eucrim ISSUE / ÉDITION / AUSGABE 3 – 4 / 2007 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM SUCCESSOR TO AGON Focus on National Implementation of International Criminal Law Standards Dossier particulier sur la mise en œuvre nationale des standards internationaux en matière pénale Schwerpunktthema: Nationale Umsetzung internationaler strafrechtlicher Standards Criminal Law Protection of the EU’s Financial Interests in Croatia Prof. Dr. Zlata Đurđević The Effective Implementation of International Anti-Corruption Conventions Bryane Michael and Habit Hajredin The Implementation of the European Arrest Warrant in the Republic of Slovenia Dr. Katja Šugman Stubbs The Nordic Answer to the European Arrest Warrant: The Nordic Arrest Warrant Prof. Dr. Asbjørn Strandbakken 3 – 4 / 2007 ISSUE / ÉDITION / AUSGABE Contents Editorial News* Articles European Union National Implementation of Inter- national Criminal Law Standards The Enlargement of the Schengen Area 104 Ne bis in idem 104 Victim Protection Foundations 105 Freezing of Assets 120 Criminal Law Protection of the EU’s 73 Reform of the European Union Financial Interests in Croatia 75 Proclamation of the Charter of Cooperation Prof. Dr. Zlata Đurđević Fundamental Rights 108 Law Enforcement Cooperation 76 Community Powers in 109 Customs Cooperation 128 The Effective Implementation of Interna- Criminal Matters 109 Police Cooperation tional Anti-Corruption Conventions 78 The Hague Programme Review 110 European Arrest Warrant Bryane Michael and Habit Hajredin 79 Legislation 110 European Supervision Order/ 81 Better Regulation in the EU Transfer of Sentenced Persons 133 The Implementation of the European 111 E-Justice Arrest Warrant in the Republic of Institutions 111 External Dimension Slovenia 82 OLAF Dr. Katja Šugman Stubbs 83 Europol 84 Eurojust 138 The Nordic Answer to the European Ar- 84 Eurojust/European Judicial Council of Europe rest Warrant: The Nordic Arrest Warrant Network (EJN) Prof. Dr. Asbjørn Strandbakken 86 European Union Agency for Foundations Fundamental Rights (FRA) 112 Relations between the Council of Europe and the EU Specific Areas of Crime / 112 Reform of the European Imprint Substantive Criminal Law Court of Human Rights 87 Protection of Financial Interests 113 Execution of Judgments of 91 Tax Fraud/VAT the European Court of Hu- 95 Cigarette Smuggling man Rights 97 Corruption 97 Money Laundering Specific Areas of Crime 98 Money Counterfeiting 115 Corruption 98 Non-Cash Means of Payment 115 Money Laundering 99 Counterfeiting and Piracy 117 Cybercrime 99 Organised Crime 100 Illegal Employment Procedural Criminal Law 100 Racism and Xenophobia 118 Justice Organisation Procedural Criminal Law Cooperation 100 Procedural Safeguards 101 Data Protection Legislation * News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Editorial Dear readers, I am very pleased to write an editorial for eucrim. This review Prosecutor’s Office as a means to is an excellent forum for specialists to exchange views on the give emphasis to its commitment dynamic area of European criminal law. This edition will focus towards a better protection of Eu- on the national implementation of European and international ropean financial interests and its penal standards. As Vice-President of the Commission respon- public administration. With regard sible for administrative affairs, audit and anti-fraud (OLAF), to the European public adminis- this topic is of direct interest in two areas: the fight against tration and its civil service, I am fraud and integrity policy for civil servants. keenly following international dis- cussions on standards concerning Over the last decade, the protection of the financial interests ethics, integrity and better govern- of the EU acted as a motor for criminal law activities at the ance. The Commission, of course, level of the EU. This is, to use an economist‘s term, a “Euro- strives to spearhead international Siim Kallas pean good”. Only around 20 % of the EU budget is managed standards. The UN Convention directly by the Commission, the majority is managed by Mem- against Corruption is a landmark. ber States. Revenue comes from taxpayers across Europe. It It is in various ways intertwined with past and future Euro- should be equally well protected against fraud across the EU. pean efforts as regards preventing and combating corruption However, even though the budget is central to its executive and other criminal activities in public administration. Amongst role, the Commission depends essentially on Member States’ the instruments that the negotiators at the UN took into ac- authorities for sanctions other than those of an administrative count is the EU Convention on the protection of the European or financial nature. For criminal offences against EU financial Communities’ financial interests and its protocols, as well as interests, both penal law investigations and prosecution are in the EU Convention on the fight against corruption. Due to this their