News Actualités / Kurzmeldungen

resources, and expertise should be guar- anteed. The FRA paper is a valuable tool for public authorities when considering fundamental rights implications in their plans to use the new technology in real life. (CR) European Union* Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) Area of Freedom, Security and Justice

Lisbon Treaty: 10 Years Area of Foundations ly to raise fears of a strong power im- Freedom, Security and Justice balance between the state and the indi- On 1 December 2019, the new Euro- Fundamental Rights vidual and should therefore only be used pean Commission under the lead of its in exceptional cases, i.e., to combat ter- new President, Ms Ursula von der Ley- FRA Looks into Facial Recognition rorism or to detect missing persons and en, marked the tenth anniversary of the Technology victims of crime; entry into force of the Treaty of Lisbon. At the end of November 2019, FRA pub- „„ The use of facial recognition technol- The 1st of December 2019 also marked lished a paper looking into the funda- ogy during demonstrations may prevent ten years of the integration of the former mental rights challenges involved when people from exercising their freedom intergovernmental cooperation scheme public authorities deploy live facial of assembly or association and should in justice and home affairs (the so-called recognition technology for law enforce- therefore be considered disproportionate third pillar of the Maastricht Treaty) into ment purposes. or unnecessary; a full-fledged EU policy with the aim of According to the paper, the following „„ The risk of incorrectly flagging peo- establishing an area of freedom, security key aspects should be considered before ple must be kept to a minimum, and any- and justice. With the entry into force of deploying facial recognition technology one who is stopped as a result of facial the Lisbon Treaty, the EU Charter of in real life: recognition technology must be treated Fundamental Rights also became legally „„ A clear and detailed legal framework in a dignified manner; binding. should regulate the use of facial recogni- „„ Fundamental rights considerations, The last ten years brought about a tion technology and determine when the such as data protection or non-discrim- number of achievements in justice and processing of facial images is necessary ination requirements, should be neces- home affairs, e.g.: and proportionate; sary requirements in the procurement of „„ Better connectivity of law enforce- „„ The processing of facial images for facial recognition technology; ment authorities by means of the next verification purposes should be clearly „„ Public authorities should obtain all generation of the Schengen Information distinguished from the processing of fa- necessary information from the industry System; cial images for identification purposes, to carry out a fundamental rights impact „„ Increased efforts in the fight against as the risk of interference with funda- assessment of the application of facial crime, including sexual abuse and ex- mental rights is higher in cases of identi- recognition technology they aim to pro- fication, which therefore requires stricter cure and use; * If not stated otherwise, the news reported necessity and proportionality testing; „„ Close monitoring by independent su- in the following sections cover the period „„ Facial recognition technology is like- pervisory bodies with sufficient powers, 16 November – 31 December 2019.

226 | eucrim 4 / 2019 Foundations ploitation of children, trafficking in hu- evidence in criminal matters (e-Evi- man beings, terrorism, and cybercrime; dence Regulation) and Directive on legal Publication “European Union „„ Completion of the instruments on ju- representatives for gathering e-evidence Instruments in the Field of Criminal dicial cooperation in criminal matters, in criminal proceedings; Law and Related Texts” e.g., the European Investigation Order, „„ Relevant funds (Justice Programme the European Protection Order, and the and the Rights and Values Programme); In December 2019, the Council Gen- eral Secretariat’s Criminal Law Team Regulation on Freezing and Confisca- „„ Directive on the Protection of per- published a compendium of selected tion; sons reporting on breaches of Union law texts on legal instruments (106 texts) „„ Improved data protection by means (Whistleblowing Directive). (TW) relevant for EU criminal law. It includes of the data protection law enforcement instruments adopted by the EU Institu- Directive (2016/680). tions on the following: On the occasion of the ceremony, Ur- Security Union „„ Cooperation in criminal matters (in- cluding mutual recognition of judi- sula von der Leyen stated: cial decisions); “There could be no better day for the JHA Ministers Conclude Debate „„ Instruments concerning substantive new College of Commissioners to begin on Future of EU Internal Security criminal law; our work than this anniversary. Starting The Finnish Council Presidency „„ Extracts from the Treaties; today, we are the guardians of the Trea- summed up the outcome of discussions „„ Agreements between the EU and ties, the custodians of the Lisbon spirit. on the EU’s way forward regarding in- third countries, such as those relat- I feel this responsibility. It is a respon- ternal security issues. The discussion ing to mutual legal assistance. sibility towards our predecessors, our was launched at the beginning of the In addition to an index, the publication founding fathers and mothers, and all Finnish Presidency in July 2019 (see also contains electronic bookmarks. By clicking on the links in the content that they have achieved. But it is also a eucrim 2/2019, p. 84). The final Presi- section, the reader quickly arrives responsibility towards our children. The dency report was discussed at the meet- at the text he/she is looking for. The responsibility to leave them a Union that ing of the Justice and Home Affairs electronic version of the book (PDF) is is stronger than the one we have inher- Ministers on 3 December 2019. The re- available free of charge via the Council website > Documents & Publications. ited.” (TW) flections detailed in the report contribute Hard copies are also available. (TW) to the implementation of the strategic Updates on Legislative JHA Items agenda 2019–2024 in the area of justice The Finnish Council Presidency updat- and home affairs. Future EU policy will ed the JHA Ministers about the progress concentrate on the following four issues: formation than ever before. Therefore, achieved on current legislative proposals „„ Proactive approach to new technolo- the EU must ensure that information in the area of freedom, security and jus- gies: The EU needs an integrated and systems are supplied with high-quality, tice during its presidency at the Council comprehensive approach in this field. timely, and complete data and are used meeting on 2–3 December 2019. In the An innovation lab is to be established effectively. The EU must also develop area of home affairs, the proposals in- within Europol in order to assess the a clear vision on crime analysis; this clude: needs for new technologies and their includes the provision of sufficient hu- „„ Regulation on preventing the dissem- risks to law enforcement and to promote man and financial resources to process ination of terrorist content online; communication with the industry and and analyse information. In addition, „„ Home affairs funds (Asylum and Mi- academia. Law enforcement authorities the new EU interoperability framework gration Fund, Internal Security Fund, should be involved at an earlier stage must be used effectively, which neces- Border Management and Visa Instru- in the technological processes, which sitates appropriate and continuous train- ment Fund); mainly take place in universities and the ing for the end-users. „„ ETIAS consequential amendments; private sector. Moreover, the EU should „„ Multidisciplinary cross-border coop- „„ Regulation on the False and Authen- take into account internal security and eration: The EU needs a horizontal, in- tic Documents Online (FADO) system; law enforcement interests in new legis- tegrated, and coherent approach towards „„ Visa Information System (VIS) Reg- lation relating to new technologies. tackling the evolving, cross-cutting na- ulation; „„ Effective information management: ture of security threats, such as CBRN „„ Schengen Borders Code. Future law enforcement cooperation will weapons and hybrid activities. There- In the area of justice, progress on fol- increasingly be based on information fore, the EU must ensure multidiscipli- lowing files is reported (among others): systems and their interoperability. Law nary, operational cooperation that goes „„ Regulation on European Production enforcement authorities will have access beyond cross-border law enforcement and Preservation Orders for electronic to a much larger volume of data and in- cooperation, thus also involving other

eucrim 4 / 2019 | 227 NEWS – European Union

authorities, such as civil protection ac- es the main challenges in home affairs „„ Police cooperation; tors. It must also remove obstacles to op- policy at the regional level. In substance, „„ Information exchange; erational cross-border cooperation, e.g., the declaration deals with two issues: 1) „„ Cooperation in case of major events; differences in national decision-making human smuggling, borders, and secu- „„ Witness protection; processes, legislation, and operating rity; 2) the functioning of the Dublin and „„ The fight against drugs; models; differences in national data col- Schengen systems. „„ Police training, etc. lection and data processing practices; As regards human smuggling, borders The Member States of the Salzburg Fo- etc. Reflections on better methods of and security, the declaration calls on the rum are: Austria, Bulgaria, Croatia, the working together and the exchange of European Union to focus more strongly Czech Republic, Hungary, Poland, Ro- information involving new technologies on the fight against human smuggling mania, Slovakia, and Slovenia. Close should be intensified. This could, for in- along the Eastern/Central Mediterranean dialogue is held with Western Balkan stance, include unmanned autonomous routes. The declaration points to bi-/mul- countries and Moldova. There are at systems, automatic number plate recog- tilateral cooperation in Central/Southeast least two Salzburg Forum Ministerial nition technologies, and single-search Europe and to various agreements at the Conferences per year. (TW) interfaces for available databases. The European and regional levels, which led EU should also aim towards a com- to good progress in the fight against hu- CJEU Rules on Public Security mon law enforcement culture, which man smuggling and the enhancement of Measure within EU Competence involves improving language skills, border protection. The Salzburg Forum on Approximation of Laws learning about each other’s cultures, and also stressed that it is now time to take On 3 December 2019, the CJEU dis- exchanging best practices. Another field concrete operational measures, however, missed an action of the Czech Republic of action is the constant monitoring of and made several proposals in this regard. that sought the annulment of Directive the EU JHA agencies’ tasks and respon- Ultimately, cooperation along the East- 2017/853 of 17 May 2017 amending sibilities. Cooperation among them must ern Mediterranean route should become Council Directive 91/477/EEC on con- be increased, as they will continue to a best practice model for joint efforts in trol of the acquisition and possession play a significant role in the future. Ad- the fight against human smuggling. This of weapons. The case reference is aptations to their legal framework must would be a good contribution to the C-482/17. be assessed; in particular, Europol’s le- “Whole-of-Route” approach proposed by In view of the abolishment of the in- gal base may be further adapted in view the Finnish EU Council Presidency. ternal borders within the Schengen area, of the request and reception of personal As regards the Dublin/Schengen the 1991 Directive lays down the con- data directly from private parties. system, the declaration stresses that ditions under which various categories „„ Comprehensive approach to security: the EU’s asylum system (based on the of firearms can be acquired and held The security threat landscape is sure to Dublin legal framework) is not working for civil purposes as well as the require- change in the future. This requires bet- properly and that the Schengen system ments for the prohibition to acquire ter coordination, resources and tech- must be reinforced. The Salzburg Forum firearms for reasons of public safety. nological capacities as well as a better calls for a new approach to migration, With the revision of 2017, the European situational awareness and preparedness. which must include “rules on asylum Parliament and the Council introduced Hybrid threats, disinformation, use of and migration in the EU that are ac- stricter rules for the most dangerous, de- new technology and the internet for cepted, consistently implemented and activated, and semi-automatic firearms criminal activities, violent radicalisation enforced by all EU Member States.” in response to terrorist acts and in order and right-wing extremism are the ma- Moreover, the declaration sets out the to prevent the misuse of firearms for jor challenging areas, which EU action goals and parameters by means of which criminal purposes. should be focused on. (TW) the Forum will contribute to the new The Court held that the measures tak- pact on asylum and migration, which en by the European Parliament and the Salzburg Forum Declaration will be drawn up by the new European Council in the contested directive (Di- On 6–7 November 2019, the Salzburg Commission. rective 2017/853) do not entail breaches Forum met in Vienna/Austria. Austria The Salzburg Forum is a Central Eu- of the principles of conferral of powers, briefed the home affairs ministers of the ropean security partnership that was ini- proportionality, legal certainty, protec- EU Member States at the JHA Council tiated by Austria in 2000. The main goal tion of legitimate expectations, and non- meeting on 2–3 December 2019 about is to strengthen regional cooperation in discrimination as alleged by the Czech the outcome of the meeting. The minis- the field of internal security. Fields of Republic in support of its action. ters for the interior at the Salzburg Fo- cooperation include: First, the Czech Republic argued that rum launched a declaration that discuss- „„ Illegal migration and asylum; the 2017 Directive could not be based

