the evidence directly to the against ET since over € 650,000 out of or consent of the issuing State. It is com- judges who decide the case. the ordered € 800,000 were outstanding pletely up to the executing State how to The question arose as to whether and ET was suspected of invisible finan- pursue the objectives of the FD. these provisions are in line with Arts. 16, cial flaws. ET argued that the application The classification of the terms of im- 18, and 20 lit. b) of Directive 2012/29/ for a term of imprisonment is unlawful prisonment as a “penalty”, within the EU. These provisions oblige Member and in contrast with Art. 7(1) ECHR, meaning of Art. 7 ECHR, by the Dutch States to protect victims of crime from Art. 49(1) CFR. Supreme Court has no influence on the secondary or repeated victimisation and The referring court indeed confirmed competent authorities to implement all emotional/psychological harm, which that the measure of imprisonment as the necessary measures for the execution includes the obligation to keep question- that at issue is considered a penalty of foreign confiscation orders. ing to a minimum. within the meaning of Art. 7 ECHR in As to the second question, the According to AG Bot, the provisions the case law of the Supreme Court of the CJEU briefly noted that it follows from must be applied on a case-by-case basis. Netherlands. Therefore, the Rechtbank Art. 12(1) of the FD that the legislation The competent national authorities must Noord-Nederland first harbours doubts of the issuing State has no bearing on the carry out a personalised evaluation. whether the Dutch executing authorities application of the measure in question in Since the victim was of age and there may apply the measure of imprisonment the executing State. (TW) were no indications for an undue bur- pending payment within the scheme of den, the principle that evidence must be the EU’s FD 2006/783/JHA. Second, Report on Asset Recovery Casework directly presented to the judges deciding the court asks whether the application of In February 2019, Eurojust published a the case and the principle of fair trial (on the measure necessitates that the issuing report on its casework in asset recovery the basis of Arts. 48(2) and 47(2) CFR) state also makes provision for the pos- with the following overview: takes precedence. Therefore, a new ex- sibility of applying a term of imprison- „„The main legal and practical issues amination of the victim of crime may be ment pending payment. encountered by Eurojust in its asset re- admissible. (TW) As regards the first question, the covery casework; CJEU states that Art. 12(1) and (4) of the „„The support provided by Eurojust FD posits that, as a general rule, it is for during the asset recovery process; Freezing of Assets the execution State’s competent authori- „„The main judicial cooperation instru- ties to decide, in accordance with the ments and tools used; CJEU: Executing MS May Impose law of that State, the manner in which „„The best practice identified. Imprisonment for Non-Execution the execution is to be carried out and It aims at assisting competent judicial of Foreign Confiscation Order the most adequate measures to execute authorities in the EU Member States in Can a Member State apply a term of im- the confiscation order. However, as a effectively recovering criminal assets prisonment pending payments, in order special rule, in accordance with para. 4, and in contributing to the fight against to execute a confiscation order adopted the prior agreement of the issuing State transnational crime. Based on an analy- in another EU Member State? This was is required if the measure envisaged by sis of cases addressing asset recovery the main question with which the CJEU the executing State were to appear to issues registered at Eurojust between

eucrim 1 / 2019 | 29 NEWS – European Union

1 January 2014 and 31 March 2018, the Strategic Agenda which is to be adopted that focuses on practices after the 2015 report identifies the main practical ben- by the European Council at the summit reforms. Furthermore, interviews were efits of asset tracing, asset freezing and in June 2019. Matters raised included conducted with Interpol, the European confiscation, asset disposal, and Euro- the need for more integration between Commission, and relevant organisations. just’s support. different policy areas, the development The study acknowledges that the re- The benefits of asset tracing include of cooperation and partnerships with forms of 2015 have improved the situ- using specialised forensic accountants, third countries to address common chal- ation, however, abuses of the Interpol taking a multi-disciplinary approach, lenges and the implementation of the system against individuals, including and raising awareness about the support legislation agreed. (TW) refugees, still continue. There is still a offered by Asset Recovery Offices and lack of established rules and procedures Financial Intelligence Units. EP Study: Possible EU Action Against to govern the vetting process and the With regard to asset freezing and Misuse of Interpol Red Notice System adherence to Interpol Constitution. A confiscation, the report identifies ben- In February 2019, the European Parlia- main issue of concern is that informa- efits such as early consultation between ment published a study that examined tion about red notices and diffusions is the authorities in the Member States, a the abuse by some states of the Inter- not timely updated. This is mainly due comprehensive understanding of the pol’s notice system to persecute national to the Interpol system which is based EU- and international legal instruments, human rights defenders, civil society on national databases with national au- and an understanding of the distinctions activists and critical journalists in viola- thorities under national jurisdiction, and in the ultimate confiscation instrument tion of international standards of human therefore a lack of any influence from to be applied. rights. The study entitled “Misuse of In- central entities. In relation to asset disposal, the report terpol’s Red Notices and impact on hu- Another challenge remains transpar- recommends anticipating potential caus- man rights – recent developments” was ency, both at the individual and the or- es for delay, anticipating requirements requested by the EP’s Subcommittee on ganisational level. Individuals have lim- such as provisions for compensation, Human Rights (DROI). ited access to the rules and procedures and considering, if possible, the early The authors of the study shed light on the GS and the CCF apply in the evalua- sale of assets. the current situation and recent trends tion process. Member countries and oth- Lastly, looking at Eurojust’s support, after Interpol has introduced reforms er international organisations have little the report identifies several benefits, to its legal and procedural framework access to information about the overall for instance the coordination of a joint in vetting red notices and diffusions in handling of red notices and diffusions. investigative strategy and intelligence 2015. The reform included a new refu- Concrete data on the countries making activities, the exchange of relevant in- gee policy, a strengthened review pro- requests, the number of accepted/re- formation, the provision of a channel of cess of requests for red notices and dif- fused requests, the grounds for refusals, communication, the coordination of the fusions in Interpol’s General Secretariat etc. do not exist. Hence, according to the transmission and execution of Letters of (GS), and the set-up of rules to govern authors, “it is not possible to evaluate, Request, freezing and confiscation -or the new mandates of the Commission even on the simplest level, the quality of ders, and assistance with drafting these for the Control of Interpol’s Files (CCF). the vetting process...” requests and orders. (CR) The study does, in particular, the fol- As regards possible EU action to lowing: remedy the current problems of abuses, „„Providing an overview of reported the study recommends, inter alia, the abuses and assessing their nature; following: Cooperation „„Describing the recent reforms under- „„EU institutions and EU Member taken by Interpol and assessing their im- States should take action that Interpol Police Cooperation plementation so far; further develops the legal framework „„Looking at the responses of EU and and its applicability for the GS, the Debate on Home Affairs Progress Member States; CCF and the National Central Bureaus At the JHA Council meeting on 7 March „„On this basis, identifying practices (NCBs); 2019, the Home Affairs Ministers of the that are still in need of reform and rec- „„EU Member States should ensure that EU Member States discussed achieve- ommending strategic activities, which Interpol fully implements the reforms ments made in the last five years in the the EU and its Member States could ad- commenced in 2015; area of home affairs and the challenges vocate to prevent the abuse of Interpol „„EU Member States should engage ahead. The debate must be seen in the and its mechanisms. more actively in strengthening the ac- context of the preparations for a new The study is based on written material countability of the GS, CCF, and NCBs

30 | eucrim 1 / 2019 Cooperation to control the content and updates of red improvement in cooperation between European Arrest Warrant notices; customs and trade, and the improved ex- „„Further steps are needed to fully im- change of specific customs information CJEU: German Public Prosecution plement the refugee policy; between customs authorities in the EU Office Is Not a “Judicial Authority” „„An independent redress to CCF deci- and third countries (including the estab- in the EAW Context sions is needed, e.g. by an ombudsman; lishment of a framework for the struc- spot German public prosecution of- „„The EU could fund further projects tured exchange of information with third fices may no longer issue Euro- light specifically aimed to improve the clarity countries). pean Arrest Warrants. With this and transparency of the processing and Notwithstanding, the partnership of thunderbolt, the CJEU (Grand Chamber) screening of red notices and diffusions customs with trade as well as coopera- answered two references for a prelimi- in order to avoid human rights viola- tion with international partners still need nary ruling from Irish courts. tions; to be further explored and enhanced. The hhBackground „„The EU could engage in bilateral cooperation of law enforcement authori- In the Joined Cases C-508/18 (OG) and initiatives with the member countries ties in interlinking customs controls and C-82/19 PPU (PI), the CJEU further outside of the EU that cause the big- risk management, on the one hand, and developed its case law on the concept gest problems to an accountable Interpol fraud/crime prevention and detection/in- of “issuing judicial authority” within system, e.g. through a new development vestigation measures, on the other, need the meaning of Framework Decision programme to raise the human rights to be constantly evaluated. 2002/584/JHA on the European Ar- and rule of law capacity in the interna- The conclusions address numerous rest Warrant (FD EAW). The case law tional cooperation in criminal matters; recommendations to the Member States started with the rulings of 10 November „„The EU should also address the indi- and the Commission (each within their 2016 in cases C-452/16 PPU (Poltorak), viduals affected by wrongful red notices respective competence), including inter C-477/16 (Kovalkovas), and C-453/16 or diffusions, e.g. by supporting relevant alia: (Özcelik) – see eucrim 4/2016, 165–167. NGOs that engage in deletion of the per- „„To utilise all available resources to In these cases, the CJEU clarified that sons from the system; accelerate the implementation of essen- police services and ministries of justice „„The EU Institutions, bodies and EU tial IT systems; are not an “issuing judicial authority” Member States should ensure further „„To increase the efficiency and effec- in the sense of Arts. 1(1) and 6(1) FD transparency concerning the activities tiveness of customs controls based on EAW. Confirmation by a prosecutor of of police authorities and their relation- risk analysis; an EAW that had been previously issued ship with international organisations „„To improve synergies between cus- by a police authority can, however, be and third countries in dealing with red toms and other law enforcement authori- considered a “judicial decision” in ac- notices. ties in the area of organised crime, secu- cordance with Art. 8(1c) FD EAW. Finally, the Commission is called on rity, and fight against terrorism, both at In proceedings before Irish courts, the to continue the monitoring of the EU the national and EU levels; question was then raised as to whether Member States’ compliance with the „„To further explore the technical, op- public prosecution offices guarantee suf- principle of non-refoulement and EU erational, and legal aspects of interoper- ficient independence to be viewed as a data protection rules. (TW) ability of the security and border man- “judicial authority” in the sense as re- agement systems with customs systems; quired by the aforementioned case law. „„To enhance the exchange of informa- In addition to the questions relating to Customs Cooperation tion related to risks between Member the German public prosecution service, States and between Member States and the Irish Supreme Court also brought Council Conclusions on Customs Risk third countries. up a preliminary ruling concerning the Management The Commission has been called on Lithuanian Prosecutor General’s Office, At the meeting on 8 January 2019, the to develop an efficient reporting mecha- which has the capacity to issue EAWs in Council (General Affairs) approved con- nism − in close cooperation with the Lithuania (case C-509/18, see separate clusions on the Commission’s second Member States − to measure the impact eucrim news). progress report on the Implementation of outcomes/results of specific actions hhFacts of the Joined Cases of the EU Strategy and Action Plan for deriving from the EU Strategy and Ac- As regards the preliminary ruling Customs Risk Management. tion Plan. In addition, a new working proceedings on the German public pros- The Council, inter alia, welcomed group is to define the indicators that will ecution offices, defendants whose - sur the participation of customs administra- facilitate the implementation of the EU render from Ireland had been requested tions in security-related activities, the Strategy and Action Plan. (TW) by the prosecution services of Lübeck

eucrim 1 / 2019 | 31 NEWS – European Union

(case C-508/18) and Zwickau (case ducting the prosecution of criminal of- The CJEU held that the first criterion C-82/19 PPU) argued that, in fact, no fences; and who is fulfilled: a public prosecution office, “judicial authority” within the meaning „„Does not issue national warrants; such as the German one, which is com- of Art. 6(1) FD EAW was involved in „„May not perform judicial functions, petent to prosecute a person for a crimi- the issuance of the European Arrest War- can be considered a “judicial author- nal offence and bring that person before a rants. The reasoning is as follows: ity” for the purposes of Art. 6(1) FD court, must be regarded as “participating „„German public prosecution offices EAW. in the administration of criminal justice.” are only entitled to execute a national ar- hhRuling of the CJEU As regards the second criterion, the rest warrant issued by a judge or court; In its ruling of 27 May 2019, the judges in Luxembourg focused on the „„German public prosecution offices do CJEU first clarifies that the multiple protection of the procedural and funda- not enjoy an autonomous and independ- questions referred to can be condensed mental rights of the person sought. Ac- ent status, but are subject to an adminis- to the essential question of “whether the cordingly, the EAW system involves a trative hierarchy headed by the Minster concept of an ‘issuing judicial author- dual level of protection: the first level for Justice. ity’, within the meaning of Art. 6(1) provides judicial protection for a na- Indeed, under German law, German [FD 2002/584], must be interpreted as tional decision, such as a national arrest public prosecution offices are common- including the public prosecutors’ offices warrant; the second level affords protec- ly designated as the competent authority of a Member State which are responsible tion when a European Arrest Warrant is to issue European Arrest Warrants, espe- for the prosecution of criminal offences issued (possibly shortly after the adop- cially those for the purpose of prosecu- and are subordinate to a body of the ex- tion of the national judicial decision). At tion. Furthermore, there is a relationship ecutive of that Member State, such as a this second level, the judicial authority between the public prosecutor’s offices Minister for Justice, and may be subject, “must review, in particular, observance and the executive in Germany. In par- directly or indirectly, to directions or of the conditions necessary for the issu- ticular, public prosecutors are subject instructions in a specific case from that ing of the EAW and examine the propor- to the “external power” of the ministers body in connection with the adoption tionality of the EAW.” As a result, the of justice of the relevant federal state of a decision to issue a European arrest Member States must guarantee that the (Land) to issue instructions (externes warrant.” “issuing judicial authority,” within the Weisungsrecht). Germany argued, how- In accordance with the principle of meaning of Art. 6(1) FD EAW, must ever, that this power is exercised only as procedural autonomy, the CJEU first meet the following capacities: an exception and that no instructions had reiterates that, although Member States „„Exercising its responsibilities objec- been issued in the present case. may designate, in their national law, the tively; hhQuestions Referred “judicial authority” competent to issue „„Taking into account all incriminatory Notwithstanding, the referring Irish Su- EAWs, the meaning and scope of that and exculpatory evidence; preme Court and the Irish High Court term cannot be left to the assessment „„Not being exposed to the risk that its cast doubt as to whether the structure of each Member State. Therefore, the decision-making power is subject to ex- and powers of the German public pros- term “judicial authority” requires an ternal directions or instructions, in par- ecution offices meet the so-called inde- autonomous and uniform interpretation ticular from the executive. pendence and administering of justice throughout the EU, taking into account In other words: the issuing Member tests established by the CJEU in the the wording, context, and objective of State must assure “that it is beyond doubt “trias” rulings Poltorak, Kovalkovas, the FD EAW. that the decision to issue a European ar- and Özcelik. They mainly want to know The concept of an “issuing judicial rest warrant lies with that authority and which criteria and parameters govern authority” must cumulatively meet two not, ultimately, with the executive.” assessment of the term “independence” criteria: In addition: if the authority to which within the context of the FD EAW. If „„The authority participates in the ad- the Member State confers the compe- independence from the executive can be ministration of criminal justice in an EU tence to issue EAWs is not itself a court, affirmed, the courts also ask whether a Member State (as distinct from, inter the decision to issue an EAW – and, in public prosecutor, who is confined to alia, ministries or police services, which particular, the proportionality of such „„Initiating and conducting investiga- are part of the executive); decision – must be subject to court pro- tions and assuring that such investiga- „„The authority responsible for issuing ceedings, “which meet in full the re- tions are conducted objectively and law- an EAW must act independently in the quirements inherent in effective judicial fully; execution of its functions (even if the protection.” „„The issuing of indictments; EAW is based on a national arrest war- In view of the established parameters, „„Executing judicial decisions and con- rant issued by a judge or court). the CJEU stated that the German pub-

32 | eucrim 1 / 2019 Cooperation lic prosecution offices may, in a given ropean Arrest Warrant can be the basis branch, must be overhauled. The aboli- case, be subject to instruction from the for depriving a person of his/her liberty. tion of external power for the ministers Minister for Justice of the relevant Land. Therefore, judicial oversight and control of justice to give instructions is a recur- Hence, they are not free from (direct) must be strong during the issuing phase ring request which has gained new mo- political influence. As a consequence, a of an EAW. mentum with the present CJEU judg- criterion of the independence test as de- Still, questions remain open. The ment. (TW) scribed above is not fulfilled. consequences of the CJEU’s statements The Luxembourg judges rejected the are not yet fully clear. The result of the Lithuanian Prosecutor General arguments by the German government joined cases C-508/18 and C-82/19 PPU Included in the Concept of “Judicial that German law includes several safe- was also shared by the Advocate-Gen- Authority” in the FD EAW guards that circumscribe the ministers’ eral Manuel Campos Sánchez-Bordona The Prosecutor General of Lithuania can power to issue instructions, so that situ- in his opinion of 30 April 2019. The be considered a “judicial authority” that ations in which this power could be ex- AG, went a step further, however, by can issue European Arrest Warrants, un- ercised are extremely rare. According to concluding that – according to his view der the condition that his/her decisions the CJEU, the abstract existence of these – only a judge or a court is capable of are subject to court proceedings fully powers already suffices, namely that the properly issuing an EAW. Prosecution meeting the requirements inherent to ef- German public prosecution offices can- services should only be entitled to is- fective judicial protection. It is up to the not be subsumed under the autonomous sue EAWs in exceptional circumstances, referring court to determine the latter. notion of “judicial authority.” e.g., in urgent cases, in accordance with hhContext of the Case hhPut in Focus the national law of a Member State. The Grand Chamber of the CJEU con- The CJEU’s Grand Chamber ruling will Restricting the competence to issue an cluded this finding in its judgment of have considerable consequences on the EAW to judges/courts avoids verifica- 27 May 2019 in case C-509/18 (PF). German practice. Germany is one of the tion of institutional and functional au- It was rendered in parallel to its judg- EU Member States that issues the most tonomy in each individual EAW case. ment of the same day in the joined cases EAWs yearly (in 2018 and 2017, over In its judgments C-508/19 and C-82/19 C-508/18 (OG) and C-82/19 PPU (PI) – 3700 EAWs were issued via the SIS). PPU, the CJEU does not seem to draw see separate eucrim news. All cases were The vast majority of EAWs were issued this conclusion, even in comparison to referred by Irish courts (case C-509/18 by the public prosecution services. All the decision regarding the Court’s find- by the Irish Supreme Court); persons issued EAWs have now become invalid ing in case C-509/19 on the Lithuanian requested for surrender via European and need to be reissued. At the moment, General Prosecution Service. This is Arrest Warrants claimed that the issu- it is not clear, however, how the issuance mainly because, in the “German case,” ing public prosecution offices are not of EAWs will be organised in the future. the CJEU focuses on whether prosecu- competent to issue EAWs because they As statements in an article on the judg- tion services are exposed to the risk of lack the independence required to be a ment in the “Legal Tribune Online” re- being subject (directly or indirectly) “judicial authority” within the mean- veal, there are several possibilities: to directions or instructions from the ing of Art. 6(1) of Framework Decision „„EAWs may be issued by the judge at executive (such as ministers). In the 2002/584/JHA on the European Arrest the local court who issues national arrest “Lithuanian case,” the CJEU does not Warrant (FD EAW). warrants; fully exclude prosecution services from The cases build on the case law „„EAWs may be issued by the trial the concept of “issuing judicial authori- in cases C-452/16 PPU (Poltorak), court, or the court where a criminal case ties.” This means that executing author- C-477/16 (Kovalkovas), and C-453/16 is currently pending, or a chamber that ities will have to examine the status of (Özcelik) – see eucrim 4/2016, 165–167 will execute a possible conviction. the prosecution services in EAW cases – in which the CJEU first established In any event, the German law must be and carry out individual assessments several criteria according to which the amended in the near future. in the future. Therefore, uncertainties authority may be regarded as “judicial” Probably like many other Member for legal practitioners executing EAWs within the EAW scheme. The referring States, Germany considered the Europe- will remain, which may not only delay Irish courts doubted whether the so- an Arrest Warrant framework to not only surrender, but also trigger similar refer- called independence and administering include a request for extradition/sur- ences. of criminal justice tests – as described render, but that it is also an instrument Coming back to Germany: the ulti- in the aforementioned case-law – are for searching persons. This latter aspect mate question is whether the structure of fulfilled if public prosecutors from other now seems to have been pushed back by the German public prosecution offices, EU Member States issue EAWs on the the CJEU, which made clear that the Eu- with their embedding in the executive basis of the FD.

eucrim 1 / 2019 | 33 NEWS – European Union

Whereas the question in the joined ity” as established in the joined cases in effective judicial protection.” This is cases C-508/18 and C-82/19 PPU relate C-508/18 and C-82/19. In particular, ultimately for the referring court to de- to the German public prosecution office, the concept requires an autonomous and termine. the present case C-509/18 concerns the uniform interpretation at the EU level. hhPut in Focus Prosecutor General of Lithuania. First of all, it must be established Together with the judgment in the joined hhFacts of the Case whether the authority at issue is “partici- cases C-508/18 and C-82/19 PPU, the In the case at issue, the Prosecutor Gen- pating in the administration of criminal CJEU supplements its case law as to the eral of Lithuania issued a European Ar- justice” in a Member State. In this con- extent to which the executing judicial rest Warrant for the surrender of a Lithu- text, it follows from the FD EAW that the authority can be sure that an EAW has anian national PF who was prosecuted concept of “judicial authority” not only been issued by a “judicial authority” as for “armed robbery,” allegedly commit- refers to judges and courts, but may also required by the FD EAW. Both judgments ted in 2012. PF challenged the validity encompass other authorities involved in must be read together, and the previous of the EAW on the grounds, inter alia, the criminal proceedings. These authori- judgments in the aforementioned cases that the Prosecutor General is not an ties must, however, be capable of adopt- decided in 2016 (Poltorak, Kovalkovas, “issuing judicial authority” within the ing decisions in relation to conducting and Özcelik) must also be taken into ac- meaning of Art. 6(1) FD EAW. He ar- criminal proceedings. For example, the count. In further clarifying the criteria of gued that, according to the case law of Prosecutor General in Lithuania is capa- the concept of “judicial authority,” the the Lithuanian constitutional court, a ble of being regarded as participating in CJEU’s approach does, however, require public prosecutor is not responsible for the administration of criminal justice in the executing authority to assess the status the administration of justice. In the ap- the Member State in question. of public prosecution offices in each indi- peal proceedings against execution of Secondly, if the EAW was not issued vidual Member State if they issue EAWs. the EAW, the Irish Supreme Court fol- by a judge or court, the competent au- This not only leads to uncertainties, but lowed this argumentation and identified thority must act independently. In par- may also delay surrender. that the CJEU’s case law as regards the ticular, it must have sufficient power In its opinion of 30 April 2019, Advo- definition of “judicial authority” pursu- to protect the individual’s procedural cate-General Manuel Campos Sánchez- ant to Art. 6(1) FD EAW is incomplete. and fundamental rights when issuing an Bordona tried to avoid this consequence. The Irish Supreme Court mainly asked EAW. Therefore, the issuing authority He proposed excluding the institution the CJEU for more concrete criteria that must have the following capacities: of public prosecutors’ offices from the allow the national courts to determine „„Exercise its functions objectively; concept of “issuing judicial authority.” the “judicial authority” for the purposes „„Take into account all incriminatory He argued that independence can only of the FD EAW. and exculpatory evidence; be recognised for the judiciary, but not hhThe CJEU’s Ruling „„Not be exposed to the risk that its for the public prosecutor’s office. The The CJEU first clarified that the essen- decision-making powers are subject to Grand Chamber disagreed with this tial question in the given case is whether external directions/instructions, in par- view in case C-509/18 (TW). the Prosecutor General of a Member ticular from the executive. State can be included in the concept of In addition, sufficient protection CJEU: Relationship Between Time an “issuing judicial authority” within the means that the decision on issuing a Limits in the FD EAW and Surrender meaning of Art. 6(1) FD EAW. In con- European Arrest Warrant meets “the Detention trast to the parallel cases C-508/18 and requirements inherent in effective judi- In its judgment of 12 February 2019, the C-82/19 concerning the German public cial protection” (if the decision was not CJEU dealt with the implication of non- prosecution office, the CJEU highlight- adopted by a judge or a court). compliance with the time limits for the ed that the following characteristics of The CJEU found that the legal posi- decision to execute a European Arrest the Lithuanian Prosecutor General must tion of the Prosecutor General of Lithu- Warrant on maintaining the requested per- be taken into account: ania safeguards not only the objectivity son’s extradition detention. The CJEU ul- „„Institutionally independence from the of his role, but also affords him a guar- timately had to decide whether the Dutch judiciary; antee of independence from the execu- law implementing Framework Decision „„Responsibility for conducting crimi- tive in connection with the issuing of an 2002/584/JHA on the European Arrest nal prosecutions; EAW. The CJEU could not, however, Warrant (FD EAW) and the case law of „„Independence from the executive. ascertain whether a decision of the Pros- the Amsterdam courts could be upheld The judges in Luxembourg then de- ecutor General to issue an EAW may be against Art. 6 of the Charter of Funda- liberated the criteria and parameters for the subject of court proceedings “which mental Rights of the EU (CFR). The case determining the “issuing judicial author- meet in full the requirements inherent is referred to as C-492/18 PPU (TC).

