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 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 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 /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 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 “- 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 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, 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 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 – , , Germany, sea borders between these countries and , and the – 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. Commission Presi- of these countries. The agreement aims ble expression of the free movement ide- dent José Manuel Barroso congratulated at establishing a common travel area al: Now, around 400 million European the nine new Schengen members, the Por- without internal borders and with com- citizens are able to move freely, without tuguese presidency, and all EU Member mon external borders. This became checks, within an area encompassing 3.6 States for their efforts and said: “Togeth- known as the “Schengen area”. Schen- million km2 − the “Schengen area”. er we have overcome border controls as gen countries normally do not require Member States which accede to the EU man-made obstacles to peace, freedom citizens to show their passports when are bound by the entire and unity in Europe, while creating the crossing borders between one Schengen – a set of rules and subsequent deci- conditions for increased security”. Vice- country and another. A common “Schen- sions governing the Schengen coopera- President Franco Frattini, Commis- gen visa” allows tourist or visitor access tion. However, the implementation takes sioner responsible for Freedom, Justice, to the area as a whole. place in two steps: Some of the Schengen and Security added: “The extension of In 1990, the countries signed in Schen- rules, mainly those on police and judicial Schengen demonstrates the EU’s com- gen the Convention Implementing the cooperation and external border control, mitment to facilitating legitimate travel- of 1985 (in short: apply from the day of accession to the ling within and into the EU whilst at the the Schengen (Implementing) Conven- EU onwards. A second part, i.e., rules re- same time reinforcing the security of our tion, CISA). The Convention lays down lating to the abolishment of internal bor- external borders and thereby strengthen- detailed rules and measures necessary ders, such as issuance of the Schengen ing the safety of all EU citizens.” for the lifting of checks at internal bor- visas or the operation of the Schengen eucrim ID=0703002 ders (i.e. land, sea, and air borders) be- Information System, applies later if fur- On the occasion of the first 100 days after tween the Schengen states and sets out ther conditions are met. In particular, the the Schengen enlargement, Germany’s measures which should compensate the Council must – after consultation with Minister of the Interior Dr. Wolfgang perceived loss of security after the re- the European Parliament – unanimously Schäuble, on 1 April 2008, evaluated moval of such barriers. decide on when the Member States are the enlargement of the Schengen zone It should be mentioned that the Schengen ready to fully apply the rules. positively. “The Schengen enlargement Agreement and the Schengen Conven- The decision concerning the readiness was an important step forward towards tion were concluded outside the struc- of the above-mentioned Member States a unified Europe”, Mr. Schäuble said. ture of the European Union/European was taken by the Justice and Home Af- The enlargement particularly meant, for Communities. Although linked closely fairs Council on 6 December 2007 after Germany, that barriers at its borders with with the policy of the European Union,

66 | eucrim 3–4 / 2007 NEWS they originally represent conventional our to harmonise the laws, regulations (2) a common definition of conditions multilateral treaties concluded under the and administrative provisions concern- for crossing external borders as well as rules of international public law. Later ing the prohibitions and restrictions uniform rules and procedures for checks however, in 1999, the Schengen rules on which the border checks are based there; (3) harmonization of the condi- were incorporated into the EU frame- and to take complementary measures tions of entry and visas for short stays; work (see below). Today, the Schengen to safeguard internal security and pre- (4) the definition of the role of carriers in Agreement, the Schengen Convention, vent illegal immigration by nationals of measures to combat illegal immigration; and the subsequent decisions and meas- States that are not members of the Euro- and (5) the drawing up of rules govern- ures thereupon are implemented by 29 pean Community”. Furthermore, in Ar- ing responsibility for examining applica- European countries which leads to the ticle 18, the participating countries are tions from asylum seekers (meanwhile abolition of systematic border controls required to open discussions concerning replaced by the Dublin II Regulation between these participating countries. arrangements for police cooperation on No. 343/2003). Among these countries are also coun- crime prevention and investigation and Of interest for criminal law is that the tries which are not members of the Eu- seek means to combat crime jointly, in- CISA also contains detailed rules on en- ropean Union. ter alia, by studying the possibility of in- hanced police and judicial cooperation. eucrim ID=0703004 troducing the right of hot pursuit for po- It foresees, for instance, that the police lice officers. According to Article 19, the may cooperate through central bodies What Is Contained in the Schengen parties shall also seek to harmonise laws or, in case of urgency, also directly with Agreement of 1985? and regulations, particularly on narcotic each other. Likewise, a direct exchange With the Schengen agreement, Germany, drugs, arms and explosives, and the reg- of rogatory letters between the judicial France, and the countries want- istrations of travellers in hotels. authorities is possible, thus avoiding ed first to relax mutual border controls. eucrim ID=0703005 the use of diplomatic channels. Articles To this end, the agreement contains a 54-58 contain the renowned conditions number of so-called short-term meas- What Is Contained in the Schengen which prohibit citizens from being sen- ures, such as the reduction of controls Implementing Convention of 1990? tenced twice in the Schengen area. These to simple visual surveillance of private The 1990 Schengen Convention Im- rules can be regarded as the birth of a vehicles. Furthermore, the Schengen plementing the Schengen Agreement European-wide ne bis in idem principle Agreement includes common policy pro- of 1985 (CISA) fulfils the resolve of (see also past issues of eucrim for the re- visions concerning the temporary entry abolishing checks at the common bor- cent case law of the European Court of of persons and cross-border police coop- ders of the Schengen states. To this end, Justice in this matter). eration. Article 9 states the following: the CISA finally abolishes checks at the Articles 120 to 125 of the CISA deal with “The Parties shall reinforce coopera- common land borders of the Schengen the cooperation of the customs authori- tion between their customs and police states, their airports for internal flights, ties: The Schengen States must jointly authorities, notably in combating crime, and their sea ports for regular ferry con- ensure that their laws, regulations, or particularly illicit trafficking in narcotic nections between the Schengen states administrative provisions do not unjus- drugs and arms, the unauthorised entry (i.e., internal borders). However, as an tifiably impede the movement of goods and residence of persons, customs and tax exception, it also allows reinstating con- at internal borders (Article 120). In order fraud and smuggling. To that end and in trols at the internal borders for a short to control this movement, Article 125 re- accordance with their national laws, the period of time if a Schengen State deems quires arrangements on the secondment Parties shall endeavour to improve the it necessary for reasons of public poli- of liaison officers from their customs ad- exchange of information and to reinforce cy or national security (details are laid ministrations. The secondment of liaison that exchange where information which down in Art. 23-31 of the Schengen Bor- officers is intended for the general pur- could be useful to the other Parties in der Code). This is often used in the event pose of promoting and accelerating co- combating crime is concerned.” of major sport tournaments (e.g., the Eu- operation between the Member States, Second, the Agreement also deals with ropean Football Championship in Portu- particularly within the framework of measures applicable in the long-term gal in 2004 or World Football Champi- existing Conventions and Community which support the complete abolition of onship in Germany in 2006) or sensitive acts on mutual assistance. Lastly, the internal border controls and their transfer political meetings. In 2007, for instance, Schengen Convention provides for the to the external borders of the signatory Germany made use of the exception for legal framework of the Schengen In- states. The agreement restricts itself to the G8 summit in Heiligendamm. formation System (SIS) which is a joint giving political guidelines for a second The CISA attempts to reconcile freedom computerised information system for the treaty which was to be negotiated and lay of movement with security concerns exchange of information on wanted per- down more concrete rules (this treaty be- by setting up a wide range of so-called sons or wanted objects. came the Schengen Implementing Con- “compensatory measures”. The CISA For more details on the compensatory vention of 1990; see next news item). includes, for example, concrete regula- measures, see below: “Does the Imple- Article 17 of the Schengen Agreement tions on (1) the abolition of checks at mentation of the Schengen Agreement provides that “the Parties shall endeav- the common land, sea, and air borders; Endanger the Security of the Citizens?”

eucrim 3–4 / 2007 | 67 NEWS

As mentioned above, the CISA was 1996), with related Final Acts and dec- as on policing and judicial cooperation. signed on 19 June 1990. It entered into larations; The Council adopted a respective deci- force on 1 September 1993. However, the (4) decisions and declarations of the sion on 20 May 1999 which sets out the full application of the single rules in prac- Schengen Executive Committee which corresponding legal basis for each of the tice only took effect on 26 March 1995 was the administrative body of the elements of the Schengen acquis in the after the necessary technical and legal Schengen cooperation and generally EC Treaty and EU Treaty (see follow- prerequisites had been established (e.g., mandated by the CISA “to ensure that ing link). However, the Council failed to the installation of appropriate infrastruc- this Convention [CISA] is implemented agree on the allocation of the provisions tures at the borders, setting up of databas- correctly”; relating to the Schengen Information es, formation of data control authorities, (5) further implementing acts and deci- System although the system is of a mixed etc.). In this context, it is worth mention- sions taken by subgroups to which re- nature (since it contains data relating to ing that, as a general rule, the Schengen spective powers were conferred by the Title IV TEC and data relating to Title cooperation distinguishes between entry Executive Committee. VI TEU). Therefore, they became part of into force (of an agreement, decision, The latter two points regarding the the third pillar entirely due to a “default” etc.) and the putting into force, i.e., the Schengen acquis refer to further deci- clause in the Protocol (see Article 2). Nat- date when the Schengen rules fully ap- sions and declarations which were made urally, any new proposal in the areas of ply. The full application in 1995 covered in order to implement the 1990 Imple- visas, right of asylum, checks at external the five founding countries (Germany, menting Convention itself. borders and cooperation between police France, Benelux) as well as and The Schengen acquis was published in and judicial authorities will rely on one which have joined the Schengen the Official Journal L 239 of 22 Septem- of the above-mentioned new bases of the cooperation in the meantime. ber 2000. This document comprises 473 EC Treaty or EU Treaty. eucrim ID=0703006 pages and can be retrieved by means of eucrim ID=0703010 the following link: The incorporation of the Schengen acquis What Is the Schengen Acquis? eucrim ID=0703008 in 1999 into the legal and institutional The Schengen acquis comprises all the framework of the EU can be considered acts which were adopted in the frame- How Do the Schengen Rules Fit the first concrete example of enhanced work of the Schengen cooperation till into the EU’s Legal and Institutional cooperation between 13 out of the then the incorporation of the rules govern- Framework? 15 EU Member States. As a result, the ing the Schengen cooperation into the In order to reconcile the overlap between Schengen area has now come under the EU framework by the Treaty of Am- the Schengen cooperation and Justice scrutiny of the European Parliament sterdam (see the following news item). and Home Affairs cooperation as intro- and the European Court of Justice, even The Schengen acquis is legally defined duced by the 1992 , the though their powers remain partially by Council Decision 1999/453/EC of 20 Member States decided to integrate the limited, especially as regards the items May 1999 (see following link). Schengen acquis into the legal frame- of the third pillar. However, this en- eucrim ID=0703007 work of the European Union. This was sures democratic parliamentary control Accordingly, it is composed of: achieved in 1997 by means of a Proto- and gives citizens accessible legal rem- (1) the Schengen Agreement, signed on col attached to the edies when their rights are challenged. 14 June 1985, between Belgium, France, (see the following link). Furthermore, the decision-making pro- Germany, Luxembourg, and the Nether- eucrim ID=0703009 cedures of the European Union apply, lands on the gradual abolition of checks The Council had the important task of al- thus the Schengen acquis may be altered at their common borders (see above); locating each provision or measure taken by EU legislation without such amend- (2) the Schengen Convention, signed on to date under the Schengen cooperation ments having to be ratified by all signa- 19 June 1990, between Belgium, France, to the corresponding legal basis in the tory states. Conditions for entry into the Germany, Luxembourg, and the Nether- EC Treaty and EU Treaty as amended Schengen area, for instance, may now lands, implementing the 1985 Agree- by the Treaty of Amsterdam. Since the be enacted by the European Parliament ment (CISA, see above) with related Amsterdam Treaty newly arranged the and the Council under the co-decision Final Acts and declarations; European Union’s pillar structure by procedure, meaning, above all, that, in (3) the Accession Protocols and Agree- introducing a new Title IV of the EC the Council, a qualified majority of the ments to the 1985 Agreement and the Treaty (first pillar) − now dealing with Member States’ votes is enough. Other 1990 implementing Convention with visa, asylum, immigration, and borders effects are that the Council substituted (signed in Paris on 27 November − and maintaining the rules on judicial the Schengen Executive Committee 1990), Spain and Portugal (signed in and police cooperation in criminal mat- and new working groups had to be es- Bonn on 25 June 1991), (signed ters in Title VI of the EU Treaty (the tablished in order to support the further in Madrid on 6 November 1992), third pillar), the task was not an easy one technical implementation of the Schen- (signed in Brussels on 28 April 1995) as because, as mentioned above, the Schen- gen rules. well as , and gen acquis consists of rules both on visa, As a further result of the incorporation, (signed in Luxembourg on 19 December asylum and border management as well the Schengen acquis is binding on and

68 | eucrim 3–4 / 2007 NEWS applicable in the new Member States kia, Slovenia, and Cyprus – have also ing of internal border controls are initi- from the date of accession onwards (Ar- implemented the Schengen acquis. As ated upon request by each Member State ticle 3 Act of Accession, OJ L 236 of 23 mentioned above, the rules became fully concerned once it considers that it meets September 2003, p. 33). For those coun- applicable in these countries (except Cy- all preconditions. It is the responsibility tries which are not part of the European prus) on 21 December 2007/30 March of the States that are already Schengen Union, such as , , and 2008. In 2004, also signed members to determine that all precondi- Switzerland, special association agree- an association agreement; on 28 Febru- tions have been met and the Council is ments concerning the implementation of ary 2008 its neighbour, the principality responsible for carrying out the relevant the Schengen acquis and its further de- of Liechtenstein, followed. evaluation. The Schengen evaluation of velopment still need to be concluded. With the accession to the EU in 2007, 2006 to 2007 has been completed, and Bulgaria and Romania have also begun to it has become evident that Estonia, the Will the Change the implement the Schengen rules. Cyprus, Czech Republic, Lithuania, Hungary, Legal Basis of the Schengen Acquis? Bulgaria, Romania, Switzerland, and Latvia, Malta, Poland, Slovakia, and The abolishment of the pillar structure by Liechtenstein are still not full-fledged Slovenia are regarded as applying the the new Treaty of Lisbon will also have a members of the Schengen area. Switzer- Schengen acquis correctly in all fields. considerable impact on the future devel- land is expected to join on 1 November For the “big bang” enlargement of the opment of the Schengen acquis. Title VI 2008. The others are expected to play a new EU Member States, experts have of the EU Treaty will merge with Title IV full part in the years to come. In sum, a carried out 58 evaluation missions on of the EC Treaty. The Treaty of Lisbon total of 29 European states, even includ- the ground in 2006, and additional 15 will substantially amend the provisions ing four non-EU members, have signed re-evaluation visits in 2007. Currently, of the former Title IV; it will rename the the agreement and 24 are fully applying monitoring missions are also being car- title to “Area of freedom, security and it so far. The and Ire- ried out in Switzerland to test the coun- justice” and divide it into five chapters land have a special status. They have not try’s readiness for its envisaged partici- called “General provisions”, “Policies on signed the Schengen agreement/conven- pation at the end of 2008. border checks, asylum and immigration”, tion, but are allowed to take part in some eucrim ID=0703013 “Judicial cooperation in civil matters”, aspects of the Schengen cooperation, “Judicial cooperation in criminal mat- namely police and judicial cooperation Does the Implementation of the ters”, and “Police cooperation”. in criminal matters as well as the fight Schengen Agreement Endanger Matters of the Schengen cooperation against drugs trafficking; they do not the Security of the Citizens? will then be dealt with according to the take part in common border controls and The concept of the Schengen coopera- new provisions, including the remaining visa provisions. tion with its goal to visibly realize the special rules for judicial cooperation and eucrim ID=0703012 free movement of persons has always policing (for further information on the been ambivalent: the abolition of border amendments of the Lisbon Treaty, see What Is the Procedure for the controls has been nourished by the fear eucrim 1-2/2007, p. 2-4). The Lisbon Schengen Acquis’ Implementation that criminals may exploit the removal Treaty will also adapt certain provisions in New Member States? of these barriers. In other words, the of the Schengen protocol of the Amster- The extension of the Schengen area is governments believed that the aboli- dam Treaty by way of declarations. dependent upon two conditions: the new tion of border controls is accompanied eucrim ID=0703011 Member States must fulfill the safety by increased risks for internal security requirements for their European Union due to an increase in crime and illegal Who Belongs to Schengen? external borders and the Schengen Infor- immigration. In order to reconcile free- Originally, in 1985, the Schengen Area mation System must be operative in all dom and security, this freedom of move- was created by France, Germany, Bel- new Member States. In order to check ment has been accompanied by so-called gium, Luxembourg, and the Netherlands. whether these conditions are fulfilled, “compensatory measures” which were The area was then gradually expanded to the Schengen Member States created the laid down in the 1990 Schengen Imple- other European countries which wanted “Schengen Evaluation”. This evaluation menting Convention. These measures to take advantage of the passport-free consists particularly of verifying that the involve setting a common visa regime, travel zone. These countries also include accompanying measures allowing for improving coordination between the po- states which are not members of the Eu- the lifting of internal border controls are lice, customs and the judiciary, and tak- ropean Union. Later, Italy (1990); Spain, being correctly and efficiently applied ing additional steps to combat problems Portugal (both 1991); Greece (1992); by the new Member States. Evaluation of cross-border crime in order to effec- Austria (1995); and Denmark, Finland, visits were carried out in the field of ex- tively safeguard internal security. Sweden, Iceland, Norway (all 1996) also ternal border controls, visa scheme, data The most important measures in relation joined the five founding countries. protection, police cooperation, and the to criminal law are as follows: Since 2004, the new EU Member States Schengen Information System. • In the range of police cooperation, the – the Czech Republic, Estonia, Hungary, Schengen evaluations of EU Member Schengen Convention assures adminis- Latvia, Lithuania, Malta, Poland, Slova- States that are candidates for the lift- trative assistance, according to which

eucrim 3–4 / 2007 | 69 NEWS police administrations in the Schengen purpose is to allow checks on persons to The new Member States assumed, how- States are required to grant each other be made at border controls or within a ever, that political reasons were behind administrative assistance in the course territory in order to detect criminals and the postponement and deplored the lack of of the prevention and detection of crimi- illegal immigrants moving to and from confidence shown by the current Schen- nal offences in accordance with the one Schengen country to another. gen Member States. Finally, Portugal relevant national laws and within the The data are supplied by the Member submitted a compromise proposal which scope of their relevant powers. Limits: States via national sections (N-SIS) brought an end to the tension between the (1) national law does not stipulate that that are connected to a central technical old and new Member States. The compro- the request is to be made to the legal au- function (C-SIS) located in Strasbourg. mise consisted of developing an extended thorities and (2) the request or the imple- The establishment of SIS is accompa- version of the current SIS I system – the mentation thereof does not involve the nied by a set of data protection rules so-called “SISone4all” in parallel to the application of coercive measures by the which were considered “a milestone” in work on SIS II. The SISone4all became requested Member State (Article 39). the international data protection regime operational in September 2007, allow- • In addition, Articles 40 and 41 include of police cooperation. SIS has been op- ing the connection of the new Schengen the police rights to cross-border observa- erational since 26 March 1995, the date Member States and paving the way to ex- tion (where police continue the surveil- on which checks at internal borders were tending the lifting of borders at the end lance of perpetrators) and hot pursuit abolished between the initial Schengen of 2007. The SISone4all is an interim (where police pursue a criminal who is on countries. SIS is the largest European solution till the second technical version the run). Consequently, these measures – centralised database: since 1995, more of SIS is fully initialised. Switzerland has within certain limits – allow police offic- than 15 million records have been cre- now also decided to join Schengen and ers of one Schengen country to act on the ated in the system and approximately use SISone4all before SIS II deployment territory of another Schengen country. 125,000 access terminals exist within (which is planned for the end of 2010). • In the field ofjudicial cooperation, the the participating states. For the moment, it is not clear whether Schengen States are obliged to grant each SIS, as introduced by the 1990 Imple- the United Kingdom and Ireland will also other legal assistance in criminal justice menting Convention, is also called the join SIS II because the UK government with respect to all types of offences and Schengen Information System of the in October 2007 announced plans to in- misdemeanours (Article 49), also includ- first generation (SIS I). Due to progress troduce its own electronic border control ing tax and other fiscal offences (Article in the field of information technology system by 2009. Also, the situation of 50). This represents an extended scheme and the system’s limited capacity, it was Cyprus has not yet been clarified. of mutual legal assistance in criminal deemed necessary to further develop the eucrim ID=0703016 matters in comparison to the Council of system and create the second SIS gen- Europe assistance scheme. eration (in short: SIS II). Work on the What Is SIS II? • Furthermore, judicial cooperation en- new system began in the course of 2001. SIS II is the successor to the first Schen- tails faster extradition procedures (Arti- However, the technical implementation gen Information System (introduced by cles 69 to 66) and more rapid distribution of SIS II raised problems and the sys- the 1990 Schengen Convention). The of information about the enforcement of tem launch was delayed several times. installation of a second Schengen Infor- criminal judgments (Articles 67 to 69). In order to enable the nine new Member mation System was considered necessary • Lastly, one of the most important States to connect to SIS in the wake of because the current SIS was designed to compensatory measures is the establish- the big enlargement in 2007, an interim cope with only 18 Member States. Fur- ment of the Schengen Information Sys- solution was found: “the SISone4all”. thermore, SIS II is to benefit from the tem (see following news item). The developments as regards the latter latest developments in the field of infor- eucrim ID=0703014 and SIS II are presented in the following mation technology and allow for the in- two news items. troduction of new functions, such as the What Is the Schengen eucrim ID=0703015 storage of biometric data (photographs Information System (SIS)? and fingerprints of persons). First com- The Schengen Information System What Is “SISone4all”? ments on SIS II note that the new system (SIS) is called the “core”/”centerpiece” The enlargement of the Schengen area will change its “character” compared to of the compensatory measures. SIS in 2007 was accompanied by several its predecessor, SIS I: the SIS II will be- was set up by Articles 92 to 119 of the problems and a certain degree of ten- come not only a reporting system but also Schengen Convention. It is a sophisti- sion. Originally, the ten new EU Mem- an investigation tool. It will have to dif- cated database used by the authorities ber States were due to join the Schengen ferentiate itself from Europol’s informa- of the Schengen member countries to area in October 2007. This extension tion system focussing on the prevention exchange data on specific individuals was postponed however. The Commis- and detection of threats to public order (i.e., criminals wanted for arrest or ex- sion justified the decision with technical and security rather than on investigations tradition, missing persons, third-country problems during the introduction of the into organised crime. nationals to be refused entry, etc.) and on new second-generation Schengen Infor- Following the JHA Council meeting of goods which have been lost or stolen. Its mation System (SIS II). 28/29 May 2001, the development of

70 | eucrim 3–4 / 2007 NEWS

Overview of Schengen Cooperation

For more background information on the Schengen area, see: gen acquis into the European Union and specifies that the United eucrim ID=0703025 Kingdom and Ireland may take part in all or some of the Schengen arrangements, subject to unanimous approval by the Council. 1985: Schengen Agreement Signed eucrim ID=0703033 On 14 June 1985, France, Germany, Belgium, Luxembourg, and the Netherlands sign an agreement on the gradual abolition of 2000: Greek Border Controls Abolition checks at common borders. This became known as the Schen- Controls are abolished at the internal borders with Greece. gen Agreement, after the name of the village in Luxembourg eucrim ID=0703034 where it was signed. eucrim ID=0703026 2000: UK’s Approximation to Schengen The United Kingdom’s application for partial participation is ap- 1990: Schengen Convention Signed proved by the Council Decision on 29th May 2000. Now, the part On 19 June 1990, the Schengen Convention is signed, implement- of the Schengen rules which cover police and judicial coopera- ing the Schengen Agreement of 1985. Furthermore, German re- tion, as well as the Schengen Information System (to the extent unification leads to the inclusion of the former East Germany on that it relates to police and judicial cooperation), can be imple- 3 October 1990. mented in Great Britain, except for the regulations covering vi- eucrim ID=0703027 sas and border controls. Before the UK can apply the Schengen rules, a further decision by the Council must be taken which puts 1990–1992: EU’s Southern Member States Join them into effect. This was done in 2004. the Schengen Convention eucrim ID=0703035 Italy (27 November 1990), Spain and Portugal (both 25 June 1991) as well as Greece (6 November 1992) sign the Schengen Conven- 2001: Schengen Zone Extended to Scandinavia tion. However, Greece incompletely implements the agreement Controls are abolished at the internal borders with Denmark, and requires a different visa for citizens of the former Yugoslav Finland, Sweden, Iceland, and Norway. On 1 December 2000, Republic of Macedonia because of the name-conflict between the Council decided that, as from 25 March 2001, the Schengen these two countries. acquis arrangements apply to the five countries of the Nordic eucrim ID=0703028 Passport Union. eucrim ID=0703036 1995: Schengen Convention of 1990 Comes into Force On 26 March 1995, the Schengen Convention comes into force. 2002: Approval of Ireland’s Schengen Participation It abolishes checks at internal borders of the signatory states On 28 February 2002, Ireland’s application for partial participa- and creates a single external border where entry checks for the tion in Schengen is approved by Council Decision. In parallel to Schengen area are carried out in accordance with a single set of the application of the United Kingdom, it covers mainly police rules. In addition, so-called “compensatory measures” involving and judicial cooperation as well as partial participation in the a common visa policy, better police and judicial cooperation, and Schengen Information System. As with the UK, Ireland does the Schengen Information System are established. not participate in the rules relating to visas and border controls eucrim ID=0703029 and, similarly, the Council must put into effect the provisions Ireland wished to opt in to. Such a decision has not yet been 1995: Austria Becomes Member of Schengen Area adopted. On 28 April 1995, Austria signs the Schengen Convention. eucrim ID=0703037 eucrim ID=0703030 2004: EU’s Enlargement to Ten New Members 1996: Scandinavia Joins the Schengen Convention of East and South Europe On 19 December 1996, Denmark, Finland, Sweden, and even the On 1 May 2004, Cyprus, the Czech Republic, Estonia, Hungary, non-EU Member States Iceland and Norway sign the Schengen Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia join the Convention. Through the Nordic Passport Union, these countries EU and already partly apply the Schengen provisions (relating to have an even more permissive agreement on internal movement external border controls and police and judicial cooperation in of persons. particular). eucrim ID=0703031 eucrim ID=0703038

1997/ 1998: Schengen Zone Extended to Austria and Italy 2004: Switzerland Signs the Schengen Convention Border controls are abolished at the borders to Austria and Italy. On 26 October 2004, Switzerland signs an agreement on its as- eucrim ID=0703032 sociation with Schengen. This agreement is ratified by a Swiss referendum on 5 June 2005. 1999: Schengen’s Incorporation into EU’s Legal Framework eucrim ID=0703039 On 1 May 1999, the Treaty of Amsterdam comes into force. A proto- col attached to the Treaty incorporates the developments brought 2004: Schengen Provisions Apply in UK about by the Schengen Agreement into the EU’s legal and institu- The Council decided that the United Kingdom can participate in tional framework. Moreover, this protocol integrates the Schen- the Schengen acquis which it has opted into, with the exception

eucrim 3–4 / 2007 | 71 NEWS

of the Schengen Information System. The United Kingdom is now 2008: Liechtenstein Signs Association Agreement ready to apply the relevant Schengen provisions. On 28 February 2008, Liechtenstein signs a protocol by means of eucrim ID=0703040 which it would accede to the Schengen Association Agreement between the EU and Switzerland. As a result, Liechtenstein would 2006: EU Clears the Way for Enlargement to the East be granted the same rights and obligations as the Swiss Con- On 5 December 2006, the European Union Ministers of the Inte- federation and be obliged to accept the Schengen acquis. The rior decide to integrate the 2004 European Union enlargement participation of Liechtenstein became necessary since the as- member states into the Schengen area. sociation of Switzerland with the Schengen area also affects the eucrim ID=0703041 relationship between Switzerland and Liechtenstein. The policy of Liechtenstein is closely connected to Switzerland with which the 2007: EU’s Enlargement to Bulgaria and Romania small principality has had an open border for decades and forms a On 1January 2007, Bulgaria and Romania accede to the EU and customs and monetary union. However, if Switzerland fully applies partly apply the Schengen provisions. Internal border controls will the Schengen rules (which is expected for 1 November 2008), the be lifted later once all compensatory measures are in place and a border between Switzerland and Liechtenstein will become an ex- positive assessment report has been adopted by the Council. ternal border. Legally, Switzerland would then be obliged to secure eucrim ID=0703042 this border and carry out border controls. Therefore, the parties actually intend for Liechtenstein to adhere to 2007: Readiness of Nine Member States for the Lifting of Inter- the Schengen area at the same time as Switzerland. However, this nal Border Controls modus operandi remains doubtful since the Protocol with Liech- On 8/9 November 2007, the JHA Council concludes that all precon- tenstein must be ratified by the EU Member States and Liechten- ditions for the lifting of internal border controls with nine of the ten stein’s “Schengen fitness” needs to be evaluated. The Commission Member States which joined the EU in 2004 are fulfilled. In doing already announced that it is willing to find a pragmatic solution in so, the path was paved for the abolition of internal land, sea, and the event of Switzerland’s participation in the Schengen area. The air borders in the Czech Republic, Estonia, Hungary, Latvia, Lithua- provisions for Liechtenstein might be applied provisionally. nia, Malta, Poland, Slovenia, and Slovakia. Although not seen as a eucrim ID=0703047 major obstacle for the complete lifting of the borders, the Council still identified some weaknesses of the implementation of the ac- 2008: Switzerland’s Participation in Schengen Area quis which need to be corrected by the new members in future. After Switzerland notified the ratification of the Schengen as- The requirements are not being met by the tenth new Member sociation agreement on 20 March 2006 already, the Council State, Cyprus. For the time being, Cyprus is not joining the Schen- approved the agreement on 28 January 2008. As a result, the gen area due to political reasons and the lack of an appropriate agreement was able to enter into force on 1 March 2008. The infrastructure. delay in the final act of ratification was caused because some eucrim ID=0703043 EU Member States had not ratified the agreement for a long time. From March till September 2008, the implementation of the 2007: European Parliament Endorses Schengen Enlargement Schengen rules in Switzerland will be evaluated. If the Council On 15 November 2007, the European Parliament adopts a joint puts into force the provisions, the Schengen rules fully apply in resolution in which it endorsed the full application of the provi- Switzerland, i.e., controls at the internal borders which Switzer- sions of the Schengen acquis in the Czech Republic, Estonia, land shares with the EU Member States are lifted. The targeting Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and Slova- date is the 1 November 2008. kia by the end of 2007. MEPs congratulate these states on the The evaluation deals with data protection, police cooperation, tremendous efforts that some of them have made in order to be cooperation in visa matters, the Schengen Information System, ready and respect all the Schengen requirements, but want the and airports (external borders of Switzerland). The first evaluation new Schengen States to inform the EP and the Council on the visit took place from 9 to 13 March and concerned data protection. measures which need still to be taken in order to remedy remain- Switzerland is the third non-EU country which will join the Schen- ing shortcomings. gen zone. eucrim ID=0703044 eucrim ID=0703048

2007: Council Decision on Lifting of Internal Border Controls 2009/2010: Cyprus’ Readiness for Schengen Expected On 6 December 2007, the Council adopts a Decision on the full Cyprus may join the Schengen area in 2009 or 2010. Cyprus must application of the provisions of the Schengen acquis in the East- still fulfil some requirements which would it allow to lift its sea ern Member States and Malta. It sets the date for the lifting of and air borders. Besides the establishment of the necessary in- internal border controls. frastructure, Cyprus must solve delicate political issues on bor- eucrim ID=0703045 der controls with the Northern part of the island which is occu- pied by Turkey and would not take part in the Schengen area. 2007/2008: Abolition of Border Controls with EU’s Eastern Mem- eucrim ID=0703049 bers Finally, on 21 December 2007, controls are abolished at the in- 2011: Expansion of Schengen to Bulgaria and Romania Planned ternal seaports and overland borders with the Czech Republic, The full participation of Bulgaria and Romania in the Schengen Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and area is planned. Internal border controls will be lifted after Bul- Slovenia. The controls at internal airports are abolished on 20 garia and Romania have adopted all necessary compensatory March 2008 with the change in flight schedules. measures. eucrim ID=0703046 eucrim ID=0703050

72 | eucrim 3–4 / 2007 NEWS

SIS II started with the presentation of a (2) Council Decision 2007/533/JHA of entered into SIS. The access is limited Communication by the European Com- 12 June 2007 on the establishment, oper- to the data on persons wanted for ar- mission which studied the possibilities ation and use of SIS II. The Decision is a rest for extradition (Art. 95 CISA), data of producing and developing a second complementary act to the aforementioned on persons or vehicles to be put under generation of the current Schengen In- one and lays down specific provisions on surveillance or for specific checks (Art. formation System (COM(2001) 720). the processing of data for police and judi- 99 CISA), and data on certain stolen eucrim ID=0703017 cial cooperation in criminal matters. objects (Art. 100 CISA). The use of in- On 6 December 2001, the Council de- eucrim ID=0703020 formation obtained from a search in SIS cided on the creation of SIS II, allocated (3) Regulation (EC) No 1986/2006 of is subject to the consent of the Member the necessary financial resources, and the European Parliament and of the State having issued the alert. Europol mandated the Commission to develop Council of 20 December 2006 regard- may request supplementary information the details of the System, such as the ing access to SIS II by the services in from the Member State. If the Member technical architecture, operation and use the Member States responsible for issu- State allows the use, further handling of of the system, determination of authori- ing vehicle registration certificates. This the data will be governed by the Europol ties authorised to access the data, data text allows national vehicle registration Convention. The communication of SIS protection rules, etc. The Council con- services the right to consult certain cat- data to third countries or third bodies firmed the mixed nature of SIS: on the egories of data stored on SIS II. also requires the consent of the Member one hand, alerts on third-country nation- eucrim ID=0703021 State concerned. als who enter the EU relate to Title IV of The implementation of SIS II has been On 14 December 2007, Eurojust was the EC Treaty (first pillar), on the other delayed several times. Originally, its im- connected to SIS after having met the hand, the other forms of alerts, such as plementation was envisaged for the end of necessary technical and security require- those regarding wanted persons or sto- 2006. Recently, on 28 February 2008, the ments. Direct access to and search of SIS len objects, relate to Title VI of the EU Justice and Home Affairs Council of the data is allowed for the National Members Treaty, i.e., the third pillar. European Union presented new conclu- of Eurojust and their assistants. Access is Therefore, SIS II must be based on two sions on SIS II, including a new timetable restricted to data on persons wanted for legal instruments, an EC regulation and for the installation of SIS II. Accordingly, arrest for extradition (Art. 95 CISA) and a JHA decision. Nevertheless, SIS II by the end of 2008, “the central elements data on witnesses and persons required will not cease to be a single integrated of SIS II, its communication infrastruc- to appear before the judicial authori- system. In addition, a legal basis was ture and the interface with national sys- ties to locate their whereabouts (Art. 98 considered necessary in order to allow tems [should] function”. Tests are envis- CISA). The consent of the Member State national vehicle registration services to aged to be finalised by mid 2009. Indeed, having issued an alert is required for use the system. Although responsible for it can be expected that SIS II will be fully the transfer of data by Eurojust to third administrative functions, these services operational in 2010. countries or third bodies. Council Deci- shall support criminal prosecution. eucrim ID=0703022 sion 2005/211/JHA, however, does not eucrim ID=0703018 contain a further restriction on the use of In May 2005, the Commission proposed a Do Europol and Eurojust Have SIS data as it is the case for Europol. The package of three instruments which shall Access to SIS? Decision only bans a link of SIS data to establish the detailed legal framework of Council Regulation (EC) No. 871/2004 Eurojust’s own computer system (the SIS II. Based on these proposals − after of 29 April 2004 and Council Decision same applies to Europol). Europol and long negotiations within the Council and 2005/211/JHA of 24 February 2005 Eurojust will also have access to SIS II between the Council and the European added some new functions to SIS I. The within the limits described. Parliament − the Council finally adopted amendment to the current 1990 Schengen eucrim ID=0703024 the necessary legal framework for SIS II Implementing Convention were, inter in 2006 and 2007, respectively (see the alia, motivated by the consideration that following listing with respective links). enhancement of SIS and improvement These new legal acts will replace the of its capabilities is needed for the fight relevant provisions on SIS in the 1990 against terrorism. The said legal acts set Foundations Schengen Convention. up the legal bases for granting Europol (1) Regulation (EC) No 1987/2006 of the and Eurojust access to the data of the European Parliament and of the Council Schengen Information System. Reform of the European Union of 20 December 2006 on the establish- eucrim ID=0703023 By Leonard Ghione ment, operation and use of SIS II. The The amendment of SIS relating to Eu- Regulation lays down specific provi- ropol and Eurojust were put into force Ratification Process of the Lisbon sions that support the free movement of by the Council Decision of 24 July 2006. Treaty Started persons within the context of visas and From 1 October 2006, Europol, within Heads of state and governments of the external borders. the scope of its mandate, has the possi- EU Member States officially signed eucrim ID=0703019 bility to access and search directly data the Reform Treaty 2007 on 13 Decem-

eucrim 3–4 / 2007 | 73 NEWS ber 2007 during the United Kingdom Kaczynski – caused trouble for the Polish in Lisbon. The new legal framework In the United Kingdom, Prime Minister ratification process when it demanded ad- aims at simplifying decision-making in Gordon Brown staunchly rejected calls ditional guarantees in the ratification bill the EU and extending its competences for a referendum on the Lisbon treaty for Poland's sovereignty. If the row with to new areas (for details, see eucrim since the protection of Britain’s “red Prime Minister Tusk had not been set- 1-2/2007, pp. 2 ff). As expected, the lines” sheltered British sovereignty (for tled, Poland might have been the second Treaty has made history as the “Treaty details, see eucrim 1-2/2007 p.3-4). His country in which the Lisbon Treaty would of Lisbon” and been published in the argumentation is that the Lisbon treaty have been the subject of a referendum. On Official Journal C 306 of 17 December does not require a referendum just as the 2 April, also Poland’s Senate endorsed the 2007. In order to come into force by the treaties of Maastricht and Nice did not. ratification. As a result, Poland has be- target date of 1 January 2009, the docu- This opinion has been met with intense come the seventh of the 27 EU Member ment now needs to be swiftly ratified by cross-party pressure, including demands States to ratify the Lisbon Treaty. Member States. for a referendum on the new text, stress- eucrim ID=0703057 ing its similarity to the “Constitutional Ireland Treaty” for which a referendum was State of Play of Ratifications Ireland is the only Member State con- promised in 2005. On 5 March 2008, the The Treaty was ratified in the Hungarian stitutionally bound to hold a referen- Members of Parliament in the House of Parliament by an overwhelming major- dum on the Treaty. So far it also seems Commons, by a narrow majority, reject- ity of 325 members of parliament, with to be the only Member State to actually ed holding a referendum on the Lisbon only five opposed and 14 abstainers on 17 do so, while in others are experiencing Treaty. On 11 March 2008, the Lisbon December 2007. In the meantime, Slov- mounting pressure to call a public vote, Treaty bill passed the House of Com- enia (29 January 2008), Romania (4 Feb- especially in the UK and Denmark. The mons and is now to be ratified by the ruary 2008), Malta (6 February 2008), referendum in Ireland is expected to take House of Lords. France (7 February 2008), Bulgaria (21 place in mid-June 2008. According to an eucrim ID=0703055 March 2008), and Poland (2 April 2008) opinion poll published at the beginning have also approved the Lisbon Treaty by of March 2008, 46 % of those polled Germany parliamentary vote. On 10 April 2008, were in favour of the treaty, while 23 % In Germany, the two chambers of the Slovakia followed after a row on a con- intended to vote against it. 31 % of those Parliament are set to vote for the Lis- troversial media bill had been settled by asked are still undecided. This poll shows bon Treaty in May 2008. However, the the Slovak deputies. An interactive map a slightly favourable development for the final act of ratification may be postponed which shows the state of ratifications can acceptance of the treaty compared to the since MEP Peter Gauweiler (CSU), who be found at the following link. last poll held in November 2007 (25 % in also voted against the EU Constitution, eucrim ID=0703058 favour, 13 against, and 62 % undecided). plans to defeat Germany’s ratification For general information, see the official bill by way of a constitutional complaint European Parliament website of the Treaty of Lisbon of the before the Federal Constitutional Court On 20 February, the European Parliament Irish Departement of Foreign Affairs: (Bun­des­verfassungsgericht). A judgment (EP) adopted an own-initiative report on eucrim ID=0703051 on the EU Constitution took care of it- the Lisbon Treaty calling for maximum For the latest opinion poll, see: self after the “no” votes in France and political commitment by Member States eucrim ID=0703052 the Netherlands. The country’s Federal in order to ensure the ratification of the For the November 2007 opinion poll, President, Horst Köhler, may decide to treaty before 1 January 2009. The report refer to: postpone the signing of the document was adopted by a vast majority of 525 eucrim ID=0703053 approving the Lisbon Treaty until the MEPs versus 115 dissenting votes, main- Federal Constitutional Court delivers its ly from smaller groups on the far left and Denmark decision. However, according to constitu- far right of the political spectrum. The On 11 December 2007, the Danish Par- tional law, he is not obligated to do so. vote is a demonstration of the EPs’ sup- liament voted against having a Referen- eucrim ID=0703056 port for the Treaty and an appeal not to dum on the “Treaty of Lisbon”. Its deci- delay the ratification process. sion was based mainly on a report by the Poland The report, prepared by the joint rap- Danish Ministry of Justice deducing that The lower house of the Polish parliament porteurs Richard Corbett (PES, UK) and the Treaty does not transfer further sov- (Sejm), on 1 April 2008, largely voted in Íñigo Méndez de Vigo (EPP-ED, ES), ereignty to the EU. The critics of this de- favour of the Reform Treaty, after an ac- emphasized that the new Treaty would cision nevertheless stress the possibility cord was reached between the Government improve the current one by bringing of a sovereignty transfer to the EU and and the conservative opposition which more democratic accountability to the propose an independent examination of had threatened to block its ratification in European Union and enhancing its deci- the relationship between the new treaty parliament since mid-March. The oppo- sion-making. Slovenia’s State Secretary and the Danish Constitution. sition – the Law and Justice Party (PiS) for European Affairs, Janez Lenarčič eucrim ID=0703054 led by former Prime Minister Jaroslaw (speaking for the Council), and Commis-