competence. influence, some of the obligations imposed on Member States in the penal law sphere derive from both, the UN standard and Sadly, our experience with cases shows that different Member the EU standard. The Commission has proposed the signature States have given the same case widely differing treatment. It and subsequent conclusion, on behalf of the European Com- is in fact a typical EU dilemma: the Commission has a great in- munity, of the UN Convention, which would make it a party. terest in the effective fight against fraud, but lacks the required competences. The Member States have the competences, but Ethics and integrity are crucial for maintaining and improving often do not give it the same priority. This is nobody’s fault: trust in the European institutions and projects. Civil servants‘ the national judicial authorities must continually arbitrate be- actions determine the reputation and performance of the institu- tween the numerous and competing priorities while resources tions. Within its own house, the European Commission does not are scarce. In circumstances of increasingly complex work, it tolerate fraud or corrupt practices of any kind. The Commission is sometimes difficult for them to take on the protection of the promotes transparent governance and a high level of account- Community’s financial interests as a top priority. Integration ability well beyond the work environment of its own house. and the free movement across the EU, which unfortunately are also exploited by criminals, increase the need for coopera- Of course, and given the acknowledged constraints, at the Eu- tion and coordination against crime and fraud. The trend of ropean level our focus is on prevention and detection. How- organised crime towards defrauding EU must lead us to reflect ever, criminal law is needed for sanctions to act as a strong on how to develop robust structures at the European level to deterrent and criminal liability is needed for an effective in- effectively counter this criminal conduct. centive to play by the rules. Several instruments have already strengthened the frame- We count on your qualified advice and contribution as experts work and unified application for the protection of the EU‘s on European criminal law to offer all European citizens the financial interests. It is worth mentioning that the Commis- protection guarantees which they deserve! sion just adopted a second report on the implementation of the EU instruments on the protection of its financial interests in the Member States which pointed out where the situation is Siim Kallas still far from perfect. Against this background, the Commis- Vice-President of the European Commission sion will further develop the project of the European Public responsible for administration, audit and anti-fraud eucrim 3–4 / 2007 | 65 NEWS Poland and the Czech Republic were re- moved. Together with these two coun- tries, Germany installed common cen- tres for police and customs cooperation in Swiecko (for the German-Polish bor- der) and Schwandorf (for the German- Czech border) which allow a far quicker European Union exchange of information, the establish- ment of situation reports, and coordinat- ed action along the joint border area. The German-Polish and the German-Czech the European Parliament had delivered border services centres were inspired by The Enlargement of the Schengen Area its supporting opinion on 15 November the model of the Franco-German centre 2007. For the preparations of the deci- in Kehl/Germany near Strasbourg. By Thomas Wahl and Sarah Schultz sions of the Council and the European eucrim ID=0703003 Parliament, a detailed evaluation was Europe Steps Up to Extended carried out in those Member States Background: What Is “Schengen”? Border-Free Area which wish to join the fee border area. In the context of the European integra- As of 21 December 2007, Estonia, the For more background information on the tion process, “Schengen” stands for the Czech Republic, Lithuania, Hungary, Schengen cooperation, the evaluation realisation of the concept of free move- Latvia, Malta, Poland, Slovakia, and procedure, and the Schengen Informa- ments of persons and the creation of a Slovenia have become part of the Schen- tion System, see the news items below. citizens’ Europe. In 1985, five European gen area. Controls at internal land and eucrim ID=0703001 countries – Belgium, France, Germany, sea borders between these countries and Luxembourg, and the Netherlands – the current 15 Schengen Member States Reactions to the Enlargement signed an agreement “on the gradual have been lifted. On 30 March 2008, of the Schengen Area abolition of checks at their common bor- with the change in flight schedules, The vast majority of politicians reacted ders” in Schengen – a small village in checks were also lifted at air borders. positively to the recent enlargement of Luxembourg at the geographical nexus This development results in a very tangi- the Schengen area.