34 | eucrim 1 / 2019 Cooperation hhBackground of the Case and Facts ing the suspension of the time period in duced to an acceptable level by the im- The reference for a preliminary ruling Art. 22(4), even though both approaches position of appropriate measures). The was made by the Rechtbank Amsterdam have brought about the same results in material conditions necessary for the (District Court, Amsterdam, Nether- practice. effective surrender would not be able to lands). According to the Rechtbank, sit- In the present case, the Rechtbank be maintained. Accordingly, Art. 22(4) uations may occur in which it is not able Amsterdam followed its approach and OLW is incompatible with the provi- to maintain the time limits as provided suspended the decision period until de- sions of FD 2002/584. for in Art. 17 FD EAW. The provision livery of the judgment in RO. The Recht­ As regards the second question, the stipulates that a final decision on ex- bank also remarks that it was unable to CJEU stated that Art. 12 FD EAW must ecution of the EAW should be taken by equally suspend detention pending sur- be interpreted in conformity with Art. 6 90 days after the arrest of the requested render because there was a very serious CFR. However, this fundamental right person at the latest. This deadline can- risk of TC absconding, which could not to liberty is subject to limitations which not be met if a preliminary ruling must be reduced to acceptable levels. in turn must fulfil several conditions, be made to the CJEU or if the court as- hhLegal Questions at Issue e.g., being proportionate (Art. 52(1) sesses possible inhuman or degrading Against this background, the Rechtbank CFR). Since Art. 6 CFR corresponds to treatment in the issuing Member State Amsterdam sought clarification from Art. 5 ECHR, account must be taken of in line with the CJEU’s judgment in Ar- the CJEU as to whether Art. 22(4) OLW, the relevant interpretation by the ECtHR ranyosi and Căldăraru (cases C-104/15 laying down a general and unconditional (Art. 52(3) CFR). In this context, the and C-659/15 PPU). obligation to release a requested person ECtHR requires not only that any lawful A similar situation occurred in the after the 90-day period has elapsed, is deprivation of liberty must have a basis case at issue, when the Rechtbank Am- in line with the concept of an effective in national law, but also that this law sterdam stayed the execution of the surrender as set up by the FD EAW. In must be sufficiently accessible, precise, European Arrest Warrant issued by the addition, the question was raised as to and predictable in its application in or- United Kingdom against TC, a British whether Art. 6 CFR, which guarantees der to avoid all risk of arbitrariness. national, because the Amsterdam court a person’s right to liberty, precludes na- In applying these parameters, the wanted to wait for the CJEU’s response tional case law allowing suspension of CJEU found that the given case law in case C-327/18 (RO). In this prelimi- the 90-day period in the aforementioned of the Rechtbank and Gerechtshof of nary ruling procedure, the CJEU had to situations. Amsterdam in making exceptions to decide on the impact of the UK’s notifi- hhRuling of the CJEU Art. 22(4) OLW does not make it pos- cation of its intention to withdraw from As regards the first question, the CJEU sible for the person concerned to clearly the EU on the execution of an EAW is- indicated that the Dutch legislator had and predictably determine the period of sued by the UK authorities (see eucrim apparently a misunderstanding of the his detention. Although the approaches 2/2018, 102–103). provisions in the FD EAW. Neither may not entail different results in prac- The Dutch legislator, however, con- Art. 12 FD EAW, which gives the ex- tice, it cannot be ruled out that these di- sidered the time limits in the FD EAW ecuting authority the power to take de- vergences may lead to different periods to be in favour of the individual. As a cisions on whether a requested person of continued detention (notably because consequence, detention of the requested must be arrested or remain in deten- both courts did not proceed from the person must be suspended,if the 90- tion, nor any other provision of the FD same starting point in calculating the day period for adopting a final decision EAW requires the release of that person suspension period). Furthermore, the on execution of the EAW has expired a fortiori if the time limits stipulated differing interpretations cannot exclude (Art. 22(4) of the Overleveringswet in Art. 17 expire. Such an obligation to that a person must be released even if [OLW − Law on the surrender of sen- release the person would ultimately ob- there is a high risk of absconding – as a tenced persons]). struct the attainment of the objectives result of which conformity with the FD The referring court further noted that pursued by the FD EAW, which seeks to EAW cannot be achieved (see above). both the court itself and also the appeal build up an effective surrender system In conclusion, the current practice in court in Amsterdam (Gerechtshof Am- within the EU territory. the Netherlands of keeping a person in sterdam) had developed case law that This effectiveness is especially un- detention beyond the 90-day period in- avoids the strict legal consequence of dermined if, as indicated in the case at fringes Art. 6 CFR. Art. 22(4). This case law aims at inter- issue, the executing authority were to hhPut on Focus preting the Dutch law in conformity with be obliged to carry out a provisional re- Although one might first think that the the FD EAW. However, the two courts lease, even if there is a very serious risk present judgment in TC is intertwined take different approaches to determin- of absconding (which could not be re- with the special legal situation in the

eucrim 1 / 2019 | 35 NEWS – European Union

Netherlands, it confirms the CJEU’s ap- burg file a request for preliminary ruling „„Take into account the duration and proach already established in the Lani- to the CJEU, so that the latter further extent of the restriction, the type of pris- gan judgment of 16 July 2015 (C-237/15 determine the factors relevant to the as- on, and the prison regime, when assess- PPU). Accordingly, time limits as stipu- sessment of the detention conditions in ing the various factors. lated in the FD EAW are above all ad- the issuing State. For the case history, Ultimately, the AG concluded that dressed to the state authorities. They do see eucrim 1/2018, 32–33. legislative and structural measures for not preclude keeping a requested person Subsequently, the HRC of Hamburg improvement of the execution of sen- in custody, even if the total duration for stayed the EAW proceedings and posed tences in the issuing EU Member State which that person has been held in cus- several questions to the CJEU. The first cannot, as such, mitigate the real risk tody exceeds those time limits. The first block of questions relates to the mini- of inhuman and degrading treatment premise is to ensure the effectiveness mum standards for custodial conditions to which the person surrendered would of the surrender. The limit is the CFR, required under Art. 4 CFR. The second be exposed. Furthermore, the executing in particular Art. 6 as interpreted in the block deals with questions as to which judicial authority cannot weigh the indi- light of Art. 5 ECHR. The duration of standards are to be used to assess wheth- vidual’s guarantee to not be subject to detention cannot be excessive and must er custodial conditions comply with EU any inhuman or degrading treatment in reflect the principle of proportionality. If law and to which extent these standards the sense of Art. 4 CFR against compli- the executing authority is opting for pro- influence interpretation of the term “real ance with the principles of mutual trust visional release, it is, however, required risk” as defined in the leading judgment and mutual recognition and with safe- to attach any measures it deems neces- Arranyosi and Căldăraru (see eucrim guarding the effectiveness of the Euro- sary to prevent the person concerned 1/2016, 16). pean criminal justice system. from absconding and to ensure that the The AG first examined the level of After the above-mentioned judg- material conditions necessary for his/ review of detention conditions that the ment in Arranyosi and Căldăraru and her effective surrender remain fulfilled executing authority is entitled to carry contributions made by the judgment in as long as no final decision on the ex- out within the EAW regime. Secondly, case C-220/18 PPU (Generalstaatsan- ecution of the EAW has been taken. he elaborated on the underlying criteria waltschaft [conditions of detention in (TW) for review of the detention conditions in Hungary], also referred to as “Aranyo- the establishment where the person sur- si III”, see eucrim 2/2018, 103–104), the AG: Assessment Standards of Detention rendered is likely to be incarcerated. Dorobantu case gives the CJEU a further Conditions in EAW Cases In conclusion, the AG proposed that opportunity to shape the required assur- On 30 April 2019, Advocate General the executing judicial authority meet the ances for respecting the fundamental (AG) Manuel Campos Sánchez-Bordona following obligations: rights of the person surrendered under a presented his opinion in case C-128/18 „„Carry out an overall assessment of European Arrest Warrant when there are (Dumitru-Tudor Dorobantu). The re- all the material aspects of the detention general or systematic deficiencies in the quest for a preliminary ruling was made that are relevant to the assessment of prison system in the issuing EU Member by the Higher Regional Court (HRC) of whether there is a real risk of inhuman or State. (TW) Hamburg, Germany, which initially or- degrading treatment as a result of poor dered the surrender of Romanian nation- detention conditions; al Mr Dorobantu to Romania in respect „„Place particular importance on the European Investigation Order of offences relating to property and for- minimum personal space in the prison gery and the use of forged documents. cell; AG: Bulgaria Must Bring Its Law in Line Mr Dorobantu claimed that surrender „„Take into account the type of cell with EIO Directive to Romania would infringe his funda- (single occupancy or multiple occupan- If the national legislation of an EU mental rights, since he would be incar- cy) and the space taken up by furniture Member State does not provide for le- cerated in prisons that do not fulfil the (excluding sanitary facilities); gal remedies, by means of which the minimum standards of human and non- „„Examine other material aspects of substantive reasons for an investigative degrading treatment. The assessment detention, e.g., layout of the cell, es- measure requested by a European In- of the referring court as regards deten- sential services, and infrastructure of vestigation Order (EIO), cannot be chal- tion conditions in Romania, finding that the prison, out-of-cell activities, etc., if lenged, this Member State is not entitled they comply with the standards of Art. 4 the cell is 3m² or less, in order to assess to use the EIO instrument. CFR, was quashed by the German Fed- compensation for lack of personal space hhBackground eral Constitutional Court (FCC). The and rebut the presumption of a breach of This far-reaching legal ramification was FCC demanded that the HRC of Ham- Art. 4 CFR; proposed by Advocate General Yves Bot

36 | eucrim 1 / 2019 Cooperation in his opinion of 11 April 2019 in case hhReferred Questions manner, a right to challenge an EIO in C-324/17 (criminal proceedings against As a consequence, the Specialised Crim- favour of the “parties concerned.” A di- Ivan Gavanozov). Note: At the time of inal Court referred three questions to the rect effect for a legal remedy against an writing, the opinion was not available in CJEU: investigative measure cannot be created English and German. „„Is the Bulgarian legislation, which ex nihilo. The case marked the first occasion for (directly and indirectly) precludes a By answering the second question in the CJEU to interpret Directive 2014/41/ challenge to the substantive grounds the negative, the third question actually EU regarding the European Investiga- of a court decision issuing an EIO for became obsolete. Alternatively, AG Bot tion Order in criminal matters (EIO a search of premises and the seizure of points out that the notion “concerned DIR). It concerns peculiarities of Bul- specific items and allowing examination parties” must be interpreted autono- garian criminal procedure, and interpre- of a witness, consistent with Art. 14 EIO mously. It also covers persons who are tation was requested as regards Art. 14 DIR? affected by an investigative measure, EIO DIR, which provides inter alia: „„Does Art. 14(2) EIO DIR grant, in but are considered a “third party” in „„Member States shall ensure that legal an immediate and direct manner, to a the criminal procedure, e.g., the person remedies equivalent to those available in concerned party the right to challenge a who occupies the property on which a similar domestic case are applicable to court decision issuing an EIO? the search and seizure is carried out or the investigative measures indicated in „„Who is covered by the term “con- the person who is to be examined as a the EIO (Art. 14(1)); cerned party”? witness. The Union legislator did not „„The substantive reasons for issuing hhThe Advocate General’s Answers exclude the protection of these persons the EIO may be challenged only in an As regards the first question, the AG ob- if an EIO is applied (Art. 1(4)). In addi- action brought in the issuing State, with- served that, although Art. 14 EIO DIR tion, the “concerned party” in Art. 14(4) out prejudice to the guarantees of fun- only obliges Member States to extend EIO DIR includes the person against damental rights in the executing State existing legal remedies to the EIO con- whom a criminal charge was brought, (Art. 14(2)); text, it can be deduced from the norm even though that person was not directly „„“Parties concerned” shall have the that – “as a play of mirrors” – Member targeted by the measure that collected possibility to effectively exercise these States are also obliged to install legal the evidence. (TW) legal remedies (cf. Art. 14(4)). remedies which enable concerned par- hhFacts of the Case ties to challenge the substantial grounds Eurojust Meeting Report on European The request for a preliminary ruling was for issuing the EIO. Investigation Order made by the Spetsializiran nakazatelen The AG even went a step further. Not Eurojust published a report about a two- sad (Specialised Criminal Court, Bul- only is Bulgarian legislation inconsist- day meeting on the European Investiga- garia) in criminal proceedings against ent with Art. 14 EIO DIR, but the Bul- tion Order (EIO) attended by prosecu- Ivan Dimov Gavanozov who was being garian authorities are also presently not tors from the EU Member States as well prosecuted for VAT fraud in Bulgaria. allowed to issue EIOs, i.e., to use the as representatives from EU institutions Allegedly, a company and its manager EIO instrument. The AG argued that the and academia at Eurojust’s premises in situated in the Czech Republic were principle of mutual trust and recognition the Hague from 19–20 September 2018. involved in the fraud scheme. Hence, is built on a balance between effective- The meeting provided a platform for de- the Bulgarian court wished to issue an ly cooperating in criminal matters and bate in order to discuss potential prob- EIO requesting the Czech authorities to guaranteeing an individual’s fundamen- lems and challenges. search residential and business premis- tal rights. The respect of fundamental The report gives an overview of the es, seize specific documents, and exam- rights, however, cannot be presumed if scope, content, form and language, is- ine the manager as a witness. However, the issuing State denies legal remedies suing and transmission, recognition and the Bulgarian court noted that neither to the persons concerned by the coop- execution, and specific investigation the Bulgarian code of criminal proce- eration. Referring to case law of the measures of an EIO. Furthermore, it out- dure nor the law implementing Direc- ECtHR, the AG further concluded that lines the specific support of EIO actors. tive 2014/41 provide for a legal remedy the current Bulgarian legislation is a Overall, participants at the meeting against the adoption of the investigative “flagrant denial of justice” and that de- concurred that, with the EIO, a stand- measures of search and seizure and wit- ficiencies must be remedied before the alone legal instrument covering all types ness examination. Therefore, the court EIO can be used. of investigative measures (with the ex- was also unable to fill in Section J of the As regards the second question, the ception of JITs) in the field of evidence- EIO form, which refers to the legal rem- AG stated that Art. 14(2) EIO DIR does gathering within the EU has been estab- edies in the issuing State. not grant, in a direct and immediate lished.

eucrim 1 / 2019 | 37 NEWS – European Union

The majority of participants also relation of the proposed instrument to “The question of the possibility of agreed that the Annex A form was a step other European instruments; outsourcing, even privatising, state pre- forward in terms of simplifying formali- „„The role of service providers; rogatives and sovereignty, relates to core ties, improving quality, and reducing „„Relationship with third-country law, (constitutional) prerogatives of a state, translation costs. in particular the U.S. CLOUD Act; such as the protection of the fundamen- In relation to the issuing of an EIO, „„Conditions for issuing European Pro- tal rights of its citizens by its national the possibility of a proportionality check duction Orders and European Preserva- constitutional provisions/traditions and by the issuing authority was positively tion Orders and Certificates (EPOC(- international instruments, as well as the assessed, as was the consultation mech- PR)s); protection against potentially unjustified anism that can be triggered by the ex- „„Safeguards and remedies; encroachments of foreign authorities on ecuting authority when it has reasons to „„Enforcement of EPOC(-PR)s. its territory in the judicial/law enforce- believe that the proportionality require- hh1. Scope of application and the ment field.” ment has not been met. The need for a relation of the proposed instrument Therefore, the question is whether the secure communication network allow- to other European instruments judicial authority of the state of enforce- ing EIOs to be safely transmitted was In part A of the so-called “2nd working ment need to be stronger involved. emphasized. Eurojust, the EJN, and the document” of 6 February 2019, Sip- In addition (part B of the third work- European Commission offered support, pel and co-rapporteur Nuno Melo (EPP, ing document), the EP rapporteurs re- including work on the e-evidence plat- Portugal) doubt whether the envisaged quest the establishment of a reimburse- form to allow secure transmission of the regulation on European Production and ment regime for the service providers. EIOs and MLA requests. Preservation Orders for electronic evi- Finally, service providers need full legal At the time the meeting took place, dence in criminal matters can be based certainty when it comes to their obliga- no experience had yet been gathered re- on Art. 82 TFEU since it is not an in- tions and liability; they should not be left garding the application of grounds for strument of mutual recognition which in a legal limbo between law enforce- non-recognition. involves direct cooperation between ment/judicial orders, data protection ob- The time limits offered under the EIO judicial authorities, but concerns the ligations and third country laws. Sippel regime were seen as an improvement execution of law enforcement orders and Dalton conclude that “the proposed compared to traditional MLA. However, by private providers. Furthermore, the Regulation, however, seems to unfortu- regret was expressed that the Annex B EP rapporteurs stressed that it “needs to nately exacerbate the legal uncertainty form to acknowledge receipt is not often be made unequivocally clear” whether for the service providers.” used in practice. a Regulation is the right instrument or hh3. Relationship with third-country With regard to the application of the whether not a Directive is appropriate law, in particular the U.S. CLOUD Act speciality rule, it remains unclear wheth- for an e-evidence legal framework. In the fourth working document of er the EIO has changed anything in this Part B of the 2nd working document 11 March 2019 (Part A), Sippel and co- regard or not. (CR) concludes that as regards subscriber data author Sophie in’t Veld (ALDE, Nether­ – “the data category required the most lands) analyse the effectiveness of in trans-border cases, and needing swift obtaining relevant e-evidence data by Law Enforcement Cooperation action in order to start a criminal inves- means of existing instruments of judicial tigation and identify a suspect or link a cooperation, in particular by the 2003 Further Concerns of EP Against suspect with a certain communication” EU-US Mutual Legal Assistance Agree- E-Evidence Legislative Proposal – both the European Investigation Order ment. They conclude that the MLA

spot The EP rapporteur in the LIBE and the CoE Cybercrime Convention scheme is working satisfactorily. There- committee responsible for the represent a “forthcoming framework” fore, a new instrument on direct access light Commission proposal on law despite their limitations. to e-evidence seems questionable where enforcement access to e-evidence, Birgit hh2. Role of service providers subscriber, access, and transactional data Sippel (S&D, Germany), voiced further In the third working document of are concerned (at least when the major criticism (see already eucrim 4/2018, 13 February 2019 (part A), Sippel and US providers are involved). As regards 206). After a first working document co-rapporteur Daniel Dalton (ECR, UK) content data, improvements in the MLA (see ibid.), Sippel and co-rapporteurs/ question, inter alia, whether a fully- agreement could be realised. In addi- shadow rapporteurs examined the fol- fledged fundamental rights assessment tion, the EU-US MLA agreement leaves lowing issues in several subsequent can and should be outsourced to private enough room for strengthening judicial working documents: service providers. In this context, they cooperation. According to the working „„The scope of the application and the note: document (Part A) the problem is not

38 | eucrim 1 / 2019 Cooperation the legislative side, but the adequate the executing state. The proposal is a e-evidence is collected and transferred outfitting of judicial authorities handling fundamental shift away from the exist- to the issuing authority. The MEPs also MLA requests with adequate financial, ing acquis in judicial cooperation. The found that ex ante safeguards neces- human, and technical resources. rapporteurs advocate the introduction of sitate stronger involvement of authori- Part B of the 4th working document a stronger notification system with the ties in the executing state, including a provides an in-depth look into the con- right of the executing state to check, e.g., comprehensive notification system and tents of the U.S. CLOUD Act (see also whether immunities or privileges are af- the possibility of a meaningful reaction Daskal, eucrim 4/2018, 220–225). Sip- fected or whether the measure would be to EPOC(-PR)s. Relevant rules could pel and in’t Veld conclude that an EU e- admissible in a similar domestic case (as be modelled on Art. 31 and Art. 11 of evidence instrument would imply sever- provided by the EIO). They also advo- the EIO Directive. A fundamental rights al incompatibilities with the US act and cate the right to oppose an EPOC(-PR) clause should be worded along the exist- ultimately lead to conflicts of law. They (see also Part B of the 5th working docu- ing clause in the EIO Directive. also oppose Commission plans to get a ment). The latter should at least be pos- Such a notification mechanism trig- mandate for negotiations with the USA sible when fundamental rights obliga- gers the question of which state must be − on behalf of the EU − on an execu- tions are at stake. A double criminality notified. In order to guarantee efficient tive agreement within the framework of test should take place if an EPOC refers legal remedies, the “affected state” must the CLOUD Act. In view of the pending to transactional and content data. be defined. e-evidence proposal, this seems, inter As further outlined in Part C of the The effectiveness of remedies also alia, premature, as a number of ques- 5th working document, Sippel and Ernst plays a vital role for ex post safeguards. As tions have not yet been sufficiently an- also voice concern over the total exclu- further outlined in Part C of the 6th work- swered before entering into negotiations sion of the executing authority from be- ing document, Sippel and Franz question with the USA. ing involved in proportionality checks. whether the data subject should have the Many shortcomings were also found This also represents a paradigm shift right to not only challenge the legality of in relation to Arts. 15 and 16 of the pro- from mutual recognition. It deprives the an EPOC in the issuing Member State, posed e-evidence Regulation (Part C of enforcement of coercive measures of the but also in the Member State of residence the 4th working document); these pro- necessary checks and balances. Since and/or the Member State of enforcement. visions introduce a review procedure the proportionality test seems the only Furthermore, the e-evidence proposal for cases in which the service provider, safeguard against misuse, it might be ad- triggers the question of whether harmo- requested to produce data based on an visable to think about more detailed and nised rules on legal remedies should be EPOC, is faced with conflicting obliga- common rules on proportionality. brought forward. The MEPs further note tions from third-country law (e.g., if the hh5. Safeguards and remedies that the question of harmonisation is also service provider has its main seat in the Inconsistencies with existing mutual raised for admissibility/exclusionary rules third country). recognition instruments, e.g., the EIO, in the e-evidence context. The new EU hh4. Conditions for issuing EPOC(-PR)s and the fact that the executing authority tool must, however, at least specify which In Part A of the 5th working document is kept out, also cause problems when it remedy applies if e-evidence has been ob- (8 March 2019), Sippel and co-rappor- comes to notification of the data subject. tained illegally. teur Cornelia Ernst (GUE/NGL, Germa- In Part A of the 6th working document of In addition, Sippel and Franz identify ny) critically remark that the proposed 1 April 2019, Sippel and Romeo Franz further gaps in the Commission propos- rules on the issuing authority, which also (Greens/EFL, Germany) stress that EU al, such as the prohibition of further pro- entitle prosecutors to issue EPOCs/EP- legislation should introduce several pa- cessing and onward transfer of evidence, OC-PRs in cases of subscriber and ac- rameters to resolve the tension between the inclusion of financial compensation cess data, do not fully take into account the interests of law enforcement authori- and penalties for unlawfully acting issu- constitutional constraints in many EU ties in withholding notifications and the ing authorities, and remedies for service Member States. The authors fear a race data subject’s interest in exercising his/ providers. to the bottom, which is why the neces- her rights to defence and fair trial. It Ultimately, the MEPs fiercely reject sity of judicial authorisations must also should be borne in mind that – according the Commission’s view (as mentioned in be considered in view of access data. to the Commission proposal – it is only the impact assessment for the e-evidence In view of the offences justifying up to the issuing authority to inform. proposal) that a “right to security” has to the issuance of EPOC(-PR)s, there are In Part B of the 6th working docu- be balanced against other individual rights concerns (as already mentioned in pre- ment, Sippel and Franz examine the and safeguards. Sippel and Franz empha- vious working documents) over reduc- necessary ex ante safeguards, i.e., safe- sise that such a position risks being below ing the protective role of authorities in guards that must be guaranteed before the level of the ECHR, where such a right

eucrim 1 / 2019 | 39 NEWS – European Union has not been legally recognised. It cannot connected with the more general debate for service providers with headquarter in be part of a balancing test. about mutual recognition in EU criminal non-EU countries. hh6. Enforcement of EPOC(-PR)s law. The viewpoints on this issue vary The general approach of the Council In the 7th working document of 1 April substantially across Member States, mainly changes the Commission pro- 2019, Sippel and Ignazio Corrao (EFDD national authorities, the Commission, posal as follows: Group, Italy) deal with several aspects CJEU, EC[t]HR, scholars and practi- „„Extension of the applicability of the of the enforcement of EPOC(-PR)s in tioners, and it becomes clear that the Directive, which should not only en- the Commission e-evidence proposal. principle of mutual recognition is still compass electronic communications They first disagree with the Commis- under construction, closely connected to service providers, but also domain name sion’s approach on leaving sanctions the changing nature of EU integration.” registrars and related privacy and proxy against providers for non-compliance In sum, the working documents of services, in addition to “other informa- with their obligations up to the national the MEPs address several critical issues tion society providers that offer their us- laws of the Member States. They advo- already voiced by European bodies and ers the ability to communicate with each cate “some sort of harmonisation of the non-governmental organisations (see other or offer their users services that sanctioning regime.” One reason is the details at eucrim 4/2018, 206; 3/2018, can be used to process or store data on risk of “forum shopping,” since service 162–163, and 2/2018, 107–108). After their behalf;” providers may appoint their legal repre- these considerations, the EP blocked „„Legal representatives may not only sentative in the Member State with the further negotiations with the Council be- be involved in gathering e-evidence, but lowest sanctioning regime. fore the Parliamentary Elections in May also for orders based on other instru- Another critical issue is the proposed 2019. The hot debate over whether the ments of Title V, Chapter 4 TFEU, such deadlines within which service provid- e-evidence proposal is necessary and, if as the Directive on the European Inves- ers must enforce EPOCs (in principle, yes, which content it should have will be tigation Order or the 2000 EU Mutual 10 days upon receipt; in “emergency resumed with the newly composed EP in Legal Assistance Convention; cases,” 6 hours). The first challenge is autumn. (TW) „„The designated legal representative that the deadlines might be too short for under the Directive could be used for service providers to assess the legiti- Council Takes Position on Role of Legal domestic procedures as well; macy of an EPOC. Second, small- and Representatives in E-Evidence Cases „„Service providers and legal represent- medium-sized companies (SMEs) may The European Parliament signalled that atives should be held jointly and sever- not be able to meet the deadlines since it is not eager to enter into trilogue ne- ally liable for non-compliance with their they do not run 24/7 services. The same gotiations on the proposed European obligations deriving from the relevant is true for third-country service provid- Production and Preservation Orders for legal framework on evidence; ers that operate in different time zones. electronic evidence in criminal matters „„The obligations of service providers Third, the deadlines are not realistic for before the end of the parliamentary term have been extended to make them re- guaranteeing fundamental rights protec- in May 2019. The Council, however, sponsible for providing the necessary re- tion (if it is shifted to private compa- went ahead with the second piece of sources and powers to guarantee compli- nies). Therefore, the proposed deadline the possible future legal framework on ance with orders and national decisions; system must be reconsidered, either by e-evidence, i.e., the proposed Directive „„The Council follows the Commission introducing two separate deadlines (one laying down harmonised rules on the proposal as regards the Member States’ for big companies, another for SMEs) or appointment of legal representatives obligation to establish effective, propor- by setting up longer deadlines. for the purpose of gathering evidence in tionate, and dissuasive sanctions against The 7th working document ultimately criminal proceedings (COM(2018) 226 service providers if they do not comply notes that the objection mechanism for final, see eucrim 1/2018, 35–36). with their duties; it has been clarified, service providers triggers many legal The Ministers of Justice adopted a however, that the financial capacity of questions. Many concerns were voiced general approach on the Directive at the service provider must be taken into in previous working documents, e.g., the JHA Council meeting on 8 March account when determining the sanction. regarding the involvement of the execut- 2019. The Directive will complement This should especially reduce the burden ing State authorities, the scope of the re- the Regulation by making it mandatory for small- and medium-sized business fusal grounds, and the level of informa- for service providers to designate a legal entities (SMEs); tion necessary for the service provider to representative to receive, comply with, „„Other specific arrangements for make a meaningful legality check. and enforce judicial orders on gather- SMEs have been included, for instance In this context, Sippel and Corrao ing e-evidence on the service providers’ the possibility to “share” a legal repre- conclude: “All these options are closely platforms. This is particularly relevant sentative;