74 | eucrim 3–4 / 2007 NEWS sion Vice-President Margot Wallström The Future of European Criminal Justice under the Lisbon Treaty agreed with the rapporteurs. Wallström further announced a close cooperation Report from the ERA Conference in Trier, 11-12 February 2008 between Commission, Member States, By Dr. Ingeborg Zerbes and the EP in informing of citizens about The manifold implications of the Lisbon the European criminal justice policy will Treaty policies, such as climate change, Treaty (Reform Treaty) for police and judi- be integrated into the legislation process growth and jobs, and the EU’s global cial cooperation in criminal matters in the which is the general rule to date in the role during the ratification period. EU were addressed at a two-day confer- first pillar, i.e., nearly all future regulations eucrim ID=0703059 ence at the Academy of European Law and directives on criminal law subjects (ERA) in Trier from 11 to 12 February 2008. will be released under the rule of quali- Wise Group Reflects on High-ranking experts from the European fied majority voting in the Council and “EU’s Horizons 2020–2030” institutions and bodies, experts from the co-decision by the European Parliament. During the Lisbon summit in December national ministries, high-profile academics However, the conference also revealed together with the participants of the con- that the one of the main challenges will 2007, EU leaders agreed to set up an ference discussed the new state of affairs be to cope with the so-called “emergency independent reflection group of ‘wise’ after the changes made by Lisbon Treaty. break” procedure which each Member people to help shape Europe’s long-term They also addressed its impact on and the State can initiate to stall the decision- future up until 2020-2030. The man- pros and cons for police and judicial coop- making process. date clarifies the idea of a “Council of eration in criminal matters in the EU. The academic evaluation of the new legal the Wise” which was voiced by French The conference particularly dealt with the framework culminated in a relatively ambiv- President Nicolas Sarkozy in August relevant topics of the future police and ju- alent result: on the one hand, the elements 2007 (see eucrim 1-2/2007, p. 7). The dicial cooperation. The conference was di- of the Lisbon Treaty which were designed vided into five sessions: session I dealt with towards achieving an improved European starting point for the Group’s reflections “police and judicial cooperation in criminal criminal justice system were appreciated, will be the challenges set out in the Ber- matters under the Lisbon Treaty”; session especially the spectrum of the new role of lin Declaration of 25 March 2007 (see II focused on the “new competences for the European Court of Justice since it will eucrim 1-2/2007, p. 6). the European Court of Justice and national have a nearly unrestrained competence The agenda of the Group will include parliament”; session III subjected the Lis- over criminal justice policy matters in the such topics as migration, social and eco- bon Treaty to an academic evaluation; ses- future. On the other hand, the complicated nomic challenges, the fight against ter- sion IV discussed the institutional change systems of “opt-outs/opt-ins” which were ror, climate change, as well as develop- at the EU level as regards the innovations stipulated for the United Kingdom, Ireland ments outside Europe having an effect for Europol and Eurojust as well as the pos- and Denmark were considered a danger sible long-term future in the form of a Eu- capable of destroying the future integra- on the EU. The Group shall identify the ropean Public Prosecutor; in session V, a tion of European criminal justice. key issues and developments which the final panel discussion dared to look ahead, On balance, the participants evaluated Union is likely to face and make pro- discussing the impact of the Lisbon Treaty the Lisbon treaty positively as a step in the posals for their handling. It will start its on European criminal justice. right direction, regardless of all political work during the upcoming French Presi- In a short review on the previous work compromises which haven been incorpo- dency (July-December 2008). This start in the third pillar, it was pointed out that rated into the new legal framework. How- date was suggested by German Chan- the work in the third pillar had often been ever, the conference raised awareness cellor Angela Merkel in a bid to avoid blocked, particularly because of the rule that there is still a lot to be done in view of of unanimity which allows each Member interpreting the new provisions of the Lis- the group distracting from the upcom- State to veto in the Council any instru- bon Treaty in the area of freedom, security ing ratification process of the Treaty of ment enhancing police and judicial coop- and justice. For further information on the Lisbon. The Group will be chaired by eration. The participants highly welcomed conference, please visit the following link: Spain’s former Prime Minister Felipe that the Lisbon Treaty will abolish this rule: eucrim ID=0703061 Gonzalez (and vice-chaired by former Latvian President Vaira Vike-Freiberga and Nokia’s chief Jorma Ollila). Gonza- lez said he wants to restore Europe’s eco- nomic and geopolitical influence on the global stage. Whether the mandate will Proclamation of the Charter and solemnly proclaimed the Charter include the issue of future enlargement of Fundamental Rights of Fundamental Rights in a formal cer- remains open. European Parliament’s By Julia Macke emony at the European Parliament in President Hans-Gert Pöttering stressed Strasbourg, France, in order to reflect the that the “group can’t take the decision- Disturbed Ceremony Charter’s specific nature and increase its making powers away from politicians. On 12 December 2007 – one day before public profile. All speakers underlined It can put forward proposals”. The Re- the signing of the EU Reform Treaty, the the importance of the Charter, which flection Group is expected to present its so-called Lisbon Treaty – the Presidents clearly shows that the EU is, first of all, a results in June 2010. of the European Parliament, the European community of values for the EU citizens. eucrim ID=0703060 Commission, and the EU Council signed The proclamation ceremony was inter-

eucrim 3–4 / 2007 | 75 NEWS rupted on several occasions by a minority the Charter of Fundamental Rights of the Community Powers in of MEPs favouring a referendum on the European Union of 7 December 2000, as Criminal Matters Charter. Their attempt to shout down the adopted at Strasbourg, on 12 December Reported by Thomas Wahl* ceremony caused a storm of protest on 2007, which shall have the same legal the part of the MEPs’ majority who con- value as the Treaties.” Deep Rifts Still Exist in Council over demned this behaviour as intolerable. eucrim ID=0703064 Community Powers on Criminal Law eucrim ID=0703062 Current discussions in the Council reveal Exceptions for the United that there is still a deep rift among Mem- Contents of the Charter Kingdom and Poland ber States as regards the criminal law The Charter of Fundamental Rights Unfortunately, it has to date not yet been competence of the European Commu- maintains in a single text the funda- possible to dispel British and Polish nity. As described in the previous issues mental rights of European citizens and doubts. This is why a Protocol annexed of eucrim, mainly three proposals to in- all persons resident in the EU in the ar- to the Lisbon Treaty was negotiated by troduce criminal law provisions through eas of human dignity, freedom, equality, the two States which introduces specific directives based on Community law are solidarity, civil rights, and justice. The measures for the United Kingdom and currently pending: a Directive on the pro- individual rights are based on the fun- Poland, establishing exceptions with re- tection of the environment through crimi- damental rights and freedoms already gard to the jurisdiction of the European nal law (see eucrim 1-2/2007, pp. 8-9), recognised by the European Conven- Court of Justice and national courts for a Directive on criminal measures aimed tion on Human Rights, the constitutional the protection of the rights recognised at ensuring the enforcement of intellec- treaties of the EU Member States, the by the Charter. A resolution of 29 No- tual property rights (eucrim 1-2/2006, Council of Europe’s Social Charter, the vember 2007, in which the European p. 13), and a Directive providing for sanc- Community Charter of Fundamental Parliament urged the United Kingdom tions against employers of illegally stay- Social Rights of Workers and other in- and Poland to make every effort to ar- ing third-country nationals (see eucrim ternational conventions to which the EU rive at a consensus on the unrestricted 1-2/2007, pp. 29-30). or its Member States are parties. More applicability of the Charter, has been un- Furthermore, the Commission recently precisely, the Charter consists of 54 arti- successful so far. submitted a new proposal for a Directive cles which are subdivided into six chap- eucrim ID=0703065 “on ship-source pollution and on the in- ters. However, these provisions apply troduction of penalties, including crimi- to the EU institutions and bodies and to Historical Background nal penalties, for pollution offences” (see the Member States only when they are The Charter initiative was originally below). An assessment of the examination implementing Union law. The Charter launched at the Cologne European Coun- of the dossiers in the Council working does not establish any new power for the cil in 1999. The reason for this initiative groups nourishes fears that negotiations Union. In the future, the European Court was a decision of the European Court of have come to a deadlock because of the of Justice will also be in charge of ensur- Justice in 1996 after which the treaties es- question of competence. Some Member ing respect of the Charter in all acts of tablishing the European Community did States doubt whether the European Court the European Union. The following link not empower it to accede to the European of Justice ruling of 13 September 2005 in contains a summary of the contents of Convention on Human Rights. This made which it annulled the Framework Deci- the Charter, its full text as well as expla- a separate EU human rights catalogue nec- sion on the protection of the environment nations which were updated in the light essary. An ad hoc Convention chaired by through criminal law can be extended to of new EU law. former President of the Federal Republic other policy areas. Other Member States eucrim ID=0703063 of Germany, Roman Herzog, elaborated are not convinced of the necessity for pro- the “EU’s catalogue of human rights”. A viding criminal measures. A document of Future Binding Effect first draft was published in October 2000. the Working Party on Substantive Crimi- of the Charter In December 2000 in Nice, the Presidents nal Law from 19 February 2008, which As part of the compromise for the adop- of the European Parliament, the Euro- examined the dossier on the illegal em- tion of the EU Reform Treaty, the state pean Commission, and the EU Council ployment, illustrates the different points and government leaders of the EU de- signed and proclaimed for the first time of view by concluding: cided in Berlin in June 2007 not to in- the Charter – at that time still non-binding “During the discussions, the Working clude the text of the Charter in the trea- – on behalf of their three institutions. Af- Party on Substantive Criminal Law could ties but to adopt them as a statement ter the attempt to incorporate the Charter not come to a consensus with regard to on the treaties. This, however, does not as the second part of the Constitutional the question of competence and necessity change the legal status of the Charter: if Treaty failed because this treaty had not for the provision of criminal measures, to the Lisbon Treaty is ratified, the Charter been ratified, the decision was taken to combat illegal immigration”. will have the same legal status. In the give the Charter a legally binding status eucrim ID=0703067 Lisbon Treaty, article 6 therefore reads in the manner already described. See also as follows: “The Union recognises the eucrim 1-2/2007, p. 3. * All follwing news on the European Union are re- rights, freedoms and principles set out in eucrim ID=0703066 ported by Thomas Wahl if not stated otherwise.

76 | eucrim 3–4 / 2007 NEWS

The proposal on intellectual property is the establishment of areas “where it is nal) penalties applicable to the conduct faced with similar problems; it has not cheaper to pollute”. made an offence in the EC Directive. been discussed for nearly one year. As re- Therefore, the EESC advocates a strong- The ECJ ruled that the Framework Deci- gards the proposed directive on the crimi- er approximation of the Member States’ sion encroached the competence of the nal law protection of the environment, environmental criminal law. As a result, Community legislator who is entitled to the Council could still not come to a first the EESC, for example, is not in favour include the definition of the criminal of- consensus, a number of Member States of the Commission’s plan to set a range fence and the nature of the penalties. entering scrutiny reservations on the text. of the minimum amount of maximum The tabled Commission proposal adapts This is blocking further treatment of the fines/penalties. It advocates defining a Directive 2005/35/EC in line with proposal in the European Parliament single minimum level for the maximum the ECJ ruling and would replace the which will co-decide on the law. sentences, in the interest of greater har- Framework Decision. The Commission eucrim ID=0703068 monisation. The opinion ends with three considers the introduction of criminal It is hardly imaginable that one of the recommendations: measures particularly necessary in order criminal law directives will be finalised • associations and NGOs should have to make effective the 1973 International in the course of 2008, although the Slov- the right to act to initiate public criminal Convention for the Prevention of Pollu- enian Presidency is seeking to obtain proceedings; tion from Ships (Marpol) which requires agreement on the environmental law • public prosecutors’ offices specialis- ensuring that penalties are “adequate in proposal by June 2008. It is more likely ing in environmental matters should be severity to discourage” potential pol- that the issue will be postponed till the set up in all EU Member States enabling luters. The proposal (COM(2008) 134) entry into force of the Lisbon Treaty. the law enforcement to effectively com- contains the following amendments: The treaty might tilt the dispute since it bat environmental crimes; • Member States are required to lay allows the Commission to propose the • the European judicial networks should down that any ship-source discharge of approximation of Member States’ crimi- be used in order to establish the neces- polluting substances, as defined in Arti- nal laws in all areas where the EU has sary cooperation regarding cross-border cle 2 of Directive 2005/35/EC, into any harmonization powers. crimes. of the areas referred to in Article 3(1) eucrim ID=0703069 of Directive 2005/35/EC, if committed Economic and Social Committee: with intent, recklessly, or with serious Opinion on Draft Environmental Commission Takes New Run-Up negligence, is to be considered a crimi- Criminal Law Directive to Protect Maritime Environment nal offence. While negotiations within the Council through Criminal Law • As stated in the annulled Framework and the European Parliament on the pro- On 11 March 2008, the Commission Decision, Member States should ensure posed Directive on the protection of the presented a new proposal which seeks to that legal persons can be held liable for environment through criminal law are strengthen the criminal law framework the criminal offences committed for progressing slowly, the European Eco- on ship-source pollution. The proposal their benefit by certain persons acting on nomic and Social Committee (EESC) is a direct reaction to the European Court their behalf or when lack of supervision has, in the meantime, commented on of Justice (ECJ) judgment of 23 October or control enabled those persons to com- the new Commission approach. The 2007 which annulled Framework Deci- mit an offence. Committee complains about the long sion 2005/667/JHA that contained crim- • Penalties imposed against ship-source delay in adopting measures which are inal law-related provisions to protect pollution offences must be effective, necessary to combat environmental the maritime environment against ship- proportionate and dissuasive, for both crime as a result of the disagreement source pollution (see eucrim 1-2/2007, natural and legal persons. In addition between the institutions on the divi- p. 7). The European Community Direc- to this requirement, for the criminal sion of competences between the first tive 2005/35 “on ship-source pollution offence defined in the new Article 4, and third pillar. The new Commission and on the introduction of penalties for Member States are required to provide proposal of 2007 (see eucrim 1-2/2007, infringements” already contains a pre- that the penalties for natural persons be pp. 8-9) prompted the Committee, inter cise definition of the infringements of of a criminal nature. For legal persons, alia, to comment as follows: the EESC ship-source discharges of polluting sub- it is not specified whether the penalties is reconsidering whether the proposed stances, but excludes criminal law-relat- should be of a criminal or non-criminal criminal law provisions do not come ed matters. It only contains the rule that nature. Member States that do not rec- under the third pillar since the Directive the defined infringements “are subject to ognise the criminal liability of legal per- would target “serious offences” as a effective, proportionate and dissuasive sons in their national law are therefore priority, especially those committed by penalties [in the Member States], which not under any obligation to change their criminal organizations, thus concerning may include criminal or administrative national legal system. organized crime which comes under Ti- penalties”. If the Council and the European Parlia- tle VI TEU. In its opinion, the EESC The Framework Decision, which supple- ment endorses the proposal, the amend- is defending its stance that the legal mented the Directive, defined the regime ments will mirror the Commission’s instrument must, in any event, hamper of the nature, type and level of (crimi- initial draft for the Directive on ship-

eucrim 3–4 / 2007 | 77 NEWS source pollution presented in 2003 (cf. 73/78 is the test standard applicable The Hague Programme Review COM(2003) 92). However, for the time to the EC Directive. As a result, rules being, the Commission is not address- which go beyond Marpol 73/78 are not ECJ: Urgent Preliminary Ruling ing the open issue of an approximation permitted. Nevertheless, the AG cannot Procedure in Justice and Home of the type and level of penalties, al- determine an infringement of Marpol Affairs Introduced though a missing approximation could 73/78 as the two categories of persons From 1 March 2008 onwards, national lead to safe havens for offenders. It can mentioned there can only be considered courts or tribunals have the possibility to be expected that the Commission will as examples. request an urgent preliminary procedure reconsider the issue after the entry into Furthermore, there seems to be a conflict for references which relate to the area of force of the Lisbon Treaty since it would in so far as the Directive provides for li- freedom, security and justice (i.e., areas provide a clearer legal basis for the ap- ability in respect of “serious negligence” covered by Title VI TEU and Title IV proximation of penalties. – a notion which is not used in Marpol TEC). The Council and the European eucrim ID=0703070 73/78. AG Kokott suggests interpreting Court of Justice (ECJ) endorsed the re- More background information on the the “serious negligence” standard of the spective amendments to the Protocol on European Union’s policy on maritime Directive restrictively in the sense of the Statute of the Court of Justice and to transport and safety can be found at: “recklessness in the knowledge that dam- its Rules of Procedure. The amendments eucrim ID=0703071 age will probably result”. This interpre- were published in the Official Jour- tation does not provide a stricter liability nal L 24 of 29 January 2008. The texts Advocate General’s Opinion on standard than Marpol 73/78 and thus en- follow the proposal of the ECJ which Validity of Directive on Ship-Source sures the Community obligation to be in was presented on 11 July 2007 (see Pollution conformity with international law. Such eucrim 1-2/2007, p. 11; see also eucrim On 20 November 2007, Advocate Gen- a restrictive interpretation of the term is 3-4/2006, p. 47 for the first reflections eral Kokott delivered her opinion on the necessary for illegal discharges outside on the introduction of an expedited or legal validity of the above-mentioned the territorial sea where the Community accelerated procedure in the area of Jus- Directive 2005/35/EC on ship-source is bound by Marpol 73/78. tice and Home Affairs). pollution and on the introduction of pen- However, Ms. Kokott recommended that The Protocol on the Statute of the Court alties for infringements. A preliminary the standard should get a broader mean- of Justice now allows that statements of ruling had been sought by the English ing in the territorial sea where states are case and written observations must be High Court of Justice. The claimants, a sovereign to enact measures on preven- submitted within a shorter period than coalition of several organizations within tion and reduction of environmental pol- provided for in the ordinary preliminary the shipping industry, considered Arti- lution according to Article 21 (1) (f) of ruling procedure. Furthermore, it would cles 4 and 5 of the Directive, which lay the Convention on the Law of the Sea. be possible for the ECJ to decide with- down criminal liability for discharge Lastly, AG Kokott tried to specify the out a formal submission from the Ad- violations, to be incompatible with in- term “serious negligence” and exposed vocate General. In addition, the urgent ternational maritime law. Furthermore, that it does not infringe the principle of procedure may provide for restriction of they deemed that the standard of liabil- legal certainty. Her main argument is that the parties and other interested persons ity used in the Directive infringes the Directive 2005/35/EC does not have to mentioned in Article 23 of the Statute principle of legal certainty (see eucrim meet the criterion of legal certainty since who are authorised to submit statements 1–2/2007, p. 8). it cannot, as a directive, contain directly of case or written observations and, in Having analyzed the preliminary ques- effective penal provisions. cases of extreme urgency, allowing the tions brought up by the English Court, She consequently came to the conclu- written stage of the procedure to be Advocate General Kokott rejected all sion that there is “no factor (…) as to omitted. challenges to the Directive. As regards bring into question the validity of Direc- eucrim ID=0703073 conformity with international law, the tive 2005/35/EC”. The judgment of the The detailed procedure is set forth in the questions mainly concern the problem European Court of Justice which usually amended Rules of Procedure of the ECJ. of whether the chosen criteria for li- follows the Advocate General’s opinion The new Article 104b lays down that ability in the Directive go beyond the is expected in the course of 2008. the urgent procedure may be requested standard set out in the 1973 International The opinion is interesting to read since by the national court or tribunal which Convention for the Prevention of Pollu- it contains some fundamental consid- makes the reference, or, as an exception, tion from Ships and the 1978 Protocol erations about the relationship between by the ECJ’s own motion. If the Court thereto (Marpol 73/78). Under Article 4 Community law and international law. decides to deal with the reference under of the Directive, other people than the Furthermore, AG Kokott attempts to de- the urgent procedure, it will prescribe master and the owner of the ship can be fine a common interpretation of the no- the period within which the parties or held liable for discharges resulting from tion “serious negligence” in so far as it entities may lodge statements of case or damage. Thus, the wording of the Di- is applied in the context of ship-source written observations. The Court’s deci- rective goes further than Marpol 73/78. pollution. sion may specify the matters of law to AG Kokott firstly states that Marpol eucrim ID=0703072 which such statements of case or writ-

78 | eucrim 3–4 / 2007 NEWS ten observations must relate and specify The High-Level Group will meet two ture group identified seven areas of chal- the maximum length of documents. A more times during the Slovenian Presi- lenges which will be debated further: (1) chamber of three or five judges decides dency. A final report is expected by the legislation. (2) access to justice. (3) judi- on the reference after hearing the Advo- informal meeting under the French Pres- cial cooperation. (4) external dimension cate General. idency in July 2008. of the European justice area. (5) protec- eucrim ID=0703074 eucrim ID=0703076 tion of children, (6) citizens’ rights, and The Council added a statement to the The future European asylum policy, in- (7) financial instruments. urgent preliminary procedure. There, the tegration, and future police cooperation eucrim ID=0703078 Council tries to specify openly formu- were on the agenda for the meeting on lated expressions in the aforementioned 31 March/1 April 2008. More informa- rules. However, the statement is not tion about the outcome of this meeting binding on the Court. The Council: can be retrieved via the following link: Legislation (1) calls on the ECJ to provide national eucrim ID=0703077 courts and tribunals with useful guid- Permanent Justice Forum ance on cases in which to apply for an Future Group in Justice to Foster Mutual Trust urgent preliminary ruling procedure; In parallel to the above-mentioned fu- On 5 February 2008, the Commission an- (2) recommends the Court applying the ture group which discusses the way for- nounced in a Communication that it will procedure in situations involving depri- ward of the EU’s home affairs policy launch a “Forum for discussing EU jus- vation of liberty; after 2010, a group was also formed tice policies and practice” (COM(2008) (3) calls upon the ECJ not to fix the pe- in order to explore the Union’s priori- 38). The Forum is planned to be for- riod less than 10 working days in order ties in the area of justice for the period mally launched in mid-April 2008. The to give Member States enough time to from 2010-2014. The group was initi- rationale of the Justice Forum is to get draft written observations or prepare ated by Portugal during its Presidency a “targeted consultation”, i.e., involve oral arguments; in the second half of 2007. It convened practitioners and other civil stakeholders (4) notes that an urgent preliminary pro- the Justice Ministers of the current trio in the evaluation of the implementation, cedure should be concluded within three presidencies of the EU Council (Germa- enforcement, and consequences of Jus- months; ny, Portugal, and Slovenia), of the future tice and Home Affairs instruments of the (5) requests the ECJ to submit, no later trio of presidencies (France, the Czech EU. In other words, the Forum is to than three years following the entry into Republic, and Sweden), the Spanish (1) contribute to the ex ante evaluation force, a report on the use of the new pro- Justice Minister as representative of the of legislation, cedure and the Court’s practice thereto. third trio presidency (Spain, Belgium, (2) review the legal and practical imple- eucrim ID=0703075 and Hungary), the Commissioner for mentation of instruments adopted in the Justice, Freedom and Security (Franco area of criminal and civil justice, Discussion on Future European Frattini), and the Chairman of the Legal (3) contribute to the assessment of glo- Home Affairs Policy by Home Affairs Affairs Committee of the European Par- bal impacts on national judicial systems Ministers liament (Giuseppe Gargani). The group and on the functioning of judicial coop- The Home Affairs Ministers of the EU met for the first time in Cascais/Portugal eration of EU instruments, Member States, at their informal meet- on 27 November 2007. Further meetings (4) contribute to a dialogue on quality ing under the Slovenian Presidency in are scheduled throughout 2008. As is the of justice with a view to strengthening January 2008, discussed an interim report case with the group for home affairs, the mutual trust, and drafted by the Slovenian Presidency on future group for justice intends to present (5) work effectively with the Council of the discussion of the High-Level Advi- a report with proposals at the beginning Europe, in particular with the CoE Com- sory Group on the Future of European of the French Presidency in July 2008. mission for the Efficiency of Justice (CE- Home Affairs Policy after 2010 (for more It has not yet been decided whether the PEJ – for this body see eucrim 3-4/2006, details on the group see eucrim 1-2/2007, two groups on justice and home affairs p. 85-86, and eucrim 1-2/2007, p. 46). p. 11 and eucrim 3-4/2006, p. 48). It was will be merged. The Justice Forum will be composed the first time that the considerations of the In Cascais, the justice group dealt with the of practitioners, in particular those who High-Level Group were discussed on a following topics: simplification of legisla- deal with the EU instruments in the area large scale by all 27 Member States. The tion and modernizing the administration of freedom, security and justice on a ministers mainly exchanged views on of justice (including electronic justice), day-to-day basis, such as judges, civil the development of effective information the fight against terrorism and organised and criminal lawyers, and prosecutors, exchange between the law enforcement crime, reinforcement of victims’ protec- as well as academics and representa- authorities at the national and European tion, (especially children), and relations tives of NGOs and existing European levels, as well as with third countries, and with third countries in the area of justice. Networks. The Forum is to meet regu- tackled the question of what systems to On the occasion of the informal JHA larly, several times a year – with sub- use. Further topics were migrations, visa Council meeting in Brdo pri Kranju/ groups focusing on particular subjects, policy, and border management. Slovenia on 24-26 January 2008, the fu- such as access to legal aid, treatment of

eucrim 3–4 / 2007 | 79 NEWS

• bringing together existing European • For the accession of Bulgaria and Ro- Expert Hearing on Current and networks specialising in justice matters mania to the Europol-Convention, see Future Development of European and facilitating more co-ordinated dis- eucrim 1-2/2007, p. 16. Criminal Law in German  Parliament cussion and knowledge sharing; and eucrim ID=0703086 • suggestions for areas in which stud- On 28 November 2007, the sub-com- ies should be carried out and supervision Administrative Sanctions Need Limit, mittee “European law” of the German and management of such studies. Advocate General Says Parliament (Deutscher Bundestag) held eucrim ID=0703079 A reference for a preliminary ruling an expert meeting on the question “Is lodged by the Landesgericht (District emerging a uniform European criminal Bulgaria and Romania Accede Court) Bozen/Italy prompted Advocate law?” (“Entsteht ein einheitliches eu- to Criminal Law Conventions General Colomer to give general con- ropäisches Strafrecht”). Academic ex- In the past months, Bulgaria and Roma- sideration to the requirements of a na- perts and officials presented statements on the following issues: (1) competences nia acceded to a number of criminal law tional administrative sanction (Cases for the creation of a uniform European conventions and their protocols. Com- C-55/07 and 56/07, “Michaeler und criminal law on the basis of the Treaty pared to the former procedure of new Subito GmbH”). The Italian law impos- of Nice, the case-law of the European Member States, the accession for Bul- es an obligation on employers to send a Court of Justice (especially as to the garia and Romania was simplified (see copy of part-time employment contracts cases C-176/03 [“environmental crimi- eucrim 1-2/2007, p. 19). The accession within 30 days of their conclusion to the nal law”] and C-440/05 [“ship-source of the two new Member States, which competent provincial department of the pollution”]), and the EU Reform Treaty; joined the EU in 2007, became possible Labour Inspectorate. The obligation is (2) limitations of the German Basic Law (Grundgesetz) in view of the validity and after the Council had taken decisions accompanied by a fine of €15 per em- application of a uniform European crimi- concerning accession to the respective ployee concerned and per day of delay nal law; (3) jurisdictional control of Eu- legal acts and determined the date of for failure to do so. Interestingly, the ropean criminal law; (4) legal protection their entry into force. Before the Council sanction does not set an upper limit for of individuals; (5) impacts of a uniform decisions, the Commission had brought the administrative fine. As a result, the European criminal law on the national in a proposal and the European Parlia- complainants were fined with nearly criminal law; and (6) the need for the ment submitted opinions. The criminal €217,000. national legislator to take action in the law conventions and protocols to which The questions is whether the obligation context of the emergence of a uniform Bulgaria and Romania acceded are listed to forward the contracts as well as the European criminal law. The documenta- tion of the meeting can be found under in Annex I of the 2005 Act of Accession sanction concept is in line with Direc- the following link: (OJ L 157 of 21 June 2005, 203). tive 91/81/EC, the purpose of which is eucrim ID=0703088 In detail, Bulgaria and Romania acceded to eliminate discrimination against part- to the following instruments: time workers and improve the quality • Convention on the protection of the of part-time work. The Italian govern- victims, translation and interpretation EC’s financial interests and its protocols ment argued that the norms are neces- services, respect of fair trial rights, etc. (for the Commission proposal in this re- sary to combat fraud and illicit work. The Commission hopes for the follow- spect, see also eucrim, 1-2/2007, p. 19). In contrast, the AG concludes that the ing added value from the Forum: eucrim ID=0703080 administrative burden to communicate • more focused and effective legisla- • Convention on mutual assistance and the contracts to the authorities is not tion; cooperation between customs adminis- proportionate and thus not in line with • establishment of a ready-made expert trations the said Directive. group to clarify the true needs of prac- eucrim ID=0703081 As regards the accompanying sanc- titioners and the problems they face in • Convention on the use of information tion, the AG refers to the case-law that using EU justice instruments; technology for customs purposes a sanction which enforces a national • better researched Impact Assessments eucrim ID=0703082 administrative measure equally vio- in the specific justice areas with its di- • Convention on mutual assistance in lates Community law if the administra- rect links to the judiciary and other ac- criminal matters between the Member tive measure infringes Community law. tors in the justice systems of the Mem- States of the European Union Should the ECJ not follow the AG’s ber States; eucrim ID=0703083 opinion, the AG assesses whether the • contribution to the standard evalua- • Convention on driving disqualifica- sanction concept itself would be in line tion model process set up by the Com- tions with Community law. The AG requires mission’s June 2006 Communication eucrim ID=0703084 that a national administrative sanction on Evaluation of EU policies on Free- • Convention on the fight against -cor must have limits which take into account dom, Security and Justice (see eucrim ruption involving officials of the Euro- the individual liability of persons. A con- 3-4/2006. p. 46); pean Communities or officials of Mem- cept such as that in question which does • provision of concrete expertise needed ber States of the European Union not limit liability in terms of time and for the in-depth evaluation phase; eucrim ID=0703085 maximum amount infringes the general