228 | eucrim 4 / 2019 Foundations on Art. 114 TFEU (approximation of The CJEU, by contrast, found that the from the general prohibition on con- laws of the Member States in relation to EU legislator has broad discretion when verting automatic firearms into semi- the functioning of the internal market) it makes political, economic, and social automatic firearms. It takes into account because the main objective exclusively choices. This discretion is subject to a the specific Swiss military system based pursues a higher level of public security. limited judicial review. The CJEU exam- on general conscription and having had Moreover, there is currently no legal ba- ined the 2016 Interinstitutional Agree- in place over the last 50 years a transfer sis in the Treaties for the adoption of the ment on Better Law-Making. Indeed, of military firearms to persons leaving established prohibitions. Art. 84 TFEU the Commission should, as a rule, carry the army. The Czech Republic argued specifically excludes harmonisation in out an impact assessment if a legisla- that such derogation introduces unequal the fields of prevention of crime and ter- tive initiative has significant economic, treatment between Switzerland and the rorism. environmental, or social implications. other EU/EFTA Member States. The CJEU held, however, that, where However, not carrying out an impact as- The CJEU found, however, that the an act based on Art. 114 TFEU has al- sessment cannot necessarily be regarded principle of equality first requires es- ready removed any obstacles to trade in as a breach of the proportionality princi- tablishing that Switzerland and the EU/ the area that it harmonises, the EU leg- ple. The EU legislator is only required EFTA Member States are in a compara- islator is not prevented from adapting to have sufficient information enabling it ble situation as regards the subject mat- that act to any change in circumstances to assess the proportionality of a planned ter of this derogation. This is not the or any development of knowledge with measure. Therefore, during the legisla- case here because Switzerland is able to regard to its task of safeguarding the tive procedure, co-legislators must take trace and monitor the persons and weap- general interests recognised by the Trea- into account the available scientific data ons concerned due to its long-standing ty, e.g., the fight against international and other findings that became availa- culture and tradition. Hence, the coun- terrorism and serious crime in order to ble, including scientific documents used try fulfils the public security and safety pursue public security. Moreover, the by the Member States during Council objectives pursued by the contested di- CJEU pointed out that the contested Di- meetings. The CJEU observed that the rective. This cannot be assumed for the rective cannot be regarded in isolation, EU legislature had at its disposal numer- other Member States. (TW) but should include a look at the existing ous analyses and recommendations cov- rules that it amends, which are impor- ering all the issues raised in the Czech tant in order to identify the legal basis. Republic’s argument. These analyses Legislation Otherwise the paradoxical result would and recommendations did not prove a occur that the amendments could not manifest inappropriateness in relation Legal Practitioner Training in 2018 be based on Art. 114 TFEU, whereas to the objectives of ensuring public After the European Commission an- it would have been possible to achieve safety and security for EU citizens and nounced in December 2018 that the EU the same normative result by a full re- the functioning of the internal market in achieved its goals of training legal prac- cast of the initial Directive. Ultimately, firearms for civilian use. As a result, the titioners on EU law in 2017 already – the CJEU cannot see that the contents CJEU did not see a violation of the EU two years ahead of schedule (see eucrim of the contested Directive have nothing institution’s wide scope of discretion. 1/2019, p. 10) – the Commission con- to do with the internal market. On the In addition, the CJEU rejected spe- firmed that even more records were bro- contrary, the 2017 Directive adjusts the cific arguments of the Czech Republic ken in 2018. In 2018, more than 190,000 balance between the free movement of against certain provisions and found no legal practitioners (judges, prosecutors, goods and the security of EU citizens. In breach of the principles of proportional- court staff, bailiffs, lawyers, and nota- sum, there is no violation of the princi- ity, legal certainty, and the protection of ries) took part in trainings on EU law ple of conferral of powers. legitimate expectations of categories of or the law of another Member State. Second, the Czech Republic argued owners or holders of weapons (poten- Altogether, there was a 148% increase that a breach of the principle of pro- tially subject to a stricter regime under in training between 2011 and 2018. In portionality exists. In this context, the the contested directive). total, more than one million legal prac- Czech Republic particularly blamed the Ultimately, the CJEU rejected the ar- titioners have attended trainings on EU EU institutions for not having carried gument of the Czech Republic that the law since 2011. As in previous years, an out an impact assessment. In addition, 2017 Directive is discriminatory be- upward trend in the number of partici- it raised doubts as to whether the meas- cause it includes a specific provision that pants and training activities since 2011 ures adopted are appropriate to achieve is only valid for Switzerland (to which is noticeable. This trend especially ap- the objective of combating the misuse of the Directive also applies as a Schengen plies to judges, court staff, and bailiffs firearms. country). This provision is a derogation in 2018.

eucrim 4 / 2019 | 229 NEWS – European Union

These are the main results of the judicial training, which is currently be- of discussions on improving the educa- eighth Commission report on European ing elaborated. (TW) tional system for judicial officials in the judicial training in 2018, which was EU; and finalisation of the Regulation published at the end of December 2019. establishing the Justice programme and For the first time, the report includes Institutions the Regulation establishing the Rights the progression of the number of par- and Values programme. ticipants for the professions monitored Council The Croatian Presidency is the third over the last eight years; this is based on in the current trio Presidency, following the European Commission Staff Work- Croatian Presidency Programme Romania (January–June 2019) and Fin- ing Document on the evaluation of the On 1 January 2020, Croatia took over the land (July–December 2019). (CR) 2011–2020 European judicial training Presidency of the Council of the Euro- strategy. Other conclusions of the report pean Union. Under the motto “A Strong are as follows: Europe in a World of Challenges,” the OLAF „„Although the absolute number of par- Croatian Presidency’s programme is ticipants increased, there is a consider- built around four pillars High-Level Conference on Customs able difference if the percentage of par- „„A Europe that develops; Fraud in Helsinki ticipants is interpreted in relation to the „„A Europe that connects; On 14–15 November 2019, the Finnish total number of their profession; „„A Europe that protects; Customs and OLAF organised a high- „„While over 63% of judges of the re- „„An influential Europe. level conference in Helsinki at which sponding Member States received con- Regarding judicial cooperation in participants discussed current trends and tinuous training on EU law, for example, criminal matters, the Croatian Presi- appropriate responses to customs fraud. only 4,83% of lawyers in private prac- dency’s priorities are to finalise the The event (entitled “Strategies to fight tice did; trialogue negotiations on the e-evi- customs fraud in a globalised trading „„Again, judges, prosecutors, and no- dence package and to lay the neces- landscape”) brought together national taries received far more training on EU sary groundwork for the work of the customs officials and representatives law or on the law of another Member European Public Prosecutor’s Office. from EU bodies, including OLAF, Eu- State than members of other legal pro- Furthermore, the Presidency will focus ropol, Frontex, and the EU Intellectual fessions did; on implementation of the EU’s existing Property Office (EUIPO). Discussions „„In Germany, for instance, nearly 80% legal instruments for judicial coopera- centred around the challenges of cus- of prosecutors were trained on EU law, tion in criminal matters. toms fraud, e.g., underevaluation, mis- but less than 10% of lawyers. Priorities in the area of home affairs declaration, and smuggling. They also The Commission concedes, how- include migration management, exter- included best practices on how to pre- ever, that the picture of the real train- nal border protection and Schengen, the vent, investigate, and detect customs ing situation is incomplete due to data interoperability between information fraud in the face of a growing volume of gaps. There is, for instance, a lack of systems, and a comprehensive approach consignments, particularly as a result of data from private training providers towards internal security, focusing on re- the boom in e-commerce. (TW) for lawyers, which means this only al- silience to cyber-attacks, hybrid threats, lows for a limited assessment. Also, and the dissemination of fake news. date collection varies from Member Another focal point is the external European Public Prosecutor’s Office State to Member State and some Mem- dimension of justice and home affairs. ber States do not even respond to the In this regard, the Croatian Presidency State of Play in Establishing the EPPO questionnaire. The Commission con- strives to reach an agreement with the The justice ministers of the Member cludes that the results nonetheless in- USA on the exchange of e-evidence, States were informed about the state of dicate differences in trainings between on intensifying joint efforts in the fight play of the implementation of the EPPO professions and Member States. There against terrorism through the exchange Regulation at the JHA Council meeting are still challenges ahead, most nota- of information from conflict-affected -ar on 2/3 December 2019. The Commis- bly for lawyers, court, and prosecution eas, and on fighting serious international sion regularly briefs the Council on the office’s staff and bailiffs’ training. The organised crime. setting up of the new EU body. The most lessons from the report and the above- Further priorities in the area of justice recent progress was summarised in a mentioned strategy evaluation will include the development and promo- non-paper of 22 November 2019. feed into the Commission’s reflection tion of e-Justice, digital platforms, and The press release on the December on the post-2020 strategy for European modern technologies; the continuation JHA Council meeting also reported

230 | eucrim 4 / 2019 Institutions that the newly appointed EPPO Chief fer of Financial Messaging Data from Protection Supervisor (EDPS) is respon- Prosecutor, Ms Laura Codruţa Kövesi, the EU to the US for the purposes of sible for the external supervision of Eu- who took office on 1 November 2019 the Terrorist Finance Tracking Program rojust, replacing the Joint Supervisory (see eucrim 3/2019, p. 164), presented (O.J. L 195, 27.7.2010)). Europol’s role Body (JSB). While the UK and Ireland her vision and plans for the office. She under the Agreement is to make sure that decided to opt-in to the Eurojust Regula- stressed that work on several areas is the data on financial transfers requested tion, Denmark is not bound by it. Hence, necessary to achieve the objective of by the US and stored in EU territory is on 11 December 2019, a cooperation making the EPPO operational by the necessary for the fight against terrorism agreement between Denmark and Eu- envisaged date, i.e., by the end of 2020. and the financing of terrorism and that rojust took effect (see eucrim news of These include the: each request is defined as narrowly as 20 December 2019). (CR) „„ Implementation of the PIF Directive; possible. „„ National adaptations to the EPPO In general, the report concludes that New Rules of Procedure Regulation; Europol does a good job of verifying US Following the entry into force of its „„ Appointment of the European pros- requests. Nevertheless, the report outlines new Regulation, the College of Eurojust ecutors to complete the constitution of eight recommendations for Europol to adopted new rules of procedure for Eu- the college; consider when carrying out these activi- rojust on 20 December 2019. The rules „„ Agreement on the number of delegat- ties. The most important recommenda- of procedure outline further functions as ed prosecutors; tion set forth by the EDPS is for Europol well as the election and dismissal pro- „„ A functional case management system. to be able to ask US authorities for ad- cedures of the President and Vice-Pres- She also highlighted the importance ditional information when checking that idents of Eurojust. Furthermore, they of providing the EPPO with adequate their requests actually meet necessity regulate the meetings of the College, its human and financial resources, so that it requirements in terms of countries and quorum, and its voting rules. can fulfil its task efficiently. (TW) message types. Other recommendations The composition and functioning of concern, for instance, the verification the Executive Board as well as the ap- process and security measures. (CR) pointment of the administrative director Europol form another integral part of these rules. The rules of procedure also set forth rules Data Requests from Private Parties Eurojust for written and preparatory consultation At its JHA meeting on 2/3 December procedures, working groups, and on how 2019, the Council adopted Conclusions First Day as an Agency to handle declarations of interest, con- on Europol’s cooperation with private On 12 December 2019, Eurojust offi- flicts of interest, information duties, and parties. While respecting the supporting cially became the European Agency for resolutions of disagreements. (CR) role of Europol with regard to actions Criminal Justice Cooperation, with its carried out by the competent authori- new Regulation taking effect the same 100 Action Days Coordinated ties of the Member States, the Council day (see also eucrim news of 18 Febru- by Eurojust acknowledges in its Conclusions the ary 2019). At the end of November, Eurojust had urgent operational need for Europol to Novelties set into motion under the coordinated its 100th action days since request and receive data directly from Regulation EU 2018/1727 include a new 2011. The 100 action days resulted in private parties. Hence, it has called on governance structure (with an Executive 3355 searches; the seizure of more than the European Commission to take this Board of six members), new powers for €210 million in cash, luxury cars and into account as part of its review of the the national Members, new procedures jewellery; and halted criminal activities implementation of the Europol Regula- for the work of the College, and stronger worth nearly €2 billion. tion (EU) 2016/794. (CR) democratic oversight. Relations with During the action days, national au- other institutions and agencies such as thorities are able to use a purpose-built Compliance with Terrorist Finance the EJN, Europol, and the EPPO have coordination centre at Eurojust. There Tracking Programme Agreement been set out. The types of serious crime they have access to dedicated and se- On 14 November 2019, the European for which Eurojust is competent now in- cure lines of communication enabling Data Protection Supervisor (EDPS) pub- clude genocide and war crimes. them to simultaneously conduct arrests, lished his inspection report on Europol’s In addition, Eurojust is now run by searches, interviews of suspects and wit- compliance with Article 4 of the TFTP a new data protection regime, adapting nesses, seizures of evidence, and the Agreement (Agreement between the EU it to the revised EU legal framework freezing of assets in real-time across and the USA on the processing and trans- on data protection. The European Data several countries.