40 | eucrim 1 / 2019 Cooperation

„„A full list of legal representatives an opinion on the Commission’s plans the EU and international levels to estab- shall be made publicly available to en- to obtain a mandate from the Council lish legal frameworks for cross-border sure easy access for law enforcement au- to enter into negotiations with the USA access of law enforcement authorities thorities (primarily but not only) via the over an agreement on cross-border ac- to electronic evidence. The CCBE made European Judicial Network on criminal cess to electronic evidence for judicial several recommendations (available matters. cooperation in criminal matters. The in English and French), which should The European Parliament did not as- proposals were tabled by the Commis- be taken into account by the European sess the proposal on the Directive before sion on 5 February 2019, and a first de- institutions if they go ahead with the the end of the parliamentary term. It is bate at the ministerial level took place envisaged e-evidence legislation in the anticipated that negotiations on the e-ev- from 7–8 March in the JHA Council. months to come. idence legislative framework will be re- The EDPS aims at delivering con- The CCBE calls up the Commission sumed after the new European Parliament structive and objective advice on the and the Council to do the following: takes up its work in autumn 2019. (TW) Council directives that will guide the „„Postpone negotiation of the proposed Commission on several data protection EU-US agreement and the Second Ad- Commission Wants Mandate issues in the negotiations. ditional Protocol to the Council of Eu- to Negotiate International Rules The EDPS reminded the Commis- rope Convention on Cybercrime until on E-Evidence sion and the Council that a future EU- the legislative process concerning the On 5 February 2019, the Commission US agreement on e-evidence should be EU Regulation on European Production presented two recommendations to the based on strong safeguards for the indi- and Preservation Orders for electronic Council that would allow the Commis- vidual’s fundamental rights. The nego- evidence in criminal matters is finalised. sion to negotiate international rules for tiating directive of the Council should „„Create sufficient safeguards and le- obtaining electronic evidence. The first include reference to the EU’s data pro- gal remedies, in particular against third- recommendation relates to a possible tection provision in Art. 16 TFEU. The country surveillance measures; “executive agreement” with the U.S. in agreement should also build on the „„Ensure the protection of client-lawyer the framework of the US CLOUD Act EDPS recommendations on strength- communication; (see eucrim 4/2018, 207). The second ened safeguards, which has been pro- „„Restrict the legal framework of direct recommendation aims at enabling the posed in view of the EU-US Umbrella cooperation with service providers in Commission to participate in negotia- Agreement in 2016 (Opinion 1/2016). other jurisdictions to preservation orders tions on a second additional protocol to In keeping with the proportionality only, thus enabling a meaningful legality the Budapest Cybercrime Convention of principle, the EDPS specifically recom- check by the judicial authorities where the Council of Europe. The second ad- mends that judicial authorities designat- the e-evidence is situated. The produc- ditional protocol is currently discussed ed by the other party to the agreement tion of e-evidence should be followed up within the Council of Europe and intends be involved in the process of gathering with a procedure under a Mutual Legal to further strengthen this international electronic evidence as early as possible. Assistance Treaty. cooperation including on obtaining ac- This ensures that judicial authorities can The CCBE statement, inter alia, lists cess to electronic evidence, enhancing effectively review the compliance of any several shortcomings of a direct coop- mutual legal assistance and setting up requests for evidence with fundamental eration scheme according to which ser- joint investigations. rights and raise grounds for refusal if ap- vice providers (as a private undertak- It is now up to the Council to adopt propriate. ing) can be compelled to comply with the negotiating mandates. A first con- The EDPS opinion also looks specifi- law enforcement orders from foreign sideration on the ministerial level took cally into other aspects of the directive states. Improvements in the current place at the JHA Council meeting on up for negotiation, such as the mandatory MLA schemes should be the preferred 7–8 March 2019. The Romanian Coun- nature of the agreement, onward transfers, option. In the event that the European cil Presidency intends to have the adop- rights of the data subject, control by an institutions decide to proceed with an tion of the mandates until the end of independent authority, judicial redress, e-evidence instrument based on direct June 2019 at the latest. (TW) and administrative remedies, etc. (TW) cooperation, the CCBE makes several recommendations on minimum stand- EDPS Gives Advice on Commission CCBE Makes Recommendations ards for such an instrument. Mandate for EU-US E-Evidence on Future E-Evidence Scheme The new CCBE statement of 28 Feb- Agreement On 28 February 2019, the Council ruary 2019 comes after a first critical On 2 April 2019, the European Data of Bars and Law Societies in Europe opinion of October 2018 on the Com- Protection Supervisor (EDPS) issued (CCBE) eyed recent developments at mission proposal for a Regulation on

eucrim 1 / 2019 | 41 NEWS – European Union

European Production and Preservation gap in the existing U.S.-EU data protec- issued a “Consultation Paper.” It looks Orders for e-evidence in criminal mat- tion scheme, since the Privacy Shield into the fundamental rights implica- ters (see eucrim 3/2018, 162–163). The does not cover the transatlantic transfer tions of the potential new legislation on CCBE also voiced concerns over the from a private entity to government au- e-evidence. planned cooperation between the EU thorities for law enforcement and pros- Fair Trials observes that the USA, and the USA within the framework of ecution purposes. with its CLOUD Act, and the EU, with the U.S. CLOUD Act. In addition to sev- In conclusion, the CCBE recom- the Commission proposal of April 2018 eral critical remarks in the above-men- mends that the EU negotiate a mutual currently under negotiation, are about tioned statement, an in-depth analysis of legal assistance (MLA) treaty with the to set up a global “gold standard” as re- the U.S. CLOUD Act is provided in an United States that explicitly refers to the gards the effective cross-border access additional paper that was also issued by U.S. CLOUD Act. Such an MLA treaty of law enforcement to electronic data. the CCBE on 28 February 2019. would provide precise requirements for So far, however, human rights protec- the transfer of data and would not under- tions have only been vaguely recog- CCBE Assesses U.S. CLOUD Act mine the level of protection provided by nised. Therefore, the consultation paper The Council of Bars and Law Societies fundamental freedoms valid in the EU. focuses on the following four key safe- in Europe (CCBE) scrutinised the U.S. Furthermore, a notification scheme guards, which must be incorporated into CLOUD Act. It allows U.S. federal law should be established by means of which the new mechanism: enforcement to compel U.S.-based tech- an independent European authority would „„Prior notification of the suspect; nology companies to provide requested be informed prior to a data transfer from „„Robust prior judicial authorisation data stored on servers via warrant or sub- a private entity to U.S. agencies. procedure; poena − regardless of whether the data On the basis of such an MLA treaty, „„Meaningful remedies in the event of are stored in the USA or on foreign soil. legal professional privilege and pro- a trial; By means of “executive agreements,” it fessional secrecy must be an accepted „„Effective and systemic oversight on also foresees that law enforcement au- ground for refusing data transfers to the the use of the measures by law enforce- thorities from foreign “qualified coun- USA under the CLOUD Act. ment authorities. tries” will have equal access to the data Together with the opinion of the Fair Trials concludes that the new EU of U.S. companies (see eucrim 1/2018, EDPS of 2 April 2019 on negotiations rules on e-evidence, the U.S. CLOUD p. 36, and the article by J. Daskal in eu- planned between the European Commis- Act and the planned EU-US agreement crim 4/2018, pp. 220–225). sion and the USA over how to handle the on the exchange of e-evidence in crimi- In a paper issued on 28 February transfer of e-evidence between the EU nal matters (see eucrim 4/2018, 207), 2019, the CCBE remarked positively and the USA under the CLOUD Act (see can only serve as a global model if they that the CLOUD Act provides for a eucrim 4/2018, 207), the CCBE paper “set high standards and uphold the fair- greater degree of legal certainty. Several is the second important contribution to ness of criminal proceedings through concerns remain, however, in particular the discussion on the “external dimen- real and meaningful safeguards.” It fur- as regards its consistency with European sion” of future international rules on ther remarks: “In the absence of such law. The following issues are, inter alia, e-evidence. Both the EDPS and the safeguards, the new cross-border coop- of general concern: CCBE have come to similar, critical eration mechanism is likely to fail, caus- „„Extraterritorial jurisdiction; conclusions. (TW) ing injustice to the persons concerned „„Conflicts with the EU’s fundamental and undermining public trust in law en- rights and the GDPR; NGO Sees Lack of Key Safeguards forcement authorities.” „„Weak (judicial) review; in Planned E-Evidence Legislation The consultation paper, together with „„Lack of post-authorisation supervi- The plans to establish new rules that a more comprehensive “policy brief” sion; enable law enforcement authorities to released in October 2018, analysed The CCBE also voiced specific con- directly seek the preservation and pro- the impact of current mechanisms for cerns over the lack of protection of legal duction of electronically stored data cross-border access to electronic data. professional privilege and professional held by private service providers (the “e- The fairness of criminal proceedings secrecy. The current approach of the evidence proposals”, see eucrim 1/2018, was also taken into account in the criti- CLOUD Act deprives European citizens 35–36) face further criticism from civil cal working papers on the e-evidence of this important European right, and stakeholders. In February 2019, Fair Tri- proposal for a regulation on European disclosures would run contrary to sever- als – a global watchdog that focuses on preservation and production orders by al domestic laws of EU Member States. improving the right to a fair trial in ac- the European Parliament’s LIBE Com- In addition, the CCBE identified a cordance with international standards – mittee. (TW)

42 | eucrim 1 / 2019 Foundations

port highlights that anti-terrorism leg- islation is typically adopted following accelerated procedures and/or in the di- rect aftermath of terrorist attacks, leav- ing little space for thorough and peace- ful discussions on their human rights impact and thereby increasing the risk of misuse. Council of Europe* The report further summarized the Reported by Dr. András Csúri Commissioner’s activities against in- equality faced by persons with disabili- ties, older persons, Roma, and LGBTI individuals. Foundations As regards women’s rights, the report emphasises the need to tackle gender Human Rights Issues stereotypes and reduce the gender pay gap, which remain a major obstacle to Specific Areas of Crime Annual Activity Report by Human Rights achieving effective equality in both the Commissioner public and private sectors. Additionally, Corruption On 8 April 2019, the Commissioner for violence against women must be effi- Human Rights, Dunja Mijatović, pre- ciently investigated and prosecuted. The GRECO: Fifth Round Evaluation Report sented her firstannual activity report be- Commissioner also promoted the rati- on Malta fore the Parliamentary Assembly. Since fication and full implementation of the On 3 April 2019, GRECO published its taking up her work in 2018, the Com- Istanbul Convention. fifth round evaluation report on Malta. missioner visited several countries as an As regards children’s rights, the The focus of this evaluation round is on important means of dialogue, including Commissioner highlighted challenges preventing corruption and promoting in- Albania, Armenia, Estonia, and Greece. connected to child poverty and equal ac- tegrity in central governments (top execu- She paid particular attention to the fol- cess to quality-inclusive education for tive functions) and law enforcement agen- lowing: all children. The report identifies vio- cies. The evaluation focuses particularly „„Human rights in conjunction with im- lence against children, including sexual on issues, such as conflicts of interest, migrants, refugees, and asylum seekers; abuse and exploitation of children, as the declaration of assets, and accountabil- „„Media freedom and the safety of jour- another major issue. The Commission- ity mechanisms (for more recent reports, nalists; er called on countries that have not yet see eucrim 1/2018, pp. 38–39; 2/2018, „„Children’s and women’s rights; done so to ratify both the Istanbul Con- pp. 109–110 and 4/2018, p. 208). „„Human rights protection in conjunc- vention, which protects children against GRECO notes that Malta has impres- tion with counter-terrorism legislation. domestic violence, and the Lanzarote sive anti-corruption mechanisms on pa- As regards migration, the Commis- Convention on Protection of Children per, but these appear to be less effective sioner calls upon Member States to against Sexual Exploitation and Sexual in practice, especially when one looks at improve the treatment of immigrants, Abuse. In this regard, the Commissioner the controversies over the integrity of sen- respect human rights, and share respon- also raised issues pertaining to juvenile ior government officials in relation to the sibility in this matter. A particular issue justice, including the need to ensure that use of state resources and privatisation, of concern is the situation of individu- children have access to free legal aid and tendering, land sales, or the award of con- als and NGOs who provide assistance to the importance of having a sufficiently tracts and public offices. So far, there has migrants, asylum seekers, and refugees, high minimum age of criminal respon- been no visible disciplinary or criminal as increasing pressure and restrictions sibility. response to any of these allegations. are being put on their work. As regards the relationship between The report highlights the lack of an The report stresses the need for bet- counter-terrorism measures and human overall strategy or a coherent risk-based ter protection of human rights advocates rights protection, the Commissioner approach when it comes to integrity and journalists, as violent assaults, laws, stressed that the misuse of anti-terrorism and practices (e.g., against the right to legislation has become one of the most * If not stated otherwise, the news reported in confidential sources) significantly hin- common threats to freedom of expres- the following sections cover the period 1 Janu- der their activities. sion, including media freedom. The re- ary – 31 May 2019.

eucrim 1 / 2019 | 43 NEWS – Council of Europe standards and sanctions. GRECO calls wards integrity and a high level of pub- and that business representatives see too for stricter rules and their enforcement lic trust. Nevertheless, there have been close a link between politics and busi- in ancillary business and top officials’ breaches of integrity, e.g., information ness. activities, conflicts of interest, and dec- leaks and links to organised criminal As regards the asset declaration sys- larations of assets. groups. tem, the report welcomes the declaratory The report also calls for reforms to Lastly, GRECO recommends im- obligations for assets and interests of improve the capacity of the criminal proving the existing codes of conduct PTEFs, including those co-owned with justice system to respond to allegations for both law enforcement authorities spouses, but notes that the picture may involving senior officials. Certain insti- and training systems, with particular be blurred if changes are made to the tutions still have not achieved concrete attention to ensuring the use of confi- regulation of matrimonial property. Ad- results after 30 years of operation. dential information and the declaration ditionally, systematic awareness-raising GRECO welcomes the appointment of financial interests by officials hold- activities are missing for PTEFs. of a Chief Executive Officer in 2017 to ing particularly sensitive posts. In ad- GRECO describes the verification of modernise human resources manage- dition, officials should report all forms asset declarations by Poland’s Central ment in the Maltese police force. The of corruption-related misconduct within Anti-Corruption Bureau (CAB) as inad- report recommends advisable improve- the service, not only those classified as equate, due to the general nature of the ments, including updated ethical stand- criminal offences. data, which merely refers to the number ards, a performance-based approach to of declarations received. In addition, career decisions and promotions, and a GRECO: Fifth Round Evaluation Report GRECO raises concerns about the in- stronger training system. The Independ- on Poland dependence of CAB, as it is under the ent Police Complaints Board must be On 28 January 2019, GRECO published authority of the Prime Minister and of strengthened, including safeguards for its fifth round evaluation report on Po- a designated “minister-coordinator for informants. land. The report recognizes the progress special services.” Therefore, GRECO made, including the new anti-corruption recommends establishing an independ- GRECO: Fifth Round Evaluation Report programme for 2018–2020 and the im- ent review mechanism with adequate on The Netherlands proved transparency of interaction with means to perform its tasks in an effective On 22 February 2019, GRECO pub- lobbyists. However, GRECO raises seri- and accountable manner. lished its fifth round evaluation report ous concerns and, as a top priority, rec- on The Netherlands, which calls upon ommends addressing the establishment GRECO: Belarus Non-Compliant with the Dutch authorities to further intensify of an objective and transparent system CoE Anti-Corruption Standards corruption prevention measures, both for the appointment, promotion, and dis- In an unprecedented move on 19 March in top executive functions and vis-à-vis missal of senior managers in the Police 2019, GRECO publicly proclaimed in a members of law enforcement agencies. and Border Guard as well as addressing Declaration that Belarus does not com- GRECO notes that the integrity of the the corruption risks arising from the cur- ply with the anti-corruption standards of country’s government is based mainly rent system of asset declaration. the CoE. on political accountability. This needs Concerning law enforcement agen- Of the 24 recommendations that to be complemented by a clear integrity cies, the report highlights that three GRECO had addressed to Belarus in strategy vis-à-vis managers − based on Chief Commanders have headed the 2012, twenty were not followed and the risk analysis −, however, to better avoid Police in the space of just two years. rest were only at a “generally unsatisfac- conflicts of interest and thus potential In addition, low salaries make it more tory” level of conformity. The majority corruption. difficult to find qualified staff and lead of the recommendations concerned ba- GRECO recommends establishing officials to take up part-time jobs, lead- sic anti-corruption requirements, such a code of conduct for top executives/ ing to incompatibilities and problematic as strengthening the independence of officials, including measures for its im- relations with third parties. the judiciary, increasing the operational plementation and enforcement as well as With regard to the risk of corruption autonomy of law enforcement, and lim- introducing rules for lobbying and post- among “persons entrusted with top ex- iting immunity protection. In addition, employment functions. Top executives ecutive functions” (PTEFs) in the cen- Belarus has never authorised the publi- should be required to report conflicts of tral government, the report expresses cation of any evaluation or compliance interest on an ad hoc basis and to declare concern over the lack of clear rules and reports by GRECO. personal assets at regular intervals. guidelines for gifts. International opin- Such continued non-compliance calls As regards police authorities, the re- ion polls show that a large number of into question both the commitment and port recognises a strong commitment to- Poles regard corruption as widespread cooperation of Belarus as such in the

44 | eucrim 1 / 2019 Specific Areas of Crime fight against corruption. Marin Mrčela, to serious third party and stand-alone The authorities have presented a President of GRECO, stressed that these ML. The prevalent practice within the number of ongoing cases of complex recommendations are not only elements Czech justice system of sanctioning ML, where convictions are still pending. of an effective fight against corrup- multiple offences simultaneously makes Most of the ML convictions obtained to tion, but are also the core principles of it difficult to measure the precise impact date relate to self-laundering. A more GRECO and the CoE. of a sentence solely related to ML. uniform and effective approach within GRECO urged all its 49 Member The report emphasizes improvements law enforcement is needed, for example, States to disseminate the Declaration within the legislative and institutional to identify the level of evidence required within their administrative and financial framework on seizure and confisca- to convince the judiciary that the means institutions and also warned them to take tion. Financial investigations resulted originate from criminal activity, even this situation into account in their future in significant amounts being seized and in the absence of a criminal conviction. contacts with Belarus. In the meantime, confiscated. Additionally, financial in- Sanctions have the potential to have a GRECO continues to monitor the situ- vestigations carried out in relation to deterrent effect, but have not yet been ation. terrorism offences also brought to light used to full effect. the possibility of FT activities occurring The confiscation of proceeds from in the Czech Republic. In response, law crime is a priority objective. The identi- Money Laundering enforcement managed to plausibly iden- fication of proceeds from crime has im- tify the respective roles of suspects in proved, and the volume of assets seized MONEYVAL: Fifth Round Evaluation FT-related schemes. provisionally has increased significant- Report on the Czech Republic The Commercial Register in the ly. Nevertheless, the volume of assets On 11 February 2019, MONEYVAL Czech Republic is accessible directly seized remained modest. published its fifth round evaluation re- and free of charge, but the quality and As regards FT, there were only two port on the Czech Republic. The fifth accuracy of the information varies. reported cases in Lithuania. While evaluation round builds on previous In conclusion, the report praises the control mechanisms exist, the skills MONEYVAL assessments by strength- Czech authorities for their active coop- necessary to deal with such cases still ening the examination of how effectively eration with foreign colleagues. This is need to be developed. In addition, the Member States prevent and combat ML also demonstrated by the fact that, in ad- report recommends that Customs Ser- and terrorism financing (TF). For back- dition to mutual legal assistance, other vice be given further powers to stop/ ground information, see eucrim 1/2018, forms of international cooperation are restrain currency at borders in order to pp. 40–41; 2/2018, p. 111, and 3/2018, routinely used both spontaneously and determine whether evidence of ML/FT pp. 208–210 for further references. upon request. can be found. MONEYVAL states that The report acknowledges the accu- Lithuania exhibits characteristics of an racy of the risk assessments by Czech MONEYVAL: Fifth Round Evaluation effective system of targeted financial authorities. Correspondingly, ML occurs Report on Lithuania sanctions (TFS), where financial insti- mostly in conjunction with tax crimes, On 8 February 2019, MONEYVAL pub- tutions are aware of designations by fraud, corruption, phishing, and subven- lished its fifth round evaluation report the UN and EU and have customer and tion fraud. The probability of FT occur- on Lithuania. As regards national risk transaction screening systems. How- ring remains low. That said, MONEY- assessment, Lithuania faces a number ever, the legal framework for TFS is VAL calls for more explicit analysis. of ML threats, mainly from corruption, not fully in line with FATF Standards. Although banks have an appropri- the shadow economy, organised crime, There is no formal procedure in place ate understanding of ML/FT risks, the and the widespread use of cash. Con- to identify targets of designations, no awareness is lower at other financial in- crete results are apparent in reducing the designation has been made or proposed, stitutions. shadow economy, but further efforts are and no funds have been frozen under MONEYVAL acknowledges the leg- needed, especially in the investigation the TFS regime. islative reforms and progress made in and prosecution of ML and AML/CFT Lastly, MONEYVAL acknowledges pursuing ML investigations. The report supervision. that Lithuania has a sound legal and casts doubt, however, on the efficiency There is no information available on procedural framework for exchanging of the existing supervisory model in a increased FT risk in Lithuania. MONEY- information with foreign partners. The view of limited resources. Though some VAL reports that the Lithuanian authori- country actively seeks international co- large-scale ML cases led to convictions, ties have a disparate, but largely appro- operation with other states, which has the report recommends pursuing more priate understanding of this issue, which led to convictions and the seizure and investigative opportunities with regard matches the country’s risk profile. confiscation of proceeds of crime.

eucrim 1 / 2019 | 45 Articles Articles / Aufsätze

Fil Rouge

Following impetus from the Treaty of Lisbon, the EU became A. Soo and A. Pivaty address the defendant’s right to ac- increasingly active in procedural aspects of criminal law, cess case materials during the pre-trial stage. They focus particularly in the sphere of gathering evidence and access on unclear aspects of Art. 7 of Directive 2012/13, especially to evidence. The core instrument for gathering evidence its derogations from the right of (unlimited) access to the located in another EU Member State – the European In- case materials in para. 4. National judges are encouraged vestigation Order (EIAO) – is now in full use. However, legal to raise questions on interpretation of the provision before and practical challenges were aired at a meeting of legal the CJEU, so that this important right for the defendant is practitioners at Eurojust in September 2018. J. Guerra and further defined at the EU level. C. Janssens recapitulate the main findings of this meeting. A. Juszczak and E. Sason envision future prospects of They also give an overview of the major problems to be Union-wide evidence gathering by asking whether it is ad- solved by practitioners in the near future when the EIO is visable to extend the European Public Prosecutor Office’s applied – if necessary with Eurojust’s support. J. Espina Ra- competence to investigations of terrorist offences. They mos tackles the EIO’s relationship with other judicial coop- present the pros and cons of a Commission proposal and eration instruments – an important and practical problem. conclude that an alternative way forward could be a more Since the Directive leaves questions open as to the appli- targeted approach, e.g., to gradually extend the EPPO’s cability of other instruments next to or instead of the EIO, he competences, starting with areas distinctly linked with PIF develops three rules to guide legal practitioners in applying crimes. the correct legal instrument. Thomas Wahl, Managing Editor of eucrim

Legal and Practical Challenges in the Application of the European Investigation Order Summary of the Eurojust Meeting of 19–20 September 2018

José Eduardo Guerra and Christine Janssens

After implementation of Directive 2014/41 by the EU Member States (bound by the Directive) in 2017 and the first half of 2018, the European Investigation Order (EIO) has become the core instrument for obtaining evidence located in another EU Member State. The EIO simplifies and accelerates cross-border investigations, but practical and legal challenges remain. Such chal- lenges as well as first experiences and best practices in the application of the EIO were discussed among practitioners at a meeting organised by Eurojust in September 2018. This article summarises the main results of the meeting.

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Participants acknowledged the need to interpret national law in light of EU law, in line with the principles of mutual recogni- tion and mutual trust, but also underlined the challenge of constantly searching for legally sound and practically feasible solu- tions between different national legal systems. They agreed on the importance of an overall pragmatic and flexible approach. Views diverged on several topics (e.g. the speciality rule, costs in the context of the proportionality test), but coincided on many others. Recommendations relate inter alia to the scope of the EIO, the use of the forms, the language regime and time limits. Participants envisaged that the support of Eurojust in relation to EIOs will probably be higher, when compared to the MLA regime, as more consultations are foreseen in the EIO Directive. Whilst participants acknowledged that “direct contact” amongst judicial authorities is the core principle of the Directive, they strongly believed that, in bilateral cases, Eurojust’s bridge-making role can facilitate communication between the judicial authorities involved if one of the consultation proce- dures is triggered and that, moreover, in complex multilateral cases Eurojust has a unique and important coordinating role.