80 | eucrim 3–4 / 2007 NEWS

Community principle of proportionality. ducing Administrative Burdens and in- Commission’s drive to improve business As a result, the Italian provision which vited the Commission to launch it with competitiveness. imposes a fine for the non-delivery of the assistance of the Member States. The • Furthermore, the Commission de- part-time contracts is not applicable, in- European Council also invited Member cided at the end of 2004 to screen and dependent of the validity of the obliga- States to set their own national targets withdraw a number of pending legisla- tion to forward the contracts. of comparable ambition within their tive proposals. In fact, as of March 2006, eucrim ID=0703087 spheres of competence by 2008. The the Commission had withdrawn 68 leg- measurement exercise will be completed islative proposals after screening 183 by the end of 2008. It will focus on a potential new laws that were pending list of legislative and executive acts in ratification by the Council and European Better Regulation in the EU 13 priority areas seen as being at the ori- Parliament. By Julia Macke gin of 80 % of administrative costs (the • A strategy to modernise and simplify EU Standard Cost Model will be used). existing legislation is also planned. To Stoiber Group on Administrative Unnecessary burdens spotted during this this end, the Commission has designed, Burdens – First Meeting exercise will then be removed. and is currently implementing, a sim- On 17 January 2008, the High Level Ex- In the meantime, the Commission will plification rolling programme which pert Group on Administrative Burdens propose and/or adopt concrete reduction initially consisted of 100 initiatives held its first meeting. For the start of its measures for immediate action. In spring covering more than 220 legal texts to work, it received a progress report from 2007, it adopted 10 such fast-track ini- be clarified, modernised, streamlined, the Commission on the work undertaken tiatives, and more are planned to follow or repealed over the period from 2005 so far in this area. in 2008. to 2008. The rolling programme has re- On 19 November 2007, Commission On 19 November 2007, the Commission cently been updated with the addition President Barroso, Günter Verheugen, set up the above-mentioned high level of 43 new initiatives to be implemented Vice President of the Commission and expert group on the reduction of admin- by 2009. Furthermore, the Commis- Commissioner for Enterprise and In- istrative burdens to advise it on the im- sion is intensifying its efforts to com- dustry, and Edmund Stoiber agreed on plementation of the Action Programme plete the codification of about 500 basic the composition of a High Level Expert with a three-year mandate. pieces of legislation to reduce the size Group on the Reduction of Administra- eucrim ID=0703090 and ease the legibility of Community tive Burdens in Brussels and launched the legislation. work of the group. Mr. Stoiber, the former Background: Better Regulation • The EU further turns its attention to Prime Minister of Bavaria, Germany, will Strategy in the EU the Member States’ contribution, the chair the High Level Group of 15 experts. The issue of reducing administrative transposition and implementation of EU Its task is to advise the Commission on burdens for companies, in particular law, and the quality of national and re- the implementation of the action plan on Small and Medium Sized Enterprises gional regulation. reducing administrative burdens imposed (SMEs), is part of the comprehensive eucrim ID=0703091 by legislation in the Union. better regulation strategy of the Euro- eucrim ID=0703089 pean Union which has its origins in the Call for Better Implementation Edinburgh European Summit of Decem- of Community Law Action Programme for Reducing ber 1992 and which has been developed In this context, it is also worth mention- Administrative Burdens in the past few years. Lastly, in Novem- ing that the European Commission on In January 2007, the Commission pre- ber 2006, a “strategic review of Bet- 5 September 2007 put forward a series sented a programme for measuring ter Regulation in the European Union” of proposals to improve the application administrative costs arising from legis- (COM(2006) 689) was presented by the of Community law by Member States. lation in the EU and reducing adminis- European Commission. These proposals comprise four main ar- trative burdens for companies by 25 % It aims at simplifying and improving the eas of action: by 2012. This action programme dem- regulatory environment of the European • more targeted preventive measures, onstrates in concrete terms the way in Union. Beyond the described measures • improved information-provision and which the Commission intends to work to reduce administrative burdens, fur- problem-solving, with Member States to cut administrative ther improvements, especially with re- • a more efficient management of in- burdens in businesses by one quarter by gard to the following topics, have been fringement cases, attaching priority to 2012: the programme focuses on infor- targeted: those cases which present the greatest mation obligations in thirteen selected • Since the beginning of 2005 already, risks and widespread impact for citizens priority areas including company law, all major draft laws issued by the Com- and business and defining general priori- employment relations, taxation/VAT, mission must be accompanied by an ties as well as annually fixed in certain statistics, agriculture, and transport. impact assessment study that assesses sectors, and In March 2007, the European Council the costs and benefits of the proposal • increased transparency. endorsed the Action Programme for Re- and ensures that it is consistent with the eucrim ID=0703092

eucrim 3–4 / 2007 | 81 NEWS

Better Regulation on Slovenian a report containing suspicions that the respect of moral damage and €30,000 Presidency’s Priorities Stern reporter received confidential in- for costs and expenses. On 21 January 2008, the Slovenian Min- formation by bribing a civil servant of eucrim ID=0703094 ister of Public Administration, Dr Gre- the Commission. Information from con- Mr. Tillack had previously brought ac- gor Virant, presented the priorities of the fidential documents was the basis of two tions before Belgian and European Com- Slovenian Presidency in key working are- articles by the journalist in 2002 reporting munity courts without success. Journalists as within the “Better Regulation” agenda. the allegations of a European civil servant in their statements welcomed the judg- In this context, he especially stressed the concerning irregularities in the European ment “of Strasbourg” as reaffirmation of drafting of better regulations, reduction institutions and the internal investigations press rights. OLAF reacted by stressing of administrative burdens, measurement of OLAF in this respect. that the judgment concerns the Kingdom of administrative costs, and assessment The ECtHR reiterated in general terms of Belgium and not OLAF. OLAF further of the impact of legislation on citizens that freedom of expression constitutes declared that the judgment of the ECtHR and economic stakeholders. one of the fundamental components of does not touch upon the ruling of the As to the reduction of administrative bur- a democratic society, and the guarantees Court of First Instance in Luxemburg of 4 dens and the measurement of administra- conferred to the press are particularly October 2006 where it was held that sub- tive costs, he added that in 2008 it will be important in this respect. The Court con- sequent legal acts of national authorities important to ensure that the activities in tinues that the protection of journalistic following the forwarding of information the 13 priority areas set out in the Europe- sources is a cornerstone of press free- by OLAF are the sole and entire responsi- an Commission’s Action Plan continue in dom. This protection is even more im- bility of the national authorities (see also order to achieve the 25 % goal by 2012. portant, according to the Court, since the eucrim 3-4/2006, p. 49). Slovenia will also give precedence to the press must be able to inform the public eucrim ID=0703095 agreement on implementing the second with precise and reliable information. An Meanwhile, the Belgian police has an- package of the “fast track” measures for interference with the exercise of press nounced that it will drop the case against removing the administrative barriers of freedom could not be compatible with the journalist and return to him the bulk the European Commission where possi- Article 10 of the Convention unless it was of documents which were seized during ble. The Minister further emphasised the justified by an overriding requirement in important role of business which is why the public interest. he will give greater attention to the inter- While assessing the case, the Court held ests of small and medium-sized business- that the main purpose of the searches was OLAF and Eurojust Discuss Better es, e.g., by means of a special conference the detection of the “leak” of the confi- Cooperation in Fraud and Corrup- in April 2008. dential information pursued by OLAF tion Cases eucrim ID=0703093 and therefore the measures concerned the domain of the protection of journal- Eurojust and OLAF organised a two-day istic sources. In the decisive paragraph conference in The Hague where Euro- just’s National Members, officials from of the judgment, the Court emphasized OLAF, and judicial professionals from all that “a journalist’s right not to reveal her over Europe convened to look into bet- Institutions or his sources could not be considered ter use of the know-how and resources a mere privilege to be granted or taken of both organisations. They focused on away depending on the lawfulness or the international dimension of fraud and OLAF unlawfulness of their sources, but was corruption, its links and trends, and the part and parcel of the right to informa- need to put in place effective counter- German Journalist in OLAF Leak Case tion, to be treated with the utmost cau- measures. Mr. José Louis Lopes da Mota, Successful before Strasbourg Court tion, even more so in the applicant’s President and National Member for Por- tugal at Eurojust, highlighted the profes- The row between the journalist from the case, where he had been under suspicion sional and sophisticated way in which German news magazine Stern, Hans- because of vague, uncorroborated ru- criminals commit fraud, corruption, and Martin Tillack, on the one hand, and the mours, as subsequently confirmed by the other offences affecting the EU; he also Belgian authorities as well as OLAF, on fact that he had not been charged.” The pointed out that improved coordinated the other hand, has reached its climax for Court also took into account the amount action and cooperation between the two the time being before the European Court of property seized (16 crates of papers, bodies are important to effectively fight of Human Rights (ECtHR) in Strasbourg. two boxes of files, two computers, four such crime. Mr. Franz-Hermann Brüner, In its judgment of 27 November 2007, the mobile phones and a metal cabinet). As Director-General of OLAF, stressed that good cooperation and the will to share ECtHR ruled that the Belgian State vio- a result, the ECtHR ruled that the meas- information through bodies such as Eu- lated Article 10 of the ECHR (freedom of ures were not “necessary in a democratic rojust and OLAF are indispensable in the expression) as a result of searches carried society” and thus the interference with successful fight against the said forms out at the home and office of the journal- Art. 10 ECHR was not justified. Under of crime. ist in 2004. The searches by the Belgian Article 41 ECHR (just satisfaction), the eucrim ID=0703097 police were triggered after OLAF filed Court awarded the applicant €10,000 in

82 | eucrim 3–4 / 2007 NEWS the raid at the journalist’s premises, the ing in a JIT to receive instructions from also applies to Europol staff, in particu- online news service “euobserver.com” the team leader. lar if Europol processes personal data reported. What remains open is the issue of the originating from Community bodies budgetary implications of the new re- • The EP is in favour of the creation of Practice: Back-up of OLAF Allows gime which shall be guided by budgetary an ombudsman to protect Europol data, Convictions in Adulterated Butter Case neutrality. Some Member States have re- but thinks that his/her independence Since 1997, Italian-based companies quested additional clarification from the must be ensured by the new law. have used animal, vegetable, and syn- Commission. The Slovenian Presidency • The Joint Supervisory Body of Eu- thetic materials in order to manufacture seeks to reach a political agreement on ropol and the European Data Protec- a product falsely declared as butter. This the Council Decision at the JHA Council tion Supervisor should be consulted adulterated butter was sold on the Euro- meeting in April 2008. Putting Europol if personal data is processed outside pean market and Community subsidies on new footing is one of the priorities of the Europol Information System or the for butter were obtained for it. OLAF the Slovenian Presidency. The Decision Analysis Work Files or if data process- investigated, together with various na- would replace the Europol Convention ing systems are interconnected. tional authorities, and provided back-up and Europol would then become an enti- • Communication of personal data to for the national investigations. ty of the European Union (similar to Eu- third countries or international organisa- On 22 November 2007, the French Mag- rojust or the European Police College), tions should only be made in exceptional istrates Court in Créteil could therefore financed by the Community budget. For situations and on a case-by-case basis; convict two managers of a diary com- the Decision, see also eucrim 1-2/2007, furthermore additional safeguards are pany for selling goods under false pre- p. 17 and eucrim 3-4/2007, p. 51. proposed for such transfers. tences. They obtained suspended prison eucrim ID=0703098 • The EP would also like to beef up the sentences of eight and five months, re- On 14 March 2008, the General Secre- text in order to strengthen the rights of the spectively, and have to pay back over tariat of the Council presented a consoli- data subject, such as the right of access. €23 million in illegally obtained Euro- dated text of the proposed Decision: • As regards the aspect of democratic pean subsidies to the agency responsible eucrim ID=0703099 control, the EP wants a say in the selec- for paying out Community subsidies in tion of the Director whereas the current France (the agency took part as a civil New Europol Decision – Opinion proposal only foresees EP’s consultation party in the proceedings). It remains to of the European Parliament in case of the Director’s dismissal. be seen whether the Court of Appeal is On 17 January 2008, the European Par- • The EP strongly rejects moves of going to rule in the same direction. The liament (EP) voted on the aforemen- Member States to continue the financing case has a long-standing history. It dates tioned proposal for a Council Decision of Europol by the Member States. It in- back to the end of the 1990s and OLAF establishing Europol which was brought sists on Europol’s financing by means of supported investigations in France, Italy, forward by the Commission on 20 De- the Community budget since this would Belgium, and Germany for a number of cember 2006. The wide majority of ensure the Parliament’s involvement in years. Criminal proceedings are currently MEPs welcomes the establishment of the agency’s financing and thus secure also pending in Italy and Belgium. Ger- Europol as an EU agency replacing the democratic control over Europol. man authorities have recovered Commu- Europol Convention. Highly welcomed • Lastly, the MEPs say that the Decision nity subsidies totalling €150.000. are the extension of Europol’s mandate should be revised within a period of six eucrim ID=0703096 and the increased possibilities to support months following the date of entry into cross-border investigations since Europol force of the Treaty of Lisbon. would be, for example, empowered to eucrim ID=0703100 initiate actions against money launder- Europol ing and ask Member States to launch Switzerland Extends Cooperation certain investigations. However, the EP’s with Europol New Decision Establishing legislative resolution contains a series of On 1 January 2008, Switzerland ex- Europol on Track amendments to the text proposed by the tended the scope of its operational co- The JHA Council of 28 February 2008 Commission. MEPs mainly consider that operation agreement with Europol. The reached an agreement on two of the three improvements should be made as regards agreement, which entered into force on outstanding issues regarding a proposal data protection and democratic scrutiny 1 March 2006, had been limited to eight for a Council Decision establishing the over Europol. In detail: crime areas, such as drug trafficking, European Police Office (Europol): • The EP calls for additional safeguards trade in human beings, terrorism, and • the lifting of immunity for Europol of- (including judicial review) when Eu- of money and means of pay- ficials when participating in operational ropol obtains data from private entities ment, as well as money laundering ac- activities, especially Joint Investigation which often may not be safe or reliable. tivities in connection with these forms Teams (JITs), and • It must be certain that Regulation No. of crime. Now the agreement covers 25 • the principle of staff rotation and the 45/2001, which applies to all Communi- crime areas, including murder, kidnap- possibility for Europol staff participat- ty bodies when processing personal data, ping and hostage-taking, organized rob-

eucrim 3–4 / 2007 | 83 NEWS bery, swindling and fraud, corruption, operation relating to judicial training. for the United Kingdom in November counterfeiting, and product piracy. In The importance of incorporating a Euro- 2007. New Vice-Presidents are Raivo doing so, the cooperation agreement has pean component in national training pro- Sepp, National Member for Estonia, and been adapted to Europol’s current scope grammes was highlighted in the Hague Michèle Coninsx, National Member for of mandate. Programme on strengthening freedom, Belgium. They were elected in Septem- eucrim ID=0703101 security and justice in the European Un- ber 2007 and December 2007, respec- ion. The MoU between Eurojust and the tively. EJTN can be found here: According to Art. 28 para. 2 of the De- eucrim ID=0703103 cision setting up Eurojust, the College Eurojust The EJTN is designed to improve mutual elects its President from among the Na- understanding of Member States’ legal tional Members and may, if considered Eurojust – Croatia: Judicial systems among judges and prosecutors necessary, elect two Vice-Presidents at Cooperation Agreement and enhance the practical implementa- most. The result of the election must be On 9 November 2007, Eurojust signed tion of judicial cooperation within the approved by the Council. This election an important cooperation agreement European Union. The EJTN comprises procedure is unique in the EU. with Croatia. The agreement is designed the institutions specifically responsible eucrim ID=0703105 to improve judicial cooperation between for the training of the professional ju- Croatia and Eurojust and to facilitate the diciary within the EU. Founded on 13 coordination of investigations and pros- October 2000, the EJTN is a non-profit ecutions covering the territory of Croatia making international organisation un- Eurojust / European Judicial and one or more EU Member States. The der Belgian law with its headquarters Network (EJN) agreement mainly contains rules on (1) in Brussels. Since 14 March 2008, Vic- the secondment of a Croatian liaison tor Hall is the Secretary General of the Strengthening Eurojust and the EJN – prosecutor to Eurojust and his/her pow- EJTN. General Remarks ers, (2) the exchange of information be- The organisation aims to promote train- Discussions on the future role of Euro- tween the two parties, and (3) data pro- ing programmes for members of the ju- just and the EJN started with a seminar tection and data security. It is the fifth diciary in Europe with a real European in Vienna/Austria at the end of 2006 cooperation agreement between Euro- dimension. Each year, it distributes a (see eucrim 3-4/2006, p. 53). The recent just and non-EU countries. catalogue containing the training possi- months were marked by further discus- Previous agreements were signed during bilities offered by its members and open sions on the short-term, mid-term and 2005 and 2006 with Norway, Iceland, to all European judges and prosecutors. long-term perspectives of the two Euro- Romania, and the USA. Croatia, which is The European Commission has also rec- pean judicial bodies responsible for en- expected to enter the EU in 2009, already ognised its monopoly for the implemen- hancing judicial cooperation within the concluded an operational and strategic tation of the Exchange Programme which European Union. The discussion reached cooperation agreement with Europol in enables participants to get to know dif- a decisive stage when, in January 2008, 2006 (see eucrim 1-2/2006, p. 8). ferent European systems better, thanks a group of Member States presented two eucrim ID=0703102 to immersion training periods at a court/ initiatives for Council decisions aim- prosecutor’s office or at judicial training ing at reinforcing the role and capacity Eurojust – European Judicial institutions. Finally, it is also developing of Eurojust and the EJN, respectively, Training Network: Memorandum a website aimed at all legal professionals and making their action more unified. of Understanding in order for them to find useful informa- Before, input had been provided by the On 7 February 2008, Eurojust and the tion on the training possibilities, judicial Justice Ministers at their Council meet- European Judicial Training Network systems in Europe, as well as EU law and ing in December 2007, a communication (EJTN) signed a Memorandum of Un- case law. The following link leads to the of the Commission, and Eurojust itself. derstanding on cooperation between homepage of the EJTN: Furthermore, another seminar in Lisbon the two organisations. The purpose of eucrim ID=0703104 at the end of October 2007 laid the foun- this Memorandum of Understanding is dation for the new proposals. The devel- to establish and regulate co-operation New President of the College opment is summarized in the following, between Eurojust and the EJTN in the of Eurojust beginning with the latest initiatives, and field of judicial training. It enables On 6 November 2007, the College of then continuing chronologically: secondments to Eurojust of practis- Eurojust elected Mr. José Luis Lopes da ing judges and prosecutors, as well as Mota as its new President. Mr. Lopes da Initiative on Eurojust trainee judges and prosecutors, from the Mota, who is National Member for Por- 14 Member States agreed that the time Member States in order to make them tugal at Eurojust and was Vice-President has come to table a concrete legislative familiar with Eurojust’s tasks, function- prior to his election, follows Michael proposal on the strengthening of Euro- ing, and activities. The parties may also Kennedy, who stepped down from of- just. The measures proposed would mod- consider undertaking other forms of co- fice as President and National Member ify and supplement the Council Decision

84 | eucrim 3–4 / 2007 NEWS of February 2002 setting up Eurojust. The proposal also tries to clarify the rela- • the need for minimum level of powers main items of the proposal are: tionship between Eurojust and the EJN. of the National Members; • Establishment of an Emergency Cell Furthermore, the cooperation with other • a more binding character for all re- for Coordination (ECC): this would EU bodies, such as Frontex, and inter- quests made by Eurojust as well as the make it possible for Eurojust to be con- national organisations such as Interpol granting of supplemental tasks to Eu- tacted permanently and intervene in ur- and the Word Customs Organisation, is rojust, such as issuing European Arrest gent cases. set out. Possible new provisions relating Warrants, issuing and answering letters • Extension of formal intervention by to the relationship with OLAF are not rogatory, initiating and leading Joint In- the College of Eurojust: The tasks of foreseen. vestigation Teams, etc.; the College (consisting of all National eucrim ID=0703106 • the need to be provided with informa- Members) would be extended in so far as Member States generally reacted posi- tion by national authorities in a timely, there would be the right to intervene in tively to the proposal during a first ex- consistent, and systematic manner in or- deadlock situations, i.e., in cases of con- change of views in the Council working der to enable Eurojust to fulfil its core flicts of jurisdiction or in cases where a party. The Slovenian Presidency would casework task; national authority does not execute a re- like to pursue the proposal with priority. • setting up of national correspondents quest for judicial cooperation. However, The European Parliament was requested to Eurojust who ensure an effective flow the interventions by the College remain to give a statement by 30 June 2008. of information and of “Eurojust national non-binding. offices” which facilitate the transmission • Approximation of status and powers Initiative on the European of information; of National Members: The 2002 Eurojust Judicial Network • establishment of information ex- Decision gives Member States discretion The second above-mentioned initiative change mechanisms with authorities as to which powers they would like to intends to put the European Judicial Net- other than judicial ones (police, admin- confer to their National Members at Eu- work (EJN) on a new legal footing. The istrative authorities, customs, etc.). rojust. The 2008 draft fixes the term of of- Joint Action of 1998, which created the A major part of the contribution is dedi- fice and details the powers which should EJN in criminal matters, shall be replaced cated to the relationship of Eurojust with be equivalent to all National Members by a Council Decision. This takes into ac- other actors in the area of judicial and without excluding the Member States’ count the new order of legal instruments police cooperation in criminal matters. possibility to go any further. The proposal as introduced by the Treaty of Amsterdam As regards the EJN, Eurojust is reflect- also precisely states the appointment and in 1999. The proposal incorporates most ing on an “integration” of the EJN into role of deputies and assistants to the Na- of the provisions of the Joint Action, thus Eurojust, i.e., Eurojust would merge tional Member. maintaining the practically oriented work with the EJN’s function – a proposal • Establishment of a Eurojust national of the EJN. Since the objectives of the which was obviously not taken up by the coordination system: Each Member State EJN and Eurojust are similar, the main Member States. shall designate one or more national cor- amendment is to clarify the relationship As regards the relationship with OLAF, respondents to Eurojust. In this manner, between both bodies. The proposal espe- Eurojust considers that a formal and the Eurojust national coordination sys- cially introduces reciprocal obligations to clear mutual obligation for OLAF and tem shall be set up to especially create a exchange information in order to ensure Eurojust to inform one another, at an communication channel between the na- smooth cooperation. Another point of in- early stage, of all cases falling within tional and European levels and facilitate tersection between the EJN and Eurojust their respective competence would be the supply to Eurojust of information on is that the national contact points of the desirable. Such an obligation is not con- criminal investigations. EJN should form part of the Eurojust na- tained in the Memorandum of Under- • Transmission of information: While tional coordination system (see above). standing between Eurojust and OLAF the 2002 Decision on setting up Euro- eucrim ID=0703107 in 2003 which is currently the basis for just remains vague as regards the trans- their cooperation. Eurojust also suggests mission of information from national Contribution of Eurojust appointing contact points from Eurojust authorities to Eurojust, the proposed In September 2007, Eurojust itself pro- and OLAF who could improve commu- amendment would, in particular, intro- vided an important impetus by outlin- nication and serve as a link to the respec- duce obligations for Member States to ing its considerations for the reform of tive other body. transmit certain information. the body. The contribution by Eurojust It is also envisaged that Eurojust has • Reinforced external cooperation: The served as preparation for the Commis- the right to formally submit a request to proposal grants Eurojust the possibility, sion Communication on Eurojust and OLAF, with the consequence that OLAF firstly, to send liaison magistrates to third the EJN (see next news item). Eurojust has to respond to such a request by duly countries and, secondly, to coordinate the considered the following points as im- justifying and motivating any refusal to execution of requests for legal assistance portant for its reform: cooperate (application of Art. 6-8 of the coming from third states and addressed • a uniform minimum period for the ap- Eurojust Decision to OLAF). However, to several EU Member States. pointment of the National Members of Eurojust objects to the idea of a merger • Relationship with other bodies: The Eurojust, their deputies and assistants; of Eurojust and OLAF because of the

eucrim 3–4 / 2007 | 85 NEWS specific function of OLAF as an adminis- more decision-making powers, accord- replies of Member States to a question- trative investigator. In the context of the ing to the Communication, such as: naire on the implementation of the Euro- debate on a European Public Prosecutor, • settling conflicts of jurisdiction be- just Decision, and the above-mentioned Eurojust has found that a consolidation tween Member States and conflicts re- Commission Communication of 23 Oc- of Eurojust’s tasks is first necessary be- garding the working of the mutual rec- tober 2007. The discussions at the semi- fore entering into further discussions. ognition instruments; nar gave an important impetus for the 14 eucrim ID=0703108 • initiating inquiries in a Member State Member States to submit a concrete pro- and proposing prosecution there, and posal for a reform of 2001 Eurojust De- Commission Communication on the playing a role in specific investigation cision and the 1998 Joint Action on the Role of Eurojust and the EJN measures; European Judicial Network (see above). The Commission refrained from present- • initiating criminal inquiries at the Issues which were also taken up by the ing a first own legislative proposal in European level, especially regarding of- Member States’ initiatives included: 2007 but tabled a paper for discussion on fences prejudicial to the financial inter- • enhancing the status of National how Eurojust and the European Judicial ests of the Union. Members of Eurojust and the capabili- Network can be strengthened. The Com- The Communication also contains con- ties of the national bureaux; mission distinguishes between opportu- siderations on the relationship of Eurojust • increasing both National Members’ nities in the short-/mid-term, i.e., on the with other players in judicial cooperation and the College’s powers; basis of the current legislation as well as in criminal matters. As regards the EJN, • improving the exchange of informa- those in the long-term which would re- cooperation should be rendered smoothly tion; quire a change of legislation. Taking into by exchanging information via the na- • coordinating the relationship between account the aforementioned contribu- tional contact persons of the EJN. Eurojust and the European Judicial Net- tion of Eurojust, the Communication of As regards OLAF, the Commission would work. 23 October 2007 on the role of Eurojust like to step up cooperation with Eurojust The general report on the seminar, com- and the European Judicial Network in the by means of a regular exchange of infor- piled by Ms. Catherine Deboyser, Head fight against organised crime and terror- mation at a sufficiently early stage. Fur- of the Legal Service of Eurojust, can be ism in the European Union (COM(2007) thermore, data protection rules between downloaded via the following link: 644) gives options on how Eurojust can the two bodies should be made compat- eucrim ID=0703110 get the information needed to perform its ible when it comes to cooperation. tasks. It also gives an overview of how The Commission Communication on the Council Conclusions on the Council Decision of 2002 for setting role of Eurojust and the EJN served as a Eurojust Reform up Eurojust has been implemented in the basis for debate at a seminar in Lisbon On the basis of the Commission Com- Member States. on 29/30 October 2007 and prompted munication on the role of Eurojust and The Commission mainly focuses on two conclusions on the matter by the JHA the EJN of October 2007 and the follow- shortcomings: First, the heterogeneous Council in December 2007. ing seminar in Lisbon, the Justice and powers of the National Members of Euro- eucrim ID=0703109 Home Affairs Council of 6/7 December just, making it necessary to increase these 2007 adopted conclusions on this mat- powers. Second, underused powers of the From Vienna to Lisbon: Second Major ter. The conclusions are compiled rather College of Eurojust. As regards the posi- Seminar on Future of Eurojust generally without giving clear politi- tion of the National Members, the Com- One week after the afore-mentioned cal guidance. The Ministers invited the mission agrees that all members must Communication of the Commission, a Member States and the Commission to have a (minimum) set of powers. In the seminar in Lisbon/Portugal on 29 and further examine, reflect, and analyse the longer term, the Commission proposes to 30 October 2007, entitled “Eurojust: issues put forward during the discus- confer the following powers to the Na- navigating the way forward”, discussed sions outside the Council beforehand. tional Members: in depth the crucial issues for a reform eucrim ID=0703111 • initiating criminal cases, especially of Eurojust and the European Judicial those involving offences prejudicial to Network. The debate could be based on the financial interests of the Union; the work done so far, namely: the out- • setting up a joint investigation team, come of the seminar “A Seminar with European Union Agency for and participation in it; 2020 Vision: The Future of Eurojust and Fundamental Rights (FRA) • taking specific investigative measures. the European Judicial Network”, held in By Julia Macke As regards the College, the Commission Vienna on 25/26 September 2006 (see advocates having the College function in eucrim 3-4/2006, p. 53); the EJN Vision Duty to Cooperate with OLAF the short-term as a channel for the set- Paper of 11 December 2006 drawn up On 23 October 2007, the Management tlement of disagreements between the by the European Judicial Network; Eu- Board of the Agency for Fundamental Member States, such as acting as a me- rojust’s contribution for the European Rights (FRA) decided on the terms and diator to resolve conflicts of jurisdiction. Commission Communication concern- conditions for internal investigations in In the long-term, the College could have ing the future of Eurojust and the EJN; relation to the prevention of fraud, cor-

86 | eucrim 3–4 / 2007 NEWS ruption, and any illegal activity detri- with the EU Charter of Fundamental establishes regular contacts and meet- mental to the Communities’ interests. It Rights. ings between the CoE and the FRA, ar- there states that all members of the FRA The Council of the European Union and ranges the exchange of information, and are required to cooperate fully with the the European Parliament had previously provides for coordination of activities in European Anti-fraud Office’s agents and selected Morten Kjærum as their first order to avoid duplication of work. The lend any assistance required to an inves- choice for the post of director. Agreement further makes possible joint tigation. Any official or servant of the eucrim ID=0703113 and complementary activities on sub- FRA who becomes aware of evidence jects of common interest and also con- which gives rise to a presumption of FRA Gets its first Multi-Annual tains provisions on the appointment by the existence of possible cases of fraud, Framework the Council of Europe of an independent corruption, or any other illegal activity On 28 February 2008, the Justice and person to sit on the Management and Ex- detrimental to the interests of the Com- Home Affairs Council, after consulting ecutive Boards of the Agency, together munities, or of serious situations relating the European Parliament, decided on the with an alternate. to the discharge of professional duties Agency’s Multi-Annual Framework. The On 13 December 2007 already, the which may constitute a failure to comply Multi-Annual Framework covers the first Agreement between the European Com- with the obligations of officials or serv- five years of European Union Agency munity and the CoE on cooperation be- ants of the Communities liable to result for Fundamental Rights’ existence from tween the FRA and the CoE had been in disciplinary sanctions, shall inform 2007 to 2012 and determines the thematic approved by the European Parliament as without delay his or her Head of Unit or areas of the Agency’s work. The Coun- set out in a proposal for a Council de- the Agency’s Director (as the case may cil’s decision states that the agency will cision (COM(2007) 478) which dated be) or the Office directly. work in the following areas: from 21 August 2007. The Commis- All the institutions, bodies, offices, and • racism, xenophobia, and related intol- sion proposal incorporated the results agencies established by or on the basis erance; of first negotiations between the Com- of the EC Treaty or the • discrimination based on sex, race or mission and the Secretary General of the should – on the basis of their administra- ethnic origin, religion or belief, disabil- Council of Europe which took place in tive autonomy – entrust to the European ity, age or sexual orientation, and against March, April, and May 2007 (see eucrim Anti-fraud Office the task of conducting persons belonging to minorities and any 1-2/2007, p. 19). internal administrative investigations, be- combination of these grounds (multiple eucrim ID=0703115 cause Regulation (EC) No. 1073/1999 of discrimination); the European Parliament and of the Coun- • compensation of victims; cil and Council Regulation (Euratom) • the rights of the child, including the No. 1074/1999 provide that the European protection of children; Anti-fraud office is to initiate and conduct • asylum, immigration, and integration Specific Areas of Crime / administrative investigations within these of migrants; Substantive Criminal Law institutions, bodies, offices, and agencies • visa and border control; (so-called internal investigations). • participation of the EU citizens in the eucrim ID=0703112 Union’s democratic functioning; Protection of Financial Interests • information society and, in particular, Morten Kjærum becomes respect for private life and protection of Second Commission Implementation first Director of FRA personal data; Report on PFI Convention and its Morten Kjærum from Denmark has • and access to efficient and independ- Protocols been designated as new Director of the ent justice. On 18 February 2008, the Commission European Union Agency for Funda- As reported in eucrim 1-2/2007, p. 19, presented its second report on the im- mental Rights. He will take office on 1 the European Commission presented plementation by the EU Member States June 2008. On 7 March 2008, the Agen- the proposal for a Council decision re- of the Convention on the protection of cy’s Management Board decided to ap- garding the adoption of a Multi-Annual the ’ financial in- point the Danish expert because of his Framework for the period 2007-2012 in terests and its protocols (so-called “PFI experience in the field of human rights September 2007. instruments”). The report is considered a and his administrative and management eucrim ID=0703114 follow-up to the first report of 25 October skills. Beforehand, Morten Kjærum was 2004. The second report (COM(2008) the long-time Director of the Danish In- Agreement with Council of Europe 77) now assesses the situation of imple- stitute for Human Rights. Furthermore, Approved mentation in all 27 EU Member States, he is a member of the United Nations On 28 February 2008, the Council also including the new Member States which Committee on the Elimination of Racial approved the Agreement between the joined the EU in 2004 and 2007. The Discrimination and was a member of European Community and the Council first report of 2004 (COM(2004) 709) the EU network of independent experts of Europe (CoE) on cooperation between only covered the “old” Member States responsible for monitoring compliance the FRA and the CoE. The agreement (EU-15). As in 2004, the overall assess-

eucrim 3–4 / 2007 | 87 NEWS ment is still a quite frustrating one in the before the European Court of Justice (cf. al of the Directive on the criminal law view of the Commission. Art. 8 para. 2 of the PFI Convention, Art. protection of the Community’s financial The Commission mainly identifies two 8 para. 2 of the 1st Protocol). interests: shortcomings: First, many Member On balance, the Commission assesses eucrim ID=0703118 States still do not comply with their obli- that, more than ten years after the sig- gation to ratify the PFI instruments. The nature of the PFI Convention and its Commission Presents New Concept second protocol of 1997 still cannot en- protocols and three years after the 2004 of Fraud-Proofing ter into force since Italy has not yet rati- enlargement, the method of protecting On 17 December 2007, the Commission fied it. This impedes the completion of the EU budget and corruption by means released a Communication which adapts the legal framework on the fight against of third pillar conventions proved inad- the Commission’s strategy to make leg- fraud, not only as regards the liability of equate. The desired harmonisation effect islation and the management of contracts legal persons but also with regard to a failed and an effective and dissuasive pe- safe from fraud (COM(2007) 806). The more effective cooperation between the nal protection is missing – a conclusion new approach to fraud-proof legisla- authorities since the 2nd protocol also which was also drawn by Commissioner tion and contracts will be mainly based contains provisions on the exchange of Siim Kallas while presenting the report. on operational results. In particular, the information. Therefore, the Commission Against this background, the Commis- “intelligence” work of OLAF will be in- harshly criticizes Italy for the non-ratifi- sion reiterates its conclusion in the first cluded into the strategy. The core tool of cation of the 2nd protocol, emphasizing implementation report of 2004 that the the new strategy will be the creation of that “this situation is undermining the findings confirm the urgent need for a a “large pool of information” which will desired effective and dissuasive protec- Directive on criminal law protection of include any source of information, such tion of the EC’s financial interests in the ECs’ financial interests. Based on as information from internal and exter- criminal law (…)”. Art. 280 EC Treaty, the Commission nal OLAF investigations, audit findings, Furthermore, four new Member States presented an amended proposal of the reports and findings of the European (the Czech Republic, Hungary, Malta, Directive in 2002. The Directive would Court of auditors as well as information and Poland) have not acceded to any of incorporate all the provisions of the PFI from Member States’ authorities. Infor- the PFI instruments, despite the under- instruments relating to the definitions of mation on fraud, irregularities, risks, takings given in the 2003 Acts of Ac- offence, liability, penalties, and coopera- etc. will then be analysed in a multidis- cession. Estonia has yet to accede to the tion with the Commission. Negotiations ciplinary and structured way in order to Protocol which gives jurisdiction to the on the legislative project of a PFI Direc- identify weaknesses or vulnerabilities European Court of Justice to interpret, tive have been stalled since 2003. either in legislation, contracts, or man- by means of preliminary rulings, the PFI However, the Commission’s hope to agement/control systems. The results Convention and the first protocol. The further pursue the Directive has been of the analysis may lead to (1) ad hoc report states that, as a result of the lack given fresh impetus by the ruling of the recommendations by OLAF, (2) general of formal compliance, the current sys- European Court of Justice on the Frame- recommendations to Commission de- tem of protection, based on conventions, work Decision on the protection of the partments, EU institutions and bodies, de facto creates a “multi-speed situa- environment through criminal law (see or other stakeholders, (3) a compendium tion” hindering an effective and dissua- eucrim 1-2/2006, p. 3) and by the new of cases describing fraud, irregularity sive penal protection of the EU budget provisions of the Lisbon Treaty (see patterns, and modus operandi, and (4) a throughout the EU. eucrim 1-2/2007, pp. 3-4). new guide to prevention of fraud (also The second shortcoming is the widely The Commission’s implementation re- compiled by OLAF). incorrect implementation of the require- port is supplemented by a staff working Furthermore, structural or systematic ments of the PFI instruments in the na- paper. The working paper provides a de- weaknesses shall be communicated by tional legal orders of the Member States. tailed analysis of the national provisions OLAF to the audit departments of the According to the report, only five Mem- of each Member State which implement EU institutions and bodies. The Com- ber States “now appear to have taken all the single provisions of the PFI instru- mission expects that first results of the measures needed to comply in a satis- ments. It is a highly valuable contribu- new approach – ad hoc recommenda- factory way with the PFI instruments”. tion towards comparing the implemen- tions and the compilation of the com- Of the old Member States, Belgium, tation measures in the EU-27 Member pendium – will be issued in the second Germany, France, Ireland, Italy, Luxem- States. half of 2008. burg, and Austria are particularly blamed The second Commission report and the To date, the fraud-proofing of legisla- in the report of still having significant staff working paper can be retrieved tion and the management of contracts shortcomings in implementation. The from the following link: is based on a Communication of 2001 Commission will address these Member eucrim ID=0703116 (SEC(2001) 2029) which sets out the States individually in order to solve the The first Commission report of 2004 is principles and procedures to improve deficits. If diverging positions persist, the available here: fraud prevention. The main purpose was Commission is considering triggering the eucrim ID=0703117 to make expertise, in particular from so-called dispute-settlement procedure The following link leads to the propos- OLAF, available within the Commis-

88 | eucrim 3–4 / 2007 NEWS sion. The Communication itself is based sis enabling OLAF to publish the names ”Protection of the EC’s Financial on the White Paper “Reforming the of companies and individuals who have Interests and the Development of Commission” (COM(2000) 200) which defrauded the Community; European Criminal Law” included the commitment “to render the • as regards the reform of the OLAF present system of fraud-proofing more Regulation, the EP favours the plan to Ljubljana/Slovenia, 30-31 May 2008 effective”. The Communication of 2007 group together OLAF’s investigatory The annual conference addressed to would replace its forerunner of 2001. It powers in one single regulation; the members of the Associations of Eu- is accompanied by a working document Lastly, the EP tackles the considerable ropean Lawyers for the Protection of the which summarizes the achievements of losses due to VAT fraud about which it European Community Financial Interests fraud-proofing since the adoption of the is very concerned. As a remedy, the EP will take place in Ljubljana/Slovenia from 2001 Communication. considers it essential that cooperation 30 to 31 May 2008. The conference is or- eucrim ID=0703119 between the Member States and OLAF ganised by the Institute for Criminology of the University of Ljubljana. It is co- must be improved. In this context, the financed by the Hercule-Programme. At EP: National Structures Main Cause VAT information exchange system the event, the meeting of the Presidents for Inefficient Protection of the EC’s (VIES) and cooperation in the field of of the Associations will also be hosted. Financial Interests data analysis, should be strengthened On 19 Feburary 2008, the European Par- with the assistance of OLAF. liament (EP) adopted a resolution based eucrim ID=0703120 on the own-initiative report drafted by majority of EU expenditure, such as MEP Francesco Musotto in response to European Court of Auditors’ Report CAP expenditure (not covered by IACS), the Commission’s 2005 and 2006 annual on the 2006 Financial Year structural funds, and internal policies. reports on the protection of the Commu- Each year, the European Court of Audi- On balance, the risk of errors is still too nities’ financial interests and the fight tors (ECA) publishes an annual report high. Complicated rules, unclear eligibil- against fraud. The resolution welcomes on the implementation of the EU budget. ity criteria, complex legal requirements, the fact that the reports on the protection The report is part of the discharge proce- and insufficient checks on expenditure of the Communities’ financial interests dure which brings the annual budgetary claims are considered to be the main and, in particular, the report concern- process to an end. reasons for frequent errors. The Court ing the financial year 2006 have become For the financial year 2006, the opinion particularly blames the Member States more analytical. The EP notes, however, of the Court was largely positive. With a which manage and control 80 % of the that the statistics rely on very diverse na- net error rate of only 0,7 % the accounts EU budget. The supervisory and control tional structures with different adminis- are considered to be true and fair. The systems in the Member States are consid- trative, judicial, supervisory, and inspec- Court gives its “green light” when the ered generally ineffective or moderately tion systems. risk of error is 2 % or less. In 2006, this effective. Further efforts and control ar- Among the manifold issues raised by was the case in over 40 % of total pay- rangements are therefore indispensable. the EP, the following should be high- ments which constitutes a clear improve- The ECA “certifies” improvements of lighted: ment compared to the past years. The the Commission to reduce weaknesses • The Musotto report assesses the fig- most apparent progress has been made in the management of the risks to Com- ures on losses due to irregularities and as regards agricultural spending which is munity funds but calls upon the Com- fraud, in particular as regards own re- nearly 50 % of the EU budget. Although mission to make more progress. sources and agricultural expenditure. In the level of error still remains just above As well as in the past years, the ECA did this context, the EP is concerned about the materiality threshold, the Court not approve a positive Declaration of the low recovery level of sums by the found a marked reduction of errors in Assurance concerning the legality and Member States; underlying transactions if the so-called regularity of transactions. This remains • the Commission should analyse more “Integrated Administration and Control another goal for the following years. For deeply the weaknesses of the current an- System (IACS)” applied. The IACS is the report relating to the financial year ti-fraud structures in the Member States an anti-fraud and expenditure control 2005 see eucrim 3-4/2006, p. 55. and indicate – as far as own resources mechanism for payments made to farm- By Lina Schneider concerned – which further actions it will ers under the European Union Common eucrim ID=0703121 undertake to put a stop to the fraudulent Agricultural Policy (CAP). It applies in importing of televisions, cigarettes, and all EU Member States and covers about ECJ Decides on Competence between counterfeit goods; 70 % of CAP spending. Customs and Judicial Authorities • the Commission should also attach The Court also gave green light to com- in Cases of ex post Recovery particular importance to criminal net- mitments, revenue, administrative ex- In a case of post-clearance recovery of works specialising in the misappropria- penditure, and much of pre-accession aid customs duty involving Portugal, the tion of EU funds; (so-called “unqualified opinion”). How- European Court of Justice (ECJ) had • more efforts should be taken to “black- ever, the ECA gives an adverse opinion to decide on the interpretation of the list” fraudsters, i.e., to create a legal ba- on the legality and regularity of the large concept of “an act that could give rise

eucrim 3–4 / 2007 | 89 NEWS

In the main proceedings, the company concluded that “the legal concept of ‘an Anti-Fraud Investigation Activities ZF Zefeser and the Portuguese tax au- act that could give rise to criminal court Examined at Conference in Milan/ thorities disagree on the lawfulness of proceedings’ must be regarded (…) as re- Italy an adjusted customs assessment which ferring to the law of criminal procedure On 24/25 January 2008, the Italian Euro- requires ZF Zefeser to make ex post pay- of the Member States. As a result, only pean Lawyers Union organised a sym- ment of customs duties not collected. final conviction by a criminal court of a posium in Milan/Italy entitled “New Per- The parties disagree on which time-limit Member State is capable of delivering spectives of the Anti-Fraud Investigation applies for the post-clearance. The Por- an interpretation with effects for the rel- Activities in Europe” The conference tuguese customs authorities initiated evant Community law on post-clearance was opened in presence of the highest criminal investigations against ZF Zefe- recovery”. She based her findings on the representatives of all the judicial institu- ser because of alleged smuggling, but the wording of the literal, schematic, and tel- tions and professions in Milan. It hosted criminal investigations ended in a final eological interpretation of the Regulation 450 representatives from interested le- gal professionals, mainly attorneys, rep- court judgment which acquitted ZF Zefe- as well as on the interpretation in the light resentatives from the judiciary, Eurojust ser partially on the basis of limitation and of the Community fundamental rights and the investigative services such as partially for lack of evidence. Neverthe- (right to a fair legal process and princi- the Guardia di Finanza. The event, or- less, the Portuguese administrative au- ple of presumption of innocence). She ganised at the time of the opening of the thorities took the view that the customs advocated the necessity of an assessment judicial year 2008 at the Appeal’s Court in assessment on the fraudulent act and thus by the criminal justice authorities since, Milan, has been a welcome opportunity the 10 year limitation period of the Por- otherwise, “customs and tax authorities, to give international judicial coopera- tuguese law applies, whereas ZF Zefeser part of the executive branch of the State, tion in Europe greatest visibility amongst the interested services and professions claimed that the three-year limitation of [would be] granted a quasi-judicial role of the judiciary. It has also served as a the Regulation applies so that the Portu- which is supported neither by the consti- forum to debate recent developments in guese authorities are no longer entitled to tutional traditions of the Member States international judicial and police coop- recover duties. The Portuguese adminis- nor by Community law.” eration assisted by OLAF and the use of trative court, which made reference to the eucrim ID=0703122 new investigative instruments, such as ECJ, wanted to know, in essence, which computer forensics, for the protection of authority is competent to classify an act EU Intensifies Negotiations with the EU’s financial interests. as “an act that could give rise to criminal Liechtenstein on Anti-Fraud Agreement court proceedings” for the purposes of On the occasion of the signing of the applying the derogation of the three-year agreement by which the Principality of limit of Art. 3 of the Regulation. Liechtenstein accedes to the Schengen- to criminal court proceedings” (Case The ECJ concluded that the classifica- area (see above), Liechtenstein’s Prime C-62/06, “ZF Zefeser”). The legal back- tion falls within the competence of the Minister Otmar Hasler announced that ground was Council Regulation (EEC) customs authorities and not the criminal he also intends to quickly finalize an No. 1697/79 of 24 July 1979 which al- courts. The ECJ based its reasoning on agreement with the EU to counter fraud. lows tax authorities to recover ex post the wording of the Regulation. The Court The agreement could be similar to that customs duties from the liable persons if rejected the objection of ZF Zefeser that which was signed between the EU and an error has been made. The Regulation such an interpretation would contradict Switzerland during the second round of has since been repealed. Because of the the principles of legal certainty and the bilateral agreements (see above). Hasler principle of legal certainty, the Regula- presumption of innocence of the per- added that negotiations to conclude an tion provided for a time-limit of 3 years sons liable for payment of those duties. anti-fraud agreement with the EU “have after which a post-clearance recovery The ECJ argues that “[c]lassification by made very good progress.” However, of import levies is precluded. However, the customs authorities of an act as ‘an he added, that “of course, we will con- the Regulation also stipulates an excep- act that could give rise to criminal court tinue to represent the legitimate interests tion to that three-year period which does proceedings’ does not constitute a finding of our citizens in these negotiations, as not apply if “the competent authorities that an infringement of criminal law has our European partners do. […] In Eu- find that it is following an act that could actually been committed (…). As is clear rope, we have different ideas of what give rise to criminal court proceedings from recitals one and two in the preamble constitutes tax fraud and tax deviation, that the competent authorities were un- to Regulation No. 1697/79, that classifi- therefore this term will have to be de- able to determine the exact amount of cation is made only in the context and fined during negotiations,“ Hasler said the import duties or export duties legally for the purposes of an administrative by noting: “Tax fraud will, if we follow due on the goods in question” (Art. 3). procedure whose sole purpose is to ena- these negotiations, go beyond the Liech- Accordingly, Portuguese law would ap- ble those authorities to make good incor- tenstein definition”. ply instead which provides for a 10-year rect or insufficient collection of import At the moment, the principality would limitation period if the determination of or export duties”. only like to cooperate with the EU Mem- customs duties resulting from fraudulent Interestingly, Advocate General Trstenjak ber States as regards smuggling and VAT acts is not possible. came to the reverse result in the case. She fraud but not in the area of direct taxes.