eucrim 4 / 2019 | 231 NEWS – European Union

Since the first action days held upon „„ Liaison between the national desks at more closely with national authorities in the initiative of the French Desk at Eu- Eurojust and EJN contact points, with a order to better plan the EU’s responses rojust in 2011 and concerning the smug- view to reaching a common approach on to challenges – rather than merely react- gling of irregular migrants, action days complementarity; ing to crises. (CR) have been held for all sorts of serious „„ Best practices. crime: cybercrime, terrorism, environ- The report highlights that the assess- mental crime, THB, financial fraud, ment of whether a request should be weapons trafficking, drug trafficking, dealt with by Eurojust or the EJN should Specific Areas of Crime / and financial crime. The latter was the be made on a case-by-case basis, tak- Substantive Criminal Law subject of the 100th coordination centre, ing into account first the complexity of unravelling massive trans-European pay the case, followed by its urgency, as the Protection of Financial Interests TV fraud. (CR) main criteria. (CR) EP Supports Planned EU Legislation against VAT Fraud in E-Commerce European Judicial Network (EJN) Frontex On 17 December 2019, MEPs backed new EU legislation that aims at curbing Allocation of Cases to Eurojust New Frontex Regulation in Force VAT evasion in e-commerce. The legis- and to EJN On 4 December 2019, the new Frontex lation (one Directive and one Regula- On 5 November 2019, Eurojust and Regulation (EU) 2019/1896 entered into tion) will require payment service pro- the European Judicial Network (EJN) force. The main features are summarised viders to keep records of cross-border published a joint report with the aim of in the press release of 4 December 2019. payments related to e-commerce and to assisting practitioners in determining The Regulation includes the follow- make these data available to anti-fraud whether a case should be directed to Eu- ing strengthening objectives for Frontex: authorities. Anti-fraud authorities will rojust or to the EJN. „„ Develop integrated planning such as have access to a new, central electronic The report outlines the following capability development planning, con- storage system, so that they can better items: tingency planning, and operational plan- process payment data. Administrative „„ Criteria for assessing which agency ning; cooperation among the Member States’ should deal with a request for assistance; „„ Be capable to conduct operations in tax authorities and payment service pro- „„ Use of the updated 2018 Joint Paper non-EU countries not neighbouring the viders will also be strengthened. The EP on the EJN and Eurojust “What can we EU; made several proposals on the text in do for you?” for redirecting cases; „„ Upgrade its management system; order to make information sharing and „„ Steps to be taken upon receipt of a „„ Continue to provide national authori- prosecution more effective. request from national authorities when ties with operational support on land, at The EP has only a consultative func- it appears to be better suited to the an- sea, and in the air; tion on the pieces of legislation. The other’s competence; „„ Provide experts and training in order exclusive competence to adopt the texts „„ Steps to be taken by a national desk at to further contribute to the fight against lies with the Council. The latter already Eurojust upon receipt of a request from cross-border crime; reached political agreement in Novem- another national desk that appears to „„ Continue to assist national authorities ber 2019 (see eucrim 3/2019, p. 169). better fall under the EJN’s competence; in effective returns of those persons not The Commission tabled the proposals in „„ Existence of national rules preventing eligible to remain in the EU; December 2018. It is estimated that the the national desks at Eurojust from redi- „„ Focus on post-arrival/post-return as- EU loses €137 billion every year due to recting a case to the EJN once the case sistance; e-commerce VAT evasion. (TW) has been opened at Eurojust; „„ Provide ongoing situation monitoring „„ Steps to be taken when a request has at external borders, risk analyses, and in- been addressed to both a national desk at formation exchange on what is happen- Corruption Eurojust and an EJN contact point; ing at the EU’s borders and beyond; „„ Use of the Eurojust National Coordi- „„ Engage at least 40 fundamental rights Eurobarometer Survey on Business nation System for case-distribution pur- monitoring specialists to be involved in Attitudes to Corruption poses; its operations. spot The majority of companies „„ Added value of the EJN-Eurojust The new Regulation also means that light (51%) is sceptical that corrup- double-hat function to the distribution Europe’s first uniformed service is in tion is being tackled efficiently of cases; place. Furthermore, Frontex will work by law enforcement. This is one of the

232 | eucrim 4 / 2019 Specific Areas of Crime / Substantive Criminal Law

main results of the Eurobarometer sur- „„ Over seven in ten companies agree and cross-border crime, improving co- vey on the businesses’ attitude towards that too close links between business operation and information-sharing, and corruption in the EU. It was published and politics in their country lead to cor- further developing our common instru- on 9 December 2019 (International An- ruption and that favouritism and corrup- ments.” For the new strategic agenda, ti-Corruption Day). The survey inter- tion hamper business competition; see eucrim 2/2019, pp. 86–87. The con- viewed 7722 businesses in all 28 EU „„ 30% of companies believe that cor- clusions also build on the Commission’s Member States between 30 September ruption has prevented them from win- AML/CFT Communication and the re- and 24 October 2019. It is the fourth sur- ning a public tender/procurement con- lated assessment reports of July 2019 vey of this kind (the first one was con- tract; (see eucrim 2/2019, pp. 94 et seq.). ducted in 2013, the others in 2015 and „„ More than 50% of companies think The conclusions underline that “the 2017). For the 2017 survey, see eucrim that corruption in public procurement fight against money laundering and ter- 1/2018, p. 13. The surveys include a managed by national and regional/local rorist financing remains a high prior- wide range of topics, e.g.: authorities is widespread; ity for the European Union.” They not „„ Problems encountered when doing „„ 51% of companies feel that anti-cor- only urge Member States to complete business; ruption measures are not applied impar- implementation of all relevant Union „„ Business’ perception of the level of tially. legislation in the area, but also set clear corruption in their country; The survey also gives the reader a political guidelines for the European „„ The prevalence of practices leading look behind the scenes of different busi- Commission. Hence, the conclusions to corruption; ness sectors. In this context, the survey call for stepping up the Union’s AML/ „„ Corrupt practices in public tender and reveals that sector analysis indicates CFT legal framework in accordance public procurement procedures; significant differences between the with international standards as set out „„ Investigation, prosecution, and sanc- sectors as regards corruption. 38% of by the FATF and MONEYVAL. These tioning of corruption. companies in the healthcare and phar- standards should be incorporated into Although corruption is not ranked maceutical sector, for instance, consider EU law in a timely and comprehensive among the top concerns, corruption is corruption to be a problem when doing manner. The Commission is particularly seen as a problem by five in ten Euro- business, but only 31% do so in the ener- invited to do the following: pean companies. The majority of com- gy industry. The energy industry is also „„ Thoroughly assess, as a matter of pri- panies think that tax rates, fast-changing the business with the lowest proportion ority, any possible restrictions stemming legislation and policies (63%), and the (19%) of companies that assume corrup- from existing legislation (or lack there- complexity of administrative procedures tion has prevented them from winning of) with regard to efficient information (62%) are the main problems when do- a public tender/procurement contract; exchange and cooperation among all rel- ing business. Nevertheless, there is wide by contrast, around 30% are convinced evant competent authorities involved in divergence among the EU Member of this in the construction and telecom/ the implementation and supervision of States. Whereas 88% of companies in IT sectors. All in all, corruption remains the Union’s AML/CFT framework; Romania see corruption as a problem an issue for both large and small compa- „„ Consider the possibility of creating a when doing business in their country, nies. (TW) coordination and support mechanism for only 5% of companies do in Denmark. Financial Intelligence Units (FIUs); Furthermore, the general businesses’ „„ Explore actions to enhance the EU’s perception of corruption has decreased Money Laundering AML/CFT framework, e.g., by con- compared to 2013 (63%, down from sidering to address some aspects with a 75%). However, the results also vary Council Frames Future EU AML/CFT regulation; among the Member States on this point: Policy „„ Explore the opportunities and chal- in 17 Member States, the feeling that The ECOFIN Council adopted conclu- lenges of using technological innovation corruption is a widespread problem in sions on strategic priorities on anti- to combat money laundering; their country has decreased since 2017 money laundering and countering the „„ Explore the possibilities, advan- – most considerably in Germany (-25%) financing of terrorism at its meeting tages, and disadvantages of conferring ‒ but increased in 11 countries. Other re- on 5 December 2019 in Brussels. The certain responsibilities and powers for sults of the survey are as follows: conclusions are a direct response to the anti-money laundering supervision to a „„ Favouring friends or family members new – more general – strategic agenda Union body with an independent struc- in business and public institutions is by for 2019–2024, in which the European ture and direct powers vis-à-vis certain far the most frequently mentioned cor- Council stated: “We will build on and obliged entities. rupt practice; strengthen our fight against terrorism The Commission is also called on to

eucrim 4 / 2019 | 233 NEWS – European Union report on the outlined actions every six ties arising from the existence of global Cybercrime months, starting in June 2020. (TW) commercial markets and the associated logistical developments and digitalisa- Council Conclusions on Significance tion within these markets; and Security Risks of 5G Technology Organised Crime „„The drug market has become increas- 5G networks will become part of the ingly digitally enabled. Both the surface crucial infrastructure for the operation 2019 EU Drug Markets Report web and darknet markets are used for and maintenance of vital societal and On 26 November 2019, Europol and online drug sales, as are social media economic functions and a wide range of the EMCDDA published their joint EU and mobile communication apps. En- services essential for functioning of the Drug Markets Report for the year 2019, cryption and anonymised services are internal market. The EU must maintain looking at impact and driving forces be- also being increasingly used by OCGs technological sovereignty, however, and hind drug markets, the main drug mar- for secure communication in the traf- promote its approach to cyber security in kets in the EU, and how to respond to ficking and sale of illicit drugs; conjunction with future electronic com- drug markets. The report finds that the „„Levels of production, globally and in munication networks. This is stressed drug market is a major source of income the EU, are very high; in the conclusions “The significance of for organised criminal groups (OCGs) in „„Cocaine production in South America 5G to the European Economy and the the EU, at a minimum estimated retail and heroin production in Afghanistan need to mitigate security risks linked to value of €30 billion per year. are estimated to be at historically high 5G,” as adopted by the Transport, Tele­ The report also identifies the follow- levels; communications and Energy Council at ing: „„China has gained in importance as a its meeting on 3 December 2019. The „„Illicit drugs represent the most valu- source country for drug precursors and conclusions set out political guidelines able market for criminal organisations new psychoactive substances; on how the EU should manage the fu- operating in the EU; „„Africa has grown in importance due ture innovative 5G technology. The „„About two thirds of those engaged in to its growing role as a trafficking and Council not only points out the assets of the drug trade are also involved in other transit area; 5G (among others, the aim to make the criminal activities; „„Europe is also a major producer of EU the leading market for the deploy- „„There are signs of increasing com- cannabis and synthetic drugs for the EU ment of 5G networks and the develop- petition between groups, leading to es- market and is, to some extent, a global ment of 5G-based solutions), but also calating violence within the EU drug supplier of MDMA (ecstasy) and am- outlines the challenges stemming from market; phetamines; 5G technology. Hence, safeguarding „„Overall, drug availability in Europe, „„In some neighbouring countries, the security and resilience of electronic for both natural and synthetic drugs, re- OCGs are closely linked to ethnically- communications networks and services mains very high; based groups residing in the EU, which (in particular as regards 5G), following „„The European drug market is increas- is changing the dynamics of drug supply. a risk-based approach, is considered ingly characterised by consumers having To tackle the identified problems, the important. Against this background, the access to a wide variety of high-purity report sets forth the following main tar- Council has established the following and high-potency products that, in real gets for action: guidelines: terms, are usually equivalent in price or „„Strengthen efforts to target top-level „„Swift and secure roll-out of the 5G even cheaper than they have been over OCGs active in the global drug market; networks across the EU, which is key to the past decade; „„Reduce vulnerabilities at external enhancing the EU’s competitiveness; „„Developments in the area of precur- borders; „„Building trust in 5G technologies is sors have been an important driver in the „„Focus on key geographical locations firmly grounded in the core values of the expansion of drug production; for trafficking and production; EU (e.g., human rights and fundamen- „„The drug market is becoming more „„Invest in forensic and toxicological tal freedoms, rule of law, protection of globally connected and technologically capacities; privacy, personal data, and intellectual enabled; „„Address links to other important se- property); in the commitment to trans- „„OCGs are becoming more interna- curity threats; parency, reliability, and inclusion of all tionally connected, and they exploit the „„Raise awareness about the cost of stakeholders and citizens; and in en- gaps/differences that exist in regulatory drug-related violence and corruption; hanced international cooperation; and drug control environments; „„Develop response to digitally enabled „„A comprehensive approach and ef- „„The main drivers of market changes drug markets; fective and proportionate security meas- and new threats stem from opportuni- „„Act at the global level. (CR) ures, with a focus on security and pri-