I. Introduction clear that in relation to some measures and provisions different interpretations exist in the Member States, which sometimes On 19–20 September 2018, Eurojust organised a meeting on leads to frictions. Participants mentioned cases where judicial the Directive regarding the European Investigation Order in authorities were reluctant to execute a measure requested/or- criminal matters (hereinafter EIO DIR).1 Practitioners from dered under the wrong legal instrument, but in general terms the EU Member States as well as representatives from EU it can be said that judicial authorities have been pragmatic and institutions and academia met at Eurojust in plenary sessions have executed an EIO as if it were an MLA request or have and workshops. The meeting provided a forum for practi- executed an MLA request as if it were an EIO. Participants tioners to identify several practical and legal challenges in expressed the need for further guidance on the meaning of the application of the EIO, to exchange experience and best the term “corresponding provisions” and reflected together on practice and to discuss how Eurojust and the European Judi- which guiding criteria could be helpful in assessing whether cial Network (EJN) can further support the national authori- an EIO needs to be issued (or not) in relation to an on-going ties. This article recapitulates the outcome report2 and ad- investigation in the issuing Member State.4 Participants agreed dresses the following main issues that were brought forward that the following criteria could be helpful in assessing wheth- during the meeting: er the EIO DIR should apply: „„Scope of the EIO; „„the order concerns an investigative measure aimed at gath- „„Competent authorities; ering or using evidence, „„Content, form, and language of the EIO; „„the measure was issued or validated by a judicial authority, „„Issuance and transmission of an EIO; and „„Recognition and execution of an EIO; „„the measure relates to Member States bound by the „„Specific investigative measures; EIO DIR. „„Possible support provided by EU actors. If one of these requirements does not apply, the EIO DIR would not be the right instrument to use and another legal in- II. Scope of the EIO Directive and Its Relation to Other strument would need to be applied. For instance, if a measure Legal Instruments has no “evidence” related implications, but a mere procedural objective (e.g. service and sending of procedural documents), The fact of having one stand-alone legal instrument covering an MLA request, and not an EIO, should be sent. all types of investigative measures (with the exception of Joint Investigation Teams , or JITs) in the field of evidence gather- In some cases, EIOs have been issued for several types of ing within the EU was welcomed and considered as a major measures with different aims, for instance, an EIO for a house step forward. That being said, several questions were raised as search and for the delivery of a document. Most participants to whether a specific measure falls within the scope of the EIO agreed that, in cases where the delivery of a document is in- DIR or not and whether the use of another legal instrument strumental to the investigative measure that is the object of the should take precedence. EIO, its inclusion in the EIO would be in line with the EIO DIR. If, however, the delivery of the document is not instru- According to Art. 34(1) EIO DIR, the EIO replaces only the mental, different views exist to the effect that in some Member corresponding provisions of the conventional MLA instru- States judicial authorities will execute the EIO while in other ments. The term “corresponding provisions” remains a point Member States judicial authorities will insist on receiving an of concern. In the absence of a common EU list,3 it has become additional MLA request.

eucrim 1 / 2019 | 47 Evidence Gathering – Current Legal Issues

Another problem is posed in relation to freezing measures, public prosecutor, it needs to be validated by one of these au- where the EIO DIR replaces Framework Decision 2003/577/ thorities before its transmission (Art. 2(c)(ii) EIO DIR), was JHA only as regards evidence gathering, but not as regards perceived to be a positive evolution of the system, serving to subsequent confiscation (Art. 34(2) EIO DIR). While partici- enhance mutual trust as the driving force of the principle of pants agreed that it is for the issuing authority to make this mutual recognition. Furthermore, participants from Member assessment and to clarify the purpose of the freezing measure, States where this need for a validation by a judicial authority there have been cases where executing authorities questioned has been introduced as a novelty in their national legal sys- the assessment made by the issuing authority and refused tem explained that it has improved cooperation between law to execute the measure under the EIO DIR and demanded a enforcement and judicial authorities and entailed the latter’s freezing certificate instead of the EIO. earlier involvement in the investigations.

On the subject of the gathering of evidence in real time (Art. 28 The issue whether the executing authority can carry out pre- EIO DIR), most participants believed that the wording of this liminary checks on the judicial nature of the issuing/validating provision is sufficiently broad as to leave room for measures authority was considered, by most participants, to be in line such as video/audio surveillance, tracking or tracing with the with Art. 9(3) EIO DIR. use of technical devices (GPS) and accessing a computer sys- tem. However, no consensus was reached regarding the possi- As regards competent authorities in the executing phase, par- bility of applying Arts. 30 and 31 EIO DIR, i.e. the provisions ticipants also concluded that a specialised receiving author- on the interception of telecommunications, in cases of tracking ity that acts as a single point of contact can be beneficial for devices (“bugging of a car”). various reasons. First, it can internally improve efficiency by avoiding duplication or overlaps of incoming EIOs. Second, it The wording of recital 25 of the EIO DIR which sets out can ensure a unified response vis-à-vis the issuing authority, that the EIO can be applied “at all stages of criminal pro- particularly in cases where several local prosecutors or inves- ceedings” and which delineates the EIO from the European tigating courts are involved in the execution of the EIOs. Arrest Warrant (EAW) in case of temporary transfer of per- sons, also triggered discussion. First, participants discussed whether an EIO can be used beyond the trial phase. In gen- IV. Content, Form and Language of the EIO eral, participants believed that such use would be limited to Member States where the notion of criminal proceedings A majority of participants welcomed the form to be used for includes the execution phase and provided that Framework EIOs (Annex A of the EIO DIR) and saw it as a step forward Decision 2008/947/JHA5 would not apply in the concrete in terms of simplifying formalities, improving quality and re- case. Secondly, participants discussed the possibility of ducing costs of translation. Some concrete suggestions for best using an EIO instead of an EAW for the transfer of per- practices for the filling in of the form were made,inter alia: sons in cases where the thresholds of Framework Decision „„Including the name of the suspect(s) even though the meas- 2002/584/JHA6 are not met. Their views on this matter were ure does not apply to him/her to avoid potential ne bis in divided, but most participants considered that the EIO DIR idem situations; offers the appropriate legal basis for the transfer of persons „„Highlighting the requested measures; whenever the person concerned must give evidence during „„Listing the questions to be addressed to a witness/victim/ an investigation or before a court, irrespective of whether suspect. the thresholds of the Framework Decision on the EAW are met. If the EIO DIR is applied, some participants empha- As to the use of section D of the form in Annex A of the EIO sised, however, that, since this measure concerns a depriva- DIR, participants acknowledged the narrow wording of the tion of liberty, a judge in the issuing Member State should segment “relation to an earlier EIO”, but favoured a broader be involved, at least in the practical arrangements under interpretation whereby this box would also be used to provide Art. 22(5) EIO DIR. relevant information on related past or future judicial coopera- tion requests such as upcoming EIOs or other mutual recogni- tion orders, mutual legal assistance requests, or JITs, including III. Competent Authorities existing JITs with other States in the framework of multilateral coordination settings. The enhanced role for judicial authorities in the issuing phase of the EIO, and particularly the requirement that, when an EIO The advantages and/or disadvantages of sending one EIO or has not been issued by an (investigative) judge, a court or a multiple EIOs were also addressed, particularly in complex

48 | eucrim 1 / 2019 Application of the European Investigation Order cases where different measures are required concerning differ- of urgent requests, the practice among Member States varies: ent natural and legal persons with a different procedural status. some require a translation into their official language while In such cases, the internal coherence and consistency between others allow a second language to be used for the EIO. Partici- the different sections of the form in Annex A, in particular be- pants also underlined the importance of accepting one com- tween sections C, D, E, G, H and I, is a shared concern. For mon, widespread language. this reason, some practitioners prefer to issue several EIOs in- stead of one stand-alone EIO. Participants also argued that, for reasons of confidentiality, it may also be advisable, in some V. Issuance and Transmission of an EIO cases, to issue separate EIOs rather than just one, depending on the legal regimes in the Member States concerned and/or In relation to the issuing of an EIO, participants discussed the the stage of proceedings in the Member States involved. It was proportionality check by the issuing authority as foreseen in suggested that Eurojust assistance may be useful to decide on Art. 6(1) EIO DIR. Discussions also addressed the consulta- the best approach in the case at hand and to ensure continuity tion mechanism that can be triggered by the executing au- in the executing phase. thority when the latter has reasons to believe that the propor- tionality requirement has not been met (Art. 6(3) EIO DIR). When asked whether minor changes to the content of an EIO Participants assessed this consultation mechanism positively would require the issuing of a new EIO, different views were and argued that it can be used to provide relevant information expressed. Some authorities require a new EIO while others and to avoid the risk that the execution is refused. Participants take a more flexible approach. Participants believed that this also believed that Eurojust is in a privileged position to con- would primarily depend on the type of correction needed. For tribute by serving as a bridge-maker between both, the issuing instance, if the correction relates to a new address, this would and executing authorities. probably require a new EIO. However, it was also noted by some participants that, in urgent cases, the formal part of issu- The relevance of costs and whether cost-related issues should ing a new EIO could be done at a later stage, after the execu- be taken into consideration for the proportionality check were tion of the measure. matters of debate. Whilst there was a consensual approach that cases involving costs “deemed exceptionally high” can In some cases, either the issuing authority submits, or the be resolved through the consultation mechanism included in executing authority requests, additional documents, e.g. the Art. 21(2) EIO DIR, participants held different views in rela- national judicial decision underlying the EIO. Some partici- tion to cases involving costs that are in se not exceptionally pants wondered whether any parallels could be drawn with high, but that relate to minor offences and, if repeated, could the Bob Dogi judgment,7 particularly if coercive measures entail high costs. Some participants explained that, in their are at stake. Most participants considered that neither the Member States, executing authorities are receiving a huge EIO DIR nor their national legislation requests the domestic amount of EIOs related to small offences and are struggling to order to be attached to the EIO. Some emphasised that a ref- cope with all these requests. Some participants underlined that erence to the domestic order in the EIO with full details of a de minimis criterion cannot be used as a de facto ground for that order should be sufficient. Other participants added that, non-recognition. The grounds for non-recognition are exhaus- unlike Art. 8(1)(c) EAW FD, Art. 5(1) EIO DIR does not im- tively mentioned in the EIO DIR and constitute exceptions to pose any legal requirement for the domestic judicial decision the principle of mutual recognition, which should be interpret- to be mentioned or attached to the EIO. A minority of partici- ed restrictively. Other participants added that Member States pants noted that, under their national law, the attachment of a which apply the mandatory prosecution principle, as opposed domestic order is required. In that case, pragmatic solutions to the discretionary prosecution principle, would not be enti- are identified, e.g. the EIO is kept simple and the domestic tled to take cost-related criteria into consideration. order (more lengthy) is attached with or without translation. Participants from Member States where the attachment of In relation to the transmission of an EIO (Art. 7 EIO DIR), par- the domestic order is not required also acknowledged that, ticipants indicated that the sending of the EIO directly to the depending on the case, the attachment of the national court executing authority or to the dedicated, specialised receiving order may be useful, for informative purposes, for instance in authority, is the rule, but they also added that, depending on cases where a coercive measure is requested and the execut- the nature, complexity and urgency of the case, different chan- ing Member State is also required to issue a court order. nels are being used, including Eurojust, EJN Contact Points or Liaison Magistrates. Participants underlined the importance of In relation to the language regime (Art. 5(2) EIO DIR), it was a secure network of communications allowing them to trans- held that, in general, it does not create many problems. In case mit EIOs in a safe manner.

eucrim 1 / 2019 | 49 Evidence Gathering – Current Legal Issues

VI. Recognition and Execution of an EIO to the issuing authority and the latter should be immediately 1. Grounds for non-recognition informed of a feasible time frame. Participants agreed that, under no circumstances should the delay be a cause or reason Since the EIO is a relatively new instrument, experience in for non-execution. the application of the grounds for non-recognition (Art. 11 and Chapters IV and V of the EIO DIR) is still somehow limited. Participants mentioned other issues that can also complicate 4. Urgent requests the execution of EIOs, even if they are not grounds for refusal, in particular: (i) lack of information; (ii) bad translations and Participants noted that most Member States tend to adopt a (iii) different status of a person to be heard (witness in the issu- pragmatic and flexible approach in relation to urgent cases. ing Member State and suspect in the executing Member State). From their experience, the execution of urgent EIOs can start It was underlined that in none of these cases a refusal is ac- on the basis of mutual trust and formal requirements are ful- ceptable, but communication between the involved authorities filled later on. For instance, practitioners mentioned cases should be established as soon as possible to find the appropri- where the execution of EIOs started even though the transla- ate solution. In relation to the three aforementioned scenarios, tion was not yet available at the time of the execution, but was it was argued that Eurojust could provide useful support when provided later on. Participants underlined, in this regard, the direct contact between judicial authorities is hampered. importance of accepting the use of one common/widespread language in order to facilitate the execution of urgent requests. In relation to urgent cases, participants also agreed that a time- 2. Recourse to another investigative measure ly involvement and intervention of Eurojust can be crucial.

Participants mentioned several cases where the executing au- thorities had recourse to a different type of investigative meas- 5. Speciality rule ure (Art. 10 (1) EIO DIR). For instance, in some cases, ex- ecuting authorities had recourse to production orders instead Participants were divided in relation to the application of the of house searches. In another case where the issuing authority speciality rule in the context of the EIO DIR, i.e. to what ex- had ordered a witness hearing with a view to obtaining bank- tent evidence gathered by means of this instrument can be used ing information in the EIO, the executing authority had re- by the issuing State in other investigations or shared with other course to a house search instead of a witness hearing because Member States or third countries. Some participants affirmed house searches were the standard procedure in the executing the application by relying on Art. 19(3) EIO DIR (on confiden- Member State for these types of cases. When discussing these tiality), but a large majority of participants believed that this cases, participants concluded that the frequent use of Art. 10 provision is not at all related to the speciality rule and under- (1) EIO DIR highlights the challenges created by the different lined that there is no explicit provision in the EIO DIR which legal systems in the Member States, particularly the different addresses this issue. Some participants held that the EIO DIR legal prerequisites for investigative measures. Whilst in many has not changed anything in relation to the speciality rule and cases the differences are relatively easily overcome and solu- argued that this rule still applies under the new regime. Oth- tions are found as a result of the consultation procedure and ers believed that, under the EIO regime, the issuing authority the direct contact between the competent authorities involved, becomes the owner of the evidence and is entitled, subject to there have also been other cases where the consultation proce- national and EU data protection rules, to transfer it further, dure and the direct contact threatened to come to a standstill. unless the executing authority has prohibited such transfer ex- Participants suggested that in particularly complex, sensitive plicitly. As a result of these different views, participants follow and/or urgent cases, Eurojust can play a vital role. different approaches when issuing or executing EIOs. From the executing Member State’s perspective, some participants indicated that they explicitly mention, when executing an 3. Time limits EIO, that the evidence can only be used for the purpose of that specific investigation, often fearing that it might be used in Participants welcomed that the EIO DIR provides for a form another case without this explicit wording. Others stated that that acknowledges the receipt of an EIO (Annex B of the EIO they would not specify anything, but would assume that the DIR), but deplored that in practice the form is often not used. evidence will not be used for another purpose. From the issu- They underlined the importance of using this form and held ing Member State’s perspective, some participants indicated that, if the time limits of Art. 12 EIO DIR cannot be met, the that, before using the evidence in a different case, they would executing authority should explain the reasons for the delay always ask permission from the executing Member State. Oth-

50 | eucrim 1 / 2019 Application of the European Investigation Order ers considered that a request for permission to use the evidence Member State on whose territory the subject of the intercep- for another purpose is not required since it is a matter for the tion is or will be (“the notified Member State”). Participants issuing authority to decide upon, subject to the applicable legal heavily debated to what extent a notified authority can check framework on data protection. whether “the interception would not be authorised in a simi- lar domestic case” (Art. 31(3) EIO DIR). While most partici- pants agreed that this should be a merely formal, procedural VII. Specific Investigative Measures check, several participants indicated that in some Member States it is a substantive examination whereby additional in- 1. Hearing by videoconference formation is requested to make the assessment. This often The EIO DIR sets out rules on specific investigative measures. leads to decisions imposing a termination of the interception Art. 24 EIO DIR provides for the possibility to hear witnesses (if it is still ongoing) and/or a prohibition to use the intercept- or experts or even suspects/accused persons by videoconfer- ed material. Most participants rejected a detailed, substan- ence or other audio-visual transmission. Art. 24(2) EIO DIR tive approach and argued that it is not in line with the ratio sets out additional grounds for non-recognition beyond those legis of Art. 31 EIO DIR. The purpose of the notification is of Art. 11 EIO DIR. Participants first discussed to what extent not an order for recognizing an investigative measure (An- the absence of the suspected or accused person’s consent con- nex A), but a mere reflection of respect for the sovereignty stitutes a mandatory or optional ground for non-recognition. of the other country. It would be a paradox if in the context The implementation in the national laws of the EU Member of the relevant Annex C form the same or more information States is diverse. Some only allow the hearing of a suspected would be requested than in the frame of an Annex A form. or accused person by videoconference if the person consents Participants believed that the provision should be interpreted (“shall” refuse, mandatory ground for non-recognition) whilst in the light of the values of the area of freedom, security and others are less rigid (“may” refuse, optional ground for non- justice, based on mutual trust and respect for different legal recognition). Some participants suggested that in cases where systems. Against this background, most participants believed grounds for non-recognition are being raised, the legal sys- that Article 31(3) EIO DIR should not be interpreted in an tems of both the issuing and executing Member States should extensive way. Participants also discussed the consequences be given close consideration and the assistance of Eurojust of a lack of notification and/or a lack of approval. They ex- could be helpful. pressed concerns with regard to the admissibility of the evi- dence. Some participants stated that the evidence obtained Participants also discussed whether a hearing by videocon- would not be considered admissible. Other participants noted ference could be allowed to guarantee the participation of a that in cases where the lack of notification was due to the defendant in his criminal trial. It is not common practice and authorities not knowing where the person was, it had not led in most Member States’ national legislation on such hearing to the inadmissibility of the evidence. by videoconference is not foreseen. Some participants firmly stated that the execution of an EIO directed to a videoconfer- ence replacing the defendant’s presence at trial would there- VIII. Support Provided by EU Actors fore not be allowed under their national law. Other participants stated that their national law does not regulate it, but noted that Eurojust explained how it can support practitioners in the – since it is not explicitly prohibited and it is considered not four crucial phases of the life cycle of an EIO: the (pre)issu- contrary to the fundamental principles of the executing Mem- ing phase, the transmission phase, the recognition phase and ber State’s law – EIOs have been executed, provided that the the execution phase, both in bilateral and multilateral cases. In defendant’s rights were guaranteed. bilateral cases, Eurojust can provide support, for instance, in: „„Identifying the competent authority; „„Completing (draft) EIOs; 2. Interception of telecommunications without technical „„Clarifying legal and practical issues in relation to other le- assistance gal instruments; „„Obtaining/providing necessary additional information in the Regarding the specific provisions of the Directive on the in- context of one of the consultation procedures that the EIO terception of telecommunications, a point of discussion was DIR foresees (e.g. in relation to the proportionality check, particularly the interception of telecommunications with no the recourse to a different type of investigative measure or technical assistance needed from the Member State where the application of a ground for non-recognition); the subject of the interception is located (Art. 31 EIO DIR), „„Finding balanced solutions where different national sys- which obliges the intercepting Member State to notify the tems clash.

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In multilateral cases, Eurojust has a unique coordinating role, IX. Conclusions particularly in complex cases where action days are planned simultaneously in different Member States and where Eurojust From a general perspective, a vast majority of the participants can provide support in the context of a coordination meeting at the 2018 Eurojust meeting on the European Investigation Or- and/or a coordination centre. der very much welcomed the new regime and see the instru- ment, with its characteristic mutual recognition features – e.g. The Secretary to the EJN informed the practitioners about the standard form, judicial authorities in charge, limited grounds for assistance the EJN Contact Points can provide in EIO cases refusal and time limits – as a step forward in the area of cross- and on the useful tools and information for the practical ap- border evidence gathering. Only a small number of participants plication of the EIO DIR available on the EJN website.8 The perceived the new instrument, and particularly its template, as website provides direct access to the Compendium, a tool that more complicated and more cumbersome than before. enables an EIO to be drafted online and saved as a work file at any time. Other relevant tools are the Judicial Atlas (which During the meeting, participants discussed a number of sug- can be used to identify the locally competent authority that can gestions and/or best practices in relation to a variety of topics, receive the EIO), the fiches belges (which contain concise and including the scope of the EIO DIR (e.g. cumulative criteria practical legal information on what is possible in the respec- to assess whether an EIO should be issued), the competent tive Member States) and the Judicial Library (which includes, authorities (e.g. the EJN Judicial Atlas for the identification inter alia, the full text of the EIO DIR and the word forms of of the competent authorities), the EIO forms in Annexes A, the three Annexes). B, C of the EIO DIR (e.g. how to fill in certain sections), the language regime (e.g. the acceptance of one common, wide- The European Commission underlined that smooth cross-border spread language) and time limits (e.g. duly informing the is- gathering of evidence requires that Member States have the EIO suing authority of the reasons for a delay and suggesting an DIR properly implemented in their national laws and correctly alternative feasible time frame). In relation to some other top- applied in practice. There are special tools in place for assess- ics, participants held different or even opposing views (e.g. the ing national laws/practice and for, where necessary, improving proportionality test, particularly in relation to the issue of costs knowledge among practitioners (e.g. expert meetings, awareness and the applicability of the speciality rule). building projects, training). In relation to the secure transmis- sion of EIOs and MLA requests, the Commission underlined that A majority of participants agreed that the differences that ex- the work on the e-evidence platform is currently ongoing and is ist within the area of freedom, security and justice in the EU expected to be finalized by the end of 2019. The Commission are challenging and require an overall pragmatic and flexible also confirmed its commitment to drafting a Handbook on the approach towards the legal systems of other Member States. EIO, but noted that it may take several years to finalize it since “Direct contact” amongst judicial authorities is the guiding it is important that the Handbook integrate practical informa- principle of the EIO DIR, yet in complex, sensitive or urgent tion from the Member States and relevant case law. cases Eurojust’s unique coordinating and bridge-making role can be crucial. It can facilitate communication between the ju- dicial authorities involved and Eurojust’s expertise, professional distance from the cases concerned and mediating role can bring José Eduardo Guerra added value for finding a balanced and legally sound solution. Deputy to the National Member for Portugal and Vice-Chair of the Judicial Cooperation Instruments Team at Eurojust

*This text is a recapitulation of the Outcome Report of the Eurojust Meet- ing on the European Investigation Order, organised by Eurojust in The Hague on 19–20 September 2018 (see endnote 2). 1 Directive (EU) 2014/41 regarding the European Investigation Order in Christine Janssens criminal matters, O.J. L 130, 1.5.2014, 1. Judicial Cooperation Advisor at the Operations 2 Eurojust, “Eurojust meeting on the European investigation order, The Department and member of the Judicial Coope- Hague, 19–20 September 2018, Outcome Report”, Council document ration Instruments Team at Eurojust 15735/18. The report is also available at: http://www.eurojust.europa. eu/doclibrary/Eurojust-framework/ejstrategicmeetings/Outcome%20 report%20of%20the%20Eurojust%20meeting%20on%20the%20Euro- pean%20investigation%20order%20(19-20%20September%202018)/2018- 12_Outcome-Report_Eurojust-meeting-on-EIO-Sept2018_EN.pdf. See

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also eucrim. See also Riehle, https://eucrim.eu/news/eurojust-meeting- to the supervision of probation measures and alternative sanctions, O.J. L report-european-investigation-order/. 337, 16.12.2008, 102. 3 Apart from Council doc. 14445, there is not (yet) a detailed list available 6 Framework Decision 2002/584/JHA on the European arrest warrant and indicating exactly which provisions will be replaced. In 2017, Eurojust and the surrender procedures between Member States, O.J. L 190, 18.7.2002, 1. EJN issued a Joint Note, Council doc. 9936/17, which gathers inter alia the 7 ECJ, 1 June 2016, Case C-241/15, Bob Dogi. In this judgment, the CJEU views of the EJN contact points on the question of which measures they decided that, in light of Art. 8(1)(c) Framework Decision 2002/584/JHA, consider would be excluded from the scope of the EIO DIR. a EAW cannot be issued directly, but requires a prior national arrest 4 See also the article of Jorge A. Espina Ramos, “The European Investi- warrant. For the purpose of Art. 8(1)(c) FD EAW, the expression “arrest gation Order and Its Relationship with Other Judicial Cooperation Instru- warrant” means a national warrant that is distinct from the EAW and on ments”, in this issue. which the latter is based. 5 Framework Decision 2008/947/JHA on the application of the principle 8 https://www.ejn-crimjust.europa.eu/ejn/EJN_StaticPage. of mutual recognition to judgments and probation decisions with a view aspx?Bread=10001.

The European Investigation Order and Its Relationship with Other Judicial Cooperation Instruments Establishing Rules on the Scope and Possibilities of Application

Jorge A. Espina Ramos “Evolution is a change from an indefinite, incoherent homogeneity, to a definite coherent heterogeneity”. Herbert Spencer (First Principles, 1862)

I. Introductory Remarks Against this background, this article analyses the Directive and establishes a number of rules that clarify the scope and The Directive regarding the European Investigation Order,1 is possibilities of application of the new instrument. These rules fully applicable in practice now that 26 EU Member States, will help legal practitioners to decide whether an EIO is pos- which are bound by the new instrument of judicial coopera- sible or not in any given case. They also offer guidance on the tion, have completed the transposition process.2 It is a signifi- question of which provisions have been replaced by the EIO cant step forward in judicial cooperation when it comes to the Directive and when certain conventions retain their applica- trans-border gathering of evidence. The EU legal framework bility for trans-border evidence-gathering purposes. The rules has been aligned with the provisions of Art. 82 TFEU, which will be categorised as follows:4 indicates that “judicial cooperation in criminal matters in the „„A Basic Rule that defines the elements necessary for the is- Union shall be based on the principle of mutual recognition of suing of an EIO (II. below); judgments and judicial decisions (…).” „„A Replacement Rule (III. below) that regulates the substitu- tion of the following: However, the European Investigation Order (hereinafter: –– Certain parts of traditional MLA conventions and pro- EIO) is not the only applicable instrument for the purpose of tocols that governed the gathering of evidence abroad be- trans-border gathering of evidence within the EU. Not all EU tween the EU Member States before the EIO;5 Member States are bound by the EIO Directive.3 In fact, under –– Two specific instruments of mutual recognition, i.e. certain circumstances, the Directive does not preclude the ap- Framework Decision 2008/978/JHA on the European Evi- plication of other international conventions on mutual legal dence Warrant (hereinafter: FD EEW), which was fully re- assistance (MLA) by judicial authorities. Therefore, practi- placed by the EIO, and Framework Decision 2003/577/JHA tioners need a clear idea as to the situations in which it is com- on the execution in the European Union of orders freezing pulsory to use an EIO, when it would be merely convenient property or evidence (hereinafter: FD Freezing) that was only to use it, or when it would be impossible to gather evidence partly replaced by the EIO (as regards provisions connected abroad by means of an EIO. with freezing of evidence).