90 | eucrim 3–4 / 2007 NEWS

Tax evasion is not a criminal offense in cessfully combat tax fraud, especially in Council Gives Guidelines Liechtenstein, therefore law enforcement the field of Value Added Tax (VAT). The on Combating Tax Fraud authorities and banks do not provide legal scheme is expected to avoid, in particular, At its meeting on 4 December 2007, the assistance in these matters. Authorities carousel fraud. In its conclusions of June ECOFIN Council examined the state of only become active if the act falls under 2007, the Council prioritised a certain play of the steps already taken in view Liechtenstein’s definition of “tax fraud” number of tasks, encompassing both con- of the implementation of the agreed which – similar to Swiss law – requires ventional and more far-reaching meas- anti-fraud strategy of 2006 (see eucrim the fulfilment of qualified elements, e.g., ures. The “conventional measures” are 3-4/2006, pp. 57-58). The Council re- connected to document for- mainly addressed to the Member States called its conclusions of June 2007. It gery. The Commission’s negotiations and concern the question of how to tackle called on the Commission to further with Liechtenstein on an agreement to tax fraud within the existing legal frame- work on concrete legislative proposals counter fraud are being led by OLAF. work. The “more far-reaching measures” as regards the conventional measures They already began several years ago. concern considerations of a more radical and to undertake more in-depth analysis eucrim ID=0703123 modification of the current VAT system, of the far-reaching measures. The Coun- i.e., the taxation of intra-Community cil also provided some political guide- Practice: Operation “Wasabi” – “Hot transactions and the introduction of the lines in response to the Commission’s Food” Withdrawn from Circulation reverse-charge system. Communication of 23 November 2007 A joint customs operation code-named In response to the requests of the Council, (see the following news item). “Wasabi” detected a large-scale fraud the Commission presented two commu- eucrim ID=0703130 scheme involving vegetables and fruits nications encompassing suggestions for which damaged the EU budget by mil- both fields of measures. The first commu- Commission’s Considerations lions of . Importers declared fruits nication on some key elements contribut- on Conventional Measures (e.g., apples) at the customs clearance, ing to the establishment of a VAT anti- to Combat VAT Fraud but in reality they imported garlic. This fraud strategy was issued in November The Commission Communication of 23 is only one example of how duties on 2007 and is dedicated to the conventional November 2007 concerning some key el- food from Asia are being circumvented. measures, whereas the second communi- ements contributing to the establishment The joint customs operation was led by cation of February 2008 tackles the far- of the VAT anti-fraud strategy within the OLAF and involved the customs author- reaching measures and contains proposals EU (COM(2007) 758) can be considered ities of all 27 EU Member States. The on measures to change the VAT system to as a follow-up of its initial Communica- operation was carried out by targeted fight fraud. On 17 March 2008, based on tion of May 2006 concerning the need to controls on specific containers, particu- the communication of November 2007, develop a co-ordinated strategy to im- larly imports from South Asia. The im- the Commission tabled first concrete leg- prove the fight against fiscal fraud (see port of garlic is a very sensitive issue islative proposals relating to conventional eucrim 3-4/2006, p. 57). The purpose of as regards the protection of the EU’s measures; they would amend the current the Communication is to seek political financial interests since the EU imposes VAT legislation. The Council put the top- guidance from the Council on the future qualitative restrictions on the product if ic on its agenda mainly at the meeting of work on four key issues which are con- it originates from China. Since China is the Finance Ministers in December 2007 sidered crucial to reducing VAT fraud one of the world’s leading producers of and in March 2008. within the existing legal framework (con- garlic and production costs are very low The European Court of Auditors, in a ventional measures). there, evasion of the duties has become special report of 2007, contributed to As a result, the Commission made four very attractive for importers (see also the discussion by making concrete rec- observations, defining the needs for a eucrim 34/2006, p. 55). ommendations on how administrative more effective action against VAT fraud: eucrim ID=0703124 cooperation can be improved in order to (1) There is a need for tax administra- combat tax fraud more successfully. tions to have accurate information (from The following news items mirror the businesses) to control the VAT system. development of the EU’s recent effort In this context, the Commission stresses Tax Fraud / VAT to better combat tax/VAT fraud. They that possible future legislation which re- start with the Council’s conclusions of views the reporting obligations of busi- Measures against Tax Fraud its December meeting and then presents nesses must be in line with the Lisbon – General Remarks in more detail the Commission’s steps strategy’s objective to reduce adminis- Following the proposed anti-tax fraud regarding the conventional measures. trative burdens (see above). strategy of 2006 (see eucrim 3-4/2006, Then, the views of the Commission and (2) There is a need for the tax authorities p. 57) and the important Council conclu- the Council regarding the far-reaching to take responsibility, not only for the sions of June 2007 (see eucrim 1-2/2007, measures are analysed. Lastly, the re- protection of the national VAT receipts, p. 22), the European institutions carried port of the European Court of Auditors but also for those of other Member States out further work on the establishment of is presented. (“integration of a real EU approach into a scheme at the Community level to suc- eucrim ID=0703129 the management of the VAT system”).

eucrim 3–4 / 2007 | 91 NEWS

(3) There is a need for the tax adminis- ing and transmitting VAT data (for the about a more fundamental change in the tration and business operators to have ECAs’ special report, see below). current VAT system (COM(2008) 109). updated information on the VAT status In detail, the Commission proposes: Following the mandate of the Council, of persons. Therefore, EU-wide stand- • Harmonising and reducing to one the Communication addresses the taxa- ards for registration and de-registration month the period which persons liable tion of intra-Community transactions and of traders is necessary. The Commis- for VAT have to declare intra-Commu- the reverse-charge system. Similar to the sion suggests making Member States nity transactions involving the supply purpose of the aforementioned Commu- liable for the VAT loss incurred by an- of goods or services within the Com- nication of November 2007, the present other Member States due to negligence munity; Communication seeks political guid- in updating the database of its taxable • Reducing from three months to one ance from the Council for future work persons. month the period for transmission of this on the above-mentioned topics. Beyond (4) There is a need to enhance the ca- information between Member States; the Communication, a Commission staff pacity of tax administrations to collect • Collecting information monthly on working paper explains in more detail VAT receipts in fraud cases. This objec- intra-Community acquisition of goods the pros and cons of the taxation of intra- tive should be achieved through a tar- or purchases of services where the buyer Community transactions and the intro- geted use of joint and several liability or customer is liable for VAT in order to duction of a generalised reverse-charge for traders involved in fraudulent activi- make it easier to cross-check the data system. ties as well as through an improved and with that provided by suppliers. This As regards the taxation of intra-Com- strengthened administrative cooperation obligation will apply to buyers or cus- munity transactions, the Commission in the field of recovery of taxes. tomers carrying out such transactions for proposed the following concept: intra- The Communication is accompanied by an amount higher than €200,000 per cal- Community supplies should continue to a staff working paper which summarizes endar year. This threshold has been set be taxed in the Member State of depar- the discussions of an expert group on the in order to be considerate of burdens for ture, but the exemption of taxation of in- conventional measures to combat tax small businesses. tra-Community supplies would cease to fraud. The expert group was created as a • Simplifying the procedures for sub- apply. Instead they would be taxed at the response to the ECOFIN Council conclu- mitting declarations on intra-Community rate of 15 %. Where the Member State sions of 28 November 2006 (see eucrim transactions in Member States in which of destination applies a rate of more than 3-4/2006, p. 57). Its task is to fletch out these procedures are unusually complex 15 %, the purchaser in the latter Member the priority areas identified by the Coun- in order to reduce the burden which the State would have to pay the additional cil as regards anti tax fraud measures. procedures may impose on businesses. VAT directly to that Member State. eucrim ID=0703131 The Commission stresses that the pro- Where the Member State of destination posal is part of a wide range of meas- applies a rate lower than 15 % (due to Commission Tables Proposals ures which have been, or are about to be, the application of certain reduced VAT to Make VAT Fraud Detection agreed upon to combat VAT fraud more rates or the zero rate in certain Mem- More Effective effectively. Only some of the measures ber States), the Member State of arrival On 17 March 2008, the Commis- require legislative amendments. would allow credit to the taxable person sion adopted a legislative proposal eucrim ID=0703132 who is making the intra-Community ac- (COM(2008) 147) which takes up two For an assessment of the Commission quisition. conventional measures also highlighted proposal, a study was carried out by However, the Commission identifies the by the Council. These measures re- the professional services firm Pricewa- following disadvantages: quire amendments of the VAT Direc- terhouseCoopers. It analyses the pos- • Although the concept would prevent tive 2006/112/EC and the VAT Admin- sible impacts on business of the more carousel fraud, it does not prevent the istrative Cooperation Regulation No. frequent declarations. On balance, the use of other fraud patterns. 1798/2003. The proposal aims at speed- study showed that the additional costs for • The new system could have negative ing up the collection and exchange of in- economic operators are rather minimal. impacts on the cash flow for traders, formation on intra-Community transac- The two parts of the study (timeframes particularly for small and medium-sized tion from 2010 onwards. The purpose is and more detailed information) can be enterprises, which would have to pre-fi- to enable Member States’ authorities to downloaded via the following link: nance the VAT in transactions for which detect carousel fraud more quickly. This eucrim ID=0703133 they currently do not pay VAT. purpose should be achieved mainly by • The concept is politically delicate means of an obligation for businesses to Commission Puts forward since it would make individual Mem- send information on the intra-Commu- Ideas on a More Radical Change ber States VAT receipts dependent on nity supply or purchase of goods to the of VAT System transfers of other Member States. The tax administration more frequently. It On 22 February 2008, the Commis- Commission estimates that some 10 % should be noted that the European Court sion adopted a Communication which could become dependent on other Mem- of Auditors also recommended radically presents the options for the so-called far- ber States. Therefore, a well thought-out shortening the deadlines for collect- reaching measures which would bring clearing system must be established.

92 | eucrim 3–4 / 2007 NEWS

Protection of EU and Swiss Financial Interests Conference in Basel from 10-11 December 2007

“Protection of EU and Swiss Financial Interests: Challenges for Law Background: Relations between Switzerland Enforcement and the Financial Industry” was the topic of a two-day and the EU in General training conference in Basel, Switzerland, in December 2007. The The above-mentioned seminar in Basel is a good opportunity to conference was organized by the Academy of European Law (ERA) provide more background information on the relationship between and the Basel Institute on Governance and funded by the Hercule Switzerland and the EU, in particular as regards cooperation in fis- Programme of the EU. Officials from the European institutions and cal matters. In order to understand the cooperation in fiscal mat- bodies (European Parliament, OLAF, Europol), officials of the min- ters, some general preliminary remarks must be made. istries, officers of national law enforcement authorities, defence Switzerland is not an EU Member State and not member of the councils, academics as well as representatives of financial insti- , but is part of the European Free Trade tutions discussed the protection of the EU’s financial interests as Association (EFTA). Notwithstanding, Switzerland is in the cen- embedded in the enforcement tools which are applied to date (e.g., tre of Europe, not only geographically but also economically and administrative and judicial cooperation) as well as the bilateral culturally. On the one hand the EU is the most important trading agreement on combating fraud which will fundamentally regulate partner for Switzerland; on the other hand, Switzerland is the sec- cooperation in fiscal matters between the EU and Switzerland in the ond largest export market for EU products after the US. Beyond its near future. Speakers at the seminar also focused on best practices close connection to the EU, Switzerland can be considered one of cooperation as well as compliance of the private sector, such of world’s major financial centres and a transit country for huge as banks, to the requirements of the EU law in order to effectively amounts of money. These factors create a risk for the EU’s finan- prevent or combat fiscal fraud, money laundering, or corruption – cial interests, but they are also the reason for close cooperation in offences which are detrimental to the EU budget. fiscal matters between EU Member States and the Swiss Confed- Case studies within the framework of two workshops gave par- eration. Interestingly, Switzerland itself has an increasing interest ticipants the opportunity to discuss practical problems in relation in the protection of the EU’s financial interests since the country to cooperation in fiscal matters between the EU and its Member also makes contributions to the EU budget. It, for instance, agreed States on the one hand and Switzerland on the other hand. The to contribute €125 million per annum over five years to the social first workshop, for instance, dealt with customs investigations oc- and economic cohesion in the enlarged EU, enabling Switzerland curring after suspicious transactions of money or consignments to select and finance projects in the new EU Member States. of goods involving Switzerland, Liechtenstein, and EU Member In general, relationship between the EC/EU and Switzerland is States such as Italy and Germany. The cases demonstrated the based on bilateral agreements. Their development can be divided practical problems which customs officers experience in iden- into four main stages: tifying the suspicious behaviour of enterprises which try to cir- • the free trade agreement of 1972, cumvent customs duties. The second workshop discussed cases • the agreement on insurances of 1989, involving OLAF and its cooperation with national authorities. The • a first package of seven bilateral agreements of 1999, and cases focused on traditional fraud schemes. In particular, OLAF • a second package of nine bilateral agreements of 2004. officials highlighted the very important problem of recovery of EU The free trade agreement establishes free trade in goods and com- subsidies after the beneficiary – usually an enterprise – has be- petition rules. The partners do not pursue a harmonised customs come bankrupt, thus not fulfilling its obligations incumbent under policy, i.e., there is no customs union; this is why customs authori- the grant agreement with the Commission. In this regard, possibili- ties continue carrying out controls at the borders. The agreement ties to administrate the money by means of trust accounts were on insurances between the EEC and Switzerland guarantees that considered to avoid follow-up problems. insurance companies have the same rights of establishment in the Prof. Mark Pieth, Professor of Criminal Law at Basel University and territory of the other contracting party. In addition to the free trade Chairman of the Board of the Basel Institute on Governance, sum- agreement, the seven bilateral agreements of 1999 provide for the marized at the final panel discussion that contributions during the opening of markets in specific sectors (free movement of persons, conference mainly addressed the following three questions: (1) How public procurement, land and air transport, agriculture, research, can the existing legal instruments be used best? (2) Which changes and mutual recognition of conformity assessment). and challenges will arise after the new legal instruments come into The second package of bilateral agreements (2004) covers addi- force? (3) How can private-public partnership be improved? He tional economic interests and extends cooperation to several po- concluded that the current cooperation instruments cover nearly litical areas, such as internal security, asylum, environment, and all cases of fraud which Switzerland is providing legal assistance culture. The dossiers encompass the following: for in practice. The legal status quo already offers a wide range of • participation in “Schengen and Dublin cooperation”, possibilities; however, they are not fully used in practice. The new • judicial and administrative cooperation in the fight against fraud, agreements would – in practice – only extend the possibilities to a certain extent. Ultimately, according to Mark Pieth, the conference • taxation of savings, also revealed that technical challenges – in particular for the pri- • trade in processed agricultural products, vate sector – are often caused by political compromises. • participation in the European Environment Agency, Information about the conference can be found here: • statistical cooperation, eucrim ID=0703125 • participation in the Media programme, More information about the Basel Institute on Governance is • preparations for participation in future programmes in the fields available here: of education, youth and training, and eucrim ID=0703126 • avoidance of double taxation of retired EU officials.

eucrim 3–4 / 2007 | 93 NEWS

In a report of 2006, the Swiss federal government decided to con- Switzerland had already ratified these two new agreements, the tinue the “bilateral approach” in the short- and mid term. An EU entry into force has been blocked so far since some EU Member membership of the Swiss Confederation is only considered an States are lagging behind in the ratification of the agreements option in the long term. One of the main pros for the bilateral ap- with Switzerland. When the agreement to counter fraud is to proach is that it allows Switzerland to maintain its institutional in- come into effect is still open. dependence and retain certain characteristics of its own system. The legal assistance of Switzerland in fiscal matters today is This is especially true for assistance in fiscal matters keeping up limited: cooperation in cases involving the evasion of direct or – as far as possible –bank secrecy by limited cooperation in that indirect taxes is only possible if the act, requiring assistance respect. A good overview of the EU’s relations with Switzerland from Switzerland, fulfils the (qualified) elements of the so-called can be found here: “Abgabebetrug” (tax fraud). Furthermore, assistance in cases of eucrim ID=0703127 “Abgabebetrug” is only possible for mutual assistance in criminal matters, i.e., for the support of foreign criminal proceedings such Background: Relations between Switzerland as the gathering of evidence. Extradition as well as asset seizure and the EU in Fiscal Matters for confiscation purposes is excluded. In cases of money launder- As regards the protection of financial interests in particular, coop- ing, legal assistance from Switzerland requires that the predicate eration between Switzerland and the EU Member States is to date offence is a “Verbrechen” (crime) and is excluded if the predicate mainly based on the following instruments: crime is a fiscal offence. (1) Administrative assistance is ensured by an additional protocol The participation of Switzerland in the Schengen agreement, as of 1997 to the free trade agreement of 1972 covering mutual admin- well as the application of the agreement to counter fraud, will istrative assistance in the area of customs and by an agreement of alter the current legal assistance scheme in fiscal matters: Mu- 1987 on a common transit procedure. tual legal assistance will not only be limited to “tax fraud” but will (2) Legal assistance has been provided on the basis of the Council also provide for the evasion of indirect taxes and duties. In cases of Europe convention of 1959 on mutual legal assistance in crimi- of indirect taxes/duties, extradition and confiscation will also be nal matters and the (Swiss) Federal Act on international mutual possible. However, requests for legal assistance in relation to the assistance in criminal matters. Switzerland has not ratified the evasion of direct taxes remain uncovered unless the act can be additional protocol to the European convention on mutual legal qualified as “Abgabebetrug”. Moreover, legal assistance may be assistance in criminal matters of 1978 which withdraws the pos- refused in “minor cases”, i.e., if the alleged amount of duty unpaid sibility to refuse assistance simply because the request concerns or evaded does not exceed €25,000 or where the presumed value a fiscal offence. of the goods imported or exported without authorisation does not In the future, cooperation will mainly be regulated by the following exceed €100,000. In cases of money laundering, the Swiss judicial two instruments: authorities will accept requests for assistance if the predicate of- (1) The Convention Implementing the Schengen Agreement of 1990 fence concerns indirect taxes/duties. However, the predicate of- (because of the participation of Switzerland in the Schengen ac- fence must be punishable both under the law of the respective EU quis) and Member State and Switzerland by a custodial sentence or a deten- (2) The agreement of 26 October 2004 between the European tion order of a maximum period of more than six months. Community and its Member States, as one party, and the Swiss More background information about the bilateral agreements as Confederation, as the other party, to counter fraud and all oth- well as the texts of the above-mentioned agreements can be re- er illegal activities affecting their financial interests (in short: trieved via the following website of the Swiss Department of For- agreement to counter fraud). The agreement to counter fraud eign Affairs: will cover both administrative and legal assistance. Although eucrim ID=0703128

If Member States disagree with this con- However, the Commission warns that the to testing the system in one Member State cept, the Commission sees the taxation system cannot solve other forms of fraud, in the form of a pilot project. of intra-Community supplies at destina- such as untaxed consumption and the eucrim ID=0703134 tion to be the only alternative. misuse of VAT identification numbers. In As regards the introduction of a gener- order to combat these new forms of fraud, Council Torn Over What alised reverse-charge system, the Com- a number of new measures would need Best Combats Fraud mission also details the negative aspects to accompany the reverse-charge system; The ministers responsible for Economic of this particular concept. The reverse- they could complicate the system and and Financial Affairs could not agree on charge system means that, instead of the create new burdens for businesses and tax conclusions to combat tax fraud at its supplier (in principle, the current system), administrations. Council meeting on 4 March 2008. As it would be the recipient/customer of Furthermore, the Commission objects to a result, a formal reaction to the above- goods or services who declares the VAT the idea of introducing the reverse-charge mentioned Commission’s Communi- in business-to-business relations. The mechanism on an optional basis – a pro- cations was postponed. In particular, customer can then set off this payment posal which was put forward particularly some Member States remain opposed to against his input tax deduction. Thus, any by Germany and Austria. The Commis- the general introduction of the reverse- flow of money which is currently being sion advocates making the system in the charge system. exploited by fraudsters can be avoided. entire EU mandatory, but is not be averse eucrim ID=0703135

94 | eucrim 3–4 / 2007 NEWS

European Court of Auditors’ Report was taken up by the above-mentioned “it is necessary to have a computerised on Member States’ Cooperation Commission proposal to amend the cur- system for monitoring the movement in VAT Matters rent VAT Directive and the said Regula- of excisable goods, such as will allow In its special report 8/2007 (published in tion. Member States to obtain real-time in- the Official Journal C 20 of 25 January eucrim ID=0703136 formation on those movements and to 2008, p. 1), the European Court of Audi- carry out the requisite checks, […]”. The tors (ECA) assessed the administrative Practice: VAT Fraud Scheme for Council and the European Parliament cooperation between the Member States’ Smuggling Chinese Goods Discovered called on the Commission to put this sys- tax authorities in the field of VAT. The OLAF announced a successful strike tem in place by 1 July 2009. ECA found that “despite new EC legis- against a European-wide scheme of VAT The new Commission proposal for a legal lation introduced in 2004 by Regulation fraud and circumvention of customs du- framework of the EMCS is included in a No. 1798/2003, administrative coopera- ties. In cooperation with the Austrian general proposal to overhaul the Direc- tion between Member States in the field authorities, OLAF detected that the ori- tive 92/12/EEC of 25 February 1992 “on of VAT is still not intensive enough to gin of textiles and shoes stemming from the general arrangements for products cope with intra-Community VAT eva- China had been falsely declared. The subject to excise duty and on the hold- sion and fraud”. goods were then imported into the EU ing, movement and monitoring of such According to the report, Member States where they were cleared in the Member products”. The Directive contains the make insufficient use of the Regula- State of arrival without paying VAT. Af- basic principles applicable to all prod- tion, which is designed to speed up and terwards they were transported to anoth- ucts subject to excise duties, thus ensur- strengthen cross-border cooperation, er Member State of destination. Part of ing the proper functioning of the internal mainly through clearer procedures, the the scheme was also that the goods were market as to excise goods. It has become more comprehensive exchange of in- heavily undervalued and the majority necessary to update and recast the text formation, and increased direct contacts of consignees was either non-existent of the Directive, as well as take into ac- between local tax offices. Efficient co- or disappeared from the scene after a count legal developments, and simplify operation is often hampered by late re- short period of operation. The estimated and modernise the excise procedures. plies to requests – frequently because financial damage is running to millions Beyond the EMCS, the present Commis- not all Member States have established of Euros. sion proposal for a new Directive there- adequate administrative structures and/ eucrim ID=0703137 fore also aims at liberalising existing or operational procedures. Moreover, rules for alcoholic beverages bought in the exchange of spontaneous informa- Excise Duties – Commission one Member State and transported to an- tion is not well-established. Suggests Counter-Fraud Measures other, and simplifying and harmonising In its recommendations, the ECA stress- On 14 February 2008, the Commission the procedures in the Member States for es that “for combating intra-Community tabled a proposal which aims, inter alia, at commercial movements of these excise VAT fraud successfully, higher priority strengthening the fight against fraud in re- goods. needs to be given by Member States to lation with the movement of excise goods eucrim ID=0703138 administrative cooperation, in respect (alcoholic beverages, tobacco products, of both the operational information ex- and mineral oils). The Commission con- changes and their administrative man- siders in its proposal (COM(2008) 78) agement”. the introduction of an EU-wide compu- Cigarette Smuggling Furthermore, the ECA recommends that terised system an essential tool to effec- Member States should do the following: tively combat tax fraud in this area in the EC’s Agreement with Philip Morris • encourage more direct communica- future. The so-called “Excise Movement Stand Scrutiny in Parliament tion; Control System” (EMCS) should al- On 11 October 2007, the European • monitor exchanges of information low the processing of data for declaring, Parliament adopted a resolution based more efficiently; monitoring, and discharging movements on an own-initiative report drafted by • clarify procedures for exchanges of of excise products for which no tax has Belgian Green MEP Bart Staes on the information without prior request; yet been paid. The electronic processing implications of the agreement between • improve the accuracy and reliability will replace the current paper-based sys- the Community, Member States, and of data in the current Value Added Infor- tem for the monitoring of excise goods Philip Morris on intensifying the fight mation Exchange System (VIES); for which no duties have yet been paid against fraud and cigarette smuggling • consider the introduction of har- since the paper-based system was prone and progress made in implementing the monised rules for withdrawing VAT to misuse for fraud activities. The Com- recommendations of Parliament’s Com- numbers from traders involved in VAT mission hopes to have the system opera- mittee of Inquiry into the Community fraud. tional in 2009. Transit System. The EP’s assessment The ECA’s demand on enhancing the The history of the EMCS already began of the implementation of the agree- possibility of cross-checks as well as ac- in 2003 when the Council and the Euro- ment is mixed. While the conclusion of celerating the exchange of information pean Parliament stated in a decision that the agreement has been called a “gold

eucrim 3–4 / 2007 | 95 NEWS

Morris paying compensation for loss of The agreement shares the objective of Methods, Trends, and Threats revenues. Furthermore, Philip Morris is the 2004 agreement with Philip Mor- of Carousel Fraud at Europol offering assistance in combating smug- ris; however, it is tailored to the specific Conference glers (see also eucrim 3-4/2006, p. 57). business model of JTI. In addition, it was eucrim ID=0703140 not motivated in connection with the set- In November 2007, participants at a high- level conference, organised by Europol tlement of a pending lawsuit, as was the in The Hague, strategies to combat the Commission Concludes Landmark case with Philip Morris. phenomenon of (VAT) carousel fraud. Agreement with Japan Tobacco eucrim ID=0703141 They assessed methods, trends, and While the European Parliament regret- threats of this form of crime which is ex- ted in the aforementioned resolution Worldwide Treaty on Illicit tremely detrimental to the EU’s budget. that other cigarette producers, such as Trade in Tobacco on Track Europol reported that it is creating two Japan Tobacco and Reynolds American, On 11 February, representatives of gov- new analysis work files on “counterfeit still have not followed Philip Morris in ernments of over 150 countries met in and missing trader intra-community fraud”. signing a similar agreement, the Com- Geneva/Switzerland to begin negotia- Combating VAT carousel fraud was iden- mission announced on 14 December tion on the international treaty to com- tified as one of the major challenges for 2007 that it successfully concluded a bat illicit trade in tobacco products. This the EU in the 2007 Europol Crime Threat multi-year agreement with Japan To- treaty is to be concluded in the form of Assessment (OCTA; see eucrim 1-2/2007, bacco International (JTI) – the world’s a protocol which is to supplement the p. 28). There, Europol already made third largest cigarette manufacturer. The WHO Framework Convention on To- some suggestions, such as increased Commission and 26 EU Member States bacco Control (FCTC). Nations that are public/private partnerships, provision of are participating (the UK is not taking party to the FCTC agreed in July 2007 more “real time” intelligence and sup- part). The agreement includes close to negotiate this protocol (see eucrim port, as well as enhanced coordinated interventions. cooperation between JTI and OLAF as 1-2/2007, pp. 20-21) since illicit trade eucrim ID=0703139 well as the establishment of an efficient in tobacco products and counterfeit system to fight future cigarette smug- cigarettes is undermining other tobacco gling. JTI has made a series of commit- control efforts which are foreseen in ments which will help both in reducing the FCTC. The governments also rec- standard” for future agreements by rap- the smuggling of genuine products into ognized that the illicit tobacco trade is porteur Bart Staes, the report identified the EU as well as in damming counter- a transnational problem that cannot be a number of shortcomings in the fight feit cigarettes. For example, JTI will be addressed without a comprehensive sys- against cigarette smuggling by the EU committed to maintaining and expanding tem of international cooperation. Member States. The EP has written a its current compliance programmes. JTI In the pre-run of the conference, expert litany of measures and strongly recom- will also apply tools in the field of track- groups and international associations mends Member States and the Commis- ing and tracing by labelling master cases drafted measures which they would like sion to follow them in order to fight the and cartons of JTI cigarettes in a manner to see included in the protocol, such as illicit trade in cigarettes much more ef- which will easily allow government of- systems for tracking and tracing tobacco ficiently. ficials to readily obtain key information products, criminalization measures, in- As regards the agreement with Philip relating to the manufacture, storage, and creased penalties for illegal activity, in- Morris, the EP remarks that “[it] is very sale of JTI products. ternational cooperation on investigation, disappointed about the way the Com- JTI has committed itself to paying USD and prosecution of illicit trade cases. The mission handled the distribution of the 400 million to the European Community goal is to conclude the protocol by 2010. payments from the Philip Morris agree- and the participating Member States OLAF is supporting the negotiations on ment among the 10 Member States and over a period of 15 years. The money behalf of the European Union,. the Community, whereby the Commu- is to be used for anti-contraband and eucrim ID=0703142 nity received only 9,7 % thereof and anti-counterfeit initiatives. The agree- the rest went un-earmarked straight to ment further provides for payments in Practice: Cigarette Mafia the Ministers of Finance of the Member the event of future seizures in the EC Eradicated States; considers that this distribution of the JTI’s genuine products above and In the course of demands on enhanced goes against the spirit and intention of beyond defined quantities. As a result international cooperation to combat il- the agreement, which was negotiated on of these provisions, any future lawsuits licit trade on tobacco products, OLAF, the basis that the USD 1,25 billion con- against JTI for civil claims arising out the Central Investigation Bureau of the cerned had to be used in the fight against of alleged past conduct related to illicit Polish Police, and the German Customs fraud.” trade activity have been excluded by the Investigation Service, announced on In 2004, the world’s largest cigarette agreement. 18 March 2008 a successful blow manufacturer Philip Morris, EU Mem- The Commission considers the agree- against an international smuggling ring. ber States, and the Commission con- ment with JTI to be a model for future The gang is considered responsible for cluded an agreement which led to Philip agreements with other manufacturers. having smuggled millions of cigarettes