234 | eucrim 4 / 2019 Specific Areas of Crime / Substantive Criminal Law

vacy by design as integral parts of 5G agencies. Evaluation missions to indi- „„ Areas of environmental crime where infrastructure and terminal equipment; vidual Member States started in Septem- criminal activity is considered to be „„ Addressing and mitigating the chal- ber 2017 and ended in February 2019. more frequent or serious; lenges for law enforcement (e.g., lawful The evaluation missions resulted in de- „„ Successes and challenges in counter- interceptions); tailed reports on each of the 28 Member ing environmental offences; „„ Putting in place robust common secu- States. „„ Possible additional minimum rules rity standards and measures that must be The general report underlines, inter on criminal sanctions in the area of envi- ensured by all businesses involved; alia, that environmental criminal of- ronmental crime; „„ Mitigating not only risks of 5G by fences in the examined areas remain un- „„ The clarity of environmental criminal means of standardization and certifica- detected, as this type of crime is often law. tion, but also by means of additional “invisible.” It is therefore considered a The justice ministers of the Member measures; “control crime,” which, as such, has to States took note of the draft final report Both the Member States and the Com- be tackled proactively. The report also on the eighth round of mutual evalua- mission (with the support of ENISA) are includes several recommendations aim- tions and the Finnish Presidency report encouraged to work together in order to ing at improving the situation when at their JHA Council meeting on 3 De- ensure the security and integrity of 5G fighting environmental crime. Mem- cember 2019. networks. (TW) ber States should, for instance, adopt a The Commission is currently also car- comprehensive national strategy setting rying out a comprehensive evaluation of out priorities to fight these crimes. An- the 2008 Environmental Crime Directive Environmental Crime other weak point identified was the lack (cf. the evaluation roadmap). This evalu- of statistical data on the crimes and of ation seeks to collect a comprehensive EU Framework on Environmental Crime information on the flow of cases from set of data on the scale of environmental under Scrutiny administrative and law enforcement au- crime. It will analyse the effectiveness of Ten years after the criminal law direc- thorities. Therefore, Member States are the Directive’s current scope and its con- tives on environmental crime and ship called on to work out a method by which sistency with other, relevant EU level leg- source pollution were agreed upon, to collect systematic, reliable, and up- islation. Among others, the evaluation is the EU is now carrying out a thorough dated statistics in order to enable a stra- based on a wide public consultation and evaluation and assessment of the legal tegic evaluation of the national systems. on targeted consultations with experts framework. On 15 November 2019, the In addition to the eight rounds of mu- and practitioners dealing with combating Council tabled the draft final report on tual evaluations, the Finnish EU Council environmental crime. The results of the the eighth round of mutual evaluations, Presidency intensified discussions on evaluation are expected to be published which was devoted to the practical im- the adequacy of the current EU crimi- in spring 2020. (TW) plementation and operation of European nal law framework on environmental policies on preventing and combating crime, with the aim of identifying areas environmental crime. The report sum- in which further approximation of the marises the main findings and recom- Member States’ criminal laws may be Procedural Criminal Law mendations and draws up conclusions advisable. To this end, the Finnish Presi- in view of strengthening the prevention dency presented a report on the “state of Data Protection of and fight against environmental crime environmental criminal law in the Euro- across the EU and internationally. pean Union” on 4 October 2019. Council Conclusions on Widening Since the range of offences covered The report lists relevant develop- Scope of PNR Collection by environmental crime is broad, the ments in the EU’s environmental policy The justice and home affairs ministers of eighth round of mutual evaluations fo- since the 2008 Directive on the protec- the Members States adopted conclusions cused on those offences which Member tion of the environment through crimi- on widening the scope of PNR data at States felt warranted particular atten- nal law and the 2005 Directive on ship the JHA Council meeting on 2 Decem- tion, i.e., illegal trafficking in waste and source pollution (amended in 2009). The ber 2019. As reported in eucrim 2/2019, illegal production/handling of danger- report also summarises the input given p. 105, the Finnish Presidency took the ous materials. The evaluation involves a at various meetings regarding further initiative of launching the debate on ex- comprehensive examination of the legal development of the EU’s regulatory tending the scope of the EU’s current and operational aspects of tackling envi- framework in the field of environmental PNR scheme to forms of transport other ronmental crime, cross-border coopera- criminal law. Discussions focused on the than air traffic, such as maritime or rail- tion, and cooperation with relevant EU following topics: way traffic. The conclusions point out

eucrim 4 / 2019 | 235 NEWS – European Union that, even though some Member States Commission to implement the EU-US EDPB has the impression that the Om- welcomed the initiative, other delega- Privacy Shield, e.g., ex officio over- budsperson is not vested with sufficient tions voiced concern about the timing sight and enforcement actions, the Eu- power to access information and to rem- and potential legal, technical, and finan- ropean Data Protection Board (EDPB) edy non-compliance. Thus, the EDPB cial challenges. Therefore, the ministers still voiced concerns over adequate data still cannot state that the Ombudsperson­ are asking the European Commission to protection that must be addressed by can be considered an “effective remedy carry out a thorough impact assessment both the Commission and the USA. The before a tribunal” in the meaning of on widening the scope of the PNR con- EDPB adopted its third annual review Art. 47 of the EU Charter of Fundamen- cept. The aim of the impact assessment on 12 November 2019. tal Rights. is to explore the necessity and feasibility The EU-US Privacy Shield is a legal The Commission already concluded of the collection, storage, and process- framework that protects the fundamental its assessment report (third annual re- ing of PNR data from other cross-border rights of anyone in the EU whose per- view of the functioning of the EU-US travelling forms. The conclusions list sonal data is transferred to the United Privacy Shield, COM(2018) 495 final) several aspects in relation to legal, op- States for commercial purposes. In op- in September 2019. After taking the op- erational, and technical issues that the eration since 1 August 2016, it allows portunity to better examine daily expe- study must include. (TW) the free transfer of data to companies rience and practical implementation of that are certified in the USA under the the framework, the Commission came Council Push on Data Retention Privacy Shield. By now, more than 5000 to the conclusion that a number of con- to Fight Crime companies are already certified under crete steps should be taken so that the The Council closely monitors progress the Privacy Shield, having committed Privacy Shield functions more effective- made by the Commission in the imple- to complying with EU data protection ly. Several recommendations have been mentation of Council conclusions on standards. The Shield is reviewed each addressed to the U.S. Department of the retention of data for the purpose of year. The Privacy Shield must be distin- Commerce and the Federal Trade Com- fighting crime, which were adopted in guished from the EU-US Data Protection mission. June 2019 (see eucrim 2/2019, p. 106). Umbrella Agreement, which contains In a joint statement of 13 September At the JHA Council meeting of 2–3 De- a set of data protection rules that apply 2019, U.S. Secretary of Commerce, Wil- cember 2019, the ministers took note of to all transatlantic exchanges between bur Ross, and Věra Jourová, at the time the progress made and reiterated that the criminal law enforcement authorities. EU Commissioner for Justice, Consum- Commission should “pursue all efforts According to the EDPB report, the ers, and Gender Equality, defended the needed to achieve a satisfactory balance lack of substantial checks remains a EU-US Privacy Shield. They underlined between privacy and security concerns particular concern as far as commercial that the Privacy Shield plays a vital role at EU level.” The conclusions of June aspects of the Privacy Shield are con- in protecting personal data and contrib- 2019 attempt to find a way out of the cerned. Onward transfers, which lead to uting to the $7.1 trillion economic rela- impasse that occurred after the CJEU transfers of data outside the jurisdictions tionships between the United States and found the 2006 data retention directive of the American and EU authorities, re- Europe. and the national data retention regimes quire more substantial oversight. The third annual review of the Priva- of the UK and Sweden to be incompati- As regards access by public authori- cy Shield was debated in the EP’s LIBE ble with the EU’s Charter on Fundamen- ties to data transferred to the United Committee on 9 January 2020. MEPs tal Rights. The CJEU did not completely States under the Privacy Shield, the voiced severe criticism and pointed to rule out a data retention system, but it EDPB regrets the insufficient informa- shortcomings in the data protection of must set clear and precise conditions. tion basis, which makes it difficult to as- EU citizens. (TW) The conclusions encouraged the Com- sess to what extent data are collected for mission to prepare a new legislative national security purposes. In particular, CJEU Rules on Lawfulness of Video initiative, in particular by conducting there have been no follow-up reports Surveillance in Residential Buildings targeted consultations with stakeholders by the US Privacy and Civil Liberties On 11 December 2019, the CJEU ruled and supporting a comprehensive study Oversight Board (PCLOB). Such reports that national provisions which authorise that looks after possible solutions. (TW) would be helpful, for instance, to evalu- the installation of a video surveillance ate whether the collection of data under system on buildings, for the purpose of EU-US Privacy Shield – Third Annual Section 702 FISA is indiscriminate or pursuing the legitimate interest of ensur- Review not and whether or not access is con- ing the safety and protection of individu- Despite efforts made by the United ducted on a generalized basis under the als and property, without the consent of States authorities and the European UPSTREAM program. Furthermore, the the data subjects, are not contrary to EU

236 | eucrim 4 / 2019 Procedural Criminal Law law if the processing of personal data to the “data minimisation principle” data, in particular of the number of per- carried out by means of the video sur- enshrined in Art. 6(1) lit. c) of Direc- sons having access to these data and the veillance system at issue fulfils the con- tive 95/46. The CJEU considered the methods of accessing them; ditions laid down in Art. 7(f) of Direc- requirements in relation to proportional- „„For the purpose of the balancing tive 95/46/EC. ity to have been met in the present case exercise, the data subject’s reasonable In the case at issue (Case C-708/18, because the co-owners had installed an expectations are also relevant, namely TK v Asociaţia de Proprietari bloc M5A- intercom/magnetic card system at the that his/her personal data will not be ScaraA), the referring Romanian Court entrance of the building as an alternative processed when, in the circumstance of had to deal with an action brought by measure, which proved to be insufficient. the case, that person cannot reasonably an owner of an apartment located in The CJEU points out, however, that the expect further processing of those data; a residential building. The apartment referring court must assess whether as- „„Lastly, all these factors must be bal- owner applied for an order that the as- pects of the data minimisation principle anced against the importance (for all the sociation of co-owners take out of op- were upheld, e.g., determine whether co-owners of the building concerned) of eration the building’s video surveillance it is sufficient if the video surveillance the legitimate interests pursued in the system and remove the cameras installed operates only at night or outside normal instant case by the video surveillance in the common parts of the building be- working hours, and whether it blocks or system at issue, inasmuch as it seeks cause the instalment is contrary to EU’s obscures images taken in areas where essentially to ensure that the property, data protection law (Art. 6(1) lit. c) and surveillance is unnecessary. health, and life of those co-owners are Art. 7 lit. f) Directive 95/46, and Arts. 7, Third, the referring court must ensure protected. 8, 52 of the Charter). that the fundamental rights and free- The final assessment of this balancing The CJEU stressed that video surveil- doms of the person affected by the data has been left to the referring Romanian lance systems processing personal data protection do not take precedence over court. (TW) are lawful under the following three the legitimate interest pursued. This ne- conditions: cessitates a balancing of opposing rights EDPS: New Proportionality Guidelines First, the data controller or by the and interests, which depends on the in- On 19 December 2019, the European third party or parties to whom the data dividual circumstances of each particu- Data Protection Supervisor issued guide- are disclosed must pursue a legitimate lar case in question. According to the lines on assessing the proportionality interest. In the case at issue, this condi- CJEU, the following guidelines come to of measures that limit the fundamental tion is generally fulfilled if the control- the fore here: rights to privacy and to the protection of ler seeks to protect the property, health, „„Member States cannot exclude (cat- personal data. The guidelines aim at pro- and life of the co-owners of a building. egorically and in general) the possibil- viding policymakers and legislators with The extent to which the interest must ity of processing certain categories of practical tools to help assess the compli- be “present and effective” at the time of personal data without allowing the op- ance of proposed EU measures impact- data processing did not need to be de- posing rights and interests at issue to be ing the fundamental rights to privacy cided by the CJEU because the video balanced against each other in any par- and the protection of personal data with surveillance system was installed after ticular case; the Charter of Fundamental Rights. Ide- thefts, burglaries, and acts of vandalism „„Such balancing must take into ac- ally, conflicts between data protection had occurred. count the seriousness of the infringement and priorities/objectives of measures are Second, personal data must be pro- of the data subject’s rights and freedoms. to be minimised at an early stage. cessed for the purpose of the legitimate It is important whether the data are ac- The guidelines offer a practical, interests pursued; it is settled case law cessed from public or non-public sourc- step-by-step method by which to as- in this regard that derogations and limi- es. Processing of data from non-public sess the proportionality of new legisla- tations in relation to the protection of sources implies that the infringement is tive measures, providing explanations personal data must apply only insofar more serious because information relat- and concrete examples. They respond as is strictly necessary. In other words, ing to the data subject’s private life will to requests from EU institutions for it must be ascertained that the legitimate thereafter be known by the data control- guidance on the particular requirements data processing interests pursued by ler and possibly to third parties; stemming from Art. 52(1) of the Char- video surveillance cannot reasonably be „„Account must be taken, inter alia, of ter. The guidelines also complement as effectively achieved by other means the nature of the personal data at issue, the EDPS’ 2017 “Necessity Toolkit,” that are less restrictive of the fundamen- in particular of the potentially sensitive which guides policymakers in applying tal rights and freedoms of data subjects. nature of these data, and of the nature the necessity test to new EU measures In addition, the processing must adhere and specific methods of processing the that may limit the fundamental rights to