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„„A Complementarity Rule that enables judicial authorities to “The EIO is continue to use other conventions for evidence-gathering 1) a decision issued (or validated) by a judicial authority; purposes, provided that certain conditions are met (cf. be- within criminal proceedings (in the sense defined in Art. 4 low IV.). of the Directive); 2) consisting in investigative measures of trans-border nature; 3) aimed at gathering evidence; II. The Basic Rule 4) among the Member States bound by the EIO Directive. When conditions set out in numbers 2 to 5 concur, the judicial As a starting point, it is necessary to analyse when the EU authority must issue an EIO, unless other instruments are bet- legislator wants the EIO to be used, because this will avoid ter placed to produce the desired results provided the condi- misunderstandings in practice and ensure that the correct in- tions in the Compatibility Rule under Art. 34(3) of the Direc- strument of judicial cooperation is chosen in each individual tive are met. case. We should therefore look at the following general provi- Conversely, if any of the five conditions above is missing, an sions of the Directive, which indicate parameters on the ap- EIO cannot be issued.” plicability of the EIO: Art. 1(1): “A European Investigation Order (EIO) is a judicial deci- The new system based on the EIO is to be considered the pre- sion which has been issued or validated by a judicial authority of a ferred option whenever the necessary conditions are met, and Member State (‘the issuing State’) to have one or several specific in- this is reflected in recital 35.9 It can also be seen to be a conse- vestigative measure(s) carried out in another Member State (‘the ex- ecuting State’) to obtain evidence in accordance with this Directive. quence of the general principle already quoted in Article 82.1 The EIO may also be issued for obtaining evidence that is already in TFEU above, placing criminal judicial cooperation under the the possession of the competent authorities of the executing State”. umbrella of the mutual recognition principle. Art. 3: “The EIO shall cover any investigative measure with the ex- ception of the setting up of a joint investigation team and the gather- ing of evidence within such a team (…)”. However, the applicability of this Basic Rule is subject to two caveats. In other words, there are two specific situations10 in These provisions on the aim and scope of the Directive must which the EIO cannot be used, even though all criteria of the be read together with Art. 34(1), which does not provide for all Basic Rule are met: provisions of the traditional MLA conventions and protocols to „„Evidence gathered within Joint Investigations Teams (here- be replaced by the EIO but only the “corresponding provisions” inafter: JITs), because Art. 3 of the EIO Directive declares (see further the Replacement Rule below III.). An accurate defi- the continuation of the regulation on JITs as provided un- nition of the scope of the EIO by means of a Basic Rule is a der Art. 13 of the 2000 MLA Convention and in Council precondition for clarification of which provisions of traditional Framework Decision 2002/465/JHA. MLA conventions and protocols can no longer be applied. „„Evidence-gathering rules provided by former or future EU mutual recognition instruments that must be considered lex Instead of simply listing the provisions to be replaced by the specialis (e.g., requests for criminal records11 or the gather- EIO, the proposed approach is a guiding norm. From this norm ing of e-evidence under a possible future Regulation12). it can be established when an EIO is necessary and, vice versa, when, due to lack of some of the elements of this Basic Rule, an EIO is not possible. First, this approach should be followed, III. The Replacement Rule because the legislator expressly decided not to include a legal list in the Directive, which would indeed have solved many The Basic Rule must be supplemented by a Replacement Rule. uncertainties and led to legal certainty.6 Second, attempts (by The latter takes up the provision in Art. 34 of the EIO Direc- Eurojust and the EJN in a Joint Note,7 as well as by some tive, which reads as follows: national authorities8) to set up a list including the various “1. Without prejudice to their application between Member States provisions from traditional MLA conventions and protocols and third States and their temporary application by virtue of Article 35, this Directive replaces, as from 22 May 2017, the correspond- deemed to still be valid resulted in an excessively casuistic ing provisions of the following conventions applicable between the approach. Such lists – no matter how comprehensive they are Member States bound by this Directive: – risk opening the door to new examples and interpretations, (a) European Convention on Mutual Assistance in Criminal Matters thus even undermining the much needed legal certainty. of the Council of Europe of 20 April 1959, as well as its two addi- tional protocols, and the bilateral agreements concluded pursuant to Article 26 thereof; Taking the norms concerning the scope and aim of the EIO as (b) Convention implementing the Schengen Agreement; the foundation of the Basic Rule, the rule can be formulated (c) Convention on Mutual Assistance in Criminal Matters between as follows: the Member States of the European Union and its protocol.

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2. Framework Decision 2008/978/JHA is hereby replaced for the „„Substantive reasons: As mentioned above, the replacement Member States bound by this Directive. Provisions of Framework is limited to the “corresponding provisions” connected to Decision 2003/577/JHA are replaced for Member States bound by this Directive as regards freezing of evidence. the gathering (or to the freezing) of evidence, i.e., the EIO For the Member States bound by this Directive, references to Directive takes only a sectorial approach. Framework Decision 2008/978/JHA and, as regards freezing of evi- dence, to Framework Decision 2003/577/JHA, shall be construed as It should be noted, however, that, despite the provision in references to this Directive.” Art. 34(2) of the EIO Directive, the FD EEW was repealed by Art. 34(1) clarifies that the EIO prevails over traditional MLA Regulation 2016/95 of 20 January 2016.15 Although this led conventions and protocols that were the main legal basis for to the FD EEW being fully expelled from the EU legal frame- evidence-gathering in the context of judicial cooperation in work, the EIO Directive did not foresee this consequence. The criminal matters. The EIO is now the instrument to be used for repeal was made two years after publication of the EIO Direc- such purposes, as the corresponding provisions of said con- tive and by means of a specific repeal instrument; thus, it did ventions have been replaced. not stem from Art. 34(2). The legislator of the EIO Directive initially did not want to permanently eliminate the EEW from Art. 34(2) establishes a similar rule, but it addresses two spe- the legal scenario. cific evidence-related instruments of mutual recognition, the FD EEW and the FD Freezing. Both instruments overlap with the scope of the new EIO Directive. Whereas the FD EEW has 2. Examples of non-replaced provisions been fully replaced, the FD Freezing has only been partially replaced, i.e., as regards its provisions on the freezing of evi- As a complement to the system of the Basic Rule and as clari- dence (see also above). fication for the Replacement Rule, the following text passages offer several examples of specific provisions that can be con- On this basis, a Replacement Rule could be formulated as sidered not to have been replaced by the EIO Directive. The follows: various cases, in which certain provisions from the traditional “Evidence-gathering provisions (the “corresponding provi- MLA conventions and protocols appear to remain applicable, sions”) from the traditional MLA conventions and protocols, have been systematised in three categories. As we will see, the the entire FD EEW, and provisions concerning freezing of evi- Basic Rule as discussed above (II.) serves as the basis for the dence under FD 577/2003/JHA, are replaced by the EIO Di- findings below. rective and cannot be used, provided the Basic Rule applies.” a) Non-replaced provisions due to the policing The connection with the Basic Rule is necessary insofar as (and non-judicial) nature of the cooperation the replaced provisions are not to be used when an EIO is ap- plicable.13 First, cooperation can have a non-judicial nature. This affects, for instance, trans-border surveillance (provided for in Art. 40 CISA), which is even specifically mentioned as not being a 1. Replacement vs. repeal covered measure – and therefore not being replaced by recit- al 9 of the Directive. Another example is hot pursuit (provided Emphasis must be placed on the fact that the Directive is re- for in Art. 41 CISA). placing but not repealing the traditional MLA conventions and protocols and the two specific mutual recognition instruments, Both measures are also specifically mentioned in the Joint respectively.14 There are three main reasons for this approach: Note Eurojust-EJN, and there seems to be wide consensus „„Formal reasons: The Directive cannot repeal the traditional among practitioners that the EIO does not replace them. In MLA conventions and Protocols (even if that had been its my view, this is true, as long as they are considered police intention), because specific formal rules exist for repealing measures. or withdrawing from international treaties. The same holds true for repealing EU instruments, e.g., the FDEEW (see It can also happen that a judicial authority decides to carry out also below). trans-border surveillance.16 In the affirmative, this would not „„Territorial reasons: The EIO is not a binding instrument for be a police but a judicial measure and must therefore be vetted all EU Member States. Therefore, the traditional MLA con- in accordance with the criteria of the Basic Rule. It follows ventions and protocols must remain in place in order to con- that such cases would require an EIO: the provision of Art. 40 tinue cooperation with Denmark and Ireland as well as with CISA would not be applicable, because it is not a measure of third countries that are parties to these international treaties. police cooperation but a judicial one.17

eucrim 1 / 2019 | 55 Evidence Gathering – Current Legal Issues

In addition, the Joint Note Eurojust-EJN includes the provi- why it makes sense to maintain the same regime in the EIO sions of Framework Decision 2006/960/JHA on simplifying context that (only) replaces most traditional LoRs. the exchange of information and intelligence, the measures mentioned in Art. 39(2) CISA, and the measures under the Na- Without prejudice to the express provision of Art. 3, in my ples II Convention (customs cooperation) as not being replaced view, the exclusion of JITs can also be deduced from the Ba- by the EIO. In contrast to the Joint Note, which mentions these sic Rule: the trans-border nature of the measures adopted as provisions/measures in the context of the corresponding pro- part of a JIT does not in practice mean that any of the judicial visions not replaced by Art. 34(1) of the Directive, it must be authorities involved actually issue orders to be executed be- borne in mind that these are different instruments – they are yond its jurisdiction. Quite the opposite is true: measures are therefore per se not subject to the Replacement Rule of the discussed and agreed following an operational plan for each Directive. specific case as provided for in the JIT Agreement; each judi- cial authority issues orders and executes measures exclusively b) Non-replaced provisions because there is no evidence- within its own jurisdiction. As a result, judicial decisions lack gathering purpose the trans-border element of the Basic Rule, which is why an EIO would not have been possible anyway. In sum, the exclu- Widespread consensus has been reached that certain measures, sion of JITs from the scope of the EIO may be considered more which are not specifically aimed at gathering evidence – and natural than apparent at first sight. The rationale of Art. 3 is, therefore do not meet the corresponding criteria of the Basic on the one hand, to legally establish the remaining validity of Rule, can be considered excluded from the scope of the EIO. Art. 13 of the 2000 MLA Convention (and thus clarify that it As a result, traditional rogatory letters (hereinafter: LoRs) or is not part of the replaced “corresponding provisions”) and, on mutual legal assistance requests must be used for such activi- the other, to protect the normal functioning of a JIT, precluding ties in accordance with the traditional conventions and protocols. the use of EIOs as long as the JIT is operational. This comprises, for instance, service of documents and sum- mons (Art. 5 of the 2000 MLA Convention), the spontaneous exchange of information (Art. 7 of the 2000 MLA Convention), IV. The Compatibility Rule returning objects to the injured party (Art. 8 of the 2000 MLA Convention), and transfer of proceedings or information with a Whereas Art. 34(1) of the EIO Directive posits the EIO as the view to proceedings being opened by another country (Art. 21 of heir to traditional Conventions and Protocols, Art. 34 (3) and the 1959 MLA Convention).18 The EIO never intended to cover (4) open the way for the applicability of other cooperation in- these cases (cf. Art. 1 and 3 of the Directive).Although this mat- struments if the purpose of the EIO can be better achieved by ter has not been the subject of in-depth discussions yet, judicial them. The wording of the relevant paragraphs of Art. 34 is as requests aimed at taking down an Internet server should be added follows: to this category of measures, which pursues a different goal than “3. In addition to this Directive, Member States may conclude or continue to apply bilateral or multilateral agreements or arrange- evidence-gathering. Such requests are becoming increasingly ments with other Member States after 22 May 2017 only insofar as common in cases of cybercrime and cyberattacks, where this these make it possible to further strengthen the aims of this Direc- measure is necessary − not so much to gather evidence but to tive and contribute to simplifying or further facilitating the pro- cedures for gathering evidence and provided that the level of safe- ensure that the criminal activity is discontinued. It is therefore guards set out in this Directive is respected a sort of precautionary measure but not an evidence-gathering 4. Member States shall notify to the Commission by 22 May 2017 one. Thus, it also does not meet the Basic Rule but would instead the existing agreements and arrangements referred to in paragraph require a traditional LoR.19 3 which they wish to continue to apply. Member States shall also notify the Commission within three months of the signing of any new agreement or arrangement referred to in paragraph 3.” c) Non-replaced provisions by virtue of law Art. 34(3) indicates that other cooperation instruments can As indicated under II., Art. 3 of the EIO Directive specifically be applied only under certain conditions, which can be traced provides for the continuation of previous JIT provisions under back to the default situation, as stated in Art. 82 TFEU, that the 2000 MLA Convention and the so-called JIT Framework judicial cooperation must be based on the mutual recognition Decision. This is a logical exclusion from the EIO scope, be- principle. As a result, we can formulate a Compatibility Rule cause the very nature of a JIT allows evidence-gathering as follows: measures to be taken internally, and the evidence gathered is “Even in cases where the Basic Rule would apply, existing or automatically put at the disposal of all parties to the JIT with- future bilateral or multilateral agreements or arrangements out the need to resort to other judicial cooperation instruments. (but not the traditional MLA conventions and protocols re- Therefore, the JIT legal framework excludes LoRs, which is placed under Article 34(1)) could be used instead of the EIO,

56 | eucrim 1 / 2019 EIO and Its Relationship with Other Judicial Cooperation Instruments if the alternative instrument complies with all three of the fol- European Preservation and Production Orders on e-evidence), lowing conditions: but not as a consequence of the Compatibility Rule. a) further strengthens the aims of the EIO Directive, b) simplifies or further facilitates the procedures for gathering evidence, and 3. The relationship between the Compatibility c) respects the level of safeguards set out in the Directive. and the Replacement Rule Failing to comply with the obligation defined under Article 34(4) to notify to the Commission the above agreements does There is much discussion among practitioners as to whether not affect applicability of the agreements/arrangements. the Compatibility Rule can be applied also to provisions af- The Compatibility Rule does not apply to other (existing or fected by the Replacement Rule.20 In my opinion, Art. 34(1) future) EU mutual recognition instruments, which could be of the Directive, i.e., the Replacement Rule, takes precedence applicable instead of the EIO as lex specialis, but not due to over Art. 34(3), i.e., the Compatibility Rule. Consequently, a the provisions of Art. 34(3).” judicial authority is not able to use a LoR instead of an EIO, even if the use of a replaced provision on evidence-gathering in the traditional conventions and protocols would fulfil the 1. The conditions of the Compatibility Rule conditions of the Compatibility Rule in a given case. The Re- placement Rule is not conditional or optional, but a clear im- The wording in the EIO Directive indicates that the three perative legislative decision that allows for no exceptions. conditions indicated in the Compatibility Rule are not alter- native but cumulative, i.e., all of them must concur so that This position is backed by the ECJ case law.21 With regards to an alternative instrument is possible. Thus, any other bilateral similar provision in Art. 31 of the Framework Decision on the or multilateral instrument can be used instead of an EIO only European Arrest Warrant, the ECJ held in Goicoechea:22 inasmuch as it offers at least a similar standard on safeguards “Article 31(2) of the Framework Decision allows the Member States (condition c)) and provided that the use of this alternative to continue to apply bilateral or multilateral agreements or arrange- instrument results in better, simpler, and faster cooperation ments in force at the time of adoption of the decision, or to conclude such bilateral or multilateral agreements or arrangements after the (conditions a) and b)). entry into force of the decision in so far as they allow the prescrip- tions of the decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. 2. The scope of the Compatibility Rule However, that provision cannot refer to the conventions mentioned in Article 31(1) of the Framework Decision, since the objective of The Compatibility Rule refers to “bilateral or multilateral the decision is precisely to replace them by a simpler and more ef- fective system (…).” agreements or arrangements with other Member States.” This concept includes all sorts of international instruments (treaties Albeit, the ECJ’s decision refers to a different cooperation in- and conventions) which the EU Members States concerned are strument, i.e., the European Arrest Warrant. The parallelism to parties to (even if it is a multilateral convention that also in- Art. 34 of the EIO Directive is obvious, and there are no reasons cludes third countries, e.g., the conventions concluded in the to sustain a different interpretation for the EIO in this respect. framework of the Council of Europe or the United Nations). This opens the door for the applicability of a number of spe- cific instruments (e.g., the 2001 Budapest Convention on Cy- 4. Notification to the European Commission bercrime) if the above-mentioned specified conditions are met. Some clarifications need to be made as regards the notification By contrast, the wording of the Compatibility Rule entails that of existing or future agreements/arrangements in accordance it cannot be applied to (existing or future) EU mutual recog- with Art. 34(4) of the EIO Directive. Questions have been nition instruments– because they are not “agreements or ar- raised as to the nature of this provision and as to whether the rangements”, but pieces of EU legislation. The provision of lack of notification would prevent an EU Member State from Art. 34(4) also underpins this argument because a notification continuing to use such bilateral or multilateral conventions. In to the Commission can logically not include pieces of EU leg- my opinion, the lack of notification should not affect the appli- islation that are perfectly known to the Commission. As men- cability of the conventions themselves. The first reason for this tioned under II. other EU legislation on cross-border gathering stance is that the notification is not included in Art. 34(3) as of evidence can apply instead of an EIO as lex specialis, as it a further condition for application of the Compatibility Rule. is e.g. the case for criminal records or – as far as future instru- The EU legislator conceived it as a separate Member State ob- ments are concerned – under the lex posterior rule (e.g. the ligation. Accordingly, notifications are considered to be differ-

eucrim 1 / 2019 | 57 Evidence Gathering – Current Legal Issues ent from a legal condition, instead intended to give clarity to sultation process. In my view, this implies the remaining validity the applicable legal framework. While the conditions set out of the speciality principle, because, otherwise, it would be absurd under Art. 34(3) are addressed to individual judicial authori- to establish a system based on the necessity and the proportion- ties (which assess the applicability of a different instrument ality check of measures linked to a concrete case if, after hav- instead of an EIO), Art. 34(4) addresses the Member States ing received the results of the execution, the issuing authority as such. With the regulation in two different paragraphs of remained free to use them for any other proceedings, thus ren- Art. 34, it is thus made clear that the purpose and consequenc- dering the safeguards provided for in Art. 6 completely useless. es of the two provisions are fundamentally different. Second, another element of the speciality principle is data pro- Secondly, a too rigid interpretation would lead to every Mem- tection rules, which stipulate the purpose limitation principle. ber State having to notify virtually any convention or treaty However, this principle of data protection law is governed by ever concluded in the area of international cooperation in Art. 23 of the 2000 MLA Convention 200026 – a provision that, criminal matters – and those concluded from this moment on- in my opinion, has not been replaced by the EIO Directive. In wards – in order to avoid the risk of doubt as to the validity of this context, the Basic and Replacement Rules come into play: the evidence gathered through other instruments. Art. 23 cannot be considered a replaced corresponding provi- sion and therefore remains fully applicable and unaffected by Third, it would be contrary to the established international the EIO Directive. The understanding that the purpose limita- rules if the mere lack of communication to the Commission tion principle has not been cast aside by the EIO is also mir- produces legal effects of validity, because international trea- rored by some transposition legislation, e.g., the Spanish Law ties follow their own formal rules (see also above III.1.). on Mutual Recognition.27 It also seems to be the position of the European lawmaker as regards the future Regulation on European Preservation and Production Orders.28 V. Excursus: The Continuing Applicability of the Speciality Principle From a practical viewpoint, a third argument is, ultimately, that it hardly seems encouraging if executing authorities do During the discussions on the applicable rules, a specific ques- not have assurance that information provided will not be used tion was raised as to whether the speciality principle continues for other purposes or proceedings than those specifically stated to apply under the EIO. The speciality principle was originally in any given EIO. developed in the area of extradition law and can be understood in the present context as precluding the issuing authorities from using the evidence received via the execution of an EIO VI. Conclusions for any other purposes and proceedings than those for which the EIO was originally issued, unless specifically authorised This article illustrated that the question on the relationship be- to do so by the executing authority. The issue on the continu- tween the EIO and other – existing or future – legal instruments ation of the speciality principle under the EIO regime surely of judicial cooperation in criminal matters is currently one of the deserves more in-depth reflection, but in view of its high prac- major challenges in practice. I strived to develop a theoretical tical relevance, some brief comments on this problem are ap- blueprint from which decisions can be drawn in each concrete propriate, especially since the question is also connected to the case. The developed rules include the necessary clarification for rules developed above. all legal practitioners as to when an EIO is to be used:

The issue was discussed at the 2018 Eurojust Meeting on the Basic Rule 23 without consensus being reached and the unclear situa- EIO (defining when an EIO is to be used): tion was subsequently acknowledged at the level of the Council Working Group.24 In my opinion, the speciality principle has not “The EIO is been affected by the EIO Directive and continues to be valid.25 5) a decision issued (or validated) by a judicial authority; 6) within criminal proceedings (in the sense defined in Art. 4 A first reason relates to Art. 6 of the EIO Directive. It establishes of the Directive); that the issuing authority must assess the necessity and propor- 7) consisting in investigative measures of trans-border nature; tionality of the measures “for the purpose of the proceedings” 8) aimed at gathering evidence; and whether those measures “could have been ordered under the 9) among the Member States bound by the EIO Directive. same conditions in a similar domestic case.” These factors can When conditions set out in numbers 2 to 5 concur, the judicial also be controlled by the executing authority, triggering a con- authority must issue an EIO, unless other instruments are bet-

58 | eucrim 1 / 2019 EIO and Its Relationship with Other Judicial Cooperation Instruments ter placed to produce the desired results provided the condi- “Even in cases where the Basic Rule would apply, existing tions in the Compatibility Rule under Art. 34(3) of the Direc- or future bilateral or multilateral agreements or arrangements tive are met. (but not the traditional MLA conventions and protocols re- Conversely, if any of the five conditions above is missing, an placed under Article 34(1)) could be used instead of the EIO, EIO cannot be issued.” if the alternative instrument complies with all three of the fol- lowing conditions: Replacement Rule a) further strengthening of the aims of the EIO Directive; (developed from Art. 34(1) and (2) of the EIO Directive, de- b) simplification or further facilitation of the procedures for fining the exclusion of the applicability of other existing evi- gathering evidence; dence-gathering provisions): c) respect for the level of safeguards set out in the Directive. Failure to comply with the obligation defined under Article “Evidence-gathering provisions (the “corresponding provi- 34(4) to notify to the Commission of the above agreements sions”) from the traditional MLA conventions and protocols, does not affect applicability of the agreements/arrangements. the entire FD EEW, and provisions concerning freezing of evi- The Compatibility Rule does not apply to other (existing or dence under FD 577/2003/JHA, are replaced by the EIO Di- future) EU mutual recognition instruments, which may be ap- rective and cannot be used, provided the Basic Rule applies.” plicable instead of the EIO as lex specialis, but not due to the provisions of Art. 34(3).” Compatibility Rule (stemming from Art. 34(3) and (4) of the EIO Directive, indi- In addition to the above and as regards the speciality principle, cating the co-existence of the EIO with other judicial coopera- it must be understood that it remains valid and applicable to tion instruments): the EIO Directive.