96 | eucrim 3–4 / 2007 NEWS into the EU from former Soviet Union have a relatively sophisticated conflict- information between the FIUs is consid- countries and China. The operation, of-interest infrastructure. However, the ered crucial. which was supported by OLAF, led to Court of Justice and the European Par- This was also pointed out at the Europe- the arrest of 26 people in Poland and liament should introduce more standards an Union level in the third Anti-Money Germany. Confiscations of cigarettes and rules for their officials. Due to the Laundering Directive as well as in the (nearly 7 million), money, gold, jewel- different institutional needs and particu- Regulation on cash controls which have lery, and private property accompanied larities, each EU institution should adopt been applicable since 2007 in all Member the arrests. The loss of tax revenue is es- its own specific code. Nevertheless, States. The Regulation obliges persons timated at €2 million. similar rules are needed in the fields of entering or leaving the EU and carrying eucrim ID=0703143 transparency, confidentiality, and secre- any sum equal or exceeding €10,000 to cy. The study therefore recommends the declare it to the customs authorities. They adoption of a general and short, ”aspira- are entitled to gather information on such tional code” for all EU institutions. Such cash movements and transmit it to other Corruption a measure would also send an important authorities (also see eucrim 1–2/2007, By Lina Schneider signal to the public and make EU institu- p. 23). The Third Anti-Money Launder- tions more compliant. ing Directive introduced an obligation Study on Ethical Rules and As the public tends to question prac- for financial and credit institutions to Standards for Public Officials tices where public institutions regulate follow money transactions. Moreover, it On 11 December 2007, the Commission their own ethical conduct, the study confirmed many aspects of FIU functions released a comparative study of the rules further recommends thinking about the and cooperation set out in the above- and standards of professional ethics for establishment of an independent Ethics mentioned Decision. the holders of public office in the EU-27 Committee or an Office of Government The Commission report on the implemen- and EU institutions. The study is part of Ethics. The study may serve as a good tation of Decision 2000/624/JHA mainly the Commission’s Transparency Initia- basis to share best practices among pub- focuses on the legislative implementation tive which, among other goals, is trying lic administrations. in the EU Member States. The report ad- to increase the openness and accessibility eucrim ID=0703144 dresses four issues: (1) definition of the of EU institutions. It was carried out by FIU, (2) basis for the exchange of infor- the European Institute of Public Adminis- mation, (3) modalities for the exchange tration in Maastricht in co-operation with of information, and (4) data protection. the Utrecht School of Governance, the Money Laundering The report concludes that most Member University of Helsinki, and the University By Lina Schneider States implemented the main require- of Vaasa. The study focuses on the analy- ments of the Decision but identifies two sis of “rules and standards” in the field of Commission Report on particular ambits where problems exist: conflicts of interest. Officials in the EU FIU Cooperation First, further measures and clarifications institutions as well as five institutions in A Commission report of 20 December are necessary in the field of data protec- each Member State were asked whether 2007 (COM(2007) 827) evaluates wheth- tion. It is unclear in which way and under and how they regulate various issues of er the 27 Member States dispose of a what conditions the obtained information conflicts of interest. legislative and operational framework to may be used and which other authorities, Concerning the situation in the Member support cooperation between their Finan- agencies, or departments may have ac- States, the study concludes that there is cial Intelligence Units (FIU) as laid down cess to the information. The adoption and no evidence that conflicts of interest are in the Council Decision 2000/624/JHA implementation of the proposed Frame- increasing as such. Whereas some issues, of 17 October 2000. FIUs are specialised work Decision on Data Protection for law such as post-employment obviously need governmental agencies which collect and enforcement (see eucrim 3-4/2006, p. 63) better rules and standards, other issues, analyse information with the aim of es- is expected to achieve more clarity in this such as gift policies, are generally well tablishing links between suspicious finan- field. managed. Particularly the new Member cial transactions and underlying criminal The second problem results from the States sometimes even have too many activity in order to prevent and combat different legal status of FIUs. Whereas and too restrictive rules. The study ad- money laundering. FIUs are common in some FIUs are administrative entities, vises taking into account that this may countries around the world. others are judicial or law enforcement become counterproductive. The imple- The EU Decision has largely been influ- based. Consequently, the extent to which mentation and enforcement of too many enced by the standards and principles es- information can be exchanged differs. and too tight restrictions and prohibitions tablished by the Egmont Group, an infor- In this regard, the Commission recom- are costly, bureaucratic, and potentially mal worldwide network of FIUs. Since mends considering whether a model ineffective. 1995, this group has been promoting and Memorandum of Understanding could As to the EU institutions, the study shows enhancing international co-operation in facilitate information exchange and en- that especially the European Commis- anti-money laundering and terrorist fi- courage cooperation among FIUs. The sion and the nancing. In this context, the sharing of FIU.NET project shall also support op-

eucrim 3–4 / 2007 | 97 NEWS erationally efficient cooperation. FIU. Euro Coin Counterfeiting in 2007 knotes were withdrawn from circulation NET is a decentralised computer network On 10 January 2008, the Commission in 2007. The €50 banknote is the most designed to connect EU Financial Intel- released the latest figures on counter- counterfeited one. The amount of coun- ligence Units using modern technology feit euro coins in 2007. It reported that terfeit euro banknotes identified as being and computers to efficiently exchange last year a total of 211,100 counterfeit in circulation remained stable in 2007 in financial intelligence information. euro coins were taken out of circula- comparison to 2006. The Commission report is indicated in tion. Compared to th 75 billion genu- Europol – also the Central Office of the the following link: ine euro coins which circulate in the EU for combating euro counterfeiting eucrim ID=0703145 EU, the number of counterfeits is very – had a considerable impact on hamper- The underlying Council Decision 2000/ small but it increased 29 % compared ing the entry into circulation of counter- 624/JHA can be retrieved here: to 2006. However, this rise is smaller feit euros. With the support of Europol, eucrim ID=0703146 than in the previous years. The 2-euro national authorities were able to arrest More information about the Egmont coin remains, by far, the most counter- more than 500 suspects. Moreover, 19 group can be found here: feited coin. The amount of withdrawn illegal print shops and two illegal mint eucrim ID=0703147 coins still remains lower than the sum shops were dismantled in Europe as well of counterfeit coins detected in the Euro as in Bosnia and Herzegovina, Colom- area countries before the introduction bia, and Peru. of the uniform currency in 2002. To a By Lina Schneider Money Counterfeiting large extent, the recorded increase is eucrim ID=0703150 also the result of stronger efforts by the Comments competent authorities. The protection on Commission Proposal for Better of the euro against counterfeiting is the Euro Protection responsibility of the relevant national Non-Cash Means of Payment On 17 December 2007, the European authorities, the European Central Bank, By Lina Schneider Central Bank (ECB), at the request of the Europol, and the Commission/OLAF. Council, gave an opinion on the Com- The support of Europol especially al- Practice: Operation “PIPAS” mission proposal for a Council Regu- lowed the dismantling and closing of Successful in Dismantling Credit lation amending Regulation (EC) No. two illegal mint shops in Italy and Spain Card Fraud Gang 1338/2001 laying down measures neces- in 2007. These and other operations In cooperation with Europol, Spanish sary for the protection of the euro against could prevent the introduction into cir- authorities arrested 99 persons from an counterfeiting (see eucrim 1-2/2007, p. culation of approx. 90,000 counterfeit international network 24). The proposal aims at facilitating the euro coins. at the beginning of 2008. In addition, protection of the euro by allowing the With regard to the situation, the Com- eight clandestine print shops producing transport of counterfeits among compe- mission stated that counterfeit euro counterfeit cards and three print shops tent authorities. Furthermore, it would coins are not a significant cause of con- producing faked identity documents oblige financial institutions to check the cern for the public. Nevertheless, it rec- were discovered. The equipment of the authenticity of euro banknotes and coins ommended that more efforts should be criminal network was confiscated. The before putting them back into circulation. undertaken to protect the euro against perpetrators used false keyboards, micro The ECB mainly suggests the following counterfeiting. In this context, the Com- cameras, and other tools in order to ma- amendments: mission pointed out its latest legislative nipulate payment terminals in Spain and (1) the ECB and the national central proposal that obliges financial institu- especially in the area of the Mediterra- banks should, as a rule, be entitled to tions to ensure that euro banknotes and nean coast. The obtained data was used receive samples of banknotes used or re- coins are authentic before putting them to produce counterfeit payment cards tained as evidence in criminal proceed- back into circulation (see aforemen- that have been utilized for illegal cash ings; tioned news item). withdrawals in Spain and seven other (2) the scope of the definition of institu- By Lina Schneider European countries. tions which would be obliged to check eucrim ID=0703149 Europol facilitated information ex- the authenticity of the euro should be change, coordinated the operation, and broadened, including, for example, re- Euro Banknote Counterfeiting provided strategic analysis. During the tailers and casinos; in 2007 raid, Europol analysts provided on- (3) a fixed deadline for the implemen- At the beginning of 2008, the European the-spot analytical support with mobile tation of the new law should not be set Central Bank (ECB) released its biannu- offices. As payment card fraud has be- in the Regulation but instead it should al information on euro banknote coun- come an important cross-national phe- be left to the ECB and the Commission terfeiting, On this occasion, Europol also nomenon in Europe, coordination and to lay down deadlines in the procedures took stock of its activities against euro centralisation at the European level is underpinning the new obligations. counterfeiting in 2007. The ECB figures considered indispensable. eucrim ID=0703148 revealed that nearly 600,000 euro ban- eucrim ID=0703151

98 | eucrim 3–4 / 2007 NEWS

Counterfeiting and Piracy conflict with those fundamental rights transposed the Framework Decision or with the other general principles of 2005/212/JHA of 24 February 2005 on Intellectual Property Owners Suffer Community law, such as the principle of confiscation of crime-related proceeds, Setback at European Court of Justice proportionality”. instrumentalities, and property into their On 29 January 2008, the European Court The Court’s judgment came amid calls national law. of Justice (ECJ) delivered its judgment from the record industry and politicians The Framework Decision aims to en- solving the row between the Spanish for forcing Internet service providers sure that all Member States have effec- music association “Promusicae” and the to disconnect customers who illegally tive rules governing the confiscation of Spanish Internet service provider “Tel- download music. crime-related proceeds. It provides that efonica” (Case C-275/06; see eucrim eucrim ID=0703152 each Member State take the necessary 1-2/2007, p. 25). The Court agrees with measures to enable it to confiscate the the views of Advocate General Kokott Practice: First Joint Success following: and Telefonica that Community law of EU and US Customs in Protecting (1) instrumentalities and proceeds from does not require Member States to leg- IPR Infringements criminal offences punishable by depri- islate an obligation for Internet service On 22 February 2008, the European vation of liberty for more than one year providers to disclose personal data in Commission Taxation and Customs Un- or of property, the value of which corre- civil proceedings – data that could have ion Directorate General (TAXUD) and sponds to such proceeds (Art. 2); and been used by Promusicae to take legal U.S. Customs and Border Protection (2) property belonging directly or in- action against persons who had alleg- (CBP) announced the results of their directly to persons convicted of certain edly illegally distributed copyrighted first joint operation combating counter- serious offences, in particular where the songs. Spanish law only allows the com- feit goods. The operation codenamed property in question has been obtained munication of the data for purposes of “INFRASTRUCTURE” tackled coun- as a result of criminal activities (Art. 3). criminal prosecution, public security, or terfeit integrated circuits and computer On balance, the Commission is utterly national defence. networking equipment. The operation unsatisfied with the progress made in the The Court rules that neither does EC was carried out in November and De- EU-27 in transposing the Framework data protection law (Directive 2002/58 cember 2007 and resulted in the seizure Decision. At the time of the report, only on privacy and electronic communica- of over 360,000 counterfeits of the said ten Member States had transposed the tions) forbid Member States to lay down material. Framework Decision in the main, six an obligation to disclose personal data Integrated circuits are used in a wide had transposed it in part, and five were in the context of civil proceedings nor range of applications, including automo- in the process of preparing the relevant do EC directives on the protection of biles, aircraft, computers, telecommuni- legislation. As is the case for other re- industrial property, in particular copy- cations, medical devices, and consumer ports, the Commission is struggling with right, force Member States to lay down electronics. Therefore, counterfeits do some Member States that have not even such an obligation. Hence, it is up to the not only harm the manufacturers’ rights submitted information about their na- Member States to reconcile the require- but also pose a threat to safety and pub- tional measures. ments of two conflicting fundamental lic security. The operation against coun- It invites all Member States to send rights positions, namely the right to re- terfeit computer hardware implements further relevant information about the spect for private life (which includes the targets set out in the 2006 EU-US transposition and requests those who protection of personal data), on the one Action Strategy for the Enforcement of still have not adopted adequate legisla- hand, and property rights (which include Intellectual Property Rights. tion to do so as quickly as possible. protection of intellectual property), on eucrim ID=0703153 eucrim ID=0703155 the other hand. The ECJ finally notes the More information about the U.S. Cus- following: toms and Border Protection can be found Follow-Up on Confiscation Measures “the Member States must, when trans- here: At the end of 2008, the Commission posing the directives mentioned above, eucrim ID=0703154 intends to pass a Communication with take care to rely on an interpretation of a deeper analysis on European meas- the directives which allows a fair balance ures for the confiscation and recovery to be struck between the various funda- of property obtained through criminal mental rights protected by the Commu- Organised Crime activity as well as recommendations on nity legal order. Further, when imple- By Lina Schneider better police and judicial cooperation in menting the measures transposing those this field. A contribution to this Commu- directives, the authorities and courts of Slow Transposition of Framework nication was provided by an EU confer- the Member States must not only in- Decision on Confiscation of Crime- ence on cooperation between national terpret their national law in a manner Related Proceeds asset recovery offices. The conference consistent with those directives but also In its report delivered on 17 Decem- was organised by Europol, together with make sure that they do not rely on an in- ber 2007, the Commission regrets that Belgium, Austria, and the financial sup- terpretation of them which would be in many EU Member States still have not port of the Commission; it took place

eucrim 3–4 / 2007 | 99 NEWS in Brussels from 6-7 March 2008. The The Communication on undeclared work Procedural Criminal Law swift exchange of intelligence on the can be seen as the second component of location of criminals’ assets among the the Commission in tackling illegal em- competent national offices was of - par ployment, after the presentation of a Procedural Safeguards ticular interest. In this context, reference draft directive to introduce and enforce was also made to the new EU legislation sanctions against employers of illegally Proposal for Better Protection of on the establishment of a network of Na- staying third-country nationals (on the Defendants Tried in Absentia tional Asset Recovery Offices (see the latter, see eucrim 1-2/2007, pp. 29-30). In January 2008, seven EU Member news below under “Law Enforcement Although the Commission may not have States (Slovenia, France, the Czech Cooperation”). made a legislative proposal, follow-up Republic, Sweden, Slovakia, the Unit- eucrim ID=0703156 measures on undeclared work may have ed Kingdom, and Germany) drafted a The identification, tracing and con- criminal law implications. Framework Decision on the enforcement fiscation of instrumentalities and the eucrim ID=0703158 of judgments in absentia. The initiative proceeds from crime is regarded as an seeks to establish uniform rules in pro- essential tool in combating organised cedures of mutual recognition of judg- crime. More background information on ments given in criminal proceedings at the common EU approach to the fight Racism and Xenophobia which the defendant was not present against organised transnational crime (judgments in absentia). can be found via the following link: MEPs Not Completely Satisfied with The background is that all instruments eucrim ID=0703157 Current Text of FD on Combating on mutual recognition currently in place Racism and Xenophobia give the possibility to refuse the execu- On 29 November 2007, the European tion of foreign judgments handed down Parliament (EP) adopted a report of in the absence of the defendant, but each Illegal Employment French MEP Martine Roure proposing instrument provides for different condi- By Lina Schneider amendments to the tabled compromise tions under which to do so. As a result, di- text on a Framework Decision (FD) on vergence hinders the work of practition- Commission Communication on Fight combating racism and xenophobia. The ers, hampers judicial cooperation, and against Undeclared Work Council decided to re-consult the EP contradicts the principle of legal certain- On 14 October 2007, the European when a compromise on the FD under the ty. Therefore, the proposal would like to Commission published the communica- German Presidency was found in 2007, modify in a uniform way the Framework tion “Stepping up the fight against un- after years of difficult negotiations (see Decisions (1) on the European Arrest declared work” (COM(2007) 628). The eucrim 1-2/2007, p. 30). The EP already Warrant, (2) on mutual recognition of text underlines the policy relevance of adopted a first opinion on 4 July 2002; financial penalties, (3) on mutual recog- reducing undeclared work, illustrates its however, it referred to the Commission’s nition of confiscation orders, and (4) on causes, and tries to encourage Member initial proposal of 2001 which differs the mutual recognition of judgments im- States to increase their efforts to reduce substantially from the compromise. In posing custodial sentences or measures undeclared work. The Communication its legislative resolution of 2007, the EP involving deprivation of liberty. It shall also contains a series of good practices mainly regrets the substantial restriction serve as a basis for future instruments of in various Member States tackling the in scope by the Council. the same direction. phenomenon of undeclared work. Of in- MEPs suggest that Member States The seven Member States propose that, terest from a criminal point of view is shall not exempt from criminal liability as a rule, the executing judicial author- the Commission’s description of some speeches or behaviour liable to stir up ity may refuse to enforce or execute a Member States’ measures of surveil- hatred. Respect for freedom of religion decision rendered in absentia. By way of lance and sanctioning. shall not hinder the effectiveness of the derogation, this possibility ceases to ex- Regarding the complexity of the phe- Framework Decision. Furthermore, the ist in the following cases: nomenon, the Commission recommends EP advocates including insults and being • if the person was summoned in person that Member States take a multifunction- a leader of a racist group into the lists of or informed of the hearing which led to al approach of prevention, law enforce- offences, which was the case in the initial the decision rendered in absentia in ac- ment, and sanctions. The Commission, proposal of the Commission. The major- cordance with the national law of the is- inter alia, proposes investigating the fea- ity of MEPs also thinks that the Member suing State via a competent representa- sibility of a European platform for coop- States should go further after the revision tive and in due time and was informed eration between labour inspectorates and of the FD which is foreseen 3 years after about the fact that such a decision might other enforcement bodies, such as those its implementation. MEPs would like to be handed down if the person does not in charge of tax or immigration. Further- clarify that the provisions of the FD only appear for the trial; or more, workers’ and employers’ repre- maintain a minimum protection. The final • if, after being served with the decision sentatives should actively be involved in decision of the Council is still pending. rendered in absentia and being informed the fight against undeclared work. eucrim ID=0703159 about the right to a retrial and to be

100 | eucrim 3–4 / 2007 NEWS present at that trial, the person expressly ervations by some Member States. For 654) to introduce an equivalent system stated that he/she did not contest the de- the development of the FD DPPJCC, within the European Union. Most EU cision or did not request a retrial within see also eucrim 3-4/2006, pp. 63-64 and Member States’ governments and the a defined timeframe. eucrim 1-2/2007, p. 31. The latest Coun- Commission consider the use of PNR For the European Arrest Warrant, an ad- cil draft of December 2007 is indicated data necessary to prevent and fight ter- ditional provision takes into account the in the following link: rorist offences and organised crime. As a situation where the person has not been eucrim ID=0703161 result, “the proposal aims to harmonise served with the judgment in absentia, Member State’s provisions on obliga- but is notified after the surrender. EU and USA Discuss Common tions for air carriers operating flights to or The initiators consider the draft a Data Protection Rules from the territory of at least one Member strengthening of procedural safeguards High-ranking officials of the EU and State regarding the transmission of PNR within the EU. However, they stress that the USA are negotiating a paper which data to the competent authorities for the the proposal aims only to harmonize the should regulate all future exchanges of purpose of preventing and fighting ter- definition of the grounds for refusal in personal data from the EU to the US in rorist offences and organised crime”. cases of judgments in absentia but does the field of security. Negotiations happen The essential contents are as follows: not harmonize the national law concepts in a secret committee named “High Lev- • Obligation: Air carriers would be of judgments rendered in absentia or el Contact Group on data protection”. obliged to make available a set of 19 rules on the right to a retrial. The group is attempting to define “data pieces of air passenger data which they German Justice Minister Brigitte Zypries protection principles for which common collect and process in their reservation noted: “It is a miracle that the big trio language has been developed”. The US systems. These pieces are listed in an of Germany, Great Britain, and France side is still unsatisfied with the EU’s so- Annex which is equal to that listed in are all on the same position in this issue, called “adequacy test”. The principle of the EU-US agreement. The data include which makes it the more likely that the restricting the exchange of data to third passport data, name, address, telephone rules will be implemented.” Southern countries stems from the EC data pro- numbers, travel agent, credit card European countries such as Italy, France, tection Directive 95/46 which stipulates number, history of changes in the flight Portugal, or Spain allow in absentia tri- that transfer of personal data to a coun- schedule, seat preferences, etc. als, but this is not the case, for example, try outside the European Economic Area • Geographical scope: the obligation is in Germany and Britain which were the is prohibited unless that country ensures limited to flights from third countries to countries pushing for the accord. an adequate level of protection for the the EU and from the EU to third coun- eucrim ID=0703160 rights and freedoms of data subjects in tries. relation to the processing of personal • Sanctions: If an air carrier fails to data. The “adequacy test” is likely to meet the obligation – e.g., transmits no, be introduced into the above-mentioned incomplete, or erroneous data – Mem- Data Protection Framework Decision on the protection ber States are required to provide “dis- of personal data processed in the frame- suasive, effective and proportionate Framework Decision on Data work of police and judicial cooperation sanctions”, including financial penal- Protection – State of Play in criminal matters, too. A conflict with ties, against the air carriers. In case of At the Justice and Home Affairs Council the USA has occured since the USA has repeated serious infringements, these meeting on 8-9 November 2007, a gen- no comprehensive data protection legis- sanctions shall include measures such as eral approach was reached on the pro- lation and its system has been primarily the immobilisation, seizure, and confis- posal for a Framework Decision on the based on self-regulation. cation of the means of transport, or the protection of personal data processed in The documents produced by the EU-US temporary suspension, or withdrawal of the framework of police and judicial co- High Level Contact Group are confiden- the operating licence. operation in criminal matters (FD DPP- tial and not open to the public. More in- • Use: The use and purpose of the col- JCC). In the meantime, the recitals have formation can be found at the following lection of the PNR data is confined to the been further revised and the legislative website of Statewatch: prevention of and fight against terror- quality of the provisions further refined. eucrim ID=0703162 ism and “other serious crime, including In the light of the changes made to the transnational organised crime”, hence original text during the negotiations, Passenger Name Record (PNR) – purposes of the third pillar. This is why the Council decided to re-consult the Plan for an EU System the Commission considers a Framework European Parliament pursuant to Art. After the EU had concluded the contro- Decision (Art. 34 para. 2 b TEU) to be 39 TEU. The EP was invited to deliver versial deal with the USA allowing law the appropriate legal basis. The PNR its opinion by 1 April 2008. It already enforcement to process and analyse Pas- data should mainly make it possible for delivered two opinions on the drafts on senger Name Record (PNR) data which law enforcement authorities to identify 27 September 2006 and 6 June 2007. are provided by air carriers, Commis- unknown high-risk passengers, allowing Furthermore, the proposal is still subject sioner Franco Frattini, on 6 November for a secondary screening upon their ar- to general parliamentary scrutiny res- 2007, tabled a proposal (COM(2007) rival and refusal of entry.

eucrim 3–4 / 2007 | 101 NEWS

• Decentralised system: The Com- The Commission proposal on the in- necessity of the intended measures nor mission does not propose a centralised troduction of an EU-wide PNR scheme demonstrated their proportionality. Fur- pan-European database because – as is part of a package of other measures thermore, there is a lack of clarity in the Commission interestingly argues which have been proposed in order to many aspects of the proposal. These are – “[this] would have a high risk of fail- enhance the EU’s fight against terrorism. the key findings of a very critical assess- ure because of the vast amounts of data For details, see the following link. ment of the draft by the European Data that a centralised unit would receive…”. eucrim ID=0703164 Protection Supervisor (EDPS) Peter Instead, the Commission suggests that The proposal on the PNR largely mirrors Hustinx. “Passenger Information Units” (PIUs) the agreement which was concluded be- In particular, in its assessment of 20 De- be set up in each Member State. They tween the EU and the USA on the use cember 2007, the EDPS focuses on four would be mandated to collect the PNR of PNR data (see in this respect eucrim points and draws the following conclu- data from the air carriers, analyse them, /2007, pp. 9-11; 3-4/2006, pp. 48-49; sions: and carry out risk assessments of the 1-2/2006, pp. 3-4). • Legitimacy of the proposed measures: passengers. The PIU may then forward The EDPS tested in detail the proportion- the PNR data to other law enforcement First Assessment of the New PNR ality and necessity of the proposed EU authorities of the Member State. Proposal in the Council PNR scheme, in accordance with Article • Exchange of information: PIUs may At the ministerial level, a first introduc- 8 of the EU’s Charter of Fundamental share the PNR information with law tory discussion on the above-mentioned Rights (which expressly guarantees the enforcement authorities in other Mem- Commission proposal for a Framework right to the protection of personal data) ber States. This is to be done on a case- Decision on the use of PNR for law en- and Articles 5 and 8 of the Council of by-case basis and if “necessary” for the forcement purposes was held at the in- Europe Data Protection Convention No. prevention or combatting of terrorist of- formal meeting of the Justice and Home 108. The EDPS concludes that the Com- fences and organised crime. Affairs Council in Brdo pri Kranju/Slov- mission has not circumscribed and justi- • Push method: As a general rule, the enia in January 2008. The ministers con- fied either the necessity or the - propor so-called “push method” applies instead firmed political support for the project tionality of a profiling system based on of the “pull method”. The difference is while stressing the need to ensure a high the processing of PNR data by the law that in the case of the “push method” the level of personal data security. Taking enforcement. data are transmitted by the carriers of the into account the guidelines by the minis- • Applicable legal framework: The national authorities whereas in the “pull ters, the proposal will now be further ne- EDPS notes the mixed nature of the pro- method” the national authority obtains gotiated in the Council working groups. posal, involving both the private sector access to the reservation system of the The issue of retaining sensitive data and law enforcement. Thus, different air carriers and takes the data. could become controversial. According rules may apply, i.e., sui generis rules of • Retention period: The Commission to newspaper reports, some Member the proposal, rules of the first pillar Data proposes that PNR data be kept for 5 States, such as the UK, Cyprus, Den- Protection Directive 95/46/EC, or those years (in the EU-US agreement it is 7 mark, Estonia, Italy, and Sweden, op- of the future third pillar Framework De- years) in the database at the PIU. After- pose the clear ban in the Commission cision on data protection (FD DPPJCC). wards the data can be retained for a fur- proposal and favour the inclusion of Therefore, the EDPS requests clarifica- ther 8 years in a “dormant” database. these data in the PNR scheme. tion of which data protection rules apply • Data protection: According to the It will be exciting to see whether the at which stages of the processing. Commission, protection of the PNR data Council will “push through” the law be- • Quality of recipients: Similarly, the should be governed by the – yet to be fore the entry into force of the Lisbon EDPS deplores the lack of specification adopted – Framework Decision on the Treaty. At the moment, the European with regard to the quality of recipients of protection of personal data processed in Parliament (EP) is only consulted and personal data collected by airlines. It is, the framework of police and judicial co- does not have the possibility to block for instance, not clear under which con- operation (FD DPPJCC, see above). the law. If the Lisbon Treaty enters ditions the Passenger Information Units • Transfer to third countries: The trans- into force, the EP will have the right to will exercise their powers. Furthermore, fer of PNR data to countries outside the veto because the co-decision procedure the Commission proposal seems to allow EU is allowed under certain conditions. would apply. The EP has already taken any national law enforcement authority • Sensitive data: The Commission pro- a critical stance on the PNR scheme (see (defined as “competent authority”) to re- posal clarifies that the retention of per- below). ceive PNR data. sonal data which reveal racial or ethnic eucrim ID=0703165 • Transfer of data to third countries: origin, political opinions, religious or Since agreements with third countries philosophical beliefs, trade-union mem- Critical Assessment by the European on the transfer of PNR data are already bership, or data concerning the health or Data Protection Supervisor in place (with the USA and Canada), the sex life of the individual concerned (so- The above-mentioned Commission pro- EDPS calls for having a coherent system called “sensitive data”) is prohibited. posal on the use of Passenger Name subject to a harmonised level of protec- eucrim ID=0703163 Record data has neither justified the tion.

102 | eucrim 3–4 / 2007 NEWS

In addition, the EDPS evaluates other • The reference to the Framework Deci- representative of the EU Commission. relevant aspects of the proposal (e.g., sion on data protection processed in the The Working Party is independent and the quality of data or the data retention framework of police and judicial coop- acts as an advisory body. The Working period) that require further precision or a eration in criminal matters (see above) Party seeks to harmonise the application better taking into account of data protec- is considered inadequate since the FD of data protection rules throughout the tion principles. All in all, the EDPS rec- would only cover the exchange of in- EU, and it publishes opinions and recom- ommends not adopting the Framework formation between law enforcement au- mendations on various data protection Decision in its present form since it is thorities and not the transfer of data by topics. It also advises the EU Commis- not in line with Article 8 of the Charter (private) air carriers. sion on the adequacy of data protection of Fundamental Rights. He also recom- • The pieces of data in the annex are too standards in non-EU countries. mends waiting till the entry into force of extensive and the retention period of 13 The Working Party on Police and Justice the Lisbon Treaty so that the European years is disproportionate. is a similar body which was created in Parliament can have a full say on the in- • As regards the filtering out of sensi- the framework of the Conference of the strument. tive data, the national data protection au- European Data Protection Authorities. It eucrim ID=0703166 thorities or joint data supervisory bodies monitors and examines developments in must be involved. the area of police and law enforcement National Data Protection • As regards the approach of a decen- as regards the protection of the individu- Authorities Opposed tralised data processing system, draw- als’ personal data. It also issues com- The Commission proposal on the use of backs must be taken into account be- ments and opinions on data protection PNR data for law enforcement purposes cause of diverging data protection levels topics. was also the subject of a thorough ex- and varying technical systems in differ- amination by the Data Protection Com- ent Member States. Hence, it will be in- First Reactions Issued by the missioners of the EU Member States dispensable for the EU to put in place European Parliament under the auspices of Article 29 Data consistent safeguards. The European Parliament has not yet Protection Working Party and the Work- On balance, the opinion urges the EU adopted an official opinion on the above- ing Party on Police and Justice. Like legislator not to forget the overall con- mentioned Commission proposal. How- the EDPS, parliamentarians and many text of the PNR proposal which comes ever, a first reaction can be found in its other stakeholders, the Working Par- on top of the storage of fingerprints of resolution of 12 December 2007 “on the ties above all, deny the necessity of a all citizens when applying for their pass- fight against terrorism”. There, the EP new EU legislation on the retention of ports to the retention of all telecommu- states as follows: PNR data. In their joint opinion of 18 nication traffic data in the EU. The joint “[The EP] considers that any form of December 2007, they particularly ques- opinion concludes that “if the current ‘profiling’ in counter-terrorism measures tion the added value in relation to the version of the draft Framework Deci- is unacceptable; regards it as unaccept- existing possibility to use advance pas- sion is implemented, Europe would take able to pursue an EU-PNR system with- senger information data (API data). API a great leap forward towards a complete out a complete evaluation of the EU-US data, which consist of certain pieces of surveillance society making all travel- and EU-Canada PNR agreements, in information on passengers (e.g., names, lers suspects.” particular their impact on reducing the type of travel document used, departure eucrim ID=0703167 threat and increasing security as well as and arrival time, etc.), are already com- Article 29 Working Party already op- their impact on privacy and civil liber- municated by air carriers on the basis posed the introduction of an EU PNR ties.” Like the EDPS, the EP questions of Directive 2004/82/EC by means of regime in the pre-run of the Commission the necessity and proportionality of the which national authorities are supported proposal. In an answer of 31 January proposed EU PNR scheme. in border controls and the detection of 2007, prepared for the Commission’s eucrim ID=0703169 illegal immigration. The authors of the impact assessment of the proposal, it was When the Commission tabled its propos- opinion wonder whether API data may remarked: “[…] the Article 29 Working al, the political groups of the EP piped be sufficient in the identification of ter- Party has not seen any information pre- up. The majority of the groups took rorists and criminals, especially against sented by the Commission that would a very critical stance on the proposal. the background that no assessment has substantiate the pressing need to process Most groups question the need for a new been carried out so far as regards API PNR data for the purpose of prevent- legislation on the use of PNR for law en- data. ing and fighting terrorism and related forcement purposes. Further issues of the opinion which crimes, or law enforcement.” The Socialist Group (PSE), the second should be highlighted here are as fol- eucrim ID=0703168 largest political group in the EP, is of lows: The Working Party was established by the opinion that the “EU plans to match • It has been criticised that the proposal Article 29 of the EC’s Data Protection passengers with terrorist profiles face does not give any details on the rights Directive 95/46. It is made up of the rough ride”. It said “it could not support of passengers and does not specify any Data Protection Commissioners from the plans in their present form for col- safeguards. the EU Member States, together with a lection of information about airline pas-

eucrim 3–4 / 2007 | 103 NEWS sengers”. The Socialist Group also noted Other Reactions In another case, an Austrian Court would that “it was concerned about uncertainty Beyond the above-mentioned statements like to know from the ECJ whether Art. as to how the new data would be protect- by the data protection supervisors and the 54 precludes prosecution of a suspect in ed and it called for an explanation of the parliamentarians, highly critical voices the Republic of Austria for the same acts need to keep such data for 13 years.” have also come from stakeholders in civil for which criminal proceedings in the eucrim ID=0703170 society, such as the airline industry and Slovak Republic were discontinued af- Liberal Dutch MEP Sophie In’t Veld NGOs. Ulrich Schulte-Strathaus, Secre- ter its accession to the European Union. (ALDE Group), who will examine the tary-General of the Association of Euro- This had been effected by means of a Commission proposal in more detail for pean Airlines (AEA), stated: “Commis- binding order on the part of a police au- the EP as the EP’s rapporteur on the dos- sioner Frattini’s proposed decentralised thority, thus suspending the proceedings sier, reflected: system means that our carriers will have without further sanctions to be taken af- “We should not be compounding the to comply with 27 different national data ter examination of the merits of the case mistakes of the July PNR agreement collection systems. We are talking about (Case C-491/07, “Turansky”). with the US by introducing our own − an operational and technical nightmare – eucrim ID=0703177 at least until there is serious and irrefu- and the Commission totally ignores the table proof that such mass exchange of financial implications for the airline in- personal data is resulting in the arrest dustry, which we haven’t even started as- of terrorists. (…) I remain adamant that sessing yet.” He also pointed out that the Victim Protection PNR data should not be used as an in- proposed PNR scheme leads to discrimi- discriminate form of data profiling. But nation since not all means of transport are Ruling against Italy for Non- evidence points to the contrary as the covered. Transposition of Crime Victims US authorities are still able to $pull$ all eucrim ID=0703174 Directive sorts of information from EU carriers’ Tony Bunyan from Statewatch, a British The Commission was successful before databases without prior permission and civil liberties group, declared: the European Court of Justice in bring- without adequate safeguards on the end “This is yet another measure that places ing about a judgment against Italy for users or length of data retention.” everyone under surveillance and makes not having implemented Council Direc- eucrim ID=0703171 everyone a “suspect” without any mean- tive 2004/80/EC of 29 April 2004 relat- MEP Kathalijne Buitenweg from the ingful right to know how the data is ing to compensation for crime victims. Greens commented: used, how it is further processed and by The Court rendered its judgment on 29 “Today’s proposal on the retention of whom.” He also said: “Unless stopped November 2007. The Directive was air passenger data in the EU seems un- in its tracks it is just a question of time required to be transposed by 1 Janu- necessary and incoherent. The Com- before the scope of the EU-PNR scheme ary 2006. Italy claimed in vain that the mission has made no attempt to justify is extended to cover all crime, flights transposition of the Directive’s provi- why these measures are necessary and inside and between Member States and sions was on track. On 18 July 2007, the why the existing legislation is not suf- sea, land and rail travel as well.” State- Court ruled against Greece for the same ficient − an existing Directive on pas- watch provides an overview of the EU reasons (see eucrim 1-2/2007, p. 35). senger data from 2004 has yet to be PNR measures, including the latest de- eucrim ID=0703178 fully implemented! It is also incoher- velopments, at the following link: ent to propose a European-level deci- eucrim ID=0703175 Witness Protection Commission sion on data storage, while leaving the Decides Against Harmonisation of issues of data protection and how the Witness Protection Rules data should be processed fully to na- Ne bis in idem In a report of November 2007, the Com- tional legislators.” mission vouches for presently not hav- eucrim ID=0703172 New Cases on ne bis in idem ing binding EU legislation in the area of A rather favourable comment came from At the moment, two interesting cases are protection of witnesses and collaborators the conservatives. German MEP Man- pending before the European Court of with justice (COM(2007) 693). The report fred Weber from the EPP-ED Group, the Justice which promise further clarifica- represents an impact assessment of a pos- largest political group in the EP, noted on tion of the interpretation of Art. 54 of the sible legislative proposal which was once the PNR: “Such a database is a valuable Convention Implementing the Schen- mooted in this area. The paper takes stock contribution to the war on terror. How- gen Agreement. In one case, a German of the state of play on legislation and gen- ever, if these are to be purely national court referred to the ECJ the question eral practice at the national, European, databases, the question is why national of whether Art. 54 can be applied if the and international levels. This is followed parliaments have not started discussing penalty imposed on a defendant could by an analysis of problems, objectives, and agreeing on them. There is no need never be enforced under the laws of and possible policy options. for a European framework for national the sentencing contracting party (Case The Commission notes that legislation databases.” C-297/07, “Bourquain”). in the EU Member States is very hetero- eucrim ID=0703173 eucrim ID=0703176 geneous. Some Member States do not