eucrim 4 / 2019 | 237 NEWS – European Union the protection of personal data (see eu- not apply to reports of breaches of the proach pushed through by the European crim 2/2017, p. 72). (TW) procurement rules involving defence or Parliament. Accordingly, Member States security aspects unless they are covered shall “encourage” reporting through in- by the relevant acts of the Union. ternal reporting channels before report- Victim Protection Regarding the Directive’s personal ing through external reporting channels, scope, it broadly applies “to reporting where the breach can be addressed ef- Whistleblowing Directive Published persons working in the private or pub- fectively internally and where the re-

spot On 26 November 2019, Direc- lic sector who acquired information on porting person considers that there is no light tive 2019/1937 “on the protec- breaches in a work-related context.” risk of retaliation. However, a whistle- tion of persons who report The Directive lists a number of persons blower may also choose to directly re- breaches of Union law” was published who must be included in the protection port breaches to competent authorities. in the Official Journal (L 305, p. 17). scheme at least, e.g.: The Directive sets out the obligations, The European Parliament and the Coun- „„ Persons having the status of work- the necessary framework, the procedure, cil already agreed on the content of the ers in the sense of Union law (including and the follow-up for both the internal Directive in April 2019. For the compro- civil servants); and external reporting channels. This in- mise reached on this directive, nick- „„ Persons having self-employed status; cludes the obligation for companies with named “Whistleblower Directive,” see „„ Shareholders; at least fifty workers to establish such eucrim 1/2019, p. 27 (with further refer- „„ Members of the administrative, man- channels and procedures for internal re- ences on the legislative process, which agement, or supervisory bodies of an porting and for follow-up. was closely monitored in eucrim). undertaking, including non-executive Public disclosure (i.e., making infor- The material scope of the Directive members; mation on breaches available in the pub- is limited to specific areas of Union law, „„ Volunteers and trainees; lic domain) – the third form of reporting where the Union legislator believes in „„ Any persons working under the su- – is protected by the Directive under the enhancing enforcement if breaches of pervision and direction of contractors, following conditions: law are reported. Still, the areas covered subcontractors, or suppliers; (1) The person first reported internally by the Directive are broad, including, „„ Persons whose work-based relation- and externally, or directly externally, e.g., public procurement, financial ser- ship has since ended or is yet to begin but no appropriate action was taken in vices, product and transport safety, pro- (e.g., cases in which the information on response to the report within the time- tection of the environment, etc. Union breaches was obtained during the re- frame referred to in the Directive; or (!) acts that may be breached are set out in cruitment process or other pre-contrac- (2) The person had reasonable grounds the annex to the Directive. The Directive tual negotiations); to believe that: expressly states that protection of the „„ Facilitators and third persons who (i) the breach may constitute an im- Union’s financial interests is a core area are connected with the reporting person minent or manifest danger to the public of the Directive’s scope, which is related (such as colleagues or relatives) and the interest, such as where there is an emer- to the fight against fraud, corruption, and legal entities owned by, or otherwise gency situation or a risk of irreversible any other illegal activity affecting Union connected to, the reporting person in a damage; or expenditure, and the collection of Union work-related context. (ii) in the case of external reporting, revenues and funds or Union assets. However, persons may benefit from there is a risk of retaliation or there is Legislation in the field of whistle- the protection under the Directive only if a low prospect of the breach being ef- blowing entails a number of legal prob- (1) They had reasonable grounds to be- fectively addressed, due to the particular lems regarding the relationship with lieve that the information on breaches circumstances of the case, such as those existing reporting mechanisms and reported was true at the time of report- where evidence may be concealed or conflicting areas, e.g., the protection of ing and that such information fell within destroyed or where an authority may be classified information, the protection of the scope of this Directive; and in collusion with the perpetrator of the legal/medical professional privilege, the (2) They reported either internally in breach or involved in the breach. secrecy of judicial deliberations, and accordance with Article 7 or externally Member States have the duty to ensure rules of criminal procedure. The rela- in accordance with Article 10, or made that the identity of the reporting person tionships in this regard are set out by a public disclosure in accordance with is not disclosed to anyone beyond the the Directive. It also stresses that the Article 15. authorised staff members competent to Directive’s provisions do not affect the The latter refers to the reporting sys- receive/follow up on reports, without the Member State’s responsibility to ensure tem established by the Directive. The explicit consent of that person. By way national security. In particular, it shall provisions mainly follow the flexible ap- of derogation, the identity of the report-

238 | eucrim 4 / 2019 Procedural Criminal Law ing person may be disclosed if this is a report or public disclosure (inversion of may also extend protection as regards necessary and proportionate obligation the onus of proof); areas or acts not covered by the Direc- imposed by Union or national law in „„Provided that they had reasonable tive (see above for the material scope). the context of investigations by national grounds to believe that the reporting Member States must implement the Di- authorities or judicial proceedings, in- or public disclosure was necessary to rective by 17 December 2021. Regard- cluding those with a view to safeguard- reveal a breach, reporting persons can ing the obligation for legal entities in the ing the rights of defence of the person seek dismissal of legal proceedings, in- private sector with 50 to 249 workers to concerned. In these cases, safeguards cluding those for defamation, breach of establish internal reporting mechanisms, also apply to the reporting persons, e.g., copyright, breach of secrecy, breach of Member States have time until 17 De- he/she must be informed before his/her data protection rules, disclosure of trade cember 2023. (TW). identity is disclosed, and he/she must secrets, or for compensation claims receive a written explanation of the rea- based on private, public, or on collective Council Conclusions on Victims’ Rights sons for the disclosure. labour law; The Finnish EU Council Presidency ad- Another key element of the Directive „„If information includes trade secrets, dressed the subject of victims’ rights. involves protection measures against but the reporting person meets the con- During the Presidency, delegations of retaliation. This includes obligations ditions of the Directive, such reporting the EU Member States agreed on con- for Member States to prohibit any form or public disclosure shall be considered clusions on victims’ rights that were of retaliation against whistleblowers. In lawful. adopted at the JHA Council meeting on this context, the Directive provides a Furthermore, the Directive requires 2–3 December 2019. The conclusions non-exhaustive list of prohibited retalia- Member States to make available a num- first take stock of the comprehensive tory acts. It includes not only work-relat- ber of support measures to whistleblow- EU framework in this field, including ed measures, e.g., suspension/dismissal, ers, e.g.: legislative and non-legislative measures. demotion, or withholding of promotion, „„Comprehensive and independent Second, they outline how the existing but also acts harming the whistleblow- information and advice on procedures EU framework can be strengthened, er’s reputation, blacklisting, and psychi- and remedies available, on protection more efficient implementation can be atric or medical referrals. against retaliation, and on the rights of improved/made, and the way forward Beyond the prohibitions, Member the person concerned; be developed. The conclusions identify States are obliged to proactively take the „„Effective assistance from competent concrete actions and initiatives to be tak- necessary measures to ensure that the authorities; en by the Commission and the Member whistleblower is protected from retalia- „„Access to legal aid in accordance with States. tion. Such measures include the follow- EU law (i.e., Directive (EU) 2016/1919 The European Commission is invited ing: and Directive 2008/52/EC applicable in to draw up an EU strategy for 2020–2024 „„Persons who report breaches or pub- criminal and in cross-border civil pro- on victims’ rights (for a corresponding licly disclose them shall not be consid- ceedings) and national law. demand by the Special Advisor, see eu- ered to have breached any restriction on Ultimately, Directive 2019/1937 crim 1/2019, p. 27). The strategy should disclosure of information and shall not obliges Member States to provide for be comprehensive and cover all victims incur liability of any kind in respect of “effective, proportionate and dissuasive of crime, with a special emphasis on vic- such a report or public disclosure, pro- penalties” applicable to natural or legal tims of violent crimes. It should include vided that they had reasonable grounds persons who hinder or attempt to hinder a systematic approach to ensure victims’ to believe that the reporting or public reporting; retaliate or bring vexatious effective access to justice and compen- disclosure of such information was nec- proceedings against whistleblowers; or sation. The Commission should also essary to reveal a breach pursuant to this breach the duty of maintaining the con- evaluate the existing legislation. The Directive; fidentiality of their identity. In addition evaluation should particularly focus on a „„Reporting persons shall not incur li- to compensating damages, effective, review of the established compensation ability in respect of the acquisition of proportionate, and dissuasive penalties scheme, such as the 2004 Directive re- or access to the information reported or must also be put in place against report- lating to compensation to crime victims. publicly disclosed, provided that such ing persons who knowingly reported or EU agencies, such as Eurojust, FRA, acquisition or access did not constitute a publicly disclosed false information. the European Institute for Gender Equal- self-standing criminal offence; The Directive only establishes mini- ity and the European Network on Vic- „„If whistleblowers suffered a detri- mum rules, i.e., Member States can in- tims’ Rights (ENVR) are invited to ment, it shall be presumed that the det- troduce or retain more favourable rules examine how to improve cooperation riment occurred in retaliation for the on whistleblowersʼ protection. They between competent authorities concern-

eucrim 4 / 2019 | 239 NEWS – European Union ing victims of violent crime in cross- of personal data for a specific Member judicial cooperation between the EU border cases. State needs prior evaluation and is sub- Member States (see also, for instance, Member States are called on, inter ject to a decision of the Council. eucrim 3/2019, pp. 177–178 [the Doro- alia, to ensure the complete and correct In its conclusions, the JHA Coun- bantu case]). At its meeting on 2–3 De- transposition and effective practical im- cil stresses, however, that, “by 15 June cember 2019, the ministers for justice plementation of the existing EU legisla- 2020, the UK review its policy of exclud- of the Member States adopted conclu- tion on victims’ rights. Member States ing suspects’ dactyloscopic files. If by sions on alternative measures to deten- should also strive for involving all actors then the UK has not notified the Council tion. The conclusions identify a number likely to come into contact with victims that it is making these data available, the of concrete actions to be taken at the (comprehensive and holistic approach). Council will within three months review national level, the EU level and the in- The functioning of national compensa- the situation with a view to the continu- ternational level. Member States are en- tion policies must be improved. (TW) ation or termination of Prüm automated couraged to do the following: dactyloscopic data exchange with the „„ Explore the opportunities to enhance, UK.” Despite this warning, a real op- where appropriate, the use of non-cus- erational start is still dependent on an todial sanctions and measures, such as a Cooperation implementation decision, which the suspended prison sentence, community Council must take after consultation of service, financial penalties, and -elec Police Cooperation the European Parliament. tronic monitoring (and similar measures How the EU and the UK will proceed based on emerging technologies); Council Gives Green Light for UK if the UK leaves the EU is not mentioned „„ Consider enabling the use of different Exchange of Fingerprint Data via Prüm in the Council conclusions and other EU forms of early or conditional release; Network documents. „„ Consider the scope for and benefits of On 2 December 2019, the JHA Coun- In technical terms, both searches of using restorative justice; cil formally approved the United King- the UK and searches by the UK will „„ Provide for the possibility to apply dom’s participation in the Prüm finger- require the establishment of a technical non-custodial measures also in the pre- print exchange system. After having interface with every other EU Member trial stage of criminal proceedings; concluded that the UK has fully imple- State – a process that can take years to „„ Ensure that information concerning mented the general provisions on data complete, as Statewatch reported. the legislation on non-custodial sanc- protection for the purpose of Prüm auto- Statewatch also points to the fact that tions and measures is easily available mated data exchange with regard to dac- – if operable – the UK will provide fin- for practitioners throughout criminal tyloscopic data, the UK is, in principle, gerprints from nine million convicted in- proceedings; ready to exchange fingerprint data with dividuals to the Prüm network, i.e. 98% „„ Provide adequate legal training to the other EU Member States that are part of the total number of individuals whose practitioners; of the Prüm network. fingerprints are stored in the UK Police „„ Improve practical training notably Council Decision 2008/615/JHA pro- National Computer. (TW) as regards the use of EU instruments vides for the automated transfer of DNA designed to prevent detention in cross- profiles, dactyloscopic data and certain border situations, i.e. Framework Deci- national vehicle registration data (VRD) Judicial Cooperation sion on probation and alternative sanc- for the purpose of prevention and inves- tions (2008/947/JHA) and Framework tigation of criminal offences and subject Council Conclusions on Alternative Decision on European supervision order to certain conditions and procedures. Measures to Detention (2009/829/JHA); The Council Decision transferred into One of the topics high on the agenda of „„ Pay particular attention to the needs EU law a former convention concluded the Finnish EU Council Presidency in of vulnerable persons, e.g. children, per- outside the EU framework in Prüm, a the second half of 2019 was the debate sons with disabilities and women during German village. The convention strived on alternative measures to detention pregnancy and after giving birth; for enhancing police cooperation be- (see eucrim 2/2019, p. 109). The topic „„ Improve capacity for probation ser- tween some EU Member States. After concerns EU policy debate since many vices; having opted-out from the Council De- years, but gained increased attention in „„ Share best practices. cision in 2014, but having rejoined it the last years when prison overcrowd- Regarding the EU level, particularly in 2016, the UK applied for being part ing and bad prison conditions in some the Commission is invited to: of the data exchange system. Accord- EU Member States have undermined „„ Increase awareness of the benefits of ing to said Council Decision, the supply mutual trust and thus have hampered non-custodial sanctions and measures