1 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal mat- ters, O.J. L 130, 1.5.2014, 1. Jorge A. Espina Ramos 2 The Directive had to be transposed by 22 May 2017. However, it took Spanish Desk of Eurojust until 15 September 2018 for the last Member State to complete the trans- position, finally making the Directive fully applicable in practice for all. 3 According to recitals 44 and 45 of the Directive, Ireland and Denmark are not bound by it, in accordance with Protocols No. 21 and 22 annexed to the TEU and the TFEU. 4 I first suggested this three-tiered approach based on “Basic, Replace- ment and Complementarity Rules” in my presentation on “The EIO and its Relationship with other Conventions” at the Summer Course organised by the Universidad Internacional Menéndez Pelayo in Santander on 20–22 August 2018. A similar approach as regards the Basic Rule was also authorities (regularly General Prosecution Offices). One example is Note mentioned in the Conclusions of the Eurojust Meeting on the EIO that took 1/17 issued by the International Cooperation Unit of the Spanish General place on 19–20 September 2018 (cf. Council doc. 15735/18 and the article Prosecutor’s Office of 19 May 2017, where consideration is given to which of Guerra/Janssens, in this issue). provisions of the traditional conventions and protocols could still be valid 5 According to Article 34.1, these are the European Convention on Mutual after entry into force of the EIO. Assistance in Criminal Matters of the Council of Europe of 20 April 1959 9 Recital 35 specifically declares: “Where reference is made to mutual (hereinafter: 1959 MLA Convention), its two additional protocols, and the assistance in relevant international instruments, such as in conventions bilateral agreements concluded pursuant to Art. 26 thereof; the Conven- concluded within the Council of Europe, it should be understood that tion implementing the Schengen Agreement (hereinafter: CISA); and between the Member States bound by this Directive it takes precedence the Convention on Mutual Assistance in Criminal Matters between the over those conventions.” Member States of the European Union and its protocol (hereinafter: 2000 10 See also III.2.c) and IV.2 below. MLA Convention). 11 Framework Decision 2009/316/JHA on the establishment of the Euro- 6 There was an attempt in 2011 to define a list of corresponding provi- pean Criminal Record Information System (ECRIS). sions to be replaced by the EIO (Council doc. 14445/11), but the effort was 12 See the proposal by the Commission for a Regulation on European then abandoned and no further progress was made. Production and Preservation Orders for electronic evidence in criminal 7 “Note on the meaning of corresponding provisions and the applicable matters (COM/2018/225 final), currently being discussed in the European legal regime in case of delayed transposition of the EIO Directive,” 2 May Parliament and Council. For details, see eucrim 4/2018, 206 with further 2017, Council doc. 9936/17. The Note contains interesting reflections on references and S. Tosca, eucrim 4/2018, 212 et seq. these topics. 13 If, for whatever reasons, an EIO is not due, the “corresponding provi- 8 A number of Member States have also tried to provide answers to some sions” are applicable (because they have not been replaced). This would of the open questions either through provisions in the implementing legis- be the case, for instance, for requests concerning Denmark or Ireland. lation or through Instructions or Notes prepared by the relevant national 14 In line with the Joint Note Eurojust-EJN, mention should be made of

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a case-law precedent unequivocally supporting this distinction between 21 See also Joint Note Eurojust EJN, op. cit. (n. 7), p. 23. replacing and repealing. It is connected to a different instrument, the Eu- 22 CJEU, 12 August 2008, case C-296/08 (Ignacio Pedro Santesteban ropean Arrest Warrant, where a similar situation arose (the EAW Frame- Goicoechea), paras 54 and 55 (emphasis added by the author). work Decision also used the mechanism of replacing existing extradition 23 See note 4. conventions) and where the European Court of Justice (case C-296/08) 24 Council doc. 14750/18 of 27 November 2018. had the chance to rule that “the replacement under Article 31(1) of the 25 See also J. Barbosa e Silva, “The Speciality rule in cross-border evi- Framework Decision of the conventions mentioned in that provision does dence gathering and in the EIO – let’s clear the air”, (2019) 19 ERA Forum, not entail the abolition of those conventions, which retain their relevance 485–504. (…) also in other situations in which the European arrest warrant system 26 “Personal data communicated under this Convention may be used by is not applicable.” the Member State to which they have been transferred: (a) for the purpose 15 O.J. L 26, 2.2.2016, 9–12. of proceedings to which this Convention applies; (b) for other judicial and 16 This caveat would also be valid for hot pursuit measures under Art. 41 administrative proceedings directly related to proceedings referred to CISA, at least in theory. It appears much more difficult to find a realistic under point (a); (c) for preventing an immediate and serious threat to public example where something as spontaneous and unpredictable as a hot security; (d) for any other purpose, only with the prior consent of the pursuit could be decided beforehand by a judicial authority. communicating Member State, unless the Member State concerned has 17 In addition: Art. 17 of the 2nd Additional Protocol to the 1959 Conven- obtained the consent of the data subject.” tion, which refers to judicial trans-border surveillance, does not apply 27 Article 193 of Law 23/2014, as amended by Law 3/2018, copies the either, because it is fully affected by the Replacement Rule and is among wording of Art. 23(1) of the 2000 MLA Convention stating that the Spanish the provisions replaced by the EIO Directive. issuing authority will guarantee use of the personal data obtained by way 18 See also the Joint Note Eurojust-EJN, op. cit. (n. 7). of execution of an EIO to be limited to the proceedings for which they were 19 Whether this measure should be based on the traditional MLA conven- requested, or on those directly linked to them, requiring specific authori- tions and protocols or on a different legal instrument (in particular, the sation from the executing authority for all other cases. 2001 Budapest Convention on Cybercrime of the Council of Europe) is con- 28 Even though the proposal from the Commission did not contain a provi- nected to the Compatibility Rule (see below) but not to the Replacement sion on the speciality principle, negotiations in the Council Working Group Rule. apparently ended up including a new article regulating such a speciality 20 See, in this context, particularly Germany’s declaration of 14 March principle, roughly along the lines provided for by said Art. 23 of the 2000 2017, which indicated that bilateral agreements supplementing the 1959 MLA Convention. The instrument is still being discussed by the European MLA Convention are considered to continue to apply to cross-border Parliament, but the reaction at the Council level is an indication of what acquisition of evidence. the opinion of the EU lawmakers might be on this issue.

Access to the Case Materials in Pre-Trial Stages Critical Questions of Article 7 of Directive 2012/13/EU on the Right to Information in Criminal Proceedings

Anneli Soo, PhD and Anna Pivaty, PhD

The right of access to the case materials (Art. 7 of Directive 2012/13/EU) is crucial to enable an effective defence and ensure equality of arms in criminal proceedings. However, when it comes to the pre-trial stages of criminal proceedings, Art. 7 of Directive 2012/13/EU is not clear about the timing of access, the scope of access, and about the possible derogations from providing access to suspects and their counsel. This article outlines the questions that, in our opinion, should most urgently be posed to the CJEU concerning the interpretation of Art. 7 in the context of pre-trial proceedings, e.g.: What are the documents that are “essential for challenging effectively” the lawfulness of arrest and detention under Art. 7(1)? Do the grounds for derogation under Art. 7(4) apply to Art. 7(1)? How should the derogation grounds under Art. 7(4) be understood? Do Art. 7(2) and (3) apply at the pre-trial stages of the proceedings, and particularly to pre-trial investigations? If yes, what is the scope and manner of access to the case materials that should be provided at these stages? We argue that further interpretation from the CJEU is necessary to ensure greater uniformity and stronger protection of the right of access to the case materials across the EU Member States.

I. Introduction: The Right of Early Access to the Case right to information in criminal proceedings.1 Two elements Materials in EU Law of the right are distinguished: „„The right of access upon arrest or detention (Art. 7(1));2 In EU law the right of access to the case materials in criminal „„General right to access the case materials (Art. 7(2) proceedings arises from Art. 7 of Directive 2012/13/EU on the and (3)).3

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„„Art. 7(4) provides the grounds for derogation from the Here, access to the case materials provides the detainee with right.4 information about the evidence, which supports the law en- forcement agents’ claim about the existence of reasonable sus- Directive 2012/13/EU was adopted on 22 May 2012 and had picion that he has committed an offence, and (if applicable) to be transposed by 2 June 2014. The CJEU has addressed in- about the additional ground(s) for continued detention. Based terpretation of its Art. 7 only once so far.5 on this information, the detainee can challenge these claims, and submit evidence if necessary. The explanatory memoran- Art. 7 is the only article in Directive 2012/13/EU, which fo- dum of the Commission proposal on the Directive calls it a cuses on the right of access to the case materials. The central “limited access to the case-file” which “ensures the fairness of question is whether Art. 7 should be applied differently to the pre-trial proceedings concerning the lawfulness of arrest and pre-trial proceedings as compared to the trial. As concerns detention.”10 In this context, a number of questions arise: To Art. 7(1), obviously, it applies to both stages: someone can be what extent is the access limited? Does it cover all evidence arrested or detained both before and after the case reaches the the prosecution has against the suspect? If not, who decides, trial. However, it is unclear from the wording of Art. 7(2) and and based on what criteria, which evidence should be revealed (3) whether the general right of access to the case materials to the defence, given that the lawyer – who would be best suit- (unrelated to arrest or detention) also applies to the pre-trial ed to assess which evidence is essential for challenging the procedural stages (such as pre-trial suspect interrogations), arrest or detention effectively – is not given access to the com- and to what extent. In Kolev, the CJEU did not clarify these plete case materials? And how, if at all, could the lawyer or the issues either, as this case focuses on the latest, not on the earli- suspect control whether all such evidence has been disclosed? est point of the proceedings when access should be granted.6 Does “limited access to the case-file” also cover exculpatory There are also other ambiguities of wording of Art. 7 in the evidence in the possession of the prosecution?11 These ques- context of pre-trial proceedings. For instance, the formulation tions are very closely related to the next question concerning of derogations in Art. 7(4) allows for some variance in inter- the possible derogations of Art. 7(1). pretation depending on the national specifics, especially the part related to the prejudice to an ongoing investigation. These When it comes to determining which evidence is essential problems are discussed in detail below, as they form a basis for challenging the arrest or detention, evidently, national for making an argument for requesting preliminary references peculiarities must be considered when making individual to the CJEU. decisions about the scope of access to case materials, be- cause the laws of Member States may provide for different grounds for continued detention (as long as they are in line II. The Right of Access to the Case Materials upon with Art. 5(3) ECHR and the respective case law).12 How- Challenge of Arrest or Detention: Emerging Questions ever, the question is to what extent should national differ- ences be taken into account? What if, for instance, national Although it is clear from Art. 7(1) that it applies at any stage of law defines the moment from which ‘reasonable suspicion’ criminal proceedings upon arrest or detention, two questions exists (and the criminal proceedings begin) differently than remain open. the respective ECtHR case law?13 In Bulgaria for instance, the first 24 hours of police detention, or police arrest, of First, which documents are essential for challenging effective- someone suspected of having committed a crime are not ly the lawfulness of the arrest or detention? According to the considered part of the criminal proceedings,14 and therefore ECtHR, reasonable suspicion is a condition sine qua non for detention orders (which do not contain information about the lawfulness of the arrest or detention, but with the lapse of the factual grounds for arrest) might be handed out to sus- time it is not enough to justify continued detention.7 With the pects hours after the actual detention. Is this situation com- lapse of time other valid grounds must exist to justify the dep- patible with Art. 7(1)? Nevertheless, the questions we raised rivation of liberty, such as the risk of absconding or tampering above about the interpretation of Art. 7(1) are more general, with evidence.8 When it comes to challenging the lawfulness and therefore they need fundamental answers given by the of the detention, the ECtHR requires that CJEU. In addition, as we will demonstrate immediately be- low, the questions on the interpretation of Art. 7(1) and (4) “the detainee must be given an opportunity effectively to challenge the basis of the allegations against him [...]. This may require the are interrelated, and therefore must be analysed jointly. court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the deten- This leads us to the second question, i.e. does Art. 7(4) apply tion [...]. It may also require that the detainee or his representative be given access to documents in the case file which form the basis in cases where access to the case materials must be granted in of the prosecution case against him […].”9 accordance with Art. 7(1), i.e. can Art. 7(1) be derogated by

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Art. 7(4)? One might consider several arguments against and Additionally, the timing of disclosure might also raise some for the derogation. On the one hand, literal interpretation of issues. According to recital 30, the necessary documents Art. 7(1) and (4), which is one of the dominant interpreta- must be made available to the defence “at the latest before tion techniques of the CJEU,15 seems to suggest that Art. 7(1) a competent judicial authority is called to decide upon the cannot be derogated by Art. 7(4). As Art. 7(4) makes refer- lawfulness of the arrest or detention […], and in due time to ence only to Art. 7(2) and (3), it implies that it does not ap- allow the effective exercise of the right to challenge the law- ply to any other paragraphs of Art. 7. This is also backed fulness of the arrest or detention”. But what does this really by historic interpretation (even though the CJEU does not mean? How much time should the defence be granted before often rely on it), because the explanatory memorandum of the judicial authority makes such decision, considering that the Commission proposal to the Directive makes reference to the aim of adequate preparation is the effective exercise of possible derogations from access to the case materials only the defence rights? in relation to access for the preparation of the trial.16 Also, this viewpoint is also shared by legal academic literature17. On the other hand, contextual interpretation (also often used III. The General Right of Access to the Case Materials in by the CJEU)18 suggests that Art. 7(1) may be derogated on Pre-Trial Proceedings: Does It Exist and to What Extent? the grounds provided in Art. 7(4). More precisely, recital 42 of Directive 2012/13/EU states that “[t]he provisions of As already stated above, Art. 7(2) and (3) leave open the this Directive that correspond to rights guaranteed by the question whether access to the case materials (at least to ECHR should be interpreted and implemented consistently some extent) has to be granted in pre-trial proceedings for with those rights, as interpreted in the case-law of the Eu- other purposes than challenging an arrest or detention. The ropean Court of Human Rights”. Furthermore, according to initial proposal for Directive 2012/13/EU envisaged that ac- recital 32 “[r]estrictions on such access should be interpreted cess to the case materials should be granted once the investi- strictly and in accordance with the principle of the right to a gation of the criminal offence is concluded (then Art. 7(2)). fair trial under the ECHR and as interpreted by the case-law Under this formulation, Member States would need to pro- of the European Court of Human Rights.” According to the vide full access to the case materials (unless the public safety ECtHR, the right of access to the case materials upon arrest and security grounds for derogating from such access exist- or detention can be restricted if it is strictly necessary, for ed) upon the conclusion of the pre-trial investigation, but did example to protect the safety and security of third parties not encourage them to provide access earlier – other than for (witnesses or victims).19 In any case, the contextual interpre- the purpose of challenging an arrest or detention, which is a tation relies on recitals 32 and 42 of the Directive, as these separate obligation provided in Art. 7(1). recitals – read in conjunction with Art. 7(1) – limit the right provided in this paragraph. The current wording of Art. 7(3) defines the latest possible stage of the proceedings when access should be granted – i.e. Because CJEU case law emphasises that recitals should not “upon submission of the merits of the accusation to the judg- limit or contradict the rights stipulated in the actual provi- ment of a court” –,22 but adds that access should be granted sions of a directive,20 it may be argued that contextual inter- “in due time to allow the effective exercise of the rights of pretation is not appropriate to solve the given interpretation the defence.” According to Art. 7(2), such access is necessary question. If the outcome of literal interpretation is however “in order to safeguard the fairness of the proceedings and to that both lawyers and suspects (as the holders of the rights) prepare the defence”. In this way, Art. 7(3) calls for varia- should be granted access to all materials of the case that are tion of practices in the Member States. It might be that some essential to challenge the arrest or detention, this inevitably states choose to provide access to the case material exactly raises the question on how to protect important values, such at the latest possible stage of the proceedings foreseen by as privacy or personal safety? For instance, what if there is the Directive, but it might also be that some decide that for a real risk that disclosing the name(s) or whereabouts of (a) the effective preparation and exercise of the defence it is es- certain witness(es), or the (full) content of their statements sential to provide access already in the earlier stages (during to the suspect, might cause an attempt on the part of the sus- or in the end of pre-trial investigation). This decision is most pect to influence their testimony and/or threaten their privacy likely to be made based on national laws and practices. For or safety? This question is definitely worth raising with the instance, those Member States that encourage the practice CJEU. Here, an additional question to be addressed is wheth- of negotiations in criminal proceedings towards out-of-court er procedures in some Member States enabling lawyers to settlements are more likely to encourage early disclosure of see the materials but not to share them with their clients are the evidence in the possession of the prosecution to enhance compatible with Art. 7(1).21 such practice.23 In addition, in those Member States where

62 | eucrim 1 / 2019 Access to the Case Materials in Pre-Trial Stages lawyers are expected to actively participate in pre-trial pro- the competent authority concludes that granting access to ceedings (e.g. via active participation in suspect interroga- evidence would contribute to the effective defence, it could tions or the gathering of evidence), counsel might encounter still refuse such access based on Art. 7(4). Second and alter- less difficulties convincing authorities that in order to fulfil natively, it may be argued that in principle, full access to the their duties effectively, they need to be informed of the evi- case materials should be granted because full knowledge of dence in the prosecution’s possession. the file is necessary for effective exercise of the defence per se, unless grounds for derogation under Art. 7(4) exist, which But are these differences acceptable in the light of Art. 7(2) makes the right of access potentially more extensive, than in and (3) of the Directive? If, for instance, in Member State the first scenario. A this provision is interpreted in a way that the right of ac- cess to the case materials is provided for suspects who have The interpretation of derogations provided in Art. 7(4) raises not been arrested or detained only shortly before the court further questions. There are two distinct grounds for deroga- proceedings, and in Member State B already when coun- tion in Art. 7(4): the protection of third parties (“access may sel prepares for the initial interrogation, would suspects be lead to a serious threat to the life or the fundamental rights equally able to exercise their defence rights effectively in of another person”) and an important public interest (“access both Member States? Is Member State A following the mini- could prejudice an ongoing investigation or seriously harm mum standards, which Member State B has decided to depart the national security of the Member States”). In the initial from towards a higher standard of protection? Or is Member draft of the Directive, the first ground was formulated almost State A falling below minimum standards? Should the right identically compared to the adopted version, but the second of access to the case materials at an earlier stage than the ground was conceived much narrower, as it stated that ac- referral of the case to court in Member State B be really left cess to certain materials could be refused if such access may open for a case-by-case decision with an option for the na- seriously harm the internal security of the Member State.26 tional courts to make a preliminary reference to the CJEU? In the finally adopted version, national security is mentioned Or should there be a common EU-wide approach concerning together with the interests of the ongoing investigations (as the question at which stages of pre-trial criminal proceedings implied in “prejudice an ongoing investigation”) as possible the right of access to the case materials is essential for the ef- examples of what may be considered an “important public fective exercise of the defence rights?24 We believe that this interest” (implying that these two examples are non-exhaus- is a subject worth forwarding to the CJEU to clarify. tive).

Art. 7(2) provides for the right of full access to the case ma- The ‘life and limb’ clause is also provided as a ground for terials – “to all material evidence in the possession of the derogation from the right of access to a lawyer in Art. 3(6)(a) competent authorities, whether for or against suspects or ac- of Directive 2013/48/EU.27 However, there is no ‘important cused persons”25 – at the latest when the case reaches the public interest’ clause, as the second ground for derogating court (Art. 7(3): “upon submission of the merits of the ac- the right of access to a lawyer is formulated as the need for cusation to the judgment of a court”). If these paragraphs investigating authorities to “prevent substantial jeopardy to are to be interpreted in a manner that they grant access to the criminal proceedings” (Art. 3(6)(a) of Directive 2013/48/ case materials also at the pre-trial stages of the proceedings EU). As a result, Art. 3(6)(b) of Directive 2013/48/EU is if necessary for exercising effective defence rights, the ques- much more precise than Art. 7(4). In the latter, the public tion arises whether full or partial access should be given (and interest clause with reference to the interests of the ongoing would differences between Member States be acceptable)? investigation leaves a wide margin of interpretation for the There are two viable alternatives. First, it may be argued that Member States, which may use this ground excessively to because the aim of granting access is to “allow the effective the prejudice of defence rights.28 The need to secure an ef- exercise of the rights of the defence”, the extent of access fective conduct of criminal proceedings is more frequently to the case materials depends on the stage and type of the invoked with regard to the pre-trial stage of the criminal pro- proceedings in which it is granted. For instance, participation ceedings than to the trial itself. Therefore, if Art. 7(2) and (3) in the proceedings for an out-of-court settlement seems to are interpreted in a manner that they apply to pre-trial inves- require full prior knowledge of the existing evidence. In this tigations (at least to some extent), national authorities can first scenario, the decision on how much to reveal to the de- block this access due to the very vague wording of Art. 7(4), fence would belong to the competent authorities and would which would turn the right to early access to case materials depend on their understanding of what is an “effective exer- into more of an exception than a rule. Consequently, we be- cise of the rights of the defence” and how granting access to lieve that here further guidance from the CJEU is needed in the case materials contributes to it. In addition, even when order to ensure effective protection of the rights of defence.

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IV. Conclusions materials, the greater the potential risk of prejudice to the on- going investigation. Pre-trial investigations, especially at the The issue of pre-trial access to the case materials is delicate. early stages, are vulnerable to the risk of suspects tampering Packer observed that any norm-setting in the area of crimi- with evidence, as well as threatening witnesses. Therefore, nal process aims at achieving a certain balance between two next to compromising the integrity of criminal investiga- types of competing values: due process and crime control.29 tions, unlimited early access to the case materials may also Likewise, the conflict between due process and crime control jeopardise the safety of third parties. values underlies the debate about the right of early access to the case materials. On the one hand, an unlimited right of All these considerations could be found in Art. 7(4) of Di- access from the initial stages of criminal proceedings would rective 2012/13/EU that provides derogations from the right ensure maximum protection of due process values. Early ac- of (unlimited) access to the case materials in criminal pro- cess to the case materials is crucial for the effective conduct ceedings. However, there is evidence that derogations from of defence. It provides counsel with an opportunity to choose pre-trial access to case materials are used too extensively in tactics for interrogation (in general terms, whether to advise the EU Member States.31 One of the reasons for this might the suspect to remain silent or give statements), to request the be that law enforcement authorities still seem to believe that gathering of evidence from the authorities (or to gather evi- the best way to solve crimes is to conduct investigations first dence himself or herself if national law permits), and to de- by keeping the details of the investigation confidential, af- cide on the overall strategy of defence (e.g. whether to seek ter which the suspect or the accused can be confronted with an out-of-court settlement, to proceed to trial etc.). These op- the entire body of evidence against him. We believe that the portunities contribute to the principle of equality of arms, contemporary understanding of equality of arms in pre-trial which has been embraced by the ECtHR not only as a prin- proceedings precludes this approach. With this article we ciple that applies in trial, but also in pre-trial proceedings.30 encourage practitioners to contest these practices by raising On the other hand, imposing restrictions or derogations from questions of interpretation of Art. 7 of Directive 2012/13/ the right of access to the case materials, and/or delaying the EU in the context of the principle of adversarial proceedings moment when such access should be granted, would ensure and the principle of equality of arms in pre-trial proceedings, optimal protection of crime control values. Thus, the earlier which could be a source of inspiration for making prelimi- the suspect and his/her lawyer are granted access to the case nary references to the CJEU.

* This article is based on the research conducted for: A. Pivaty and into the possession of the competent authorities, access shall be granted A. Soo, “Article 7 of the Directive 2012/13/EU on the Right to Information in to it in due time to allow for it to be considered.” Criminal Proceedings: A Missed Opportunity to Ensure Equality of Arms in 4 Art. 7(4) of Directive 2012/13/EU: “By way of derogation from para- Pre-Trial Proceedings?”, forthcoming in the journal “European Journal of graphs 2 and 3, provided that this does not prejudice the right to a fair trial, Crime, Criminal Law and Criminal Justice” (issue 2/2019). It develops the access to certain materials may be refused if such access may lead to a ideas expressed in the original article on a more practical level, which we serious threat to the life or the fundamental rights of another person or if hope to be of added value for practitioners interested in EU law on criminal such refusal is strictly necessary to safeguard an important public inter- procedure and procedural rights. We would like to thank Laure Baudri- est, such as in cases where access could prejudice an ongoing investiga- haye-Gérard for her most valuable ideas and comments, which helped us tion or seriously harm the national security of the Member State in which improve this article a lot. the criminal proceedings are instituted. Member States shall ensure that, 1 O.J. L 142, 1.6.2012, 1. in accordance with procedures in national law, a decision to refuse ac- 2 Art. 7(1) of Directive 2012/13/EU: “Where a person is arrested and cess to certain materials in accordance with this paragraph is taken by a detained at any stage of the criminal proceedings, Member States shall judicial authority or is at least subject to judicial review.” ensure that documents related to the specific case in the possession of 5 CJEU, 5 June 2018, case C- 612/15, Criminal proceedings against Nikolay the competent authorities which are essential to challenging effectively, Kolev and Others. in accordance with national law, the lawfulness of the arrest or detention, 6 Ibid, paras. 90–100. are made available to arrested persons or to their lawyers.” 7 ECtHR, 12 May 2015, Magee and others v. the UK, Appl. nos. 26289/12 et 3 Art. 7(2) of Directive 2012/13/EU: “Member States shall ensure that al., para. 88. access is granted at least to all material evidence in the possession of 8 ECtHR, 28 July 2005, Czarnecki v. Poland, Appl. no. 75112/01, para. 37. the competent authorities, whether for or against suspects or accused 9 ECtHR, 19 February 2009, A. and others v. the UK, Appl. no. 3455/05, persons, to those persons or their lawyers in order to safeguard the fair- para. 204. ness of the proceedings and to prepare the defence.” Art. 7(3): “Without 10 European Commission, “Proposal for a Directive of the European Par- prejudice to paragraph 1, access to the materials referred to in paragraph liament and of the Council on the right to information in criminal proceed- 2 shall be granted in due time to allow the effective exercise of the rights ings”, COM(2010) 392 final, p. 9. of the defence and at the latest upon submission of the merits of the accu- 11 In A. and others v. the UK (op. cit. (n. 9)) the ECtHR noted that, “while sation to the judgment of a court. Where further material evidence comes the right to a fair criminal trial under Article 6 includes a right to disclosure

64 | eucrim 1 / 2019 Access to the Case Materials in Pre-Trial Stages

of all material evidence in the possession of the prosecution, both for and against the accused, the Court has held that it might sometimes be neces- sary to withhold certain evidence from the defence on public-interest Anneli Soo grounds.” (para. 206) It did not use the phrase “evidence for and against Humboldt Experienced Researcher, University the accused” in the context of challenging arrest or detention. However, it of Cologne and Max Planck Institute for Foreign stated that, “the proceedings must be adversarial and must always ensure and International Criminal Law (2018–2019) ‘equality of arms’ between the parties” (para. 204), and required that, “the detainee must be given an opportunity effectively to challenge the basis of the allegations against him.” (ibid) The principle of equality of arms is not honored and the opportunity to effectively challenge the basis of the al- legation is not given to the detainee if exculpatory evidence is concealed. 12 Despite the extensive existing Strasbourg case law on the lawful basis for detention, Fair Trials has reported quite remarkable differences Anna Pivaty concerning the grounds for pre-trial detention among the Member States. Researcher, Maastricht University Fair Trials, “A Measure of Last Resort? The practice of pre-trial deten- tion decision-making in the EU, 2016”, , pp. 18–20, accessed 1 February 2019. 13 Reasonable suspicion is defined by the ECtHR as “the existence of facts or information which would satisfy an objective observer that the person concerned may have committed offence”. See e.g. ECtHR, 30 August 1990, Fox, Campbell and Hartley v. the UK, Appl. nos. 12244/86; 12245/86; 12383/86, para. 32. 14 See Y. Grozev, “National Approaches to Effective Defence: Bulgaria”, by stating that “as a general rule and without prejudice, in some cases, to in: E. Cape and Z. Namoradze (eds.), Effective Criminal Defence in Eastern special or simplified procedures, that that disclosure should take place, Europe, 2012, p. 104. and that the opportunity to have access to the case materials should be 15 CJEU, 28 June 2007, case C-467/05, Criminal proceedings against afforded, no later than the point in time when the hearing of argument on Giovanni Dell’Orto, para. 54. the merits of the charges in fact commences before the court that has 16 COM(2010) 392 final, op. cit. (n. 10), p. 9. jurisdiction to give a ruling on the merits.” (CJEU, Criminal proceedings 17 S. Allegrezza and V. Covolo, “The Directive 2012/13/EU on the Right against Nikolay Kolev and Others, op. cit. (n. 5), para. 92). to Information in Criminal Proceedings: Status Quo or Step Forward?“, 25 Here it is important to notice that the Directive limits disclosure to in: Z. Durdevic and E. Ivicevic Karas (eds.), European Criminal Procedure “material evidence”, but this may lead to a situation in which material rel- Law in Service of Protection of the Union Financial Interests: State of Play evant for the defence remains unrevealed as it is not used for the purposes and Challenges, 2016, p. 47; A. Tsagkalidis, “Directive 2012/13/EU on the of the court proceedings. See the recent rape cases in the UK in which Right to Information in Criminal Proceedings”, ERA, Krakow, 2 March 2017, undisclosed unused materials contained exculpatory evidence, leading to , p. 13, accessed 1 February 2019. “Review of the efficiency and effectiveness of disclosure in the criminal 18 Cf., for instance, CJEU, Criminal proceedings against Giovanni justice system. November 2018”, , accessed 10 March 2019. 20 CJEU, 24 November 2005, case C-136/04, Deutsches Milch-Kontor 26 European Commission, “Proposal for a Directive of the European Par- GmbH v. Hauptzollamt Hamburg-Jonas, para. 32. liament and of the Council on the right to information in criminal proceed- 21 The ECtHR has accepted these procedures on specific conditions: ings”, op. cit. (n. 10), p. 9. ECtHR, A. and others v. the UK, op. cit. (n. 9), paras. 209–211. 27 Directive 2013/48/EU on the right of access to a lawyer in criminal 22 In Kolev, the CJEU stated that the requirements of Article 7(3) are met proceedings and in European arrest warrant proceedings, and on the right if access to the case materials has been granted “after the lodging before to have a third party informed upon deprivation of liberty and to commu- the court of the indictment that initiates the trial stage of the proceedings, nicate with third persons and with consular authorities while deprived of but before that court begins to examine the merits of the charges and liberty, O.J. L 294, 6.11.2013, 1. before the commencement of any hearing of argument by that court, and 28 The excessive use of the ‘interest of investigation‘ clause has been after the commencement of that hearing but before the stage of delibera- reported by Fair Trials (Fair Trials, “Legal Experts Advisory Panel Survey tion where new evidence is placed in the file in the course of proceedings, Report: Access to the Case File, March 2015”, , pp. 16–17, 19, ac- ensure respect for the rights of the defence and the fairness of the pro- cessed 1 February 2019) and the European Union Agency for Fundamen- ceedings.” CJEU, Criminal proceedings against Nikolay Kolev and Others, tal Rights (FRA), “Rights of Suspected and Accused Persons Across the op. cit. (n. 5), para. 100. EU: Translation, Interpretation and Information”, 2016, p. 78 and figure 7 on 23 However, Fair Trials has reported that such enhanced or early access p. 79). to the case materials is often not provided, and therefore this situation 29 H.L. Packer, The Limits of the Criminal Sanction, 1968, pp. 149–173. needs improvement. Fair Trials, “The Disappearing Trial. Towards a rights- 30 ECtHR, 24 November 1993, Imbrioscia v. Switzerland, Appl. no. 13972/88, based approach to trial waiver systems”, , para. 29. pp. 80–81, accessed 10 March 2019. 31 Fair Trials, “Legal Experts Advisory Panel Survey Report”, op. cit. 24 The CJEU hinted in Kolev that the latest point in time for granting (n. 28); FRA, “Rights of Suspected and Accused Persons Across the EU”, access to case materials may vary depending on the type of procedure op. cit. (n. 28).