104 | eucrim 3–4 / 2007 NEWS have legislation on witness protection; ment began in the mid-1990s. This was tities to whom a freezing of funds and other Member States either regulate it closely connected with the EU action other financial resources applies (Case in separate acts or as part of their code geared towards a more effective fight T-256/07). of criminal procedure. Different legisla- against organized crime. Preparatory eucrim ID=0703180 tive and administrative structures also work for a binding EU legislation on The subsequent provision of a statement exist between Member States when it the protection of witnesses date back to of reasons became the main remedy on comes to operative rules of witness pro- 2004. which Council relied in order to comply tection programmes. Differences are eucrim ID=0703179 with the requirement of said CFI judg- equally large as regards “collaborators ment with respect to the affected per- with justice”, even though nearly all of sons and institutions, who/which were the countries concerned are aware of the already on the list. As regards new list- possibility for the judge to mitigate the Freezing of Assets ings, the Council has adopted a proac- sentence if the offender helps the police/ By Dr. Frank Meyer tive approach. Aggrieved individuals judicial authorities to clarify their or and institutions now receive a statement other crimes. This section follows up on the introduc- of reasons justifying the listing and iden- At the European and international levels, tion to the subject published in eucrim tifying the main sources of information only informal cooperation mechanisms 3-4/2006, pp. 66-68. The overview con- underlying the respective Council deci- on witness protection exist. Worthy of cluded with the presentation of the most sion. mention is the European Liaison Net- important and, then, most recent cases work which is coordinated by Europol before European Community Courts (in Cases Sison & Al Aqsa – CFI Annuls and gathers the heads of specialist wit- particular, before the Court of First In- Council Decisions ness protection units of the EU-27, plus stance − CFI) addressing legal problems Prior to the aforementioned change, the those of several non-EU countries and related to terrorist blacklists maintained CFI annulled yet another Council deci- international organisations. The Net- by the EU. The subsequent section pro- sion, in so far as it concerned the appli- work exchanges information on best vides an update on court proceedings cants, for similar reasons as those in the practices and develops guidelines in the that have taken place in the meantime. OMPI case. On 11 July 2007, the CFI field of witness protection but does not annulled Council Decision 2006/379/ carry out operational activities. Case OMPI – EU Changes Strategy for EC of 29 May 2006 in the Sison case The Commission offers three policy op- Provision of Statements of Reasons (T-47/03), in so far as it concerned the tions: The initial outline concluded with the Philippine citizen Mr. Sison who had (1) Maintaining the status quo but in- OMPI case (T-228/02) before the Court been listed since 2002. The CFI held that creasing efforts of coordination among of First Instance (CFI). The Iranian re- his action for annulment of the Council the EU Member States; sistance group OMPI, which had been Decision keeping his name on the list (2) Harmonizing the EU Member States’ included in a list based on EC Regula- was justified as he had not been supplied legal systems by setting minimum stand- tion No. 2580/2001 and maintained with a statement of reasons and thus suf- ards generally in a binding instrument; autonomously by the EC institutions, fered a serious impairment of his right to (3) Establishing a special binding EU achieved an annulment of the Council bring an action before a court. legislation focusing on the cooperation Decision with regard to its listing, for eucrim ID=0703181 between Member States in cases of relo- want of a sufficient statement of reasons. In the Al-Aqsa case (T-327/03) was de- cation of protected persons. The Court found that a statement of rea- cided on the same day as the above-men- The Commission discards the plan for sons must be supplied to individuals or tioned judgment in the Sison case; the a binding EU legislation since most EU entities at the time of listing, as required CFI annulled for similar reasons Council Member States are currently reluctant by Article 253 of the EC Treaty (TEC). Decision 2006/379/EC of 29 May 2006 to accept this option. In this context, Instead of removing OMPI from the list, in so far as it concerned Al-Aqsa (which the Commission cites the example of the Council subsequently provided a suf- describes itself as an Islamic social wel- the Council of Europe which has been ficient statement of reasons and replaced fare foundation governed by Netherlands failing so far to reach agreement on a the annulled Council decision by subse- law whose main objective is the provi- binding convention regarding witness quent Decision 2006/379/EC of 29 May sion of assistance to Palestinians living protection. The Commission would like, 2006. As a consequence, OMPI remains in the territories occupied by Israel and for the time being, to pursue the track on the list and its assets frozen. in the Gaza strip). The court found that of intensified cooperation between the The group lodged an action against the Council Decision did not adequately Member States in the field of witness this decision before the CFI, seeking state the reasons for listing Al-Aqsa. protection and that of collaborators with partial annulment of Council Decision eucrim ID=0703182 justice. 2007/445/EC of 28 June 2007 (repealing Despite their success before the CFI, the Background: First efforts at the EU level Decisions 2006/379/EC and 2006/1008/ Council, however, refused to remove the on the protection of witnesses and per- EC) which maintained the applicant on names of Sison and Al Aqsa from the list sons who collaborate with law enforce- the list of the persons, groups, and en- after a new review process. The most re-

eucrim 3–4 / 2007 | 105 NEWS cent Council Decision of 20 December opinion in the Kadi case. He recom- the effect of international obligations 2007 confirmed their listing. mended that the ECJ set aside the judg- within the Community legal order by eucrim ID=0703183 ment of the Court of First Instance of 21 reference to conditions set by Commu- Sison and Al Aqsa have therefore ap- September 2005 and annul the contested nity law. The obligations under Article plied anew to the CFI and brought ac- Council Regulation No. 881/2002 in so 307 TEC, which lays down the priority tions to partially annul the Council far as it concerned the appellant. of pre-existing international treaties vis- Decision (Cases T-341/07, T-348/07 re- AG Maduro identified four main legal à-vis TEC provisions but obliges Mem- spectively). issues, namely (1) the legal basis of the ber States to take steps seeking to prevent contested Regulation, (2) the jurisdic- incompatibilities, and the related duty Cases PKK & Kongra-Gel – tion of the Community Courts to review of loyal cooperation flow in both direc- CFI Confirms Settled Case Law whether contested Regulation breached tions: they apply to the Community as In the cases PKK (T-229/02) and Kongra- fundamental rights, (3) the question of well as to the Member States. As Mem- Gel (T-253/04), the CFI annuled Council the appropriate standard of review, and bers of the United Nations, the Member Decision 2002/460/EC of 17 June 2002 (4) the impact of the contested Regula- States have to act in such a way as to and Council Decision 2004/306/EC of tion on the fundamental rights invoked prevent, as far as possible, the adoption 2 April 2004, respectively, in so far as by the appellant. of decisions by organs of the United Na- they concerned the applicants. In both Starting with the legal basis of the Regu- tions that are liable to enter into conflict rulings, the CFI refers to the prior judg- lation, the AG questioned the CFI’s opin- with the core principles of the Com- ments in the cases of OMPI and AL- ion that the powers to impose economic munity legal order. Article 307 TEC, Aqsa as settled case law. The obligation and financial sanctions provided for by therefore, cannot render the contested to state reasons provided by Article 253 Articles 60 and 301 TEC do not cover Regulation exempt from judicial review, EC as elaborated by these decisions had the interruption or reduction of economic given the Member States’ responsibility not been satisfied in the circumstances of relations with individuals within those to minimise the risk of conflicts between the present cases. Both judgments were countries which forced the CFI to rely on the Community legal order and interna- issued on 4 April 2008. the flexibility clause in Article 308 TEC tional law. eucrim ID=0703184 instead which fills gaps in the TEC if no AG Maduro also repudiated the recog- specific legal basis for the furtherance of nition of a political doctrine exempting Cases Kadi & Al Barakaat – Appeals the Community’s objective is available. Community measures that implement Pending before the ECJ AG Maduro found this view difficult to resolutions which the UN Security With a view to the blacklist established reconcile with the wording and purpose Council has considered necessary for pursuant to EC Regulation No. 881/2002 of Article 308 TEC in that he strictly cir- the maintenance of international peace and, hence, determined by decisions of cumscribes it as an enabling provision: it and security from judicial review. Al- the UN sanctions committee, two promi- provides the means, but not the objective. though he conceded that extraordinary nent cases have reached their final stages If one were to exclude the interruption of circumstances may justify restrictions before the European Court of Justice economic relations with non-State actors on individual freedom that would be un- (ECJ). The appeals of Kadi (C-402/05 P) from the realm of acceptable means to acceptable under normal conditions, he and Yusuf/Al-Barakaat (C-415/05 P) will achieve the objectives permitted by Arti- nonetheless emphasized that the claim be decided by the Court within the next cle 301 TEC, one could not use Article that a measure is necessary for the main- few months. The passionate opinions of 308 TEC to bring those means back. A tenance of international peace and secu- AG Maduro have considerably raised the measure directed against non-State ac- rity cannot operate so as to silence the stakes for the ECJ. In his emphatic pleas tors either fits the objectives of the CFSP, general principles of Community law on the rule of law, AG Maduro urged the which the Community can pursue by and deprive individuals of their funda- ECJ to take account of the complete ab- virtue of Article 301 TEC, or not. In the mental rights. sence of procedural protections at the lev- latter case, Article 308 TEC would be of Ultimately, the Court is not required to el of the UN Security Council and refuse no avail. AG Maduro therefore concluded refrain from reviewing the contested the idea of supremacy of the resolutions of that the CFI’s judgment is already vitiated Regulation due to its alleged effect of the UN Security Council as intimated by by an error in law for this reason. constituting an implicit judicial control the CFI. The judgment of the ECJ in this Addressing the jurisdiction of the Com- of Security Council resolutions. The politically extraordinary sensitive area is munity Courts afterwards, the AG im- legal effects of a ruling by this Court awaited with great anticipation. The opin- mersed himself in an extensive review of remain confined to the municipal legal ions in the two appeal cases are summa- the relationship between the internation- order of the Community. To the extent rized in more detail in the following: al legal order and the Community legal that such a ruling would prevent the order. Starting from the ECJ’s landmark Community and its Member States from Case Kadi – The Opinion ruling in Van Gend en Loos of 1963, in implementing Security Council resolu- of AG Maduro which the Court affirmed the autonomy tions, the legal consequences within the On 16 January 2008, Advocate General of the Community legal order, he argued international legal order remain to be de- (AG) Maduro delivered his remarkable that the Community Courts determine termined by the rules of public interna-

106 | eucrim 3–4 / 2007 NEWS tional law. The Council’s contention that, proposed that the Court should set aside a main protector of human rights, plu- by reviewing the contested Regulation, the judgment of the CFI of 21 Septem- ralist democracy, and the rule of law in the Court would assume jurisdiction be- ber 2005 in the appellant’s case and an- Europe. At its winter session from 21 to yond the perimeters of the Community nul EC Regulation No. 881/2002 of 27 25 January 2008, the review of United legal order is, therefore, misconceived. May 2002 in so far as it concerns the Nations and EU blacklisting procedures On this basis, AG Maduro identified an- appellant. for terrorist suspects was requested. other error in law in the CFI’s holding eucrim ID=0703186 According to Resolution 1597 (2008) that it had no jurisdiction to review the of 23 January 2008, the Assembly finds contested Regulation in the light of fun- Case Möllendorf – Land Registry that the procedural and substantive damental rights that are part of the gen- Offices prohibited from Registering blacklisting standards currently applied eral principles of Community law. Blacklisted Persons as Owners by the United Nations Security Council Having thereby paved the way for a of Real Estate and by the Council of the European Un- comprehensive review of EC Regulation For the time being, another decision re- ion in no way fulfil the necessary mini- No. 881/2002, AG Maduro then turned cently rendered by the European Court mum standards and thus violate the rule to the alleged breaches of fundamen- of Justice on the interpretation of EC of law and the fundamental principles of tal rights. Dismissing strict jus cogens Regulation No. 2580/2001 addressing human rights as laid down in the Euro- standards (as did the CFI) he argued the impact of a listing on private busi- pean Convention on Human Rights and that the measures at issue are intended ness deserves closer attention. In the the International Covenant on Civil and to suppress international terrorism and Möllendorf case (C-117/06) referred to Political Rights. should not inhibit the Court from fulfill- the Court by the German High Court The Assembly especially criticizes the ing its duty to preserve the rule of law. (Kammergericht) of Berlin, the ECJ following: In doing so, the Court is reaffirming the ruled on 11 October 2007 that land reg- • even the members of the committee limits that the law imposes on certain istry offices are prohibited from register- deciding on the blacklisting of an in- political decisions. ing a blacklisted person as the owner of dividual are not fully informed of the After full review of the alleged infringe- real estate. One of the three purchasers reasons for a request put forward by a ments, the AG determined that there is a had been blacklisted after conclusion of particular member; real possibility that the sanctions taken the contract with the Möllendorfs (two • the person or group concerned is usu- against the appellant within the Com- German sisters who then owned the ally neither informed of the request, nor munity may be disproportionate or even premises and later initiated proceedings given the possibility to be heard, nor misdirected and might nevertheless re- before German courts) but before regis- even necessarily informed about the de- main in place indefinitely as a result of tration as the owner. The competent land cision taken; a denial of the right to effective judicial registry in Berlin refused to register said • there are no procedures for an inde- protection. He underlined that the right person. pendent review of decisions taken and to effective judicial protection holds a The ECJ now held that real estate consti- for compensation of infringements of prominent place in the Community’s tutes an economic resource falling in the rights; legal order. Consequently, subjecting ambit of Article 2 para 3 of EC Regu- • substantive criteria for the imposition Community citizens to extremely severe lation No. 881/2002 which must not be of targeted sanctions are at the same time sanctions without access to an independ- made available to blacklisted persons. wide and vague; and ent tribunal impairs the essence of that Moreover, the fact that the listing took • sanctions can be imposed on the basis right and is unacceptable in a demo- place after the conclusion of the contract of mere suspicions. cratic society. AG Maduro consequently did not render the exception clause in It stresses that such practices are unwor- proposed that the court should annul the Article 2a of said regulation applicable. thy of international bodies such as the contested decision in so far as it con- Its scope is limited to financial payments United Nations and the European Union cerns the appellant. to bank accounts already frozen. and therefore urges both the United Na- eucrim ID=0703185 eucrim ID=0703187 tions Security Council and the Council of the European Union to overhaul the Case Al Barakaat – procedural and substantive rules govern- The Opinion of AG Maduro ing targeted sanctions. One week later, on 23 January 2008, the Council of Europe Slams UN In detail, the Assembly demands that the opinion on the appeal of Al Barakaat and EU Blacklists following minimum procedural and sub- (C-415/05 P), an international founda- By Julia Macke stantive standards must be guaranteed to tion established in Sweden, followed. ensure the credibility and effectiveness Based on virtually identical reasoning, Council of Europe Assembly Demands of targeted sanctions: AG Maduro concluded that the contest- Review of Blacklisting Procedure • Persons concerned shall be noti- ed Regulation infringes the right to be The problematic UN and EU blacklists fied promptly and fully informed of the heard, the right to judicial review, and also stirred into action the Parliamentary charges held against them, of the decision the right to property. Consequently, he Assembly of the Council of Europe as taken, and the reasons for that decision.

eucrim 3–4 / 2007 | 107 NEWS

• The fundamental right to be heard European Parliament MEPs Agree encompasses the updating of the Guide and the right to be able to defend oneself with Blacklist Criticism to EU Member States’ Legislation on against these charges must be guaranteed. On 18 February 2008, European Par- JITs (not yet available), the elaboration • It must further be possible to have the liament Members of the Civil Liberties of a handbook listing practical issues to decision affecting one’s rights speedily Committee and the Subcommittee on be dealt with when setting up JITs, and, reviewed by an independent, impartial Human Rights debated the previously since 2005, the co-organisation (under body with a view to modifying or annul- mentioned CoE Resolution 1757 (2008) the auspices of the General Secretariat ling it. in the presence of CoE rapporteur Dick of the Council and the Commission) of • A compensation for any wrongful vio- Marty. They criticised the EU terror list the annual meeting of the national ex- lation of one’s right has to be paid. and backed both the resolution’s recom- perts on JITs. • In addition, a clear definition of mendations and a proposal to set up an Background: The project is a valuable grounds for the imposition of sanctions independent body to control how EU contribution to the successful imple- and applicable evidentiary requirements Member States decide who is put on the mentation of Art. 13 of the 2000 EU is indispensable. EU blacklist. Convention on Mutual Assistance in • The blacklisting procedure should Criminal Matters – the general legal also be limited in time. basis for JITs. Art. 13 provides that “by • Attention should further be paid to the mutual agreement, the competent au- issue of remedy. thorities of two or more Member States In order to achieve this aim, the Assem- Cooperation may set up a joint investigation team bly also calls all Member States of the for a specific purpose and a limited pe- Council of Europe – especially those riod, which may be extended by mutual who are permanent or non-permanent Law Enforcement Cooperation consent, to carry out criminal investi- members of the United Nations Security gations in one or more of the Member Council – to use their influence. Inter New Web Pages Promote Joint States setting up the team. A joint in- alia, these States shall establish appro- Investigation Teams vestigation team may, in particular, be priate national procedures to implement Europol and Eurojust took a joint ac- set up where: sanctions imposed by the Security Coun- tion to promote information on Joint (a) a Member State’s investigations into cil or the EU Council on their nationals Investigation Teams (JITs). Two web criminal offences require difficult and or legal residents, in order to remedy the pages (indicated in the link below) par- demanding investigations having links shortcomings of the procedures at the ticularly aim at raising awareness of the with other Member States; level of the United Nations or the EU as Network of National Experts on JITs. (b) a number of Member States are con- long as these shortcomings persist. The Network was established in 2005 ducting investigations into criminal of- eucrim ID=0703188 and consists of at least one expert per fences in which the circumstances of the Member State. Its main objective is to case necessitate coordinated, concerted Reports By Dick Marty as Basis promote the use of JITs by helping to action in the Member States involved.” for Resolution 1597 facilitate the setting up of the teams Paragraphs 6 and 7 reflect the novelties Resolution 1597 (2008) was based on and assisting in the sharing of experi- of the concept, i.e., seconded members several critical reports by Dick Marty ences, best practices, and dealing with may take certain investigative measures which were published in March and legal considerations. The experts as- in the territory of operation and they November 2007 and lastly amended in sist practitioners in the Member States may request their own competent au- January 2008. Marty therein already set up JITs. The Network as yet has no thorities to take investigative measures attacked the UN and EU blacklists as secretariat of its own, but Eurojust, Eu- without the need of any further request “completely arbitrary” by saying that ropol, and the Council Secretariat pro- under the traditional mutual legal assist- the current blacklisting procedures were vide support. ance regime. a “dangerous ongoing erosion of funda- The web pages present information on Europol also has the possibility to par- mental rights and freedoms, even within (1) the historical background of the net- ticipate in joint investigation teams for the instances mandated to protect and work, (2) the role of JITs’ national ex- a short time after an additional protocol promote them”. perts, (3) meetings convened to date in to the Europol Convention entered into The Swiss Senator Dick Marty, particu- the context of these networks as well as force in March 2007 (see new Art. 3a larly known for his investigations into (4) general information on JITs, such as of the Europol Convention and eucrim alleged secret CIA detentions, was ap- their legal basis, links to relevant docu- 3-4/2006, p. 50). Eurojust has the ca- pointed as rapporteur of the Parliamen- ments, and the role of Europol and Eu- pacity to make an official request to the tary Assembly’s Committee on Legal rojust in JITs. competent authorities in EU Member Affairs and Human Rights in this matter The publication of the JITs web pages States to set up a JIT (cf. Art. 6 and 7 after the motion for a blacklisting reso- forms part of the “JITs Project” which of the Council Decision of 28 February lution in April 2006. is currently being jointly run by Euro- 2002 setting up Eurojust). eucrim ID=0703189 just and Europol. The JITs Project also eucrim ID=0703190

108 | eucrim 3–4 / 2007 NEWS

Asset Recovery Offices (JCCC) was established. The Committee Implementing Agreement of 5 Decem- Set to Operate met for the first time in Brussels on 11 ber 2006 concerning the administrative On 6 December 2007, the Council finally February 2008. The JCCC is responsible and technical implementation and appli- adopted a decision to set up a network of for discussing practical ways of working cation of the Prüm Treaty. As with the Asset Recovery Offices in the EU (for together in order to implement the CC- Prüm Treaty, this agreement was con- background information, see eucrim MAA. The first meeting dealt with (1) cluded outside the framework of the EU 3-4/2006, p. 69). The Decision obliges supply chain security and trade facili- by the above-mentioned states. Member States to set up or designate As- tation, progressing towards the mutual The proposed provisions particularly set Recovery Offices, the task of which recognition of security measures; (2) en- concern the automated exchange of DNA is – as a central contact point in an EU forcement of intellectual property rights data, fingerprint data, and vehicle regis- Member State – to enable the quick ex- through customs; and (3) mutual admin- tration data. As regards DNA data, for change of information that can lead to istrative assistance in view of pursuing example, the proposal states that Mem- the tracing and seizure of proceeds from customs and irregularities. ber States should use existing standards crime and other property belonging to Similar agreements and cooperation for DNA data exchange (the European criminals. The decision foresees that mechanisms as with Japan already exist Standard Set as well as Interpol’s Stand- information and best practices are ex- with the United States, Canada, Korea, ard Set of Loci), that transmission should changed, both upon request and sponta- Hong Kong, China, and India. The EC take place within a decentralised struc- neously. As regards the exchange of infor- aims at concluding further agreements ture, and that appropriate measures must mation upon request, the offices shall rely with ASEAN countries. The following be taken to ensure confidentiality and in- on Framework Decision 2006/960/JHA link leads to general information on the tegrity, including the encryption. of 18 December 2006 on simplifying the EC’s international customs policy: Details concerning requests and an- exchange of information and intelligence eucrim ID=0703193 swers, transmission of unidentified DNA between law enforcement authorities (see profiles, automated searches, and com- eucrim 3-4/2006, pp. 68-69). As a result, parisons of unidentified DNA profiles particular time limits for the exchange of are also set out. The initiative is supple- information as well as limited grounds for Police Cooperation mented by an Annex which contains fur- refusal contained in the Framework Deci- ther technical specifications. The initia- sion will apply. Member States must en- Council Agrees on Prüm tive without the Annex was published in sure that they are able to cooperate fully Implementing Decision the Official Journal C 267 of 9 Novem- in accordance with the provisions of the As reported in eucrim 3-4/2006, p. 72, ber 2007 on p. 4 (see following link). Decision by 18 December 2008. seven of the EU Member States (Aus- eucrim ID=0703194 eucrim ID=0703191 tria, Belgium, France, Germany, Lux- At the meeting of 8-9 November 2007, embourg, the Netherlands, and Spain) the Council of the Justice and Home Af- signed the Treaty of Prüm on 27 May fairs Ministers agreed on a general ap- 2005, the purpose of which is to step proach on Germany’s draft Decision im- Customs Cooperation up cross-border cooperation in the field plementing the “Prüm rules”. The text of terrorism, cross-border crime, and il- of the implementing Decision has now EU Tightens Relations with Japan legal migration, especially by means of been more or less finalised. in Customs Cooperation an automated exchange of DNA, finger- eucrim ID=0703195 On 1 February 2008, an agreement be- prints, and vehicle registration data. The A so-called Friends of the Presidency tween the European Community and the provisions of the Prüm Treaty relating Group discussed the said Annex to the Government of Japan on cooperation to the third pillar (among them the said implementing Decision in greater detail. and mutual administrative assistance in data exchange) are to be integrated into The outcome of the discussions in this customs matters (CCMAA) entered into the legal order of the European Union. group is set out in a Council document force. The agreement aims at simplifying As a consequence, all 27 EU Member of 4 Feburary 2008 which the following and harmonizing customs procedures for States can apply these provisions of the link leads to: reliable traders and provides the means Prüm Treaty. The legal instrument – a eucrim ID=0703196 to fight customs fraud and exchange in- decision pursuant to Art. 34 para. 2c formation on mutual assistance matters. TEU – which will incorporate the provi- EDPS Issues Opinion on Prüm It will also enhance cooperation on the sions into the framework of the EU has Implementing Rules protection of intellectual property rights not yet been adopted by the Council. On 19 December 2007, the European (see also eucrim 1-2/2007, p. 27). The On 30 July 2007, Germany initiated a Data Protection Supervisor (EDPS) agreement was published in the Official draft Decision with common provisions published an opinion on the above-men- Journal L 62 of 6 March 2008. deemed indispensable for the adminis- tioned initiative establishing administra- eucrim ID=0703192 trative and technical implementation of tive and technical implementing rules Based on the agreement, an EC-Japan the Prüm Treaty (see eucrim 1-2/2007, for the EU-wide functioning of the Prüm Joint Customs Cooperation Committee p. 37). The initiative is based on the Treaty. It is an own-initiative report since

eucrim 3–4 / 2007 | 109 NEWS the EDPS – contrary to prior recommen- Council Decision on the integration of European Supervision Order / dations of the EDPS – was not officially the Prüm Treaty, the EDPS already gave Transfer of Sentenced Persons consulted by the Council. The opinion of his opinion on 4 April 2007 (see eucrim the EDPS addresses general points and 1-2/2007, p. 37, 38). European Supervision Order – specific issues of the initiative. eucrim ID=0703197 Revised Council Text The EDPS, inter alia, makes the follow- As reported in eucrim 1-2/2007, pp. 39- ing observations: 40, the JHA Council of September 2007 • Even if the initiative widely follows came to the conclusion to redraft the the existing implementing agreement of European Arrest Warrant text on a European Supervision Order in the signatory states of the Prüm Treaty, pre-trial procedures. After consultation the EDPS recommends an open discus- ECJ Treats German Court’s with the incoming Slovenian and French sion of the envisaged provisions involv- Questions on EAW with Priority Presidencies, the Portuguese Presidency ing the main institutional actors such as On 14 February 2008, the Higher Region- tabled a revised text of the new legal in- the European Parliament and the EDPS. al Court (Oberlandesgericht) of Stuttgart/ strument on 13 December 2007. It will • The Council decisions incorporating the Germany made reference to the European serve as a basis for further discussions in Prüm Treaty should not enter into force Court of Justice (ECJ) for a preliminary the next months by the Council prepara- before Member States have implemented ruling concerning the interpretation of tory bodies. The Framework Decision on the Framework Decision on data protec- Art. 4 No. 6 of the Framework Deci- the European Supervision Order aims at tion in the third pillar (see above) as a “lex sion on the European Arrest Warrant enabling EU Member States to mutually generalis”. Since this Framework Deci- (Case C-66/08, “Szymon Kozlowski”). recognise each other’s pre-trial supervi- sion will only provide minimal harmoni- The questions are raised in proceedings sion measures. The instrument was pro- zation and guarantees and does not apply against a Polish national who is pres- posed by the Commission on 29 August to domestic data processing, the tabled in- ently in custody in Germany, but Polish 2006 (see eucrim 3-4/2006, pp.74-75). itiative should introduce specific tailored authorities would like to have him extra- eucrim ID=0703200 data protection rules as “lex specialis” and dited since he committed minor offences also cover domestic processing. in Poland, too. The German Court identi- European Supervision Order – • There is a lack of transparency of the fied a possible discrimination in the Ger- European Parliament’s Opinion proposed measures; therefore the EDPS man law which transposes the FD EAW On 29 November 2007, the European requests the publication of the annex in since it lays down different conditions for Parliament (EP) adopted a legislative the Official Journal and the establish- Germans and other EU nationals if the resolution with suggestions for some ment of mechanisms to inform citizens defendant does not agree on his/her ex- amendments to the proposal on the about the features of the system, their tradition by means of an EAW. above-mentioned European Supervision rights and how to exercise them. By order of 22 February, the ECJ decid- Order in pre-trial procedures between • The Council should take into account ed to deal with the case in an expeditious Member States of the EU. The amend- a possible decrease in effectiveness if way. However, since the reference was ments, inter alia, clarify the definition the system, which currently works with made before 1 March 2008, the Court of residence and widen the scope of the few Member States, will be applied on cannot apply the new urgent prelimi- Framework Decision by including the a large scale in the future (27 Member nary procedure (new Article 104b of the suspect’s possibility not only to return to States with several different languages Rules of Procedure of the ECJ, details his/her country of ordinary residence but and different legal orders). see above), but must apply the acceler- also to another Member State where he/ • The role of the national data protection ated procedure as provided for in Article she has close links to (e.g., country of authorities should be strengthened. They 104a. According to Article 104a of the nationality). Furthermore, the EP would should get involved as regards amend- Rules of Procedure, the ECJ can, in es- like to avoid a separate transfer mecha- ments to the implementing rules, the im- sence, give priority to the reference for a nism as initially proposed by the Com- plementation of data protection rules, and preliminary ruling over all other pending mission and instead connect it with the the evaluation of data exchange. cases. However, in contrast to Article surrender procedures of the European • Certain definitions should be revised, 104b, all stages of the normal prelimi- Arrest Warrant. Against the background such as the introduction of a clear and nary ruling procedure are carried out. of the current absence of the Framework inclusive definition of personal data. eucrim ID=0703198 Decision on data protection processed • The legislator must duly take into ac- in the framework of police and judicial count the accuracy of the matching proc- Statistics for 2006 – Latest Figures cooperation in criminal matters, the ess if data are searched and compared in The Council published updated figures EP’s amendments have inserted specific an automated way. on the practical operation of the Europe- provisions on data protection into the • Specific emphasis is to be given to the an Arrest Warrant in the year 2006. The proposal of the European Supervision evaluation of data protection aspects. update dates from 3 March 2008 (see Order. The opinion of the EDPS is not bind- also eucrim 1-2/2007, p. 39). The Council is not bound to the opinion ing on the Council. As regards the draft eucrim ID=0703199 of the Members of Parliament. Since the

110 | eucrim 3–4 / 2007 NEWS

Council Presidency tabled a revised text ditional sentences. In its legislative reso- Seminars Relating to European for debate, the EP might be reconsulted. lution, the EP above all introduces the Criminal Law at ERA eucrim ID=0703201 principle of the hearing of the defend- ant. According to the EP, the defendant The Academy of European Law (ERA) is Framework Decision on Suspended should be heard in case the suspended organising a series of interesting con- Sentences Makes Headway sentence is revoked or a conditional sen- ferences dealing with various current A legal instrument which is already tence imposed. Moreover, the person issues of European criminal law and cooperation. Conference topics in the more advanced than the European Su- standing trial should be heard before upcoming months include the following: pervision Order is the German-French the judgment or decision for conditional ● The European Arrest Warrant and initiative on a Framework Decision on release is transmitted. The EP has also Joint Investigation Teams in Practice the recognition and supervision of sus- inserted a definition of “lawful and ordi- (Trier, 24-25 April 2008) pended sentences, alternative sanctions nary residence” which mirrors the con- ● Pre-Trial Detention, Enforcement and and conditional sentences (see eucrim cept developed in the case law of the Eu- Supervision of Sentences (Trier, 15.16 3-4/2006, p. 75 and eucrim 1-2/2007, p. ropean Court of Justice. The Council is May 2008) 40). At its Council meeting in Decem- not bound to the proposed amendments ● Data exchange and data protection ber 2007, the Justice and Home Affairs of the EP. in the Area of Freedom, Security and Ministers of the EU Member States eucrim ID=0703203 Justice (Trier, 26-27 May 2008) agreed on a general approach to the An introduction to EU criminal law and to the instruments for cooperation in proposal. In the meantime, the Coun- criminal justice matters is provided for cil bodies have examined the recitals, in the one-week “Summer Course: Euro- the certificate and the form, as well as E-Justice pean Criminal Justice” (Trier, 23-27 June technical issues in the operative part 2008). of the text. Now the text is ready for Slovenian Presidency Further For further information, please consult submission to legal-linguists for further Pursues E-Justice Project the following website: revision. As stated in the trio-presidency Pro- eucrim ID=0703204 The Framework Decision will make it gramme, Germany, Portugal, and possible, for example, that a person who Slovenia placed the development of e- was given a suspended sentence in Ger- justice at the top of their agendas. The many can continue to live and work in Slovenian Presidency now wishes to cross-border judicial cases before courts France while probation measures relat- enter a stage where “tangible results are or other institutions, such as the hear- ing to him/her do not loose their effects. yielded”. As a showcase for e-justice, ing of witnesses or expert testimony. A EU Member States undertake the obli- the EU would like to launch the so- progress report on e- justice projects is gation to recognise a criminal judgment called “European e-justice portal” as expected for June 2008. against the respective person without soon as possible. The portal is designed eucrim ID=0703205 considerable formalities and to super- to be the key point of access to legal vise probation measures or alternative information, legal and administrative sanctions. The Member States agreed institutions, registers, databases, and that certain types of probation measures other services with a view to accelerat- External Dimension and alternative sanctions which are com- ing the everyday tasks of EU citizens, mon among the Member States will be legal and other experts, employees and Western Balkan – Priority Area obligatory to supervise. They are free other professionals, and entities within for JHA Cooperation to supervise other types of measures. the framework of European justice. The Since the Western Balkans is considered The executing Member State will be re- Justice and Home Affairs Ministers, at a priority area for the EU, the Commis- sponsible for supervising all subsequent their informal Council meeting in Janu- sion presented a Communication, entitled measures relating to the judgment, such ary 2008, envisaged a timeframe of 24 “Western Balkans: Enhancing the Euro- as revocation or pardon. months to open the portal to the public. pean Perspective” (COM(2008) 127) on eucrim ID=0703202 They agreed that the portal will begin as 5 March 2008. The Communication also a pilot project between the representa- sets out the future core priorities as re- Framework Decision on Suspended tives of the Member States. The meet- gards cooperation in the area of justice, Sentences – European Parliament’s ing also dealt with the question of how freedom and security. A staff working Opinion to finance e-justice projects. paper, annexed to the Communication, On 25 October 2007, the European Par- For the development of e-justice, see lists the EU activities in relation to the liament (EP) made a series of amend- also eucrim 1-2/2007, p. 40. The project Western Balkans as well as the next steps ments to the above-mentioned initiative of interconnecting criminal records is planned. for a Framework Decision on the rec- already well advanced. In the future, eucrim ID=0703206 ognition and supervision of suspended the EU would also like to encourage Also, the Slovenian Presidency puts par- sentences, alternative sanctions and con- the wider use of videoconferencing in ticular emphasis on the Western Balkans

eucrim 3–4 / 2007 | 111 NEWS as a whole. The efforts are to a large ex- Russia – Permanent Partnership ficking. The meeting was held within the tent devoted to the fight against organ- Council framework of the EU-Russia Permanent ized crime. Worth mentioning is the goal At the 7th Justice and Home Affairs Partnership Council – the institutional of drawing up a comprehensive regional Meeting between the EU and Russia on framework for regular consultations at threat assessment in the field of organ- 22/23 November 2007 in Brussels, Min- the ministerial level as regards the part- ized crime, following the example set isters dealt with visa policy, document nership between the EU and Russia in the by the EUROPOL OCTA reports (see security, the fight against illegal immigra- area of freedom, security and justice (see eucrim 1-2/2006, p. 14). The reports fo- tion, border management, the prevention also eucrim 3-4/2006, p. 79). cusing on the Western Balkans are called of terrorism and fight against human traf- eucrim ID=0703211 “South Eastern Europe (SEE) OCTA” and are likewise designed to define com- mon priority tasks in the region which will then be implemented at the national and international levels. eucrim ID=0703207 The Western Balkans is also a very im- portant region for Europol. The strength- ened cooperation is mirrored by strate- gic agreements between the countries of the Western Balkans and Europol. These agreements, which allow the exchange of Council of Europe strategic and technical information, have Reported by Julia Macke increased during the last years. Europol also regularly holds workshops with its partners in the Western Balkans. Foundations Reform of the European Court eucrim ID=0703208 of Human Rights

USA – State of Play of JHA Relations between the Council of 2008 Will Be the “Year of Hope” Cooperation Discussed Europe and the European Union At its traditional annual press confer- On 13 March 2008, the Presidents of the ence on 23 January 2008, European Justice and Home Affairs Council (the Signing of a Cooperation Agreement Court of Human Rights’ President Jean- Slovenian Justice and Interior Minis- between PACE and EP Paul Costa announced that – after a year ters) met with their US counterparts in A cooperation agreement between the of disappointments and especially after Brdo pri Kranju/Slovenia. The meeting Parliamentary Assembly of the Council Russia’s disappointing refusal to ratify was the first one of two regular annual of Europe (PACE) and the European Par- Protocol No. 14 to the European Con- meetings between the EU and the US in liament (EP) was signed on 28 Novem- vention on Human Rights – 2008 would the field of justice and home affairs. As ber 2007 in Brussels. It aims at stepping be “the year of hope”. In this context, regards justice, the Ministers discussed up cooperation between the two bodies, he especially underlined that, in 2008, the state of play of the 2003 EU-US fostering complementary initiatives, alternatives to Protocol No. 14 and agreements on mutual legal assistance and increasing synergies and therefore other ways of dealing with manifestly and extradition. Since the US and not provides for joint meetings and hear- unfounded cases before the Court shall all EU Member States have ratified the ings and regular contacts between rap- be found. He further emphasized the agreements, the politicians agreed that porteurs. Furthermore, the achievements complementary work of other parts of the ratification process should be com- and actions of both assemblies shall be the CoE in preventing violations of the pleted by the end of the year. Other top- referred to and taken into account, when Convention, the efforts at the national ics of the meeting were the visa regime appropriate, in each other’s documents level to implement the Court’s judg- between the EU and the US, migration and activities. Finally, the existing co- ments and prevent human rights abuses, policy, organized crime, and preventive operation in joint electoral observation and the prospect of the EU acceding to measures against terrorism. missions shall be reinforced. the Convention. eucrim ID=0703209 The agreement is a concrete follow-up to eucrim ID=0703213 Also, the Portuguese Presidency fos- the report by Jean-Claude Juncker which Beforehand, several attempts to convince tered the political dialogue between the makes a series of proposals for strength- Russia to finally ratify Protocol No. 14 EU and the United States in the field of ening the partnership between the Coun- had failed. Two visits by the President of justice and home affairs at a ministerial cil of Europe (CoE) and the EU (see also the CoE Parliamentary Assembly, were meeting in Washington D.C. on 10/11 eucrim 3-4/2006, p. 81; eucrim 1-2/2007, in so far unsuccessful. For Protocol No. November 2007. p. 42). 14, see eucrim 1-2/2007, p. 42-43. eucrim ID=0703210 eucrim ID=0703212 eucrim ID=0703214