240 | eucrim 4 / 2019 Cooperation among policy-makers and practitioners; see also the seminar report on the EAW on detention conditions in all 28 EU „„ Carry out a comparative study to ana- AWARE project in this issue). Member States (see separate news item). lyse the use of non-custodial sanctions The report looks at five core aspects (CR) and measures in all Member States so as of detention conditions in EU Member to support the dissemination of national States: New Online Database on Conditions best practices; „„ Cell size; and Monitoring of Criminal Detention „„ Enhance the implementation of the „„ Amount of time detainees can spend FRA offers a new database on detention mentioned two Framework Decisions; outside of their cells, including outdoors; conditions in all 28 EU Member States „„ Develop training for judges and pros- „„ Sanitary conditions; on its website. This new Criminal De- ecutors through the European Judicial „„ Access to healthcare; tention Database 2015–2019 offers in- Training Network (EJTN), as well as for „„ Whether detainees are protected from formation about selected core aspects of prison and probation staff through the violence. detention conditions such as cell space, European Penitentiary Training Acad- For each of these aspects, the report sanitary conditions, access to healthcare, emies (EPTA); gives an overview of the minimum and protection against violence. „„ Launch regular experts’ meetings on standards at the international and Eu- The database contains detailed in- detention and non-custodial sanctions ropean levels and explains how these formation on the relevant case law of and measures. standards are translated into national the European Court of Human Rights Regarding the international level, the laws and other rules within the EU (ECHR) and the Court of Justice of the conclusions mainly emphasise the im- Member States. European Union (CJEU) as well as mon- portance of close cooperation with the Regarding cell space, the report con- itoring reports and statements of various Council of Europe, so that synergies cludes that the problem of overcrowding national, European, and international can be found. The Commission and the is a persistent issue in many EU Mem- bodies on detention conditions in the EU Member States should consider ways in ber States, despite the establishment of Member States. Furthermore, the data- which to promote the dissemination of detailed minimum standards and guide- base offers country-specific information, the Council of Europe standard-setting lines on prison cell space at national, Eu- e.g., legal standards at the national level texts, the relevant ECtHR case law and ropean, and international levels. and who the responsible authorities for the CPT recommendations regarding While serious issues can also be executing the EAW are. detention and the use of non-custodial found in many Member States with re- The database is targeted at judges and sanctions and measures. (TW) gard to hygiene and sanitary conditions, legal practitioners involved in cross- the report notes a gradual improvement border cases. It aims at serving as a FRA Report on Detention Conditions– in the situation in prison facilities in the “one-stop-shop” for practitioners seek- New Tool for Legal Practitioners EU. ing information about criminal deten- Dealing with EAWs Regarding time spent outside cells tion conditions in any given EU Member

spot In December 2019, FRA pub- and outdoors, the report finds that in- State. The database is complemented by light lished a report on criminal de- mates benefit from only one hour a day the FRA report on detention conditions tention conditions in the EU. outside their cells. Consequently, lock- in the EU, which was published in De- The report responds to the Commis- up times last up to 23 hours per day, cember 2019 (see separate news item) sion’s request to compile certain basic which is considered intolerable. (CR) information on prison conditions and Looking at inmates’ access to health- existing monitoring mechanisms in care, the report states that all Member EU-US Reaffirm Their Partnership Member States. FRA stresses that the re- States provide medical services on the to Tackle Security Threats port does not intend to compare and rate premises of detention facilities. How- On 11 December 2019, representatives EU Member States, but instead aims at ever, the report also finds that a shortage of the European Union – including assisting judges and legal practitioners of medical staff often leads to delays in new Commissioner for Justice, Didier in their assessment of mutual recogni- medical examinations. Reynders, and the Finnish and Croatian tion instruments, in particular the Euro- Lastly, the report finds inter-prison ministers of justice and of the interior pean Arrest Warrant. The question of violence a cause for extreme concern ‒ it on behalf of the current and incoming when the execution of an EAW can be is a critical issue in most Member States. Council Presidencies – met in Wash- denied because of bad prison conditions The report complements FRA’s da- ington D.C. with U.S. Attorney General is a persistent problem (see, recently, the tabase on detention conditions. The da- William Barr and Acting Secretary for CJEU judgment in Case C-128/18, re- tabase centralizes national standards, Homeland Security Chad Wolf for the ported in eucrim 3/2019, pp. 177–178; jurisprudence, and monitoring reports EU-U.S. Ministerial Meeting on Jus-

eucrim 4 / 2019 | 241 NEWS – European Union tice and Home Affairs. The Ministerial The next EU-U.S. Ministerial Meet- the French and Swedish public prosecu- Meeting is held twice a year in order to ing will be held in the first half of 2020 tor respectively concern EAWs for the oversee transatlantic cooperation in the in Croatia. (TW) purpose of conducting criminal prosecu- area of Justice and Home affairs and ad- tions, the “Belgian” case concerned an dress common security threats. EAW issued for the purpose of enforcing The December meeting was the first European Arrest Warrant a criminal judgment. EU-U.S. Ministerial Meeting after the hhQuestions by the Referring Courts EU started its new political cycle. Both CJEU Clarifies Its Case Law on Concept Regarding the French public prosecu- sides reaffirmed their strong commit- of “Judicial Authority” Entitled to Issue tor’s office, the referring courts consid- ment to foster the transatlantic partner- EAWs ered the following problems that may ship and pursue their dialogue on Jus- spot On 12 December 2019, the undermine the required independence in tice and Home Affairs, building on the light CJEU provided further guid- accordance with the CJEU’s case law: existing operational cooperation and ance under which conditions „„Although the French Ministry of Jus- best-practice exchanges on matters of public prosecutor’s offices can be re- tice cannot direct instructions in specific common interest. The following issues garded as “issuing judicial authority” cases, it may issue general instructions were discussed and considered as prior- within the meaning of Art. 6(1) of the on criminal justice policy; ity areas for future cooperation: 2002 Framework Decision on the Euro- „„The issuing French public prosecutor „„Regarding the fight against terrorism pean Arrest Warrant (FD EAW). Uncer- is subordinate to his/her hierarchical su- (which remains the top common prior- tainties were triggered after the CJEU’s periors, and is therefore obliged to fol- ity), both sides consider important the judgments of May 2019, in which the low instructions/directions; sharing of information gathered in zones Court found that the German public „„He/she is, at the same time, the com- of combat for use in criminal proceed- prosecutor’s offices are exempt from the petent prosecuting body and the authori- ings as admissible evidence. In this con- concept of “issuing judicial authority” ty that controls the conditions for issuing text, continued operational cooperation because they may be subject to direc- EAWs and their proportionality, which between the relevant agencies, including tions or instructions from the executive. raises doubts on impartiality. Europol, was highlighted; The Court distinguished this case from In addition, the referring Dutch court „„By referring to the EU-U.S. PNR the Prosecutor General of Lithuania who observed that there is no separate le- agreement, the use of Passenger Name was considered a “judicial authority” gal remedy for the person concerned Records (PNR) for the purpose of pre- that can issue EAWs, under the condi- against the decision to issue an EAW venting, detecting and investigating ter- tion that his/her decisions are subject to and its proportionality. Instead, the pub- rorist offenses and related travel also court proceedings fully meeting the re- lic prosecutors rely on the decision of remains important. The EU and the U.S. quirements inherent to effective judicial the (investigative) judge who examines will work together in order to establish protection. For these landmark judg- the lawfulness of the issuance of the na- ICAO standards on PNR for law en- ments, see eucrim 1/2019, pp. 31–34. tional arrest warrant. This argument was forcement purposes implementing Unit- hhThe Cases at Issue also put forward as regards the Swedish ed Nations Security Council Resolution In the three cases decided on 12 De- public prosecutor who issues EAWs af- 2396; cember 2019, courts in Luxembourg and ter the criminal first instance court had „„Hybrid threats and risks related to the Netherlands, which had to deal with ordered pre-trial detention against the new emerging technologies, in particular the execution of EAWs, casted doubts suspect. 5G, are the main area in which coopera- whether the requirements set up in the hhThe CJEU’s Arguments Regarding tion will be fostered, so that the partners decisions of May 2019 are met in view the French and Swedish Public can react to the changing environment of of the French, Swedish and Belgian pub- Prosecutor’s Offices security threats; lic prosecutor’s offices. The cases are re- Referring to its judgments of May „„The U.S. and the EU will join their ferred to as follows: 2019, the CJEU clarified that the exami- efforts to establish rules on lawful access „„Joined Cases C-556/19 PPU and nation of whether an authority partici- for law enforcement authorities to digi- C-626/19 PPU (French Public Prosecu- pating in the administration of criminal tal evidence, including when encrypted tor’s Office); justice – but which is not a judge or or hosted on servers located in another „„Case C-625/19 PPU (Swedish Pros- court – capable in an EU Member States jurisdiction; ecution Authority); to issue EAWs falls under the concept „„Resilience to combat interferences „„Case C-627/19 PPU (Belgian Public of “judicial authority” within the mean- into electoral processes will be strength- Prosecutor’s Office). ing of the FD EAW requires a two-step ened; While the cases on EAWs issued by approach. First, it must be examined

242 | eucrim 4 / 2019 Cooperation

Report

AWARE: Seminar on the European Arrest Warrant and Conditions of Detention Bremen/Germany, 24–26 October 2019

On 24 to 26 October 2019, the Higher Regional Court of Appeal Dr. Riegel tackled practical concerns of EAW proceedings (Oberlandesgericht) in Bremen/Germany, together with the both in the issuing state (such as use of a central EAW au- Bremen Ministry of Justice and Constitution, held a three-day thority) and in the executing state (for instance, at which seminar as part of an EU Justice Programme-funded series point and under what conditions representation by legal of three seminars looking at use of the European Arrest War- counsel should be organised). rant (EAW AWARE). The seminar in Bremen was attended by Bearing in mind this focus on detention conditions, partici- 38 European judicial and legal practitioners and academics pants made onsite visits to both Bremen Correctional Facility from eight EU Member States. and Bremen Secure Treatment Unit of the Psychiatric Treat- The purpose of the seminar series is to incorporate different ment Centre. They heard first-hand accounts from staff, and perspectives stemming from practitioner experience in order the visits fueled the discussion that detention conditions are to address the challenges of EAW implementation and policy: not to be understood as either an “east vs. west” issue or as decision-making information, use of existing provisions in the fault of unwilling regimes. Instead, improved conditions national law, and informal judicial cooperation. A particular depend on investment and the capacity for renovation, and focus is on the obligations of the executing Member State improvements must often accommodate changing factors courts to examine the detention conditions in the issuing such as new demographics. All this within the uniquely chal- Member States, alongside broader issues involving the pro- lenging requirements of a secure environment. The onsite tection of human rights of the requested person. visits ultimately led to a better understanding of the human Following a welcome from Secretary of State for Justice for rights relevance of detention conditions, with a particular the Federal State of Bremen, Björn Tschöpe, practitioners emphasis on the need for open communication between the heard from Daniel Burdach from the Registry of the European relevant authorities ‒ in the European spirit of mutual trust and Court of Human Rights (ECtHR) regarding the ECtHR’s rulings cooperation. on the standards for prison detention conditions under the Additional afternoon sessions were conducted, according to European Convention of Human Rights. Raising awareness a prioritised agenda, including the following: among national executing judges for existing tools and the „„ Analysis of the German Puigdemont case and its reception in ECtHR’s benchmark criteria are key goals of the EAW AWARE Spain (Mr. Florentino Ruiz Yamuza, Judge in Huelva/Spain); seminars. Mr. Burdach presented a detailed review of cases „„ Rejection of surrender and problems/practice in relation pertaining to the major problems of overcrowding and inap- to the enforcement of foreign sentences in Germany (Mr propriate detention facilities; he concluded by listing existing Christian Schierholt, Chief Senior Public Prosecutor, Celle/ resources on the ECtHR factsheets and on the HUDOC data- Germany); base. In the afternoon session, Dr. Klaus Schromek, Presiding Judge at the Bremen Higher Regional Court of Appeal, provid- „„ Extradition and Fair Trial, focusing on the ECJ’s judgment ed European practitioners with broader context on criminal in “LM” (C-216/18) and its reception in EU Member States procedure in Germany. His colleague Dr. Ole Böger focused from a comparative law perspective (Mr. Thomas Wahl, on the relevance of human rights protection in application of Senior Researcher at the Max Planck Institute for Foreign the EAW in the case law of European and domestic courts. and International Criminal Law, Freiburg/Germany); He highlighted that both the European Court of Justice (ECJ) „„ The perspective of suspects and lawyers on extradition – especially in the Aranyosi and Căldăraru case (C-404/15), proceedings, with a focus on possibilities for avoiding de- which had been initiated by a referral for a preliminary deci- tention (Dr. Anna Oehmichen, defence lawyer from Knierim sion by the Bremen Higher Regional Court of Appeal – and & Kollegen, Mainz/Germany). the German Federal Constitutional Court require the courts of By bringing users of the EAW tool together with such a di- the executing Member States to ensure the human rights pro- verse, practical agenda, these seminars are designed to tection of the requested person in the issuing Member State. support, discuss, and build mutual trust and recognition of Dr. Böger also discussed remaining issues concerning the decisions between neighbouring European judiciaries and precise scope and content of these duties on the part of the to promote consistent use of European bodies. The second executing Member States’ courts, also referring to practical seminar will take place in Bucharest/Romania from 23 to solutions for the future, e.g., enhanced databases and the fa- 27 March 2020 and the third in Lisbon/Portugal from 28 Sep- cilitation of closer co-operation between judicial authorities tember to 2 October 2020. Persons and institutions interested of the issuing and executing Member States. in the material developed during EAW AWARE are warmly The first day of the seminar was concluded by Dr.Ralf Riegel, encouraged to get in touch with Rhianon Williams (rhianon. Head of the International Criminal Law Division at the Ger- [email protected]). man Federal Ministry of Justice and Consumer Protection, who led an engaging debate on the need for reform of the Rhianon Williams, EAW AWARE Project Coordinator within national and the international basis in EAW proceedings. Bremen Ministry of Justice