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Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)? What future for the EPPO in the EU’s Criminal Policy?

Adam Juszczak and Elisa Sason

The EPPO was established by Regulation 2017/1939, which entered into force on 20 November 2017, under enhanced coopera- tion to fight crimes affecting the Union budget. The Office is currently in the set-up phase with the aim of becoming operational at the end of 2020. On 12 September 2018, the Commission published a Communication on the extension of the EPPO’s compe- tences to cross-border terrorist crimes and invited the European Council to take this initiative forward at the informal summit in Sibiu on 9 May 2019. As a single, decentralised European prosecution office, the EPPO could become an effective tool in investigating, prosecuting and bringing to judgement terrorist crimes and add a European dimension to the current efforts. Compared to the present horizontal, multinational approach, the EPPO would create a vertical, European relationship amongst the Member States and Union actors. This could be a decisive qualitative improvement, which would help overcoming the divergences of effective investigation and prosecution of terrorist crimes across the EU. This article outlines the key aspects of the Communication, touches upon the procedural/legal steps needed for an extension of the EPPO’s competences, and discusses the potential legal and practical implications of such an extension. It sets out which aspects demand particular attention prior to a decision on an extension of the competences of the EPPO, thereby stressing that justice and security are inextricably linked and have to be looked at together. The authors point out that a narrower and more targeted approach, such as a gradual extension of the EPPO’s competences to financial crimes, organised crime or cybercrime could also be envisaged, while at a later stage other types of crimes, such as trafficking in human beings, trafficking in arms and eventually cross-border terrorist crimes, could be included.

I. Introduction Union address, where the EPPO is seen as a potentially effec- tive tool to fight cross-border terrorist crimes. On 9 May 2019, the European Council met in Sibiu, Romania, to discuss the future of Europe. This informal summit was the Although it is not the first time that the idea to empower the culmination of the process launched by President Juncker in future EPPO to fight terrorist crimes was voiced,7 President his 2017 State of the Union address,1 which included a road- Juncker’s remark came rather unexpectedly, given that at that map2 detailing the main steps towards a more united, stronger time the Council was still due to adopt the Regulation on the and more democratic EU. A fundamental role in this respect establishment of the EPPO (hereinafter “EPPO Regulation”), concerns the EU’s next strategic agenda for 2019 to 2024. One which gives the EPPO competence over crimes affecting the of the key aspects in this context relates to ensuring the securi- financial interests of the Union. Moreover, not all Member ty of EU citizens and in particular the fight against terrorism.3 States wished to participate, which is why the EPPO Regula- For the purpose of this summit, the Commission put forward tion was adopted under enhanced cooperation on 12 October an initiative4 on an extension of the competence of the newly 2017, after more than four years of complex negotiations. The established European Public Prosecutor’s Office5 (hereinafter EPPO Regulation also foresees a set-up phase of at least three “Communication”). years, meaning that the EPPO is currently in the midst of its build-up process and cannot take up its functions before the While the Commission’s White Paper on the future of Eu- end of 2020.8 rope6 reflects about the challenges that the Union is facing and in that context about an EU-wide prosecution office to The Communication forms part of a broader package of ambi- become competent for a range of crimes in general terms, tious measures complementing the Security Union and thus the initiative on the extension of the competences of the Eu- enhancing the security of the European citizens. It explores ropean Public Prosecutor’s Office (hereinafter “EPPO”) has the idea of tasking the EPPO with investigating, prosecuting its origins primarily in President Juncker’s 2017 State of the and bringing to judgement terrorist crimes – with a 2025 per-

66 | eucrim 1 / 2019 Fighting Terrorism through the European Public Prosecutor’s Office? spective.9 These reflections aim at launching a discussion on In this way, the EPPO will operate directly across all participat- a range of questions that need to be addressed prior to taking ing Member States, allowing for direct action and immediate a decision on the extension of the EPPO’s competence to ter- information exchange, coordinated police investigations, fast rorist crimes. freezing and seizure of assets and ordering of arrests across the EU. Moreover, the EPPO will operate on the basis of a The reactions to the Communication from the side of nation- permanent structure, i.e. there will be no need for ad hoc Joint al parliaments or national governments10 were rather mixed, Investigation Teams (JITs) or mutual legal assistance requests. some welcoming the initiative, others expressing their con- cerns. In general, it was stated that this initiative came too ear- The EPPO will also possess a unique overview over cross-bor- ly and further analysis on this equally complex and sensitive der criminal activity in the Union and beyond falling within matter was required. the remit of its material, territorial and personal18 competence. This will also enable the EPPO to develop a common investi- This article will outline the key aspects of the Communica- gation and prosecution strategy. tion (III.), touch upon the procedural/legal steps needed for an extension of the EPPO’s competences (IV.), discuss potential The Office will work hand in hand with national law enforce- legal and practical implications of such an extension (V.), and ment authorities and exercise the function of prosecutor in the conclude with a number of observations (VI.). Beforehand, competent courts of the participating Member States. In carry- this article will recall the main features of the EPPO in its cur- ing out its mandate, the EPPO will also closely cooperate with rent design11 and provide a brief state of play of its set-up pro- EU agencies and bodies, such as Eurojust, Europol, and the cess (II.). European Anti-Fraud Office (OLAF).

As the only prosecution body at Union level, the EPPO seems II. The EPPO de lege lata and State of Play also ideally placed to cooperate with third countries, thereby of the Set-Up Process building on the provisions of the EPPO Regulation related to 1. The EPPO in a nutshell international cooperation as well as the legal framework that will be created on that basis.19 Once operational, the EPPO The EPPO is an independent European prosecution office cre- will become an integral part of the Union’s security architec- ated to fight crimes affecting the financial interests of the Un- ture and draw upon the existing experience and best practices ion, as defined in Directive 2017/1371 (“PIF Directive”).12 This at national and EU level. includes crimes, such as fraud, corruption, money laundering or complex VAT carousels, as well as crimes related to the par- ticipation in a criminal organisation,13 if the focus is to commit 2. State of play of the set-up process crimes that affect the financial interests of the Union, and, even- tually, any other criminal offence that is inextricably linked to a Art. 20 of the EPPO Regulation provides that the Commis- crime affecting the financial interests of the Union.14 sion is responsible for the establishment and initial administra- tive operation of the EPPO, until the latter has the capacity to The EPPO was established under enhanced cooperation in ac- implement its own budget. To that end, the Commission has cordance with the procedure provided in Art. 86 of the Treaty taken a wide range of preparatory steps towards setting up the on the Functioning of the European Union (TFEU), with cur- EPPO, in close consultation with a group of experts composed rently 22 participating15 Member States.16 On 3 April 2019, of representatives of the participating Member States (EPPO Sweden’s Prime Minister, Stefan Löfven, announced in the Expert Group).20 European Parliament that the Swedish Government will pro- pose to the Swedish Parliament that Sweden joins the EPPO, This preparatory work relates to the recruitment of the key although there is no indication when this would happen.17 EPPO staff, in particular the European Chief Prosecutor and the European Prosecutors,21 the development of the EPPO The EPPO’s structure consists of two levels. The central level Case Management System, the premises for the seat of the fu- is located at the EPPO’s seat in Luxembourg, where the Eu- ture EPPO in Luxembourg, the preparation of the 2019 and ropean Chief Prosecutor and European Prosecutors from each 2020 budgets, and many other logistical, administrative, fi- participating Member State – organised in Permanent Cham- nancial and legal matters. The Commission has consulted the bers – monitor and supervise the investigations and prosecu- EPPO Expert Group on these matters and in this context also tions carried out by European Delegated Prosecutors located discussed the necessary adaptations to be made in national law in the Member States. following the adoption of the EPPO Regulation.22

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Currently the Council and the Parliament are in the process The Communication supports this view by making reference of agreeing on a common candidate for the post of European to the growing caseload of Eurojust in the area of terrorist Chief Prosecutor. As regards the selection procedure of the crimes, stressing that cases are being investigated and pros- European Prosecutors, the Commission invited the Member ecuted in parallel and in isolation in several Member States. In States to start their national selection procedure and nominate addition, the Communication underlines that both Eurojust26 three candidates per Member State by the end of March 2019. and Europol27 primarily support the national authorities and The selection procedure of the European Prosecutors is cur- are also not equipped with the required powers to proactively rently also ongoing and the selection panel referred to in Ar- carry out coordinated prosecutions at the EU level. The Com- ticle 14(3) of the EPPO Regulation23 will hear the nominees mission then outlines how the EPPO could provide a compre- and provide reasoned opinions on the 66 candidates,24 in order hensive Union response to enhance the fight against cross-bor- for the Council to appoint the European Prosecutors from the der terrorist crimes. Particularly, the EPPO as a single office 22 participating Member States by the end of 2019. According acting through the European Delegated Prosecutors, who are to the Commission’s timelines, the EPPO shall become func- embedded in the national legal systems, could bridge the gaps tional at the end of 2020. in the national systems and provide better cooperation within and between the Member States at the EU level.

III. Extension of the EPPO Competence: Key Aspects of the Commission Communication 2. Deficient sharing of information

The Commission presented the above-mentioned initiative to The timely sharing of information is important in any criminal extend the competences of the EPPO as its vision of estab- investigation, yet crucial in terrorist crimes, which require im- lishing a comprehensive and structured Union response to the mediate and targeted action by all law enforcement and judi- threat of terrorism. This should include the investigation and cial authorities. By obtaining information directly and through prosecution of terrorist offences across the Union. ordering or requesting the collection of relevant evidence, the EPPO may be in a central position to react to terrorist offences While acknowledging that decisive action and measures have across the EU, as well as to cooperate with third countries or already been taken in the fight against terrorism,25 the Com- international organisations as the entity in charge. munication sets out a number of gaps in the investigation and prosecution of cross-border terrorist crime in the EU, which, in the Commission’s view, have not yet been addressed within 3. Disintegrated approach in the investigation and pros- the existing framework. The Communication subsequently out- ecution phases lines how the EPPO, as a novel EU approach, could address these gaps. The identified gaps relate to the following aspects: The Communication further points to the lack of a central au- „„Fragmentation of terrorist crime investigations at the na- thority at Union level, with the ability to direct both the inves- tional level (below 1.); tigation and prosecution phases of cross-border terrorist cases. „„Deficient sharing of information (below 2.); Such a central authority would provide a smooth cooperation „„Disintegrated approach in the investigation and prosecution mechanism between all national and Union authorities in- phases (below 3.); volved and would operate in a far more efficient and effective „„Potential conflicts of jurisdiction (below 4.). manner than is the case today. According to the Communica- tion, the EPPO would be such a central authority allowing for a more connected and coordinated investigation and prosecu- 1. Fragmentation of terrorist crime investigations tion approach. In this way, the EPPO could also tackle existing at the national level shortcomings following from parallel and fragmented investi- gations/prosecutions in terrorist cases. The first gap identified by the Commission relates to the fact that national authorities are exclusively responsible for investigating, prosecuting and bringing to judgement terrorist crimes, although 4. Potential conflicts of jurisdiction these crimes very often have a cross-border nature. The result is a variety of different national approaches in the investigation Lastly, the Communication refers to potential risks of conflicts and prosecution of terrorist crimes, accompanied by a deficient of jurisdiction, which may occur in situations where several exchange of case-related information and lack of coordination/ affected Member States want to exercise jurisdiction in rela- cooperation between the authorities of different Member States. tion to the same terrorist offence on different grounds, for ex-

68 | eucrim 1 / 2019 Fighting Terrorism through the European Public Prosecutor’s Office? ample the victim’s or offender’s nationality or territorial com- EPPO’s competence may only be extended in relation to seri- petence. The Communication underlines that in cross-border ous crimes affecting “more than one Member State”. terrorist cases, there is a specific need for an adequate Union mechanism, also in view of avoiding problems related to the Although Art. 86(4) TFEU does not foresee that the European ne bis in idem principle. Council acts on a proposal from the Commission, this does not prevent the Commission from taking an initiative under Against this background, the Commission argues that the Art. 17(1) of the Treaty on European Union (TEU). And in- EPPO would be able to ensure a coherent and effective ap- deed, the Commission put forward a draft European Coun- proach in the prosecution of terrorist crimes. Given its nature cil Decision, proposing the necessary amendments to para- as the only Union-level actor to decide on the basis of objec- graphs 1 and 2 of Art. 86 TFEU.28 tive criteria where to bring a case to court, the EPPO could prevent or reduce possible conflicts of jurisdiction and thus As a second step, separate from the European Council’s de- avoid unnecessary litigation. cision to amend Art. 86 TFEU, the EPPO Regulation would need to be modified accordingly so as to include the com- petence over cross-border terrorist crimes. Such amendment IV. Procedural and Legal Steps for an Extension must, inter alia, take into account the requirement that more of the Competences than one Member State needs to be affected, and introduce the possible adaptations that might be required for the EPPO’s ac- The Communication only briefly touches upon the legal and tivities concerning terrorism being effective. In that legislative procedural requirements for an extension of the EPPO’s com- procedure, the principles of subsidiarity and proportionality petences to cross-border terrorist crimes. The central provision will be examined.29 is Art. 86(4) TFEU, which foresees a simplified Treaty amend- ing procedure. An envisaged extension of the competences of The circumstance that the current EPPO Regulation was the EPPO would need to take place in two steps. adopted under enhanced cooperation raises a number of legal questions. The Communication outlines, for instance, that it As a first step, the European Council would need to adopt a would not be possible to have a “variable geometry” within decision amending paragraphs 1 and 2 of Art. 86 TFEU in the EPPO in a way that Member States would participate order to extend the powers of the EPPO to include “serious in different parts of its competence. According to Art. 86(4) crimes having a cross-border dimension” and as regards the TFEU, the decision of the European Council “to extend the perpetrators of, and accomplices in, serious crimes affecting powers of the European Public Prosecutor’s Office” does more than one Member State. For that purpose the European not amount to the establishment of a new or second EPPO Council would need to “act unanimously after obtaining but to a modification of the competences of the existing EU the consent of the European Parliament and after consult- body. Given that the EPPO was established by enhanced co- ing the Commission”, whereby the term “unanimously” in operation, the EPPO Regulation would have to be amended Art. 86(4) TFEU refers to all EU Member States, and not by all and for all the participating Member States. In addi- only to those participating in the enhanced cooperation of tion, non-participating Member States that would join the the EPPO. This even includes the Member States, which do EPPO at a later stage would have to participate in it as a not, by virtue of Protocols 21 and 22, take part in the adop- whole, and could not limit their participation to a particular tion of measures by the Council under Title V of Part Three area of the EPPO’s competence. of the TFEU, i.e. Denmark, Ireland, and – unless Brexit hap- pens – also the UK. V. Implications of an Extension The European Council may amend Art. 86(1) TFEU to extend the material competence of the EPPO to all, some or only one Extending the EPPO’s competence to cross-border terror- of the “serious crimes having a cross-border dimension”. This ist crimes would demand an in-depth analysis of how and notion includes the “particularly serious crime[s] with a cross- to which extent the current framework of the EPPO – which border dimension” referred to in Art. 83(1) TFEU and listed in is tailor-made to combat crimes affecting the Union budget the second subparagraph of this provision. It is hence legally – would need to be adapted in order for the EPPO to fight possible to extend the competence only to one of those crimes, these crimes as a single investigatory and prosecutorial office. e.g. terrorism. Further to that, the amendments to Art. 86(1) Terrorism cases differ from other types of criminal cases due and (2) TFEU would also need to reflect the additional require- to their inherent degree of complexity and the need for quick ment laid down in Art. 86(4) TFEU, according to which the and efficient multilateral action. Swift exchange of informa-

eucrim 1 / 2019 | 69 Evidence Gathering – Current Legal Issues tion and evidence, accelerated execution of mutual legal as- 2. Structure and decision-making procedures sistance and extradition requests, European Arrest Warrants (EAWs) and European Investigation Orders (EIOs), as well Similar considerations as above apply to the present structure as setting up Joint Investigation Teams (JITs) are crucial as- of the EPPO. The involvement and the roles of the various pects for a successful operation of the EPPO in the field of actors of the EPPO, such as the European Chief Prosecu- terrorism. Investigations in terrorist crimes generally involve tor, the European Prosecutors, the Permanent Chambers and significant human, technical and logistical resources. Further- the European Delegated Prosecutors, in the investigations more, it should be recalled that a European criminal procedure and prosecutions need to be carefully analysed with a view code does not exist and that the EPPO will need to rely to a to assess whether this structure would fit the purpose of in- great extent on national law in order to carry out its investiga- vestigating and prosecuting cross-border terrorist crimes. A tions and prosecutions.30 The following remarks highlight the greater empowerment of the European Chief Prosecutor and/ relevant areas, which would require a careful assessment in the or the European Prosecutors or a greater specialisation of the event that the EPPO’s mandate would be extended to include Permanent Chambers should be considered.34 Moreover, the cross-border terrorist crimes. It is obvious that this list is not multi-layered structure of the EPPO, as foreseen in the EPPO exhaustive. Regulation, may also need to be revisited from the perspective of the decision-making procedures. This relates in particular to the division of decision-making powers between the Per- 1. Competence manent Chambers and the European Delegated Prosecutors, and the role of the European Prosecutors in between these two. With regard to the material competence of the EPPO, the Communication suggests a targeted extension by simply adding a new paragraph in Art. 22 of the EPPO Regulation, 3. Investigation measures which would make reference to Artt. 3 to 13 and 14 of Direc- tive 2017/541 on combatting terrorism.31 The EPPO Regula- While the EPPO Regulation includes a comprehensive set of tion follows this approach for the PIF crimes currently falling investigation measures, allowing the EPPO to efficiently tack- within the EPPO’s material competence.32 The Communi- le crimes affecting the Union budget, it will be necessary to cation further clarifies that the requirement from Art. 86(4) assess whether the tools at the EPPO’s disposal will suffice TFEU, namely that the crimes need to affect more than one to fight terrorist crimes or whether additional measures would Member State, could be accommodated under the definitions be required. Due to the complex and specific nature of terror- in the EPPO Regulation. ist crimes, it may be required to broaden the scope of the in- vestigation measures that the European Delegated Prosecutors Whether such quick solution would indeed suffice or whether have at their disposal in EPPO investigations. there would be a need for greater precision in formulating the competences in the area of cross-border terrorist crimes in the Art. 20 of Directive (EU) 2017/541 on combatting terrorism EPPO Regulation, so as to avoid potential conflicts of com- goes in this direction when it stipulates that Member States petences, legal uncertainties and frictions in the investigation need “to ensure that effective investigative tools, such as those and prosecution of these crimes, will require careful analysis. which are used in organised crime or other serious crime cas- es, are available to persons, units or services responsible for This includes the question of the scope and limits of the el- investigating or prosecuting” terrorist and terrorist-related of- ements of crime, including the cross-border element, e.g. fences. Accordingly, one could consider adding to or expand- whether this would include preparatory acts to have taken ing the EPPO’s powers to make use of certain investigation place in another EU Member State and if so which; whether measures, such as interception of telecommunications, real- accomplices need to be located and act in another country; or time surveillance measures, covert investigations, inspecting whether transnational money transfers need to have been made means of transport, identification measures and measures to in support of or related to the terrorist act in order to constitute track and control persons. a cross-border terrorist crime; and eventually whether, by way of a broader approach, e.g. the nationality of victims should Enhancing the investigatory powers of the EPPO in order to also become a constitutive element, etc. In the same direction, include measures of specific relevance to carry out investi- a terrorist act solely based on the motivation to replicate simi- gations and prosecutions into terrorist crimes would equally lar terrorist crimes that have taken place in another country demand an assessment of the impact on the procedural rights could, as such, possibly fall outside the scope of cross-border of suspects and accused persons in such proceedings (see be- terrorist crime.33 low under 5.).