112 | eucrim 3–4 / 2007 NEWS

PACE Resolution: CoE Member States’ retary General of the Council of Europe, Annual Activities Report for 2007 Duty to Cooperate with the ECtHR and Jonas Gahr Støre, the Minister of Published At its fourth session from 1 to 5 Octo- Foreign Affairs of Norway. It will – in On 11 March 2008, the Court published ber 2007 in Strasbourg, France, the Par- cooperation with the CoE Development a provisional version of its 2007 an- liamentary Assembly of the Council of Bank – support projects in Europe to en- nual report. It gives an overview of the Europe (PACE) adopted both Resolution sure the application of the Convention Court’s activities last year, contains an 1571 (2007) and Recommendation 1809 on Human Rights, i.e., the application of analysis of the main judgments deliv- (2007) on “CoE Member States’ duty to the Convention in national human rights ered by the Court, and provides compre- cooperate with the European Court of legislation, the training of legal profes- hensive statistical information. Human Rights (ECtHR)”. sionals, the dissemination of European eucrim ID=0703218 Above all, PACE stresses that the Court Court of Human Rights case law, and the requires the cooperation of all States’ execution of judgments of the Court at Annual Survey of Activities parties at all stages of procedure and the national level. The first projects will for 2007 Published even before a procedure is formally be funded in 2008. Therefore, Norway In January 2008 already, the ECtHR opened. The assembly is therefore call- will initially make a contribution of one published its annual survey of activi- ing upon the competent authorities of all million Euros to the fund. Other states ties for 2007. The number of pending Member States to improve their behav- are welcome to participate. cases before the Court had increased by iour. In this context, the following criti- eucrim ID=0703216 15 % (from 90,000 in 2006 to 103,000 cism was especially expressed: in 2007). The total number of judgments • that a number of cases involving the New Developments on European Court delivered by the Court in 2007 was 1503, alleged murder, disappearance, beat- of Human Rights Website fewer than the 1560 delivered in 2006. ing or threatening of applicants initiat- The European Court of Human Rights eucrim ID=0703219 ing cases before the Court have still not (ECtHR) continues to improve its web In addition, a table of violations listed been fully and effectively investigated presence. In October 2007, it launched by country for 2007 was published. The by the competent authorities; RSS news feeds for news, webcasts of table reveals that Turkey had the highest • that illicit pressure has also been public hearings, and monthly ‘informa- number of judgments with at least one brought to bear on lawyers who defend tion notes’ on its Internet site and thus violation of the Convention recorded applicants before the Court and assist allows Internet users to receive automat- against it (319), followed by Russia victims of human rights violations in ex- ic electronic updates in subjects of inter- (175), Ukraine (108), Poland (101) and hausting domestic remedies before ap- est to them. RSS, known colloquially as Romania (88). plying to the Court; and “Really Simple Syndication”, is a fam- eucrim ID=0703220 • that, in a significant number of cases, ily of Web feed formats used to publish the competent authorities of several frequently updated content such as, for Election of 5 Judges to the European countries have failed to cooperate with example, blog entries, news headlines, Court of Human Rights the Court in its investigation of the or podcasts. RSS makes it possible for On 22 January 2008, the Parliamen- facts. people to keep up with their favourite tary Assembly of the Council of Europe These competent authorities shall refrain websites in an automated manner that elected five judges to the ECtHR. While from putting pressure on applicants, po- is easier than checking individual web- the sitting judge in respect of Latvia was tential applicants, their lawyers or fam- sites. re-elected, four judges from Bulgaria, ily members and instead take positive Furthermore, it is now also possible to Ireland, Moldova, and Turkey were measures to protect them from reprisals look up summaries of the Court’s pend- elected for the first time. by individuals or groups. Furthermore, ing and recent cases through HUDOC, eucrim ID=0703221 they shall thoroughly investigate all cas- the searchable online database of the es of alleged crimes against applicants, Court’s case law and other relevant texts their lawyers or family members and as- adopted under the European Conven- sist the Court in fact-finding by putting tion on Human Rights. In the coming Execution of Judgments of the at its disposal all relevant documents months, HUDOC will also be providing European Court of Human Rights and by identifying witnesses and ensur- summaries of the most significant cases ing their presence at hearings organised to have been brought before the Court. Round Table about Compliance with by the Court. Two other initiatives aimed at bringing ECtHR Judgments eucrim ID=0703215 about better transparency of the Court The fact that public authorities in several had already been launched in June 2007. countries still fail to comply with domes- Human Rights Fund Trust Created They include a webcast of the Court’s tic judicial decisions and thus regularly between CoE and Norway public hearings and new information violate the European Convention of Hu- On 14 March 2008, an agreement for material about pending cases (see also man Rights (ECHR), for which reason the creation of a Human Rights Fund eucrim 1-2/2007, p. 43). a number of judgments of the European Trust was signed by Terry Davis, Sec- eucrim ID=0703217 Court of Human Rights (ECtHR) were

eucrim 3–4 / 2007 | 113 NEWS accordingly declared violations of the in favour of the applicants to put an end Concrete Supervision Procedure ECHR in this regard, gave reason to an to violations and erase their consequenc- To enable the work of the Committee of interesting Round Table entitled “Non- es; besides, they must take the measures Ministers, judgments are automatically enforcement of domestic court decisions needed to prevent new, similar viola- forwarded to the Committee of Minis- in CoE Member States: general meas- tions. ters when they become final. Once the ures to comply with European Court The measures which states have to Court’s final judgment has been trans- judgments”. It took place on 21 and 22 undertake can be split up into three mitted to the Committee of Ministers, June 2007 in Strasbourg, France. different obligations: First, states of- the latter invites the respective state In general, the supervision of the execu- ten have to pay just satisfaction (nor- to inform it of the steps taken to pay tion of ECtHR judgments is ensured by mally a sum of money). Second, since the amounts awarded by the Court in regular meetings of the Committee of the payment of just satisfaction is not respect of just satisfaction and, where Ministers. Because the Committee’s ac- always the adequate measure to elimi- appropriate, of the individual and gen- tion also includes comprehensive legal nate all adverse consequences of the eral measures taken to abide by the and technical assistance in the process of violation suffered by an injured party, judgment. Once it has received this in- reforms required by the judgments, the the respective states often have to take formation, the Committee examines it Round Table was intended to support the so-called individual measures in favour closely. States concerned with improving the im- of the applicant. The individual meas- If the state concerned has taken all the plementation of the necessary measures. ures thereby depend on the nature of the necessary measures to abide by the In order to put an end to the continu- violation and the applicant’s situation; judgment, the Committee adopts a final ously high number of violations of the including, e.g., the re-opening of unfair resolution striking the judgment off its ECHR in certain States, the Round Ta- proceedings, the destruction of specific list of cases. In some cases, particularly ble’s organizers aimed at sharing Mem- information gathered in breach of the if the state has not yet adopted satisfac- ber States’ experience in the resolution right to privacy, or the revocation of a tory measures, so-called interim resolu- of structural problems revealed in the deportation order issued despite the risk tions may prove appropriate. They usu- area of (non-)enforcement of domestic of inhumane treatment in the country of ally contain information concerning the court decisions. In addition, the reforms destination. Third, it can additionally interim measures already taken and set adopted or underway in some countries be necessary for the respective states to a provisional calendar for the reforms were analyzed and new proposals for re- take general measures to prevent new, to be undertaken. Both types of reso- form presented. similar violations. For instance, this can lutions are public and available on the The Round Table was organized in the mean the review of legislation, rules Committee of Minister’s website. context of the new programme for as- and regulations or the examination of If a state then still does not want to sistance to the Committee of Ministers in judicial practice. execute a judgment, the Committee of the supervision of the execution of EC- The control of these states’ behaviour Ministers, which is also a political or- tHR judgments. The reason for this new is placed under the responsibility of gan, can bring its weight to bear on the programme is the growing understand- the Committee of Ministers, which is state concerned in order to execute the ing among the members of the Commit- the CoE’s decision-making body and Court’s judgment, including the use of tee of Ministers that complex structural comprises the Foreign Affairs Minis- political sanctions. problems revealed by judgments may be ters of all the Member States, or their More information about the detailed su- more effectively resolved on the basis of permanent diplomatic representatives pervision procedure can be found in the the Committee’s experience and through in Strasbourg, France. It supervises the “Rules of the Committee of Ministers more intensive and direct contacts be- execution of judgments of the ECtHR for the supervision of the execution of tween the competent bodies and of the in accordance with Article 46 § 2 of the judgments and of the term of friendly CoE and national decision-makers. The ECHR as amended by Protocol No. 11. settlements” which was adopted by the Committee therefore strongly promotes This work is carried out mainly at six Committee of Ministers on 10 May various initiatives to this effect. In this regular meetings every year. 2006: context, several Round Tables were al- Although the states have considerable eucrim ID=0703224 ready organized in 2005 and 2006. freedom in their choice of individual eucrim ID=0703222 and general measures to meet these re- Detailed Information about Pending quirements, unless the Court itself di- Cases for Supervision Background: The Committee of rectly requires certain steps to be taken, Detailed information about the cases can Ministers’ Supervision of the Execution this freedom principally goes hand in be found in different lists: There exist of ECtHR Judgments hand with the monitoring by the Com- both (1) a list of all cases pending for Under Article 46 § 1 of the Convention, mittee of Ministers, which guarantees supervision of execution and (2) a list of states “undertake to abide by the final that the measures taken are appropriate the main cases pending for supervision judgment of the Court in any case to and actually achieve the outcome in- of execution. The following ID contains which they are parties”. This means that tended in the Court’s judgment. the links which refer to both lists. the respective states must take measures eucrim ID=0703223 eucrim ID=0703225

114 | eucrim 3–4 / 2007 NEWS

Powerful Support by the GRECO: Programme of Activities of the Turkish Code of Ethics across the Parliamentary Assembly for 2008 Released public administration, develop codes of The Parliamentary Assembly of the CoE At GRECO’s 35th Plenary Meeting, which ethics for other categories of officials or (PACE) strongly supports the Commit- took place from 3 to 7 December 2007 holders of public office, develop sys- tee’s work. Since 2000, several reports, in Strasbourg, France, the programme tems for monitoring the effectiveness resolutions and recommendations con- of activities for 2008 was approved. The of prevention and other anti-corruption cerning specifically the implementation programme contains an overview of the activities, enhance the coordination of of ECtHR judgments have been adopted main activities of GRECO in 2008 and anti-corruption measures and help im- by the Assembly. In doing so, the As- a provisional calendar. The programme plement the recommendations made to sembly has contributed to a quicker also gives a brief introduction to the role Turkey by GRECO. Entitled “Ethics for resolution of often difficult issues of and mission of GRECO, and it contains a the Prevention of Corruption in Turkey”, non-compliance with the judgments of list of activities carried out since the set- TYEC, it will last two years and is 90 % the ECtHR. PACE is regularly informed ting up of the institution in 1999. funded by the European Commission by the Committee of Ministers of signif- eucrim ID=0703229 and 10 % by the CoE. See also eucrim icant developments in the area of execu- 1-2/2007, p. 44. tion of judgments of the ECtHR, both in Azerbaijan: AZPAC Ceremonially eucrim ID=0703232 its yearly activity report and in so-called Launched written communications which are pre- As to the new Anti-Corruption project in pared under the authority of the Chair on Azerbaijan, called AZPAC, the launching the occasion of each part-session. event took place on 10 December 2007 Money Laundering eucrim ID=0703226 in Baku, Azerbaijan. The project is called “Support to the Anti-corruption Strategy MONEYVAL: 10th Anniversary of Azerbaijan” and part of the CoE co- From 3 to 6 December 2007, MONEY- operation programme in the South Cau- VAL, the CoE Committee of Experts on casus. The two-year project will help to the Evaluation of Anti-Money Launder- implement the recommendations made ing Measures, celebrated its 10th anni- Specific Areas of Crime to Azerbaijan by the Council’s Group versary during its 25th plenary session. of States against Corruption (GRECO). Also, CoE Secretary General Terry Corruption It is funded by a voluntary contribution Davis congratulated and underlined the from the United States Agency for Inter- importance of MONEYVAL’s work. GRECO: New Reports Published national Development (USAID). See also eucrim ID=0703233 GRECO, the Group of States against eucrim 1-2/2007, p. 44. Corruption, published its first Third eucrim ID=0703230 MONEYVAL: New Report on Round Evaluation Report on Finland on Liechtenstein 12 December 2007. As already reported, Georgia: Start-Up Conference On 5 March 2008, MONEYVAL pub- GRECO launched this third evalua- of GEPAC lished its Third Round Evaluation Re- tion round in January 2007 (see eucrim In respect of the new Anti-Corruption port on Liechtenstein which analyses 3-4/2006, p. 84, and eucrim 1-2/2007, p. Project in Georgia, GEPAC, the start-up the implementation of international and 43 and 44). event took place on 26 October 2007 in European standards to combat money eucrim ID=0703227 Tbilisi, Georgia. This project, entitled laundering and terrorist financing, as- Several other reports were also published, “Support to the Anti-corruption Strat- sesses levels of compliance with the e.g., a joint First and Second Round egy of Georgia”, is also part of the CoE FATF 40+9 Recommendations (see Evaluation Report on the Ukraine on 29 co-operation programme in the South- eucrim 1-2/2007, p. 44) and includes a October 2007, Second Round Evaluation ern Caucasus. It is likewise a two-year recommended action plan to improve Compliance Reports on Croatia (on 13 project which will help to implement the Liechtenstein anti-money laundering December 2007), Denmark (on 29 No- the recommendations made to Georgia and combating the financing of terrorism vember 2007) and the Netherlands (on by GRECO. It is funded by a voluntary system. This report, which consists of 20 November 2007), as well as two Ad- contribution from the Ministry for De- two parts, deserves closer attention be- denda to First Round Evaluation Compli- velopment Co-operation of the Nether- cause of the present massive tax evasion ance Reports on Greece (on 13 December lands. See eucrim 1-2/2007, p. 44. scandal in Germany and other countries 2007) and Georgia (on 31 October 2007). eucrim ID=0703231 involving Liechtenstein. The main find- Lastly, two Second Round Evaluation ings of the report are: Compliance Reports were published on Turkey: New Anti-Corruption Project • The report first points out that the fi- Albania (on 7 January 2008) and on the Launched nancial sector in Liechtenstein provides Former Yugoslav Republic of Macedonia On 7 February 2008, the CoE launched primarily wealth-management services, (also on 7 January 2008). a new technical co-operation project including banking, trusts, other fiduci- eucrim ID=0703228 which will support the implementation ary services, investment management,

eucrim 3–4 / 2007 | 115 NEWS and life insurance-based products. There • With regard to criminal proceedings, found on the pages 222-232 of the re- has been significant expansion recently there were no prosecutions or convictions port. The recommended action plan to in the non-banking areas, particularly for terrorist financing at the time of the improve the anti-money laundering and investment undertakings and insurance. assessment. Money laundering related in- combating the financing of terrorism Approximately 90 percent of Liechten- vestigations and proceedings are mostly system can be found on pages 233-242 stein’s financial services business is pro- initiated by mutual legal assistance re- of the report. vided to non-residents, many attracted quests and the reports of the financial eucrim ID=0703234 to Liechtenstein by the availability of intelligence unit (FIU). There have been discrete and flexible legal structures, just two prosecutions in Liechtenstein MONEYVAL: New Report on the strict bank secrecy, and favourable tax for autonomous money laundering and Principality of Monaco arrangements within a stable and well- no convictions. This is due to the fact On 22 February 2008, MONEYVAL regulated environment. Liechtenstein’s that most of the cases have links to other published its Third Round Evaluation financial sector business creates by its jurisdictions and the Liechtenstein pros- Report on the Principality of Monaco. very nature a particular money launder- ecutors consider it more effective to re- The main findings of the evaluation re- ing risk, mainly in the layering phase of fer the cases to those jurisdictions where port are that Monegasque authorities money laundering, in response to which the main criminal activity is alleged to have made several changes to the legis- the authorities and the financial sector have taken place and then provide strong lation since the first evaluation in 2002: firms have developed risk-based - miti support to the resultant prosecution. Fur- they amended, in particular, the provi- gating measures. Minimising the risk of thermore, it is problematic that financial sion of the Criminal Code criminalis- abuse of corporate vehicles and related intermediaries may not inform others that ing money laundering, introduced addi- financial service products presents an a report has been submitted to the FIU on tional customer identification measures, ongoing challenge, as does the identi- most of 20 days which is contrary to the adopted legislation regulating electronic fication of the natural persons who are FATF standards. transfers, relations with politically ex- the beneficial owners of companies or • However, the freezing of terrorist as- posed persons and the activity of cor- trusts arrangements. The major criminal sets under UN Security Council Reso- respondent banks, and ratified a number activities identified by the authorities as lution 1267 is adequately addressed in of international conventions. The Prin- predicate offences for money launder- Liechtenstein, covering almost all re- cipality further has a satisfactory legal ing are economic offences, in particu- quired procedural aspects to make com- framework to combat money laundering lar fraud, criminal breach of trust, asset pliance effective. There is no domestic and terrorist financing, though the evalu- misappropriation, embezzlement and terrorist list, but action has been taken ators regretted the fact that, in general, fraudulent bankruptcy, as well as cor- on the basis of foreign lists. The proce- the legal provisions are not very detailed ruption and bribery. dure outside the UN Security Council or otherwise supplemented by more • As regards the legal system in Liech- Resolution 1267 context is unspecific. precise secondary legislation or instruc- tenstein, the report evaluates that money • The report further works out the details tions. For example, there has been only laundering is criminalised broadly in of preventive measures regulations and one final conviction since the last evalu- line with international standards. All identifies a number of shortcomings. For ation and 24 cases were pending inves- categories of listed predicate offences instance, Liechtenstein has established tigation. are covered, apart from environmental an overall risk-based approach which re- eucrim ID=0703235 crime, smuggling, forgery and market quires financial institutions to build and manipulation; only fiscal offences, in- keep up-to-date a profile for each long MONEYVAL: New Report on Moldova cluding serious fiscal fraud, are not pred- term customer. The profile, which is On 20 February 2008, MONEYVAL icate offences for money laundering. In completed on a risk-sensitive basis, in- published its Third Round Evaluation contrast, the terrorist financing offence cludes provision of beneficial ownership Report on Moldova. While the two pre- does not presently meet international information, the source of funds, and the vious evaluation rounds highlighted a standards and needs to be reviewed. The purpose of the relationship. However, the large number of shortcomings, some of definition of the offence, especially the legal provisions may give excessive dis- them could have been improved through definition of “terrorist organisation”, cretion to financial institutions when ap- both the modification of the existing needs to be amended so that it fully cov- plying the risk-based system. Regarding laws and the adoption of new ones and ers all elements under the International the inherent risk in much of the financial regulations. For instance, the offence of Convention for the Suppression of the service business in Liechtenstein, there money laundering, currently in force, Financing of Terrorism. Furthermore, is a need for additional attention to the could serve as an adequate tool to com- the financing of individual terrorists quality and depth of the identification of bat money laundering if further refined should be criminalized. Both in the case beneficial owners and the conduct of on- and clarified. However, the offence of of money laundering and the financing going due diligence. terrorist financing does not presently of terrorism, there is no criminal liability Detailed information about Liechten- meet international standards and needs of legal persons for financing of terror- stein’s level of compliance with the to be reviewed. ism. FATF 40+9 Recommendations can be eucrim ID=0703236

116 | eucrim 3–4 / 2007 NEWS

MONEYVAL: New Report on the Cybercrime The CoE project against cybercrime is Czech Republic a global project to support European On 18 February 2008, MONEYVAL CoE Project against Cybercrime: and non-European countries to accede published its Third Round Evaluation Activities and implement the Convention on Cy- Report on the Czech Republic. It comes Within the scope of the CoE project bercrime (ETS No. 185) or its Protocol to the conclusion that, despite some against cybercrime, several activities on Xenophobia and Racism (ETS No. improvements, the criminalisation of have taken place in the last half year in 189) because of the need for a global money laundering still does not contain order to support European and non-Euro- legal framework against cybercrime. It a broad definition and coverage of the pean countries to accede and implement will last from 1 September 2006 until 28 offence and needs to be brought into line the Convention on Cybercrime or its Pro- February 2009 and is being funded by with international requirements. Howev- tocol on Xenophobia and Racism: the Council of Europe; additional volun- er, since the previous evaluation round, From 17 to 18 December 2007, a work- tary contributions come from Microsoft. the Czech Republic has nonetheless ex- shop on cybercrime legislation and eucrim ID=0703243 perienced its first convictions for money training of judges took place in Plovdiv, laundering. As for terrorist financing, Bulgaria. It was organised by the Minis- CoE at the 2nd Internet both the financing of terrorist acts and try of Justice of Bulgaria in cooperation Governance Forum the financing of terrorist organisations with the CoE and aimed at reviewing Some 2000 representatives from 100 have been criminalised. However, the fi- the effectiveness of the existing legisla- countries, drawn from government, nancing of individual terrorists as such, tion on cybercrime (especially the cur- the private sector, expert groups and is not covered. rent legislation against the provisions of NGOs, attended the second meeting of eucrim ID=0703237 the Convention on Cybercrime which the Internet Governance Forum (IGF) Bulgaria ratified in 2005) and training from 12 to 15 November 2007 in Rio MONEYVAL: New Report on Poland judges in the application of current cy- de Janeiro, Brazil. The main issues dis- On 15 January 2008, MONEYVAL pub- bercrime legislation. cussed there were access to the Internet, lished its Third Round Evaluation Re- eucrim ID=0703240 its openness, diversity, security, and port on Poland. The report states that, A first regional conference on cybercrime emerging issues. fortunately, the number of money laun- was held in Cairo, Egypt, from 26 to 27 The CoE was represented by Deputy dering prosecutions and convictions has November 2007. At the end of the con- Secretary General Maud de Boer-Bu- increased remarkably since the last visit ference, the four hundred participants quicchio and several other CoE experts. to Poland in April 2002. It is of further adopted a declaration recommending In its submission to the Forum, the CoE interest that Poland has recently started that countries of the Arab region use the first put forward its view on the benefits a legislative procedure aimed at intro- Convention on Cybercrime as a model to and challenges of this important tool for ducing into the Penal Code a separate guide the development of national legis- economic growth and social develop- offence on the financing of terrorism lation on cybercrime. They recognize the ment. It underlined the public service which is missing so far. An improve- Convention on Cybercrime as the global value of the Internet and placed users’ ment concerning the legal framework guideline for the development of cyber- rights, in particular freedom of expres- covering provisional measures and con- crime legislation and encourage the coun- sion, and safety at the forefront. fiscations was also reported. For more tries of the Arab region to set up special- The CoE further pointed out that it is in information, please visit: ized units for cybercrime investigations the vanguard of efforts to combat Inter- eucrim ID=0703238 and so-called Computer Emergency Re- net crime and that it therefore acts with sponse Teams (CERTs). The declaration the support of its 47 Member States on MONEYVAL: New Report on Malta further contains statements concerning the basis of key conventions on cyber- On 28 November 2007, MONEYVAL the fight against child pornography and crime, the prevention of terrorism, the published its Third Round Evaluation the sexual abuse of children on the Inter- protection of children against sexual Report on Malta. Contrary to Poland, no net, the use of public-private partnerships exploitation and sexual abuse, and coun- final money laundering convictions had against cybercrime, and regional and in- terfeit medicines (this last convention is been secured in Malta, although Malta, ternational cooperation. in the process of being drafted). These in 2005, extended the criminal provision eucrim ID=0703241 CoE conventions provide a legal basis in on money laundering under the Preven- Further workshops and conferences took Europe and beyond, as countries that are tion of Money Laundering Act to any place from 7 to 9 November 2007 in not members of the Organisation may criminal offence, including the offence Tomar, Portugal, from 29 October to 1 accede to them. In this context, the CoE of terrorist financing. Furthermore, no November 2007 in Jakarta, Indonesia, finally called upon developing coun- prosecutions or investigations of the from 25 to 26 October 2007 in Makati tries, where cybercriminal networks funding of terrorist activities have taken City, Philippines, from 1 to 2 October have been flourishing in recent years, to place yet. For more information, please 2007 in Bogota, Colombia, and from 10 to sign the Cybercrime Convention of 2001 visit: 14 September 2007 in New Delhi, India. which serves as a guide for any coun- eucrim ID=0703239 eucrim ID=0703242 try developing comprehensive national

eucrim 3–4 / 2007 | 117 NEWS legislation on cybercrime and also as a reinforced. He further highlighted – in- internal procedures to favour mutual framework for international co-opera- ter alia – that the ties between the CE- assistance; tion between signatory countries. PEJ and relevant bodies of the EU will • to act on the quality of international eucrim ID=0703244 also have to be reinforced, that the SAT- cooperation, e.g., in developing appro- The purpose of the IGF is to support the URN Centre for the study and analysis priate training of prosecutors as well United Nations Secretary-General in of judicial time management has to be as other players in international judi- carrying out the mandate of the World advanced and that the CEPEJ should ad- cial cooperation, in setting up in each Summit on the Information Society with ditionally act as an early warning and Member State an appropriate structure regard to convening a new forum for a alert body in order to identify structural to guarantee the specialisation of some multi-stakeholder policy dialogue. weaknesses in judicial systems and al- prosecutors and judges as regards inter- eucrim ID=0703245 low anticipating new problems. national cooperation, in issuing special- eucrim ID=0703247 ised documents or commentaries on the The CEPEJ, the CoE’s Commission applicable human rights and standards in for the Efficiency of Justice, was estab- international criminal proceedings, and lished on 18 September 2002. Its aim is in improving the transmission of assist- Procedural Criminal Law the improvement of the efficiency and ance requests; functioning of justice in the Member • to extend exchanges between legal Justice Organisation States. It therefore analyses the results practitioners, e.g., in setting up at the of their judicial systems, identifies the level of the CoE structured coopera- CEPEJ: 5th Anniversary difficulties they encounter, defines con- tion and information exchange properly In December 2007, the CEPEJ cele- crete ways to improve both the evalua- articulated with the European Judicial brated its fifth anniversary. Congratula- tion of their results and the functioning Network in criminal matters and Euro- tions came from Terry Davis, Secretary of these systems, provides assistance to just, in setting up in each country a ‘spe- General of the CoE, who stressed that, Member States, and finally proposes to cialised unit’ entrusted with assisting to thanks to the CEPEJ, the evaluation of the competent CoE’s instances the fields solve the difficulties met by practitioners judicial systems is now deeply rooted where it would be desirable to elabo- of the requesting and requested states re- in the calendar of the European judicial rate a new legal instrument. The CEPEJ garding judicial assistance requests, and community as a key element to reform. is composed of experts from all the 47 in developing the exchange of liaison Jean-Paul Costa, President of the Eu- CoE Member States. Observers may be judges and prosecutors; ropean Court of Human Rights, under- admitted to its work. • within the framework of the CoE, to lined the close link between the work For more information about the concrete foster cooperation with third countries, conducted by the CEPEJ and the Court’s CEPEJ’s work see eucrim 1-2/2007, p. international criminal courts, and rel- own work: “High numbers of rulings 46, and eucrim 3-4/2006, p. 85-86. evant European and international insti- against given states often indicate the eucrim ID=0703248 tutions and organisations; existence of serious structural problems • to increase budgetary and human re- which undermine the credibility of the CCPE: 1st Opinion on International sources allocated to international coop- countries’ judicial systems. All the vari- Co-operation in Criminal Matters eration in criminal matters within the ous problems have a direct impact on The 2nd plenary meeting of the Con- courts and the prosecution offices. the operation of our Court, as they result sultative Council of European Pros- eucrim ID=0703249 in thousands of cases being lodged in ecutors (CCPE) was held from 28 to 30 In order to prepare this opinion, the Strasbourg. By helping Member States November 2007 in Strasbourg, France. CCPE, in co-operation with the Polish to make their judicial systems operate During this meeting, the CCPE adopted Ministry of Justice, organised a Euro- more effectively, the CEPEJ helps to its Opinion No.1 on “Ways of improving pean Conference of Prosecutors which ease the burden on the Court.” international co-operation in the crimi- took place in Warsaw, Poland, from 4 to eucrim ID=0703246 nal justice field”. In it, the CCPE makes 5 June 2007. There, prosecutors from the At a special session on 5 and 6 Decem- the following recommendations to the 47 CoE Member States discussed ways ber 2007 marking the 5th anniversary Committee of Ministers and the CoE’s of intensifying co-operation between of the CEPEJ, the question “What do Member States: prosecution services in criminal matters. you expect from the CEPEJ in the five • to act on the normative framework The participants arrived at the conclu- next years?” was discussed. Mr Philippe of international cooperation in keeping sion that international co-operation in the Boillat, Director General of Human the priority on the work of updating the field of criminal justice is a fundamental Rights and Legal Affairs, who presented existing European conventions in the procedural tool enabling public prosecu- the conclusions at the end of the ses- sphere of criminal justice, especially tors to perform their work and ensure that sion, especially stressed that the already the European Convention on extradi- criminal justice is effective and that this well-established ties between the CE- tion, in accelerating the ratification and co-operation therefore needs to be further PEJ and the European Court of Human effective application of the relevant developed and strengthened. Rights will certainly have to be further conventions, and in seeking to simplify eucrim ID=0703250

118 | eucrim 3–4 / 2007 NEWS

The CCPE was set up by the Committee UPIC project can be found in eucrim applies to whoever the victim is (men, of Ministers on 13 July 2005 to prepare 1-2/2007, p. 47; 3-4/2006, p. 86 and women or children) and whatever the opinions for the European Committee 1-2/2006, p. 22. form of exploitation is (sexual exploita- on Crime Problems (CDPC) on issues eucrim ID=0703252 tion, forced labour or services, etc). The related to the prosecution service and Convention further provides for the set- promote the effective implementation Ukraine: New Office Opened ting up of an independent monitoring of Recommendation Rec(2000)19 of 6 On 26 October 2007, a CoE Office in mechanism guaranteeing the parties’ October 2000 on the role of public pros- charge of the co-ordination of CoE co- compliance with its provisions. ecution in the criminal justice system. It operation programmes with the Ukraine Trafficking will now be considered a shall further collect information about was established in Kyiv. The Office is criminal offence: traffickers and their the functioning of prosecution services headed by Mr. Ake Peterson, Repre- accomplices will therefore be prosecut- in Europe. sentative of the Secretary General of the ed. What is also new is the possibility to CoE for the co-ordination of co-opera- criminalise those who use the services of tion programmes with the Ukraine. It a victim if they are aware that the person will contribute to the implementation of is a victim of trafficking in human be- a large number of projects and activities ings. The Convention further provides Cooperation designed to support legal and institution- the possibility of not imposing penalties al reforms in the Ukraine. The address of on victims for their involvement in un- New Activity Report for 2007 the Office is vul. B. Hmelnytskoho 70 A lawful activities if they were forced to On 28 January 2008, a new activity re- in Kyiv. The Information Office of the do so by their situation. port for 2007 entitled “Technical coop- CoE remains at its previous address: vul. eucrim ID=0703254 eration against economic crime” was Ivana Franka 24A, Kyiv. On the occasion of the entry into force published which summarises the re- eucrim ID=0703253 of the Convention, the Member States sults of the CoE’s technical cooperation that have already ratified the Conven- projects against economic crime in 2007. tion made a Joint Declaration and urged Its purpose is to make the CoE’s work in other CoE Member States, non-member this area more transparent and to inform states and the European Community to partners of the activities implemented. Legislation become parties to the Convention as Altogether 250 activities were carried soon as possible. out in 2007 under 13 projects. The com- Convention on Action against eucrim ID=0703255 bined budgets of all projects on econom- Trafficking in Human Beings in Force As the CoE already decided in Novem- ic crime ongoing in 2007 amounted to The CoE’s Convention on Action against ber 2007, it will set up in 2008 the in- € 25 million while expenditure in 2007 Trafficking in Human Beings (ETS No. dependent monitoring mechanism to exceeded € 3,7 million. 197) came into force on 1 February 2008. oversee the implementation of the CoE eucrim ID=0703251 Till this day, Albania, Austria, Bosnia Convention on Action against Traf- and Herzegovina, Bulgaria, Croatia, Cy- ficking in Human Beings, the so-called Ukraine: International Conference prus, Denmark, France, Georgia, Latvia, Group of Experts on Action against on Extradition Malta, Moldova, Norway, Portugal, Ro- Trafficking in Human Beings (GRETA), In the framework of the UPIC project, mania, and Slovakia have ratified the which will be composed of ten to fifteen an international conference on extradi- convention, which has been signed by a independent experts. This quasi-judicial tion took place from 5 to 6 November further 22 countries. body will monitor the implementation of 2007 in Kyiv, Ukraine. The aim of the The Convention is a comprehensive the Council’s convention on human traf- conference was to review and discuss treaty mainly focussed on the protection ficking in the countries that have- rati problematic issues in relation to extra- of victims of trafficking and the safe- fied it. The new body will carry out its dition, to propose solutions, exchange guarding of their rights. It also aims at evaluation in rounds; its members will best practice and improve cooperation preventing trafficking as well as pros- serve in their individual capacity and be in this field. The relevant jurispru- ecuting traffickers. The Convention ap- elected for a four-year term, renewable dence of the European Court of Human plies to all forms of trafficking, whether once, taking into account gender and Rights as regards extradition was also national or transnational, whether or not geographical balance. examined. More information about the they are related to organised crime. It eucrim ID=0703256

eucrim 3–4 / 2007 | 119 National Implementation of International Criminal Law Standards

Criminal Law Protection of the EU’s Financial Interests in Croatia

By Prof. Dr. Zlata Đurđević

I. Introduction of negotiations – explanatory and bilateral screenings giving an overview of the degree of harmonisation of Croatian legis- The accession negotiations between the Republic of Croatia and lation with the under this chapter – took the European Union started on 3 October 2005, on the same day place in May and July 2006. In September 2006, the Commis- that the chief prosecutor of the ICTY, Carla del Ponte, confirmed sion recommended the opening of accession negotiations with that Croatia is fully cooperating with the Hague Tribunal. The Croatia without setting any benchmarks or additional criteria, main goal of the accession negotiations is the harmonization and the European Council opened negotiations for this chapter of Croatian legislation with the acquis communautaire. How- in November 2006. ever, the duty of Croatia to adjust its legal system to the acquis dates from the earlier stage of the integration process. The as- The acquis under the chapter on Financial Control encompass- sociation process for Croatia began on 29 October 2001 when es four main policy areas: (1) public internal financial control it signed the Stabilization and Association Agreement with the (PIFC), (2) external audits, (3) protection of the Euro against EU. Thereupon, Croatia obtained economic benefits and access counterfeiting, and (4) protection of the EU’s financial inter- to the EU’s pre-accession funds, but undertook commitments to ests. With regard to the first two areas, theacquis does not con- fulfil four criteria set at the summits of EU leaders in Copenha- sist of legislation but of international control and internal audit gen and Madrid (political, economical, legal, and administra- standards, as well as best practice measures of the EU1 which a tive). The process of alignment of the Croatian legislation with candidate country is expected to apply. In this context, Croatia the acquis began with that agreement, i.e., four years before the already passed action plans in 2005 and, in 2006, implement- beginning of the membership negotiations. It led to the develop- ing regulations; the code of ethics was adopted as well. Like- ment of administrative and judicial structures for effective im- wise, the ongoing training and certification process for internal plementation and enforcement of the acquis. This is important auditors was established. In December 2006, a new law on the to mention because the substantial part of the acquis regarding system of internal financial controls in the public sector was the protection of the EU’s financial interests was implemented enacted,2 the so-called PIFC Act, which has been described as by Croatia in this pre-negotiation phase. an important milestone by the Commission.3 Before closing the chapter, Croatia still has to pass implementing legislation The acquis communautaire is an ongoing development of a cor- for the PIFC Act and safeguard the State Audit Institution’s pus of legal provisions and principles. The amount of rights and functional and financial independence. obligations that a candidate country as well as an EU Member State has to assume is growing with time. For this reason, the The chapter on Financial Control in relation to the protection number of chapters which the acquis was divided into during of the Euro against counterfeiting comprises only non-penal the negotiations with Croatia was increased from 31 to 35, com- aspects, whereas the penal aspects in this area are dealt with pared to the previous round of accession negotiations. In the in the chapter on “Justice, Freedom and Security”. The first first agenda that our negotiation team received from the Euro- pillar aspects include several regulations and Council deci- pean Commission, the PFI Convention and its protocols were sions.4 In 2006, progress was made in relation to the legislative placed in chapter 24 on “Justice, Freedom and Security”, but alignment because Croatia adopted new legislation for report- afterwards these documents were transferred to chapter 32 on ing of counterfeits to Europol and Interpol, and it introduced “Financial Control”. However, this seemingly unimportant ad- obligations for financial institutions to withdraw suspicious ministrative shift indicates the “Janus nature” of the PFI instru- specimen of foreign currency as well as adequate sanctions ments which show the Member States its criminal law face and in case of non-compliance. The National Analysis Centre for the Commission its financial law face. Banknotes and Coins will be established within the Croatian National Bank by the end of 2009.

II. Accession Negotiations in the Acquis Chapter on The protection of the EU’s financial interests is divided or, Financial Control more precisely, comprised of non-penal and penal aspects – due to its operational indivisibility. The non-penal aspects refer The negotiation process in relation to the chapter on Financial to the regulation on the protection of the European Communi- Control has been running smoothly until now. The first phase ties’ financial interests,5 the regulation concerning on-the-spot

120 | eucrim 3–4 / 2007 Protection of the EU’s Financial Interests in Croatia checks and inspections carried out by the Commission,6 and a acquis, Croatia is obliged to already implement them during set of regulations on reporting irregularities and the recovery of the negotiations for the accession, i.e., before officially signing sums wrongly paid.7 These regulations are directly applicable. and ratifying them. They focus on establishing adequate institutional structures and administrative and operational capacities for its enforce- The following assessment of the implementation measures in ment. In order to improve its administrative capacity, Croatia Croatia shall be divided into three main parts which are in line in 2006 appointed a so-called “Irregularity Officer” and es- with the standard methodology for evaluation of the implemen- tablished the Anti-Fraud Coordinating Structure (AFCOS) for tation of the PFI Convention and its protocols.16 The first part coordination and cooperation with the EU in preventing fraud. on substantive criminal law shall deal with the offences and In accordance with the PIFC Act, the Irregularity Officer is a punishments prescribed in all three conventions (fraud, cor- person within the Ministry of Finance who is responsible for ruption, and money-laundering), the second part shall encom- informing and reporting any irregularities and suspicions of pass the general concepts of substantive criminal law, such as fraud to the State Attorney’s Office and the competent body in the criminal liability of heads of businesses and legal persons the Ministry of Finance.8 as well as issues of confiscation. Elements generally relating to criminal procedure, such as jurisdiction, extradition, and the The Croatian AFCOS is, as in other Member States, a service ne bis in idem principle, shall be analysed in the third part. for the coordination of cooperation between the relevant na- tional bodies and OLAF or, in other words, an OLAF contact point in Croatia. It is set up as the “Office for the prevention of 1. Offences and Punishment for the Protection of the irregularities and fraud” within the framework of the Depart- EU’s Financial Interests ment of Budgetary Control of the Ministry of Finance.9 Its gen- eral task is to coordinate legislative, administrative, and opera- a) EU Fraud tional activities in order to protect the financial interests of the EU. AFCOS shall exchange information with OLAF, partici- According to the screening report of the Commission17 of 28 pate in OLAF’s inspections and investigations, submit reports September 2006 and the draft common position of the EU,18 to relevant Croatian authorities, and play a role in the creation the alignment of the Criminal Code with the PFI Convention and implementation of a national strategy for the prevention of and its protocols is one of the benchmarks for the provisional fraud and in the development of training programmes in this closing of chapter 32 on “Financial Control”. Croatia in its field. After the legal and administrative establishment, the EU negotiating position expressed its intention to incriminate, by now expects practical steps to be taken to render the Ministry the end of 2007, all forms of actions to the detriment of the of Finance an operational partner for OLAF.10 EU’s financial interests. In order to fulfil this commitment, the Croatian Parliament adopted amendments to the Criminal Code in October 2007 (hereinafter: 2007 Amendments).19 As III. Criminal Law Protection of the EU’s Financial Interests in the majority of Member States, the Croatian legislation con- in Croatia tains separate offences for the protection of expenditure and revenue from the EU budget. All offences are prescribed by The following considerations shall deal with the penal aspect the Croatian Criminal Code (CC). of the EU’s financial interests in Croatia. The respective ac- quis consists of three conventions which are widely known as Fraud regarding expenditure is described in the 1st and 2nd the PFI instruments: the Convention on the protection of the indents of Art. 1(1)(a) of the PFI Convention as the use or European Communities’ financial interests (PFI Convention)11 presentation of false, incorrect, or incomplete statements of as well as its two Protocols − the anti-corruption12 Protocol13 documents and non-disclosure of information in violation of (“first Protocol”) and the Protocol dealing with the liability of a specific obligation. These acts are covered by the standard legal persons and money laundering (“second Protocol”).14 offences of fraud (Art. 224 CC) and fraud in economic opera- tions (Art. 293 CC), as well as a new offence of special cases The distinctiveness of the acquis related to the criminal law of fraud to the detriment of the EU’s financial interests (Art. protection of the EU’s financial interests is the legal nature 224.b CC) introduced by the 2007 Amendments. The standard of these instruments: they are “conventional” international offences punish the conduct of a person who, with the aim to treaties that have to be signed, ratified, and implemented ac- procure unlawful pecuniary gain for him- or herself or a third cording to the constitutional rules of each Member State. The party (Art. 224), or for him- or herself or another legal entity PFI Convention and its protocols, as well as other third pillar (Art. 293), by false representation or concealment of facts, de- conventions, are open to accession by any State that becomes ceives another person by inducing him/her to thereby do or a member of the EU.15 However, due to the accession process, omit doing something to the detriment of his/her property or the implementation of these treaties in Croatia, as was the case the property of another. The conduct of the perpetrator (actus in all candidate countries, will be the reverse of the regular reus), which consists of false representation or concealment course of implementation of international treaties, namely that of facts, corresponds to the conduct defined by the PFI Con- implementation follows ratification. As they are part of the vention as false representation. According to the Croatian case

eucrim 3–4 / 2007 | 121 National Implementation of International Criminal Law Standards law, this includes the written and oral20 presentation of false, funds”, whereas the appearance of a pecuniary detriment is incorrect, or incomplete statements. The omission by failure not required.31 The offence of EU fraud also requires the oc- to disclose information is covered by the description of the currence of pecuniary detriment as § 2 of Art. 224.b CC states concealment of facts.21 According to Croatian legal scholars that a person shall not be punished for fraud if s/he voluntar- and practitioners, the concealment of facts can be fraudulent ily prevents the occurrence of detriment. The establishment only if the perpetrator has a legal or contractual obligation to of additional constituent elements of fraudulent offences in inform someone of certain facts22, i.e., the perpetrator has to Croatian law narrows its application and fails to satisfy the act in violation of a specific obligation envisaged in the second minimal standards set up by the Convention. indent of Art. 1(a) of the PFI Convention. Lastly, as regards the third indent of Art. 1(1)(a) of the PFI A new offence of fraud to the detriment of the EU’s financial Convention (fraud committed through the misapplication of interests (EU fraud) prescribes that perpetration of the standard funds), Croatian law covers this alternative by the new of- offence of fraud (Art. 224) shall include false representation or fence of the abuse of authority with regard to the EU funds concealment of facts relevant for a decision on subsidy, aid, or (Art. 292.a CC) which was introduced in 2007. This article tax relief by which the EU’s financial interests can be endan- targets anyone who uses the EU subsidy or aid entrusted gered. The wording of the offence implies that the offence of to him/her contrary to its specific purpose. Contrary to the EU fraud is just a form of the existing offence of fraud, and standard offence of the abuse of authority (Art. 292 CC), the therefore it contains the same normative elements as fraud. new offence is not limited to a responsible person in a legal person, but it can also be committed solely by a natural per- The statutory requirements for all three fraud offences fall short son. Furthermore, the basic form of offence does not require in so far as the following three additional factual and mental the aim of acquiring unlawful pecuniary gain. The shortcom- elements are required: (1) the requirement of a specific aim of ing of this offence definition is that it envisages in § 5 that a fraudulent behaviour, (2) the requirement of a subjective effect perpetrator shall not be punished if s/he voluntarily prevents of “deceiving another”, and (3) the condition of an objective the occurrence of detriment for the EU’s financial interest; effect as regards the detriment of property. According to the this means that the element of detriment is introduced. The Croatian law, the aim of an offender must be to acquire unlaw- non-compliance of the Croatian law in this regard is particu- ful pecuniary gain for him-/herself or a third party or a legal larly visible as the PFI Convention for the commitment of person. Such an intention on the part of the offender is not en- fraud through the misapplication of funds (3rd indent of Art. visaged by the Convention. Hence, it represents an additional 1(1)(a)) does not even require the effects of misappropria- subjective element. It can be compared with the requirement tion and wrongful retention (only the 1st and 2nd indents of of enrichment in Austria,23 Italy, and the Netherlands.24 That Art. 1(1)(a) do so). This is due to the fact that misapplica- the offence of EU fraud also requires this element is confirmed tion consists of the misuse of funds which, although legally in the explanatory report of the 2007 Amendment where it is obtained, may have been subsequently wasted or used for stated that the offender aims to acquire gain.25 purposes other than those for which they were granted.32 Ad- ditional problems regarding this offence are attempt, which A further superfluous element of fraudulent conduct in view is not punishable, and penalty (see below). of the PFI Convention is the requirement of deceiving another person. The element of fraud in Croatia refers to the participa- The act of fraud against the revenue of the EU budget is pre- tion of the victim who is often considered as being naïve or scribed in the 1st and 2nd indents of Art. 1(1)(b) of the PFI greedy.26 It has to be proven that the victim was deceived27 Convention and is equivalent to the forms of conduct of fraud and, so to say, had a false idea of the relevant facts induced by against expenditure. However, it requires the effect of illegal the perpetrator’s conduct.28 This requirement of deception on diminution of the resources of the EU budget. Revenue fraud the part of victims also exists in some other countries.29 Such was covered in Croatia prior to October 2006 by the offence of a psychological element is contrary to the Convention because avoiding customs control (Art. 298 CC). The offence could be the establishment of EU fraud does not require any participa- committed by a person who carried a large quantity of goods or tion of the victim; likewise, the victim’s idea about the perpe- an object of great value across the customs line, thus avoiding trator’s acts should be irrelevant. According to the PFI Con- measures of customs control. “Avoiding” could have meant vention, only the behaviour of a perpetrator is relevant. the concealment of goods but also the failure to declare goods subject to customs controls in accordance with a specific ob- The required objective effect of deception is such that the de- ligation to declare goods at the customs border (as prescribed ceived person does something to the detriment of his/her prop- by the Customs Act). According to the Croatian case law, this erty.30 Therefore, fraud in Croatian law is a material, concrete offence could be committed regardless of whether the border offence which is committed only if its consequence happens, was crossed at the official border crossing, whether goods had i.e., detriment occurs. As far as subsidies are concerned, this been concealed or not, and whether the customs officer had means that the subsidy is indeed given to the perpetrator. Ac- asked the perpetrator to declare goods or carried out measures cording to the PFI Convention, the only effect of a fraudulent of customs control.33 Therefore, the offence included smug- act should be “the misappropriation or wrongful retention of gling as well as the evasion of customs duties. It was required