eucrim 4 / 2019 | 243 NEWS – European Union

Report structions on criminal policy. Likewise, it does not matter that the authority is The 2019 Annual Conference on International Extradition responsible for conducting criminal and the European Arrest Warrant prosecutions nor that the staff is under Lake Iseo, Italy, 24–25 June 2019 the direction and control of their hier- archical superiors, and thus obliged to 25 law professors and practising lawyers from around the world gathered in Sar- nico, Italy in the last week of June 2019 to brainstorm on current developments comply with the instructions within this in extradition law and the practice of the European Arrest Warrant (EAW). The hierarchy. As a result, the CJEU con- meanwhile fourth edition of the annual conference on International Extradition cludes that the French public prosecu- and the EAW was held at Hotel Cocca, on the shores of beautiful Lake Iseo (Italy). tor’s office – in contrast to the German For the previous editions of this meeting of persons interested in extradition law, one – fulfils the requirement of inde- see eucrim 3/2018, p. 160; eucrim 3/2017, p. 118, and eucrim 3/2016, pp. 132–133. As in previous years, the 2019 conference attracted experts from many countries, pendence. French public prosecutors including the United States, Mexico, Canada, Belarus, the England, Scotland and can make an independent assessment of several countries in Continental Europe. the necessity of issuing an EAW and its The seminar began with a report by UK barrister Mark Summers QC – who ap- proportionality, and they can exercise pears on a regular basis in extradition cases, including Assange v. Sweden in that power objectively. 2012 – on the current Hong Kong crisis that originated from the proposed reform Second, the CJEU clarified the re- to extradition arrangements. quirement (established by the previous A number of presenters offered country reports, namely on The Netherlands (by researcher Joske Graat), Finland (by Ministry of Justice officer Taina Neira), case law) that there must be the possibil- Switzerland (by lawyers Gregoire Mangeat and Alice Parmentier), Scotland (by ity of bringing court proceedings against advocate Mungo Bovey QC from the Faculty of Advocates of Scotland), Belarus the decision of the public prosecutor to (by lawyer Alaksiej Michalevic), and Poland (by lawyer Urszula Podhalanska). issue an EAW, and these court proceed- Thomas Wahl (an extradition expert from the Max Planck Institute for Foreign and ings must comply with the principle of International Criminal Law) offered an update to certain key aspects of the EAW jurisprudence in Germany and the European Court of Justice. In the 2018 edition, effective judicial protection. The Lux- Wahl presented the controversial Puigdemont case from a German perspective; embourg judges pointed out that the this time, we heard a presentation by Paul Bekaert, a Belgian lawyer, who rep- EAW system contains a two-tiered pro- resented Carles Puigdemont in the Belgian EAW case. Paul Bekaert also sum- tection of the individual’s procedural marised the decisions of Belgian courts in other notable extradition cases when and fundamental rights. The protection freedom of expression was at stake. at the first layer – the national decision In separate sessions, Nicola Canestrini, a criminal lawyer from Italy, raised the question of how “free movement” rights can impact on the extradition of EU citi- on a national arrest warrant – must be zens to third countries while Anna Oehmichen (a lawyer and University lecturer supplemented by a protection as regards from Germany) described how the abuse of the Interpol red notice (issued in the the issuance of the EAW (second layer). case at issue by the Dubai authorities, for a criminal offence that seems to exist This implies that the requirements in- only in the UAE) could lead to major violations of the fundamental rights of the herent in effective judicial protection requested persons. Finally, Stefano Maffei of the University of Parma, one of the organisers of the conference, announced the publication of his new book “Ex- must be afforded at least at one of the tradition Law and Practice”, which offers an overview of the typical course of an two layers. The establishment of a sepa- extradition case and the description of 30 notable extradition cases. rate legal remedy against the decision Other participants included Canadian law student Camille Baril; Italian lawyer to issue an EAW is only one possibility. Vanni Sancandi; Italian graduate student Irene Milazzo; Sibel Top, a PhD student Instead, legal orders of the EU Member at the Institute of European Studies (IES) in Brussels; Mariana Melgarejo from the States can also meet the criteria of judi- UK embassy in Mexico city; Björn Weißenberger, Florian Fuchs and Mohammed Arjun Zahidul (German law students) and Kylie Zaechelein, Trenten Bilodeaux and cial protection if the proportionality of Paul Borges (from the University of the Pacific Mc George School of Law). the decision of the public prosecutor’s The Vth International Extradition Conference will be held in Northern Italy on office to issue an EAW is judicially re- 22–23 June 2020. All those interested should email the team of organisers at viewed before, or practically at the same [email protected]. time as that decision is adopted, or even subsequently. It is also fine if such an assessment is made in advance by the whether the Member State afforded the ject to directions or instructions in a court adopting the national decision that authority a status that sufficiently guar- specific case from the executive. By may subsequently constitute the basis of antees independence for the issuing of contrast, the independence is not called the EAW. In conclusion, the French and EAWs. This independence is excluded into question by the fact that the Min- Swedish systems satisfy those require- if the authority is at risk of being sub- ister of Justice may issue general in- ments.

244 | eucrim 4 / 2019 Cooperation hhThe CJEU’s Arguments Regarding before the Court, there had never been court proceedings similar to those that the Belgian Public Prosecutor’s Office a single case in which the German min- apply in the case of EAWs issued for the and the EAWs Issued for Enforcing istries of justice issued directions or in- purpose of conducting criminal prosecu- Sentences structions towards a public prosecutor to tion. Thus, he voiced doubts whether the Regarding the specific case where issue or not to issue EAWs. Like in the Belgian system affords the necessary le- the EAW was issued for the purpose of Swedish and French system, the basis gal protection. enforcing a custodial sentence imposed for issuing an EAW (for the purpose of In conclusion, one cannot dismiss by a final judgment (“the Belgian case”), prosecution) is the investigative judge’s the impression that the judges in Lux- the CJEU found that the requirements decision on whether a national arrest embourg strived for mitigating the con- of effective judicial protection is satisfied warrant is to be issued. It must also be sequences of their initial ruling on the by the judicial review carried out by the questioned whether the examination German public prosecutors by its subse- enforceable judgment on which a subse- of the prerequisites to issue EAWs is a quent judgments of October and Decem- quent EAW is based. The CJEU argued routine for the national judges – more ber 2019 (Austrian, French, Swedish that in these cases it makes no sense to or less rubber-stamping the prosecutor’s and Belgian public prosecutor’s offices). require a separate appeal against the pub- applications. In short, a rather concrete The latter judgements stress more the lic prosecutor’s decision. The execut- assessment of the individual cases would procedural autonomy of the EU Mem- ing judicial authority can presume that have been the much better approach in- ber States since the Court acknowledged the decision to issue an EAW resulted stead of scrutinising the legal situation that procedural rules may vary as re- from judicial proceedings in which the of independence in an abstract way. gards the implementation of sufficient requested person had all the necessary Interestingly, the CJEU differs in its procedural safeguards. (TW) safeguards in respect of his/her funda- judgments of 12 December 2019 from mental rights. In addition, the CJEU the opinion of the Advocate General. AG Opinion in EAW Case against points out that the FD EAW already con- AG Campos Sánchez-Bordona con- Rapper: Legislation at Time of Offence tains a proportionality assessment be- cluded in his opinions of 26 November Governs Interpretation of Thresholds cause EAWs can only be issued for the 2019 that the French public prosecutor’s On 26 November 2019, Advocate Gen- purpose of enforcing custodial sentences office cannot be regarded as an “issu- eral (AG) Michal Bobek issued his if the sentence is at least four months. ing judicial authority.” He argued that opinion in the extradition case of rap- hhPut in Focus the concept of the independence of the per Valtònyc. The CJEU has to interpret In sum, the CJEU ruled that the judicial authority implies that the pub- Art. 2(2) of the 2002 Framework Deci- French, Swedish and Belgian public lic prosecutor is not subject to any hi- sion on the European Arrest Warrant prosecutor’s offices satisfy the require- erarchical constraint or subordination. (FD EAW) following a request for pre- ments for issuing an EAW. This includes not only the reception of liminary ruling by the Court of Appeal It seems that Germany is the only EU instructions in specific cases, but also of of Ghent, Belgium. The background of Member State at the moment where its general instructions as it is the case in the case (C-717/18) is as follows: public prosecutor’s offices are not enti- the French system. In 2017, the National High Court of tled to issue EAWs following the CJEU AG Sánchez-Bordona also advocated Spain convicted Josep Miquel Arenas ruling in the Joined Cases C-508/18 and more stringent requirements as regards (who performs under the name Valtònyc) C-82/19 PPU. In a judgment of 9 Octo- the individual’s legal protection. Ac- to 3.5 years of imprisonment for rap ber 2019, the CJEU already confirmed cording to his opinion, the requested per- songs that he published online in 2012 the validity of EAWs issued by the son must be able to challenge the EAW and 2013. The most severe sentence Austrian public prosecutor (see eucrim issued by the public prosecutor before a (2 years) referred to the offence of “glori- 3/2019, p. 178). All EU Member States judge/court in the issuing Member State, fication of terrorism and the humiliation also replied to a questionnaire issued by without having to wait until he is surren- of the victims of terrorism”. At the time Eurojust advocating that their national dered, as soon as this warrant has been of the commitment this was the maxi- public prosecutor’s offices are not af- issued (unless this would jeopardise the mum sentence laid down for this offence fected by said CJEU judgment of May criminal proceedings) or notified to him. in the Spanish Criminal Code. In 2015, 2019 on the “German case” (see eucrim Finally, the AG set out a divergent however, Spain amended the offence and 2/2019, p. 110). view as regards EAWs issued by the introduced a maximum of three years of The question remains, however, public prosecutor for the purposes of imprisonment for “glorification of -ter whether the CJEU overshot the mark enforcing a custodial sentence. The AG rorism and the humiliation of the victims with its May ruling. As the German required that the enforceable decision of terrorism.” The rapper fled Spain to government argued in the proceedings must be capable of being the subject of Belgium where he lives since 2017. In