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4. Collection of evidence the impact on legal proceedings, it is indispensable to assess whether and to which extent an enhancement of the rights for Throughout the investigations and prosecutions carried out suspects and accused persons in EPPO proceedings focused by the EPPO, the principle of free admissibility of evidence on terrorism is indicated irrespective of a potential widening applies as an overarching element.35 Evidence against the de- of the investigatory powers of the EPPO as elaborated above. fendant presented by EPPO prosecutors to a national court cannot be denied admission on the ground that it was col- lected in another Member State. The trial court is, however, 6. Information flows allowed to examine the admissibility of the evidence, so as to ensure that its admission is not incompatible with Member An extension of the EPPO’s competence to cross-border ter- States’ obligations to respect the fairness of the procedure, rorist crimes would have an impact on various other areas. the rights of defence, or other rights of the defendants, as Such an extension would, on its own, not solve shortcomings enshrined in the Charter of Fundamental Rights, in accord- in information and intelligence sharing in the investigation of ance with Art. 6 TEU. Whether and if so to which extent the terrorist crimes. Throughout its operations, the EPPO will need principle of free admissibility of evidence should be further to rely on information from all available sources, including in- developed or strengthened in the event that the EPPO would telligence. Allowing the EPPO to fight cross-border terrorist investigate and prosecute terrorist crimes, requires further as- crimes hence requires a comprehensive approach, including sessment. Should the free admissibility of evidence become the development of common rules on various security-related the future principle of the EU’s criminal policy? It is clear matters, such as, rules on the collection and sharing of infor- that the collection of evidence across borders within the EU mation, access to databases, and use of special investigation is becoming more important and that prosecutors and judg- measures. In addition questions related to rules on detention es are more and more relying on the evidence collected in and penitentiary as well as juvenile justice must be addressed other Member States. An EU instrument providing common and resolved. standards on the collection, handling and transfer of evidence could be envisaged in the future. Such rules could be applied The EPPO would need to be granted access to the relevant to certain procedures or certain types of evidence, for exam- information held by national authorities, including Financial ple e-evidence or forensic evidence. Intelligence Units, which deal with suspicious transactions in- volving the financing of terrorism, as well as immigration offic- es, asylum offices, or border security offices. The EPPO would 5. Procedural rights in EPPO proceedings also need to be granted access to relevant information held by Eurojust and Europol, either through the exchange of liaison The EPPO Regulation offers a wide protection for suspects officers or by way of direct and secure access to databases and and accused persons involved in EPPO investigations and registers or through a pooling of the relevant expertise and prosecutions.36 The EPPO’s activities will be carried out in full information. To that end, the interconnectivity possibilities compliance with the Charter of Fundamental Rights of the EU, between the EPPO’s Case Management System and other including the right to a fair trial and the rights of defence.37 IT systems, would need to be explored and further developed. Suspects and accused persons can rely, at a minimum, on the existing or new EU acquis, which includes the Directives con- cerning the rights of suspects and accused persons in crimi- 7. Security aspects nal investigations, ranging from the right to interpretation and translation in criminal proceedings, over the right to informa- An important aspect in the above-mentioned context concerns tion and access to the case file, the right of access to a lawyer, security. Consideration is to be given to security standards, in- the right to remain silent and the right to be presumed innocent cluding physical and perimeter security of the EPPO and its to the right to legal aid.38 Moreover, suspects and accused per- staff, as well as to the secure treatment of intelligence or soft sons as well as other persons involved in EPPO proceedings, information for the purpose of criminal investigation, which may seek recourse to all procedural rights available under na- would be of far greater relevance in the context of investigat- tional law. The EPPO Regulation also includes the possibility ing and prosecuting cross-border terrorist crimes compared to to present evidence, appoint experts, hear witnesses, or request PIF crimes. Allowing the EPPO to work with a wide range of the EPPO to obtain such measures on behalf of the defence. All information coming from different sources, including intelli- these rights would also be applicable to suspects and accused gence and whistleblowers, would also require that the EPPO persons in possible EPPO investigations into cross-border ter- Case Management System is adapted to safely processing such rorist offences. Given the serious nature of these crimes and information.

eucrim 1 / 2019 | 71 Evidence Gathering – Current Legal Issues

8. Budgetary and staffing considerations ensure that resources are used in the most efficient way. New cooperation models between the various EU bodies would As outlined in the Communication, since the EPPO is currently need to be established in order to create the desired synergy competent for fighting crimes affecting the Union budget, any effects. This could include e.g. developing an effective crime extension of the EPPO’s mandate could have significant impli- analysis capability at EU level, which could be a significant cations on the EPPO’s budget and staffing. This does not only advantage in the context of sharing information. In the same relate to an increased workload with the addition of a completely vein, it should be considered that the EPPO is empowered to new area of competence but in particular also in relation to secu- instruct Europol to perform crime analysis for it.40 rity, which may require additional (specialised) staff and techni- cal solutions with a considerable financial impact. The extent of From a practical point of view, the existing tools available at these implications depends also on the adaptations that would both Eurojust and Europol play a crucial role in investigat- have to be made to the EPPO, e.g. the creation of a separate ing and prosecuting terrorist crimes. What may appear to be a department within the EPPO or the introduction of specialised purely national case, may turn out to be a large multi-national Permanent Chambers focused on fighting terrorist crimes. Any criminal offence from the perspectives of Eurojust and Eu- possible synergy effects stemming from the extension of the ropol, although the powers of these two bodies are entirely EPPO’s mandate would need to be assessed accordingly. different in nature compared to EPPO. In any case, the special tools of Eurojust and Europol are of great use in making the fight against terrorist crimes more effective and this is some- 9. Impact on national authorities and EU bodies, thing the EPPO would greatly profit from. in particular Eurojust and Europol Further synergies may be created through a functional prox- An extension of the EPPO’s competence to terrorist crimes imity between Eurojust, Europol and the EPPO as far as the would have an impact on the current tasks and roles of Eu- fight against cross-border terrorist crimes is concerned. An op- ropol and Eurojust, as well as on relevant national authori- tion in this context could be to build the EPPO on the broad ties. Establishing a close relationship between the EPPO and mandate and experience of Eurojust in the area of fighting ter- the other relevant actors, and generating synergies, would be rorist crimes, by allowing these two EU bodies cooperate as prerequisites for the EPPO to become an essential part of closely as needed and possible.41 In the long term, the option the EU-wide approach to fighting terrorist crimes. One of the of bringing Eurojust and the EPPO under one roof could also key questions to consider with respect to national authorities be envisaged. is which powers the EPPO would need to have in order to di- rect the work of national authorities in the area of security. It is of note that Art. 4(2) TEU, which specifies that national se- VI. Conclusions curity remains the sole responsibility of the Member States, would need to be taken into consideration in this context. While the focus should ideally lie on preventing terrorist crimes, it is clear that terrorism cannot be addressed through The EPPO, Eurojust and Europol have different tasks and dif- prevention only – an absolute prevention of terrorism is not ferent mandates. While the EPPO will be a European investi- possible. Where prevention fails, an effective judicial response gating and prosecuting body, Eurojust is an agency support- at prosecution level must be safeguarded. The Union needs to ing and strengthening the coordination of investigations and ensure an equal level of protection through preventive as well prosecutions and cooperation between the competent national as prosecution measures. authorities in relation to serious crime, including terrorist of- fences, affecting two or more Member States. Europol is the The EPPO, as a single, decentralised European prosecution Union agency which supports and strengthens action by com- office, could become an effective tool in investigating, pros- petent national police authorities and their mutual cooperation ecuting and bringing to judgement terrorist crimes and add a in preventing and combatting serious crime affecting two or European dimension to the current efforts. Compared to the more Member States, including terrorism. present horizontal, multinational approach, the EPPO would create a vertical, European relationship amongst the Member Given the current tasks and practical experience of Eurojust States and Union actors. This could be a decisive qualitative and Europol in the area of fighting terrorism,39 an extension of improvement, which would help overcoming the divergences the EPPO’s competences to terrorist crimes would have to be of effective investigation and prosecution of terrorist crimes carefully assessed in order to avoid duplication of work and to across the EU.

72 | eucrim 1 / 2019 Fighting Terrorism through the European Public Prosecutor’s Office?

The following features of the EPPO underpin that the Office The EPPO Regulation foresees that five years after the start of would be well placed to effectively investigate and prosecute its operations, the Commission is required to submit an evalu- terrorist crimes: ation report on the implementation and impact of the EPPO „„A decentralised structure, with the European Delegated Regulation, as well as on the effectiveness and efficiency of Prosecutors embedded in the national systems of the Mem- the EPPO and its working practices.42 Awaiting this evaluation ber States and working hand in hand with national law en- prior to taking a decision on extending the EPPO’s mandate forcement authorities; could also be envisaged, although such approach could be con- „„A central office able to develop a coherent prosecution pol- sidered as not flexible enough and not suitable to tackle the icy to fight terrorist crimes and steer the investigations and immediate problems in the fight against terrorism. prosecutions carried out by the European Delegated Pros- ecutors, while having a unique overview over the criminal For sure the Commission Communication has triggered a de- activity across the Union; bate on this important subject at the political level as well as „„Close cooperation with EU actors, such as Eurojust and amongst practitioners and academics. It illustrates that securi- Europol. ty and justice aspects cannot be looked at separately, but holis- tically. It is also clear that the fight against cross-border terrorist Despite the added value the EPPO could bring, the Leaders at crimes is resource intensive and the EU would need to ensure the summit in Sibiu on 9 May 2019 did not discuss this matter that the EU bodies involved in the fight against cross-border ter- and did not decide in favour of an extension of the EPPO’s rorist crimes, such as Eurojust, Europol and – should such de- competences to cross-border terrorist crimes. cision be taken in the future – the EPPO, receive all necessary resources to fulfil their mandates and carry out their important There might be good reasons for allowing the EPPO, which is tasks in protecting the European citizens. The same applies to the still in the process of being set up, to first settle into the exist- Member States in relation to their national authorities. ing judicial landscape and establish smooth cooperation with other EU actors, as well as with the national authorities, which What may also be envisaged is a narrower and more targeted will be vital for its functioning in practice, before taking a de- approach, e.g. a gradual extension of the EPPO’s competenc- cision on extending its mandate. Any extension would require es, starting with areas that show a strong connection with PIF an in-depth analysis of the legal and practical requirements crimes, such as financial crime in general, organised crime or taking account of the political dimension. Lessons learned cybercrime. At a later stage, other types of crime, such as traf- from the valuable work of Eurojust and Europol could feed ficking in human beings, trafficking in arms, and ultimately into this. cross-border terrorist crimes could be included.

* The views set out in this article are those of the authors and do not nec- 26 September 2017. essarily reflect the official opinion of the European Commission. 8 Article 120 of the EPPO Regulation foresees that the EPPO assumes 1 Cf. the SOTEU 2017 package under https://ec.europa.eu/commission/ its investigative and prosecutorial tasks on a date to be determined by a priorities/state-union-speeches/state-union-2017_en decision of the Commission on a proposal of the European Chief Prosecu- 2 Cf. the Roadmap under https://ec.europa.eu/commission/sites/beta- tor once the EPPO is set up. As this date cannot be earlier than three years political/files/roadmap-factsheet-tallinn_en.pdf after the entry into force of the EPPO Regulation, the EPPO cannot take up 3 Cf. the Strategic Agenda 2019–2024 – outline under https://www. its functions before the end of 2020. consilium.europa.eu/media/39291/en_leaders-agenda-note-on-strategic- 9 Cf. the Communication, op. cit. n. 7, p. 1. agenda-2019-2024-0519.pdf 10 The following national Parliaments issued an opinion on the Communi- 4 Communication from the Commission to the European Parliament and cation: Czech Senate, German Bundestag and Bundesrat, Dutch Tweede the European Council – A Europe that protects: an initiative to extend the Kamer, Romanian Camera dei deputati, and the Swedish Riksdag (to be competences of the European Public Prosecutor’s Office to cross-border found on the respective websites of the national Parliaments). terrorist crimes (hereinafter the “Communication”), 12 September 2018, 11 Cf. on the EPPO also P. Csonka/A. Juszczak/E. Sason, “The Establish- COM(2018) 641 final. See also T. Wahl, eucrim 2/2018, 86–87. ment of the European Public Prosecutor’s Office – The Road from Vision to 5 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing Reality”, (2017) eucrim , 125–135. enhanced cooperation on the establishment of the European Public Pros- 12 The criminal offences falling within the material competence of the ecutor’s Office (the ‘EPPO’), O.J. L 283, 31.10.2017, pp. 1–71. EPPO are defined in Directive (EU) 2017/1371 of the European Parliament 6 Cf. White Paper on the Future of Europe – Reflections and scenarios for and of the Council of 5 July 2017 on the fight against fraud to the Union’s the EU27 by 2025, p. 20 where scenario 3 mentions a “joint public prosecu- financial interests by means of criminal law,O.J. L 198, 28.7.2017, p. 29. See tor’s office” to investigate fraud, money laundering and the trafficking of for this Directive A. Juszczak and E. Sason, “The Directive on the Fight to drugs and weapons. the Union’s Financial Interests by Means of Criminal Law (PIF Directive)”, 7 This idea was put forward e.g. by Italy’s then Minister of Justice (2017) eucrim, 80–87. Orlando in a letter to Justice Commissioner Jourova and the Estonian Min- 13 Cf. Art. 22(2) of the EPPO Regulation and Council Framework Decision ister of Justice Reinsalu during the Estonian Presidency in the second half 2008/841/JHA of 24 October 2008 on the fight against organised crime,O.J. of 2017, as well as by French President Macron in his Sorbonne speech on L 300, 11.11.2008, p. 42.

eucrim 1 / 2019 | 73 Evidence Gathering – Current Legal Issues

27 Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforce- Adam Juszczak ment Cooperation (Europol) and replacing and repealing Council Deci- Desk Officer for the EPPO Regulation and the sions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, O.J. L 135, 24.5.2016, p. 53–114. PIF Directive, Directorate General for Justice, 28 This draft European Council decision has only two articles. The first Consumers and Gender Equality, European article provides for the substantial amendments, while the second merely Commission governs the entry into force. Article 1 of the draft European Council deci- sion reads as follows: Article 1 Article 86 of the Treaty on the Functioning of the European Union (TFEU) is amended as follows: “1) In paragraph 1, the first subparagraph is replaced by the following: Elisa Sason ‘1. In order to combat terrorism and crimes affecting the financial Desk Officer for the EPPO Regulation and the interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a Eu- PIF Directive, Directorate General for Justice, ropean Public Prosecutor’s Office from Eurojust. The Council shall act Consumers and Gender Equality, European unanimously after obtaining the consent of the European Parliament.’ Commission 2) Paragraph 2 is replaced by the following: ‘2. The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgement, where appro- priate in liaison with Europol, the perpetrators of, and accomplices in, offences of terrorism affecting more than one Member State and 14 Art. 22(3) of the EPPO Regulation. offences against the Union’s financial interests, as determined by the 15 At the time of adoption of the EPPO Regulation the following 20 Mem- regulation provided for in paragraph 1. It shall exercise the functions of ber States participated in the EPPO: Austria, Belgium, Bulgaria, Croatia, prosecutor in the competent courts of the Member States in relation to Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Italy, such offences.’” Latvia, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia and 29 According to the Commission’s proposal for the Regulation on the Spain. On 1 August 2018, the Commission confirmed the Netherlands as establishment of the EPPO, COM(2013) 534 final of 17.7.2013, the EPPO the 21st EU Member State (Commission Decision (EU) 2018/1094) and on was already subject to the review under Protocol No 2. Cf. in this regard 7 August 2018, the Commission confirmed Malta as the 22nd EU Member the Communication from the Commission to the European Parliament, the State in the enhanced cooperation (Commission Decision (EU) 2018/1103). Council and the national Parliaments on the review of the proposal for a 16 EU Member States not participating at this stage are: Denmark, Council Regulation on the establishment of the European Public Prosecu- Hungary, Ireland, Poland, Sweden and the United Kingdom. Among those tor’s Office with regard to the principle of subsidiarity, in accordance with six Member States, Sweden, Poland and Hungary can notify any time their Protocol No 2, COM(2013) 851 final of 27.11.2013. wish to join the EPPO, whereas Ireland and the UK have a special “opt-in” 30 Cf. Art. 5(3) of the EPPO Regulation. regime (Protocol 21), and Denmark has a special “opt-out” regime (Proto- 31 Directive (EU) 2017/541 of 15 March 2017 on combatting terrorism col 22). and replacing Council Framework Decision 2002/475/JHA and amending 17 Cf. for further references https://multimedia.europarl.europa.eu/en/ Council Decision 2005/671/JHA. In accordance with Art. 28(1) of Directive visit-of-stefan-lofven-swedish-prime-minister-ep-plenary_2019043_EP- (EU) 2017/541 Member States were to transpose Directive (EU) 2017/541 0878861A_WT5_009_p. by 8 September 2018. 18 Cf. Art. 23 of the EPPO Regulation. 32 Cf. above part II.1. 19 It is of note in this context that the EPPO was presented and discussed 33 The same applies also to formulating the territorial and personal at the meeting of the Committee of Experts on the Operation of European competence of the EPPO. The Communication acknowledges that these Conventions on Cooperation in Criminal Matters (PC-OC), Council of aspects need to be carefully looked into in order to establish the compe- Europe on 29 May 2019. tence of the EPPO for cross-border terrorist crimes. 20 Register of Commission Expert Groups and Other Similar Entities, 34 At the same time, in some areas there is a demonstrated need for spe- X03578 – EPPO Expert Group pursuant to Art. 20(4) of Council Regulation cialisation through the creation of specialised units within the prosecution (EU) 2017/1939. office, e.g. in the area of core international crimes. 21 Cf. also Council Decision (EU) 2018/1275 of 18 September 2018 appoint- 35 Cf. Art. 37 and the accompanying recital 80 of the EPPO Regulation. ing the members of the selection panel provided for in Article 14(3) of Reg- 36 Cf. Art. 41 of the EPPO Regulation. ulation (EU) 2017/1939, O.J. L 238, 21.9.2018, p. 92, and Council Implement- 37 Ibid. ing Decision (EU) 2018/1696 of 13 July 2018 on the operating rules of the 38 For overviews of these Directives, see the following articles in eucrim: selection panel provided for in Article 14(3) of Regulation (EU) 2017/1939 S. Cras and L. De Matteis, eucrim 4/2010, 153; S. Cras and L. De Matteis, implementing enhanced cooperation on the establishment of the European eucrim 1/2013, 22; S. Cras, eucrim 1/2014, 32; S. Cras and A. Erbežnik, Public Prosecutor’s Office (‘the EPPO’), O.J. L 282, 12.11.2018, p. 8. eucrim 1/2016, 25; S. Cras, eucrim 2/2016, 109; and S. Cras, eucrim 1/2017, 22 Cf. the articles on implementation of the EPPO Regulation in national 35. law by Dubarry/Wachenheim, Herrnfeld, and Villas Alvarez in eucrim 39 Cf. in this context also Eurojust Press Release of 21 June 2018 with 2/2018. further references: http://www.eurojust.europa.eu/press/PressReleases/ 23 Cf. note 21. Pages/2018/2018-06-21.aspx. In this Joint Statement a number of Member 24 According to Art. 16 of the EPPO Regulation, the 22 participating Mem- States call for the creation of a European Judicial Counter-Terrorism ber States shall each nominate three candidates for the post of European Register to be kept at Eurojust. Prosecutor. 40 Art. 102 of the EPPO Regulation already provides that the EPPO “may 25 Cf. the Progress Reports towards an effective and genuine Security also ask Europol to provide analytical support to a specific investigation Union, the most recent of 20.3.2019, COM(2019) 145 final. conducted by the EPPO”, but the instruction power envisaged here would 26 Regulation (EU) 2018/1727 of the European Parliament and of the require amending the Europol Regulation as well. Council of 14 November 2018 on the European Union Agency for Criminal 41 Recalling Art. 86 TFEU, which states that the EPPO may be established Justice Cooperation (Eurojust), and replacing and repealing Council Deci- “from Eurojust”. sion 2002/187/JHA, PE/37/2018/REV/1, O.J. L 295, 21.11.2018, p. 138–183. 42 Art. 119(1) of the EPPO Regulation.

74 | eucrim 1 / 2019 European Crime Prevention Network

Report

The European Crime Prevention Network: Preventing Individual Fraud in the EU A Report on a New Toolbox

The European Crime Prevention Network (EUCPN) was set up by the Council of the European Union in 2001 (Council Decisions 2001/427/JHA and 2009/902/JHA). For EU Member States, the EUCPN is a first point of con- tact for crime prevention. The Network collects and disseminates expertise and best practices. The con- tinually evolving thematic focus of the EUCPN reflects the priorities of the EU Policy Cycle, on the one hand, and the EUCPN presidency’s priority, on the other. This presidency rotates with that of the Council of the EU. The EUCPN’s output includes toolboxes aimed at local and national practitioners alongside theoretical, research, and policy papers. The toolboxes contain informative studies for practitioners to use, which provide an overview of the problem, present current good practices, and make concrete recommendations for preventive actions. The 13th toolbox in the series published by the EUCPN Secretariat deals with the prevention of individual fraud, after it had been the focal topic of the Bulgarian Presidency in 2018. The following report summarises the main findings on the phenomenon in the EU, best practices, and recommended prevention measures. The full report is available at: .

Individual fraud means that individual citizens are tar- to adopt a more tailored approach. Increasingly, the lat- geted by criminals. Victims are persuaded into a coop- ter seems to be the case. Scammers have come to real- erative mindset and defrauded afterwards. Our current ize that by cleverly targeting their victims, their “return understanding of this type of fraud is mainly linked to its on investment” is higher. Phishing emails are becoming contemporary online forms, with phishing as the most more and more sophisticated and addressed to a singled- common example. However, it is important to realize that out target (group). The surprising last step in this trend individual fraud has been around for ages. The techno- involves a combination of new and old technology: the logical developments of the past decades have allowed telephone. Vishing or voice phishing combines the ad- these scams to be industrialised on a much larger scale vantages of both the internet and the telephone. Making than ever deemed possible. Who has not received a an online phone call entails almost no costs, is harder phishing e-mail in his or her life? to trace, and can be made automatically. Using the tel- Victims actively participate in their victimisation. The of- ephone has additional benefits: people trust it and, due fender sets his eyes on the victim’s money, but he can to the more intimate setting, victims are persuaded more only gain access to it by persuading the victim to give him readily. It is illustrative of the growing level of sophistica- access. The essential tactic used to nudge the victim into tion that offenders even hire native speakers to make the this compliant relationship is called social engineering. It phone calls in order to seem as genuine as possible. allows the offender to win the victim’s confidence, which Our current understanding of individual fraud is limited is crucial to the success of the scam. Social psychology however. This crime is characterised by a huge dark num- offers us a better understanding of this phenomenon. By ber as so much of it goes unreported. Victims do not know appealing to everyday social principles and exploiting they have even been victimised, they do not perceive the “human weaknesses”, offenders are capable of activat- offence as severe enough, they do not believe reporting ing what is known as the second route of persuasion. The will lead to anything, or they simply do not know where to first route requires a great deal of thought and cognitive report the offence in the first place. In addition, because effort. The second, however, needs no further elaboration of the active role, the victim plays in his own victimisa- and the victim reacts subconsciously. By pretending to be tion, feelings of self-blame and embarrassment prevent a person in authority, such as a police officer, offenders victims from telling their story. Some scams even have can easily obtain a level of obedience from their victims. “built-in” anti-reporting mechanisms, as the victims have These social and cognitive rules of thumb have their daily to undertake illegal actions in the scheme, incriminating uses, but easily allow offenders to exploit them to their themselves in the process. Reporting the scam would feel own benefit. like turning yourself in. Such deceptive tactics are put to use in a wide variety of This dark number has also given rise to the myth that el- scams (419 scams, granny scams, romance scams, CEO derly people are the main victims of this crime, as they fraud, etc.) − the possibilities are as endless as the crea- are easy prey. Some studies have disproven this myth, tivity of the scammers. This gamut of deceptive schemes although we should remain cautious due to the limited allows fraudsters to target a very large public at once or research that is available. Nonetheless, the younger pop-

eucrim 1 / 2019 | 75 Evidence Gathering – Current Legal Issues

ulation and middle-aged group are reported to be more Lastly, the EUCPN report on individual fraud drew up sev- susceptible to scams. Another myth that exists is that vic- eral recommendations on how to prevent phone scams. tims are typically portrayed as uneducated or financially They are based on a workshop with different experts illiterate, but the opposite seems to be true. One possible that was organised by the EUCPN Secretariat in August explanation is called the “knowing-doing gap”, where 2018. These recommendations are structured according people are successful in recognizing the signs of a scam, to the five strategies of situational crime prevention. The but fail to apply this knowledge to their own situation. first possible strategy is toincrease the effort an offender Unfortunately, the existence of so-called “sucker lists” is must expend in order for the scam to succeed. Restrict- not a myth. Phone scammers contact their victims random- ing the publication of and access to phone numbers can ly or by looking at public registries, but they also share lists already have a major deterrent effect. Another technique among themselves with targets that already have been de- involves limiting the amount of phone numbers one per- frauded. The use of such lists is indicative of the high level son is allowed to possess or at least to link this “owner- of repeat victimisation. For example, some scammers will ship” with a bank account or ID number. even try to “help” you recover your lost assets. A second strategy is to increase the risks for the offend- As policing this crime is extremely difficult, the need for er. It is of key importance here to share information. This prevention is high. However, little academic and evalua- sharing of information should not stop at the borders of tive research has been conducted on individual fraud so the public or private sectors or even at the national level. far. Nonetheless, we can posit some general findings. The All partners have an important part to contribute to the most common prevention tactic is educating the public. information puzzle. Knowing what you are dealing with This can be done in a general awareness raising cam- increases the chances of preventing it from happening at paign; there are some positive effects to be noted espe- all. Needless to say, reporting should be made more easy cially when delivered in some kind of training format. In and approachable. Information needs to be gathered be- essence, these trainings try to close the “knowing-doing” fore it can be shared. Other recommendations made were gap to which we referred above. Another key tactic is to to reduce the anonymity of the caller by making it nearly work with victims. Because of their active role and the ex- impossible to spoof your location. Voice recognition soft- isting risk of falling victim multiple times, victims should be ware could be of interest here. supported and be made aware of their vulnerable position. Reducing the rewards that can be gained by committing During the Bulgarian Presidency, the EUCPN Secretariat this crime is a third strategy to prevent phone scams. gathered a number of good practices on this topic. These Seizing the illegally obtained assets is the main recom- can be categorised according to their target group. A first mendation here. In order to do this, monitoring the flow of category focusses on the entire population. Best prac- money is crucial in detecting suspicious transactions. An tices in this context are awareness-raising campaigns, EU-wide initiative with the banking sector to facilitate this for which we found good examples in Bulgaria, Sweden, was recommended by our experts. Belgium, and from Europol. The campaigns involve radio Another strategy is to reduce provocations that could spots, posters, flyers, gadgets, etc. that provide useful in- lead to offending. In this regard, it is import not to share formation to the public and show citizens how to protect too much information on how the scam was actually ex- themselves from being harmed. A second set of activities ecuted, as this will prevent copycats. It could also help is targeted towards the elderly. Here, more interactive to prevent some forms of repeat victimisation as some methods are being employed, e.g., in the Czech Republic. fraudsters will contact identified victims with a deceptive The elderly take part in an interactive educational stage offer to help and retrieve their losses. play, where they learn about the most common deception The final strategy is toremove the excuses. This is mainly schemes and how to react to them. This “live experience” focussed on raising awareness on phone scams and how prepares them to react adequately in real-life situations. to protect yourself. The good practices mentioned above An evaluation of this project proved the approach to be are key examples. Awareness campaigns should spread empowering, as the active group refused phony deals two the same message. At best, public-private partnerships and a half times more often than a passive control group and international cooperation need to be established in that did not participate in the play. The third and last cate- order to spread a consistent message: just say no. gory of prevention activities centres on victims. Examples from Australia, the United Kingdom, and Canada showed the need for this type of prevention on this group. There Jorne Vanhee are, unfortunately, few support services for victims of in- European Crime Prevention Network (EUCPN), dividual fraud – even globally. Secretariat – Research officer

76 | eucrim 1 / 2019 Imprint Impressum

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Max Planck Society for the Advancement of Science The publication is co-financed by the c/o Max Planck Institute for Foreign and International European Commission, European Criminal Law Anti-Fraud Office (OLAF), Brussels represented by Director Prof. Dr. Dr. h.c. mult. Ulrich Sieber Guenterstalstrasse 73, 79100 Freiburg i.Br./Germany Tel: +49 (0)761 7081-0 © Max Planck Institute for Foreign and International Criminal Law Fax: +49 (0)761 7081-294 2019. All rights reserved: no part of this publication may be repro- E-mail: [email protected] duced, stored in a retrieval system, or transmitted in any form or by Internet: http://www.mpicc.de any means, electronic, mechanical photocopying, recording, or oth- erwise without the prior written permission of the publishers. Official Registration Number: The views expressed in the material contained in eucrim are not nec- VR 13378 Nz (Amtsgericht essarily those of the editors, the editorial board, the publisher, the Berlin Charlottenburg) Commission or other contributors. Sole responsibility lies with the VAT Number: DE 129517720 author of the contribution. The publisher and the Commission are not ISSN: 1862-6947 responsible for any use that may be made of the information con- tained therein.

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