eucrim 4 / 2019 | 245 NEWS – European Union

2018, the Spanish authorities issued a be respected, too. He also makes a dis- ally, he can be held liable under Dutch European Arrest Warrant to Belgium for tinction between a “structural effective- law as the person in whose name the ve- the purpose of executing the custodial ness” of the FD and an “individual ef- hicle is registered. This form of liability sentence of 2017. In the EAW form, the fectiveness” (effectiveness of a specific is known in many European countries, Spanish authorities ticked the box “ter- EAW in an individual case). The latter whereas in others, e.g., Poland, criminal rorism” with regard to the offences that is difficult to translate into generally ef- liability only lies with the individual. gave rise to penalty. As a consequence, ficient and operational rules. The referring court argued that holding the double criminality requirement is not In its final remarks, the AG stresses somebody liable solely on the basis of to be verified by the executing Belgian several issues that are problematic in the information of vehicle registration data, authorities in accordance with Art. 2(2) case at issue, but are not subject of the and without any investigation being car- FD EAW. Art. 2(2) stipulates, however, questions brought to the CJEU. These is- ried out, in particular in determining that in these cases the offences must be sues include the significance of the fun- the actual offender, may be contrary to punishable in the issuing Member State damental right of freedom of expression the principle of the presumption of in- by a custodial sentence or a detention in the present criminal case; the question nocence. Requests seeking execution of order for a maximum period of at least whether the “glorification of terrorism such imposed fines could then be unen- 3 years and as they are defined by the and the humiliation of the victims of forceable on the basis of Art. 20(3) of law of the issuing Member State. terrorism” can be subsumed under “ter- said FD. By its reference for preliminary rul- rorism” in the list of the 32 offences for hh The CJEU’s Response: ing the Ghent Court of Appeal seeks which the verification of double crimi- By interpreting Art. 48 of the Charter clarification which version of the Span- nality is excluded in the FD; and the ef- of Fundamental Rights which enshrines ish criminal law is relevant in order to fect of the interpretation of Art. 2(2) on the principle of the presumption of in- determine the “minimum maximum Art. 2(4) FD EAW. (TW) nocence, the CJEU refers to the ECtHR threshold” in Art. 2(2) FD EAW. Is the case law concerning Art. 6(2) ECHR. reference point the maximum custodial The ECtHR held that the Dutch law is sentence applicable to the case at hand, Financial Penalties compatible with the presumption of in- i.e., the law that applies when the offence nocence, in so far as a person who is was committed (here: 2 years, as the of- CJEU: No Loopholes against fined can challenge the fine before a trial fences were committed in 2012/2013)? Enforcement of Foreign Fines court with full competence in the mat- Or is it the maximum sentence provided On 5 December 2019, the CJEU pub- ter and that, in any such proceedings, for by the national law in force at the lished an important judgment on the the person concerned is not left without time of issuing the EAW (here: 3 years Framework Decision on the application any means of defence in that he or she following the amendment of the Spanish of the principle of mutual recognition can raise arguments based on Article 8 Criminal Code in 2015)? to financial penalties (FD 2005/214/ of the Netherlands Highway Code. The AG Bobek clearly favours the first JHA). In the case at issue (C-671/18), CJEU adds that objections against the approach. He recommends the CJEU which was referred to the CJEU by a presumption of liability of the person in deciding that Art. 2(2) FD EAW refers Polish court, the question was, among whose name the vehicle is registered as to the criminal legislation applicable in others, whether the contentious liability laid down in the legislation of the issu- the issuing State to the specific criminal of persons in whose name the vehicle is ing State (here: the Netherlands) are un- offence(s) to which the EAW relates. In registered for road traffic offences is in founded, provided that that presumption other words, it is the law actually appli- line with European fundamental rights. can be rebutted. Z.P. had these possibili- cable to the facts of the case to which re- In the affirmative, this may be a reason ties also in the present case. course has to be made in order to assess for denying a request to recognise and The CJEU pointed out that FD the maximum threshold of at least three execute a fine imposed in another EU 2005/214 is intended to establish an ef- years – the precondition to dispense with country. fective mechanism for cross-border rec- the verification of double criminality. hh Facts of the Case and Legal ognition and execution of final decisions According to the AG, this conclusion Question on Liability: imposing financial penalties. Grounds results from the context of the provision In the case at issue, the Dutch authori- for refusal to recognise or enforce such and the purpose of the FD. Although the ties imposed a fine of €232 against Polish decisions must be interpreted restric- CJEU’s case law is guided by the princi- national Z.P. in respect of road traffic of- tively. ple that an EAW can be denied only ex- fences in the Netherlands. Although the hh Infringements of Defence Rights? ceptionally, the AG underlines that other offences were committed by the driver Regarding a second set of questions values, such as fundamental rights, must of Z.P.’s vehicle and not by Z.P. person- of whether Z.P. had effective defence

246 | eucrim 4 / 2019 Cooperation rights, the CJEU noted that the person According to the report, over 74% of information about which data sets can concerned must have had sufficient time EU law enforcement requests to the eight be requested and to which legal entity to contest the decision in question and major OSPs in 2018 originated in three the data requests should be addressed; to prepare his defence, and was in fact EU Member States: Germany, France, to prepare periodic transparency re- provided with the decision imposing the and the UK. The three OSPs most fre- ports on requests from EU authorities, financial penalty. It is in line with the FD quently requested were Facebook including standardized data categories and the Charter right to an effective legal (30%), Google (26%), and Apple (24%). across OSPs and files in CSV formats; remedy if the decision was notified to The overall success rate of requests to and to clearly inform the requesting the person concerned in accordance with major OSPs in 2018 was calculated at authority of the reasons for rejection the legislation of the issuing state. The 66%. The most frequently needed type without delay. EU law enforcement CJEU also held a period of six weeks as of data in the majority of investigations agencies are asked to provide peri- time limit for exercising the right of ap- appeared to be traffic data (e.g., con- odic trainings to officers dealing with peal (starting with the date of decision) nection logs, IP addresses, number of cross-border requests to OSPs; to es- sufficient to guarantee the person’s de- messages), followed by basic subscriber tablish Points of Single Contact (PSCs) fence rights. information (e.g., name, e-mail, phone within the law enforcement agency to hhPut in Focus: number), and content data (e.g., photos, deal with the most relevant OSPs; and The CJEU confirms its case law es- mail/message content, files). to collect statistics on cross-border re- tablished in other mutual recognition Looking at issues encountered by EU quests to OSPs. instruments that grounds for refusal are law enforcement, with requesting data The report is an outcome of the SIRI- to interpreted in a very restrictive way. from OSPs, the main problems identi- US project, which was launched by Eu- Denial of requests can only be the ex- fied by the report are the lengthy MLA ropol in October 2017. The project was ception, also when fundamental rights proceedings, the lack of standardized initiated in response to the increasing infringements may be at stake. In the company procedures when receiving need of the EU law enforcement com- present judgment on financial penalties, requests from EU law enforcement, and munity to access electronic evidence for the CJEU also concludes that the law of how to determine the type of data held internet-based investigations. More than the issuing state on liability of persons by companies. Further issues outlined in half of all criminal investigations today prevails over potentially differing laws the report include the short data reten- include a cross-border request to access of other EU Member States. Therefore, tion period, the lack of timely response e-evidence (such as texts, e-mails, or the judgment has not only an impact to in urgent cases, and the non-standardiza- messaging apps). The SIRIUS project Poland, but also to other EU countries tion of OSP policies. is spearheaded by Europol’s European for which liability of persons who did Reasons for refusal or delay in pro- Counter-Terrorism Centre and European actually not commit an offence is alien. cessing direct requests, as given by the Cybercrime Centre, in close partnership (TW) OSPs, include wrong identifiers, overly with Eurojust and the European Judicial broad requests, requests concerning Network. It aims to help investigators non-existing data or data requiring ju- cope with the complexity and volume Law Enforcement Cooperation dicial cooperation, the lack of reference of information in a rapidly changing to Valid Legal Basis (VLB) under the online environment, by providing guide- EU Digital Evidence Situation Report domestic legislation of the requesting lines on specific OSPs and investigative On 20 December 2019, Eu- authority, the wrong legal entity of the tools. Europol established a platform spot light ropol published a new report, OSP being addressed, and the lack of for experts (restricted access) by means giving an overview on the sta- requests for preservation. Other chal- of which the multidisciplinary SIRIUS tus of access of EU Member States to lenges faced by the OSPs are language community can have access to a wide electronic evidence held by foreign- barriers, how to ensure the authenticity range of resources. based Online Service Providers (OSPs) of received documents, and misunder- The EU Digital Evidence Situation in the context of criminal investiga- standings caused by little or no previous Report provides empirical information tions. Looking at the year 2018, the knowledge on the part of requesters of on e-evidence in a systematic and com- new EU Digital Evidence Situation Re- OSP services and products. prehensive way for the first time. It not port (SIRIUS) looks at the volume of The report provides for several rec- only includes information from all EU requests from EU Member States to ommendations to both the OSPs and Member States but also comprises data OSPs, the main reasons for refusal or EU law enforcement agencies. OSPs from both judicial and police authori- delay of EU requests, and the main are asked to provide clear guidelines for ties. Another added value is the input by challenges in the process. law enforcement authorities, including 12 OSPs (mainly based in the USA, e.g.,

eucrim 4 / 2019 | 247 NEWS – European Union

Airbnb, Facebook, Google, Microsoft, Meeting of EU Justice and members of the JHA Agencies Network: Twitter). The report is sure to influence Home Affairs Agencies „„ European Asylum Support Office discussion on the establishment of a new On 22 November 2019, the heads of the (EASO); legal framework on e-evidence at the nine EU Justice and Home Affairs (JHA) „„ European Border and Coast Guard EU level (see, recently, eucrim 3/2019, agencies met at Europol’s headquarters Agency (Frontex); pp. 179 et seq. with further references) in The Hague. The topics of discussion „„ European Institute for Gender Equal- (CR) were as follows: ity (EIGE); „„ Implementation of the New Strategic „„ European Monitoring Centre for Commission Updates on E-Evidence Agenda 2019–2024; Drugs and Drug Addiction (EMCDDA); Negotiations with US and at Council „„ State-of-play of the interoperability „„ European Union Agency for Funda- of Europe project; mental Rights (FRA); At the JHA Council meeting of 2–3 De- „„ Common efforts in reinforcing diver- „„ European Union Agency for Law En- cember 2019, the Commission updated sity and inclusion in the workplace. forcement Cooperation (Europol); the Council on the state of play of the As a result of the meeting, the agen- „„ European Union Agency for Law En- negotiations for an EU-US agreement cies’ representatives signed a common forcement Training (CEPOL); on cross-border access to e-evidence, on statement to highlight the importance of „„ European Union Agency for the Op- the one hand, and on a second additional inclusive corporate culture and strong erational Management of Large-Scale IT Protocol to the Budapest Convention, diversity and to ensure equal opportuni- Systems in the Area of Freedom, Secu- on the other hand. The Council gave ties for all staff members while embrac- rity and Justice (eu-LISA); green light for both negotiations when ing their diversity. „„ European Union Judicial Coopera- it endorsed the respective mandates in The following nine agencies are tion Unit (EUROJUST). (CR) June 2019 (see eucrim 2/2019, p. 113). Regarding the EU-US agreement, three meetings took place (September, No- vember, and December 2019), where the parties mainly stated their starting nego- tiating positions. Negotiations on the second protocol to the Budapest Convention on Cyber- crime advanced at the Council of Eu- rope, but several important topics have still to be addressed. Council of Europe* Both the EU-US agreement and the protocol to the Budapest Convention Reported by Dr. András Csúri (AC) are designed to complete the respective EU regime on e-evidence which is cur- rently negotiated between the European Specific Areas of Crime course on European Culture and Citizen- Parliament and the Council (see eucrim ship, reaching out to over 10,000 school 3/2019, pp. 181 et seq.). The new legal students annually. An overview is pro- frameworks are to facilitate access to Corruption vided in factsheets. The main focus is on electronically stored data that is needed the definition, forms, and cartography of for prosecuting crimes. It would estab- GRECO and FEDE Launch New corruption as well as its causes and how lish new forms of assistance, in particu- Anti-Corruption Education Module to fight it. lar by enabling law enforcement authori- On 20 December 2019, GRECO and ties to directly request private IT service the Federation for Education in Europe GRECO: Ad hoc Report on Greece providers to hand over the data. For (FEDE), an international NGO hav- On 18 December 2019, GRECO pub- further information about the ongoing ing participatory status with the CoE, lished an ad hoc report on Greece. In developments in the field of e-evidence, presented an education module on the past, GRECO, together with the Or- see also eucrim 3/2019, pp. 179 et seq., anti-corruption for the 2019–2020 aca- eucrim 2/2019, pp. 113 et seq., and eu- demic year. The module includes sum- * If not stated otherwise, the news reported crim 1/2019, pp. 38 et. seq. with further mary sheets, takeaway messages, and in the following sections cover the period references. (TW) test questions. It will be part of FEDE’s 16 November – 31 December 2019.

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