122 | eucrim 3–4 / 2007 Protection of the EU’s Financial Interests in Croatia that the goods had to be of a great value. The Supreme Court, The provision of Art. 1(3) of the PFI Convention, which requires in alignment with Art. 2(2) of the PFI Convention, set the the incrimination of preparatory acts for EU fraud, has been im- threshold value at 4,000 Euros (30,000 kuna).34 In addition, plemented in Croatia in a twofold way: first, through the offence this offence could also be committed if the value of goods was of document forgery and, second, through the incrimination of less than 4,000 Euros but a large quantity of goods was in- preparatory acts of offences against the protection of the EU’s volved. The criteria for the quantity of goods was that they financial interests. On the one hand, forgery of a document (Art. could not possibly be intended for use in everyday life (e.g., 311 CC) and forgery of an official or business document (Art. a tenfold amount of the same trousers, thousands of cigarette 312 CC) are prescribed as principle offences which cover inten- boxes, etc.).35 In 2006, Croatia aligned its Customs Act with tional preparation or supply of false, incorrect, or incomplete the acquis communautaire and therefore customs duties now statements or documents. These offences can be concurrently include EU duties. adjudicated with the offence of EU fraud. On the other hand, participation in (Art. 36 CC), instigation of (Art. 37 CC), and This was the state of play at the time of the first and second aiding and abetting (Art. 38 CC) of the offences applicable to screening in Brussels. However, in October 2006, an amend- Art. 1 of the PFI Convention are punishable. The instigator of a ment of the Criminal Code came into force which limited the criminal offence shall be punished as if he/she committed it on aforementioned offence to the carrying of goods whose manu- his/her own. The same is true for a person charged with aiding facture or distribution are limited or forbidden across the cus- and abetting but the punishment may be mitigated. toms line. The aim of the amendment was the decriminalisa- tion of avoiding domestic customs duties and taxes, and such However, the incrimination of attempt became unsatisfactory behaviour was dealt with as a misdemeanour, which fails to after the 2007 Amendments. The attempt of every intentional satisfy the level of protection of EU revenue required by the offence, which foresees a punishment of at least five years of PFI Convention. imprisonment, is punishable while the attempt of other crimi- nal offences is punishable only if the law expressly provides However, by means of the 2007 Amendments, a new provision for the punishment of an attempt (Art. 33 CC). For two of- for the criminal law protection of EU revenues was introduced fences, namely the basic form of fraud of the Croation crimi- in the offence of avoiding customs control (Art. 298 § 4 CC). It nal code and the offence of avoiding of customs control, which incriminates a person who, in the import-export business, also are punishable by imprisonment of three years, there is an ex- with EU countries, falsely represents quantity, quality, type, press provision that an attempt of these offences is punishable. and purpose of goods. The main flaw of this provision is that Paradoxically, there is no such provision for the new offences the lawmaker of the 2007 Amendments overlooked the fact of EU fraud and abuse of authority with regard to EU funds that the offence of avoiding customs control was no longer although they are also punishable by imprisonment of up to suitable for the protection of customs duties. Other weakness- three years. This means that, contrary to the requirement of the es of the provision are that the origin of goods, which is often PFI Convention, their attempt is not punishable. a basis for preferential customs duties, is left out and the per- petrator must aim to acquire unlawful pecuniary gain. Penalties provided for in the Croatian criminal law for all of- fences applicable to EU fraud are prison sentences of up to at The third form of fraud in respect of revenue, described as the least three years. Since the threshold for surrender under the Eu- misapplication of a legally obtained benefit with the effect of ropean Arrest Warrant is punishment of three years, once the illegal diminution of the resources of the EU budget (3rd in- European Arrest Warrant is implemented, the commission of dent of Art. 1(1)(b) of the PFI Convention), which deals with any of these offences could give rise to the surrender of persons situations where the benefit was legally obtained (e.g., prefer- without the need to verify double criminality. Concerning the ential customs duty based on a specific purpose of goods), but severity of the penalties, Croatia has laid down effective, pro- with the perpetrator subsequently having decided to change portionate, and dissuasive penalties in line with Art. 2 of the PFI the purpose of goods and thus violating the condition for ob- Convention. However, the 2007 Amendment prescribed lower taining preferential customs duty, was not provided for in the penalties for the abuse of authority with regard to EU funds (up 2007 Amendments. However, this form of fraud can be partly to three years of imprisonment) than for the abuse of Croatian covered by the already existing offence of abuse of authority budgetary funds (up to five years of imprisonment). This is not in economic business operations (Art. 292 CC) which is com- in line with the principle of assimilation which requires that mitted by a responsible person in a legal entity who, with the Member States must ensure “that infringements of Community aim of acquiring illegal pecuniary gain in fulfilling obligations law are penalized under conditions, both procedural and sub- towards budgets and funds, withholds funds due to these os- stantive, which are analogous to those applicable to infringe- tensible obligations. Beyond the fact that this offence compris- ments of national law of a similar nature and importance”.36 es the superfluous element of aim and can be committed only by a responsible person in a legal entity, it is doubtful whether b) Corruption Croatian courts will interpret it in the sense of the third form of revenue fraud. Therefore, it is necessary to prescribe anew Corruption which damages or is likely to damage the Euro- an offence for this form of EU fraud. pean Communities’ financial interests has been criminalized

eucrim 3–4 / 2007 | 123 National Implementation of International Criminal Law Standards in Croatia by the general offences of passive and active bribery. (Art. 279 CC). Thus, it includes the proceeds of fraud offenc- Passive corruption comprises the offences of accepting a bribe es, including tax evasion and active and passive corruption, (Art. 347 CC), receiving a bribe in economic transactions (Art. as required by the second PFI Protocol. The penalty for this 294a CC) and unlawful intercession (Art. 343 CC). Active cor- offence is imprisonment from six months to five years and, if ruption is criminalised by the offences of offering a bribe (Art. it has been committed by a member of a group or a criminal or- 348 CC), offering a bribe in economic or other transaction ganization, the range of punishment is increased to one to ten (Art. 294b CC), and unlawful intercession (Art. 343 CC). The years of imprisonment. However, the wording of the offence offences of receiving and offering a bribe in economic transac- contains a gap which still remains to be closed in order to en- tions were introduced in 2004 in order to extend the criminal sure compliance with EU requirements. The offence criminal- zone of passive and active corruption to the private sector. As a ises a person who “conceals the true source of money, objects result, responsible persons and heads of businesses in domestic or rights procured by money which s/he knows to be acquired and foreign legal persons were included. The conduct to be pun- by a criminal offence” which implies that the proceeds of the ished with these offences comprises requesting, accepting, and crime always have to be money. This is not in line with the receiving an advantage of any kind, either directly or through EU framework decisions which lay down that proceeds of an intermediary. Although there is no requirement that any of crime may consist of any form of property, whether corporeal these offences should have damaged or were likely to damage or incorporeal, movable or immovable, and legal documents the EU’s financial interests, the offences are fully applicable to or instruments evidencing title to or interest in such property such acts, too. (Framework Decisions 2003/577/JHA and 2005/212/JHA).37

In 2004, the notion of “official” (Art. 89 § 3 CC) was expanded to cover all categories of persons who are considered officials 2. General Concepts of Substantive Criminal Law according to foreign or international law. It includes: (1) civil servants, representatives, and officials of another state or inter- a) Criminal Liability of Heads of Businesses national organization of which Croatia is a member, (2) judges or officials of an international court whose judicial competence The PFI instruments require establishing the criminal liability Croatia has recognised, and (3) foreign lay judges and foreign of heads of businesses or any persons having power to take de- arbitrators. Although the Croatian law does not explicitly refer to cisions or exercise control if offences affecting the European Community officials, but only to officials of other international Community’s financial interests were committed by a person organisations, it cannot be interpreted differently to the effect that under their authority. It covers the criminal liability of heads of members of European institutions (Commission, European Par- businesses, not only on the basis of their personal action (per- liament, and Court of Justice) are assimilated to their Croatian petrator, associate, instigator, or participant) but also on the counterparts once Croatia becomes an EU Member State. basis of failure to fulfil a duty of supervision or control (culpa in vigilando).38 Member States are to introduce the criminal li- The Croatian law penalises passive and active corruption differ- ability of heads of businesses in accordance with the principles ently. In 2006, the parliament endorsed much more severe penal- defined by their respective national law (cf. Art. 3. of the PFI ties for bribery offences, especially regarding passive corruption. Convention). This means that the implementation can be sat- Punishment for passive corruption ranges from six months to isfied by an assimilation clause.39 Criminal liability of heads very severe eight years of imprisonment for serious corruption of business for offences affecting the EU budget has to be as- whereas the penalty for active corruption ranges from six months similated to the rules for comparable offences against national to three years. Once the European Arrest Warrant is implement- financial interests. Such an obligation leaves Member States ed, all offences could give rise to the surrender of the perpetrator considerable freedom to establish the basis for the criminal without verification of double criminality, except the offence of liability of decision-makers and heads of businesses.40 offering a bribe in an economic transaction in a less serious form; nonetheless, the latter does not exclude extradition. Apart from the general rules on perpetration, instigation, and other forms of participation in criminal offences, the basis In conclusion, although Croatia is not prescribing separate for a decision-maker’s criminal liability in Croatia is the bribery offences for the protection of the EU’s financial in- notion of “responsible person” and the offence of negligent terests, the existing offences comply with the anti-corruption performance of a duty (Art. 339 CC). A responsible person is Protocol as the Croatian law comprises Community officials defined in the general part of the Criminal Code as a person and officials of Member States, covers corruption in the pri- who is entrusted with particular tasks in the field of activities vate sector, and prescribes effective, proportionate, and dis- of a legal entity, a government body, a body of local self- suasive criminal penalties. government and administration, or a local self-go­ ­vern­ment body (Art. 89 CC). Although the provision makes no differ- c) Money Laundering ence between decision-makers and controllers, according to Croatian theory and practice, the element of “tasks in the Since 2000, money laundering is prescribed as a criminal of- field of activities of a legal entity” also applies to heads of fence that considers as predicate offences all possible offences businesses as well as supervision bodies. Almost all Croatian

124 | eucrim 3–4 / 2007 Protection of the EU’s Financial Interests in Croatia offences against the EU budget prescribe that its perpetrator 2nd Protocol and prescribes all criminal sanctions and security is a responsible person (delicta propria). Where this is not measures envisaged in the 2nd Protocol.42 the case, such as in the offence of unlawful intercession (Art. 343 CC), a head of business can also be responsible for the c) Confiscation offence of his/her subordinate according to the general crimi- nal law rule of omission (Art. 25. CC).41 The confiscation of instruments and proceeds is provided for by the security measure of forfeiture (Art. 80 CC) and the The offence of negligent performance of a duty (Art. 339 CC) measure of confiscation of pecuniary gain acquired by a crimi- can be committed by an official or responsible person who vi- nal offence (Art. 82 CC). Instrumenta sceleris and producta olates regulations, fails to perform mandatory supervision, or sceleris as well as proceeds of crime and property, the value in any other way negligently performs his/her duty. However, of which corresponds to such proceeds, shall be confiscated by the effect of this behaviour has to be a serious violation of the a court decision according to the procedure prescribed by the rights of a third person or a considerable damage to property, Criminal Procedure Act (CPA). The seizure of the instruments which is a redundant element according to PFI instruments. and proceeds of offences is ensured in some cases in the pre- Although the Croatian law does not provide for an explicit investigatory proceedings. The temporary seizure of objects is provision to ensure the criminal liability of heads of business- one of the investigative measures (Art. 218-221 CPA) which es for offences affecting the financial interests of the EU, it can be carried out in the course of the criminal proceedings implements Art. 3 of the PFI Convention, assimilating it with or as an urgent investigation measure before the institution the responsibility of heads of businesses for offences affecting of the criminal proceedings (Art. 184-185 CPA). The Act on national financial interests. the Office for the Suppression of Corruption and Organised Crime provides for the seizure of proceeds, instrumentalities, b) Criminal Liability of Legal Persons and property acquired by a criminal offence prior to the insti- tution of the criminal proceedings according to provisions of The criminal liability of legal persons was introduced in 2003 distraint law. As a result, the aforementioned Croatian criminal in Croatia by the Act on the Liability of Legal Persons for law provisions satisfy Art. 5 of the 2nd Protocol as they enable Criminal Offences. The main characteristic of the approach the confiscation of instrumentalities and proceeds of property, is that the criminal liability of a legal person is to be derived the value of which corresponds to such proceeds for all pos- from the culpability of the responsible person. According to the sible criminal offences. meaning of the Act, a responsible person is a natural person who is the head of the business of a legal person or is entrusted with particular tasks in the field of activities of that legal per- 3. Elements of Criminal Procedure son. As a consequence, it includes a person who has a leading position within the legal person, who represents a legal person, a) Jurisdiction or has decision-making or control powers. A legal person shall be punished for a criminal offence committed by a responsible The Croatian law recognises the territoriality principle and the person if it breaches the duty of a legal person or if the legal principle of active personality in line with the requirements of person acquired or intended to acquire illegal pecuniary gain the PFI instruments. The Croatian criminal legislation applies for him-/herself or for another person. The liability of a legal to anyone who commits a criminal offence within the Croatian person is also ensured in cases where a responsible person is territory (Art. 13 CC). A criminal offence is committed both liable for an attempt or as an accessory or instigator. Under at the place the perpetrator acts or ought to have acted and the the requirements prescribed by law, a legal person can be re- place where the result fully or partially occurs and, in a case sponsible for any criminal offence prescribed by the Criminal of punishable attempt, ought to have occurred according to the Code and any other statutes which prescribe criminal offences, perpetrator’s expectation (Art. 27 § 1 CC). The determination including fraud, active corruption, and money laundering. The of locus delicti comissi according to the so-called ”theory of punishments for the legal persons are fines and judicial wind- ubiquity”, which combines jurisdiction based on the place of ing-up orders. In addition to these penalties, the Act provides commission and the place where the effects occur, covers fraud for four security measures: (1) exclusion from the practice of for which benefit was obtained in the Croatian territory, as re- certain activities or affairs, (2) exclusion from entitlement to quired by Art. 4(1) of the PFI Convention. Jurisdiction over permits, authority, concessions, and subsidies, (3) exclusion the participation in and instigation to commit the offence on from contracts with beneficiaries of state and local budgets, the territory of another Member State or third country is also and (4) forfeiture, as well as confiscation of pecuniary gain as ensured as the offence is also committed at the place where a sui generis measure. It can be concluded that the Croatian the accomplice or instigator acts or ought to have acted or the criminal law on the criminal responsibility of legal persons is in consequence ought to have occurred according to the expecta- compliance with Articles 3 and 4 of the 2nd Protocol: it ensures tion of the accomplice (Art. 27 § 2 CC). the criminal liability of legal persons for fraud, active corrup- tion, and money laundering committed by decision-makers as The Croatian law also provides for extra-territorial jurisdic- well as employees in accordance with the requirements of the tion on the basis of the active and passive personality princi-

eucrim 3–4 / 2007 | 125 National Implementation of International Criminal Law Standards ple. A Croatian national shall be prosecuted and judged for the prohibits prosecution if the acts took place in part in the terri- commission of all criminal offences, irrespective of where the tory of the state where the judgement was delivered. In such a offence was committed, under the condition of double crimi- case, before the 2007 Amendment, it was possible for a State nality (Art. 14 § 2 CC). Art. 6(1b) of the 1st Protocol differenti- Attorney to decide to apply the principle of territoriality and to ates jurisdiction based on the offender who is a national and the put such an offender on trial in Croatia (Art. 15 § 1 CC). offender who is an official. The situation in which an offender is a Croatian official but not a Croatian national is not covered In order to close this gap, the 2007 Amendment introduced by the active personality principle. Likewise, the Croatian law in Art. 15. of the Criminal Code a provision which prohibits does not provide for jurisdiction if the offender is a Commu- the institution of criminal proceedings if the state on whose nity official who is working for a Community institution with territory the offence in part took place has delivered final headquarters in Croatia (Art. 6 of the 1st Protocol). judgement and the penalty is served or is being served or serving of the imprisonment is not possible. The flaw of the Extra-territorial jurisdiction based on the passive personality provision is that it applies the ne bis in idem rule only if the principle is laid down only for Croatian nationals under the judgement of conviction is delivered pronouncing a sentence condition of double criminality but not if the offence is com- of imprisonment but not when another type of judgement is mitted against a Community official or a member of a Com- delivered. This is contrary to the Convention which, in Art. 7 munity institution who is not a Croatian national. It should be § 1, includes any type of final disposal of the trial. It is also emphasised that, in all cases in which Croatian law does not contrary to the case law of the European Court of Justice provide for jurisdiction required by the PFI instruments, it is which decided in the Gözütok & Brügge case44 that the ne possible for Croatia to opt-out and declare that it will not apply bis in idem rule applies even when the prosecutor discontin- these rules. ues criminal proceedings without the involvement of a court, once the accused has fulfilled certain obligations and, in the 45 b) Extradition van Straaten case, that ne bis in idem applies to the judicial decision by which the accused is finally acquitted for lack of The Croatian law on extradition enacted by the Act on Mutual evidence. Legal Assistance in Criminal Matters43 aligns with the 1995 Convention on simplified extradition procedure and the 1996 Convention on Extradition between the Member States of the IV. Conclusion EU as it introduces rules for simplified extradition, the request for extradition no longer being transmitted through diplomatic The analysis of the 2007 Amendment of the Croatian Crimi- channels, i.e., through the Ministry of Foreign Affairs, and it nal Code that should have been the implementing act of the provides for the securing of evidence and confiscation of prop- PFI Convention in Croatia indicates that it did not completely erty as forms of mutual legal assistance in criminal matters. fulfil its purpose. Although improvement has been made and However, Croatia’s legislation is not in compliance with the Croatia has partly implemented the provisions of the PFI ac- Framework Decision on the European Arrest Warrant for the quis, remaining gaps and loopholes hold no promise that the following reasons: the Constitution prohibits the extradition of criminal law protection in Croatia satisfies all requirements of Croatian citizens; the dual criminality principle is not limited the PFI instruments. The reason for this legislative failure lies and applies to all offences; the extradition procedure is judicial in the solely political purpose of the Amendment which is to and governmental as it is conducted through the Ministry of satisfy the promise given to Brussels to implement the PFI in- Justice and the Minister of Justice ultimately decides wheth- struments by the end of 2007, even if this means a formal ful- er extradition is granted or denied. The grounds for refusing filment – without proper content. The Amendment was passed extradition are: fiscal offences, political offences, offences urgently and the customary steps in the legislative procedure against a Croatian national, and lack of evidence. However, as for criminal law acts were disregarded. mentioned above, penalties for offences against the financial interests of the EU are high enough to give rise to extradition However, since the beginning of the association process, or surrender according to the Framework Decision on the Eu- Croatia has considerably increased its level of criminal law ropean Arrest Warrant. protection of the EU’s financial interests. As, according to the European Commission report, “none of the Member States c) Ne bis in idem under scrutiny appears to have taken all the measures needed to comply fully with the PFI instruments”,46 it remains to be In contrast to the issue of extradition, the Croatian law is seen whether the European Commission will consider that the aligned with the ne bis in idem principle as laid down in Art. improvements which have been made are sufficient for clos- 54 and 55 of the 1990 Convention implementing the Schengen ing the negotiating chapter 32 on Financial Control. Perhaps Agreement of 14 June 1985 and taken over in Art. 7 of the PFI the Commission will take into account the overall level of the Convention, apart from the exception to the principle of ter- protection of the EU’s financial interests in the EU Member ritoriality provided for in Art. 7 § 2a of the Convention. This States. Bearing this in mind, one cannot say that Croatia did provision requires the application of the ne bis in idem rule or not meet its benchmarks.

126 | eucrim 3–4 / 2007 Protection of the EU’s Financial Interests in Croatia

1 Such as: INTOSAI Internal Control Standards, Lima Declaration Of Guidelines On Auditing Precepts, INTOSAI – Auditing Standards, INTOSAI Code of Ethics. Prof. Dr. Zlata Đurđević 2 Official Gazette of the Republic of Croatia No 141/ December 27, 2006. 3 European Commission, Accession negotiations, Croatia, Draft Common Positi- Associate Professor of Criminal Procedural Law on, Brussels, 31 May 2007, 4. at the Faculty of Law, University of Zagreb/Croatia; 4 Council Regulations (EC) No 1338/2001, 1339/2001, 2182/2004, 2183/2004, Vice-President of the Croatian Association of European Council Decisions 2001/923/EC, 2001/924/EC, 2003/861/EC, 2003/862/EC, Com- Criminal Law. mission Decision 2005/37/EC. http://www.pravo.hr/zlata.djurdjevic 5 Council Regulation (EC, Euratom) No 2988/95. 6 Council Regulation (Euratom, EC) No 2185/96. 7 Council Regulation (EEC) No 595/91, Commission Regulation (EC) No 1681/94, Commission Regulation (EC) No 2035/2005, Commission Regulation (EC) No 1831/94, Commission Regulation (EC) No 2168/2005 8 Art. 5 § 12 and Art. 36 of the PIFC Act. 9 Art. 3 of the Regulation amending Regulation on Internal Structure of the Ministry of finance, Official Gazette of the Republic of Croatia, No 138/ December 29 Compare with the general offence of fraud in Germany (§ 263 dStGB) and in 20, 2006. Austria (§ 149 öStGB). See Zeder, Fritz, Umsetzung des Übereinkommens über 10 European Commission, Accession negotiations, Croatia, Draft Common Positi- den Schutz der finanziellen Interessen der Europäischen Gemeinschaften im on, Brussels, 31 May 2007, 6. allgemeinen Strafrecht, in: Finanzstrafrecht 1996-2002, Wien 2006, S. 951. 11 OJ C 316 from 27.11.1995, 49-57. 30 See Novoselec, endnote 22, 237-238. 12 Protocol drawn up on the basis of Article K.3 of the 31 See Novoselec, Petar, Der „EU-Betrug“ und das kroatische Strafrecht, in: Zlata to the Convention on the protection of the European Communities’ financial Đurđević (ed.) Current Issues in European Criminal Law and the Protection of EU interests (OJ C 313 from 23.10.1996, 2-10). Financial Interests, Zagreb 2006: Sveučilišna tiskara, p. 19; Zieschang, Frank, Das 13 See also Pradel, Jean / Corstens, Geert (2002) Droit pénal européen, Paris: Übereinkommen zum Schutz der finanziellen Interessen der EG und seine Auswir- Dalloz, p. 516. kungen auf das deutsche Strafrecht, EuZW 1997, S. 78-83 (80). 14 Second Protocol, drawn up on the basis of Article K.3 of the treaty on European 32 Explanatory Report on the Convention on the protection of the European Com- Union, to the Convention on the protection of the European Communities’ financial munities‘ financial interests, OJ C 191, 23 June 1997. Art. 1, § 1. interests (OJ C 221 from 19.7.1997, 12-22). 33 VSRH IV Kz-79/98. 15 Cf. Art. 12 of the PFI Convention, Art. 10 of the first Protocol, and Art. 17 of the 34 VSRH Su-726-IV/97 from January 19, 2001. second Protocol. 35 County Court decision Bjelovar Kž-235/01-3. 16 See for example Commission Staff Working Paper, Annex to the Report from 36 Judgement of the ECJ of 21 September 1989, Case 68/88, Commission v. the Commission “Implementation of the Convention on the Protection of the Euro- Greece, ECR I-2965, para. 24-25. pean Communities´ financial interests and its protocols”, Brussels, 25. Oct. 2004, 37 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution SEC(2004) 1299. in the European Union of orders freezing property or evidence, OJ L 196 from 17 http://ec.europa.eu/enlargement/pdf/croatia/screening_reports/screening_ 2.8.2003, 45-55 and Council Framework Decision 2005/212/JHA of 24 February report_32_hr_internet_en.pdf. 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, 18 European Commission, Enlargement Directorate-General, Draft Common OJ L 68 from 15.3.2005, 49-51. Position, Accession Negotiations Croatia, Negotiating chapter 32: Financial Con- 38 See Explanatory Report on the Convention on the protection of the European trol, Brussels, 31 May 2007, p. 7. (attached to the Council of the European Union, Communities’ financial interests, OJ C 191, 23 June 1997. Art. 3. Brussels, 31 May 2007, 10291/07, Limite, ELARG 52) 39 See Tiegs, Heiko W.A., Betrugsbekämpfung in der Europäischen Gemein- 19 Official Gazette of the Republic of Croatia No 110/ October 25, 2007. schaft, Berlin 2006, S. 349. 20 See decision of the Supreme Court of the Republic of Croatia – VSRH Kzz 40 Explanatory Report, as cited. 39/04-2, www.vsrh.hr. 41 Article 25 prescribing the manner of perpetrating a criminal offence reads as 21 County Court decision – ŽS Kc Kž 132/1998. follows: (1) A criminal offence can be committed by an act or an omission to act; 22 Novoselec, Petar, Kazneno pravo: opći dio, Zagreb: Pravni fakultet u Zagrebu (2) A criminal offense is committed by omission when the perpetrator, who is legally 2006, 235. obligated to avert the consequence of a criminal offence defined by law, has failed 23 See Kert, Robert, Straftaten gegen das Gemeinschaftsbudget und ihre Sank- to do so, and such a failure to act is tantamount in its effect and significance to the tionen nach dem österreichischen Recht, in: Zlata Đurđević (ed.) Current Issues in perpetration of such an offence committed by an act; (3) The punishment of a per- European Criminal Law and the Protection of EU Financial Interests, Zagreb 2006: petrator who has committed a criminal offence by omission can be mitigated, except Sveučilišna tiskara, p. 29. in the case of a criminal offence which can be committed only by failure to act. 24 Annex to the Report from the Commission “Implementation of the Convention 42 More details on the criminal liability of legal persons in Croatia see Đurđević, on the Protection of the European Communities´ financial interests and its proto- Zlata, Criminal Liability of Legal Persons in: Zlata Đurđević (ed.) Current Issues in cols”, Brussels, 25 Oct. 2004, SEC(2004) 1299, p. 19. European Criminal Law and the Protection of EU Financial Interests, Zagreb 2006: 25 Ministry of Justice, Draft proposal on the Amendment Act on the Criminal Code, Sveučilišna tiskara, p. 73-89. August 2007. 43 Official Gazette No. 178/04. 26 Novoselec, endnote 22, 234. 44 Judgment of the Court of Justice of 11 February 2003, Case C-187/01 i 27 VSRH KZZ 25/04-2. C-385/01, Hüseyin Gözütok and Klaus Brügge, ECR 2003, I-5689. 28 In Croatian case law, the proof that a victim was mislead requires the establish- 45 Judgment of the Court of Justice of 28 September 2006, Case C-150/05, Van ment of facts such as whether the official bodies were required to check over the Straaten v Staat der Nederlanden, Republiek Italië. Full text of the judgment availa- presented facts or whether they have had such possibility. In some cases, like if a ble via eucrim 3-4/2006, p. 64. victim did not have any idea of relevant facts or was indifferent, the obligation on 46 Report from the Commission Implementation by Member States of the Con- the part of the „victim“ can exculpate the offender. VSRH Kzz 20/06-2; VSRH KZZ vention on the Protection of the European Communities´ financial interests and its 25/04-2; Novoselec, endnote 22, 236. protocols, Brussels, 25. 10. 2004, COM(2004) 709 final, 7.

eucrim 3–4 / 2007 | 127 National Implementation of International Criminal Law Standards

The Effective Implementation of International Anti-Corruption Conventions

Bryane Michael and Habit Hajredini

I. Introduction able delineation of offenses covered by the legal definition of corruption. In developing countries, bribes are often confused For over 10 years, organisations such as the United Nations with gifts. Such confusion has led most international conven- (UN), the Organisation for Economic Co-operation and Devel- tions against corruption, including the UN Convention against opment (OECD), and the Council of Europe (CoE) have been Corruption, to prohibit (or at least regulate) gift-giving to civil helping developing countries adopt legal measures to fight cor- servants.6 However, surveys about the public’s perception of ruption. These efforts, however, have sometimes had less than corruption often point to differing views about the giving of the desired impact. The UN, OECD, and CoE conventions whiskey, chocolate, or small cash gifts. According to most of against corruption have been relatively ineffective because these surveys, many respondents consider the giving of such these conventions, while ratified by national parliaments, are gifts to be ethical and permissible behaviour even though in- not being implemented in the government agencies most prone ternational guidelines for developing countries discourage this to corruption – particularly the traffic police, security services, kind of activity. A two-part test can help civil servants and customs, and tax inspection. Figure 1 provides an overview prosecutors to understand the difference between indictable of the three conventions discussed in this article and the ways bribes and gifts about which there should be no complaint: in which they are supposed to be implemented. As shown in A “payment” (a bottle of cognac, for example, or a box of the figure, two of the conventions rely on the national judicial chocolates) is not “corrupt consideration” if (1) the gift does system − particularly on government prosecutors − to imple- not coincide with the delivery of a service to which the public ment their provisions (the CoE Civil Law Convention, in con- service user has a right and if (2) the civil servant could not trast, does not). However, national authorities can engage in a anticipate ex-ante (i.e., before delivering the service) that the number of practical steps that can bolster the effectiveness of gift would be given. If both of these requirements are met, these international conventions. As it is not possible to address there is no linkage between the “payment” and the service de- all such practical steps in detail, this article will focus on a few livery. Naturally, a fixed rule against accepting any gifts might aspects of an effective implementation of the aforementioned be easier to implement, and cases in which one part of the test international anti-corruption instruments.2 fails would require special attention.

Part II of this article covers the basic points that should (or Furthermore, executive regulations should reflect the fact that should not) be included in executive regulations governing the effective implementation of international conventions law enforcement agencies. Part III discusses methods of dis- against corruption often depends on the removal of unneces- couraging civil servants from taking bribes. The fourth part sary regulation/legislation in general. Often, the state engages examines ways in which countries can finance additional law in unnecessary anti-corruption programmes or provides prob- enforcement obligations imposed by the international conven- lematic regulations that may even enhance corruption. In many tions against corruption. In Part V, a concrete example is given cases, corruption results when regulations prevent economic of how some of the issues raised in the previous parts can be actors from engaging in activity in which they would prefer applied within the international legal framework. The issues to engage.7 For example, regulations that impede the cross- are illustrated on the basis of the international corruption scan- border import and export of products encourage traders to find dal involving the French oil company Elf-Aquitaine. Finally, black market methods of trading these products. The World Part VI provides concluding observations and suggestions. Bank estimates that the effect of these “regulatory distortions” can be to increase the cost of goods from 5 % to 100 % in some countries!8 While such regulations obviously contribute to the II. Executive Regulations for Law Enforcement Agencies creation of black markets, many other regulations are simi- larly counterproductive. For example, regulations specifically Three points should be dealt with regarding executive regula- aimed at reducing corruption − such as rules about the rotation tions that tackle corruption: the distinction between bribes and of staff, the declaration of civil servants’ assets, or the sign- gifts, the problem of unnecessary regulation, and the need for ing of forms by multiple civil servants − can also encourage clear regulatory drafting to help compensate for the vagueness the development of black markets. An increasing number of of the conventions themselves. The effective implementation documented cases shows that anti-corruption regulations and of the conventions listed in Figure 1 requires, first, a reason- rules aimed at reducing corruption actually lead to an increase

128 | eucrim 3–4 / 2007 Effective Implementation of International Anti-Corruption Conventions

Convention Brief Description Method of Implementation Weaknesses

UN Convention Makes corruption a criminal Relies on member state police and Offers general guidance, includes no against Corruption offence in over 100 countries; judicial systems to investigate and methods for financing the additional (2003)3 provides provisions for asset prosecute corruption. activities imposed on signatory states, restitution. repeats much of the work of previous re- gional treaties.

OECD Anti-Bribery Makes the bribing of foreign Relies on OECD member state Provides little incentive for governments Convention (1997)4 officials by legal and natural prosecutors and courts to discov- to harm their own companies in interna- persons from OECD countries a er and convict corruption cases tional competition by enforcing the Con- criminal offence. committed in foreign countries. vention; provides no methods for financ- ing the additional activities imposed on signatory states.

Council of Europe Encourages legal and natural Relies on harmed parties to sue Relies on self-interested individuals to Civil Law Convention persons to sue for the harms in civil courts for the value of the “fight the system” as well as on an often Against Corruption imposed by corruption. harm engendered by corruption. corrupt judiciary. (1999)5

Figure 1: Overview of the three international conventions against corruption, source: author in corruption!9 Another negative aspect is that the enforcement could claim tax deductions for bribes paid to foreign govern- of such regulations requires resources (and thus tax revenue). ment officials. Currently, in the Ukraine, a civil servant con- Increasing the number of regulations on civil servants is an victed of engaging in corruption can be fined a maximum of almost visceral response to corruption; such an approach can – only $40,000. According to a large-scale survey, 27 % of the and often does – cost more than it benefits the civil service. Bolivian population claims to have had experience with cor- rupt government officials, even though less than 10 officials Although avoiding superfluous and vague agency-level anti- are convicted of corruption offenses every year.12 These exam- corruption programmes and/or regulations may seem to be a ples show the low risk that bribe-takers and bribe-givers face relatively minor problem, studies show that the conventions when engaging in corruption. There are many possible ways themselves are very vague. As a result, the development of to respond to this problem; three responses are recommended specific and concrete supporting regulations is necessary. here: first, increase the liability of civil servant’s superiors; For example, a study of all 71 articles of the UN Convention second, adopt alternative procedures with a lower burden of against Corruption assessed the extent to which the articles proof for certain types of corruption offences; and third, con- in the Convention provide clear instructions as opposed to duct so-called “integrity probes.” expressing general statements of principles.10 On a 5-point scale related to the “clarity” of each article of the Convention One way to increase the risk of engaging in corruption is to (where 1 signified that the article outlined a broad principle adopt regulations that would make a bribe-taking government and 5 represented a concrete, specific, and well-defined obli- official’s boss liable (or legally responsible) for the corruption gation), the average clarity of the Convention was 2.5. In light of his or her subordinates. The concept used in this context, re- of this situation, the lawyers and other specialists working in spondeat superiour, refers to the legal liability that an employ- agencies such as customs or the police should write detailed ee’s bosses and managers incur for the improper actions of department-level instructions to help implement these interna- their subordinate. Such legal liability is often already imposed, tional conventions. albeit haphazardly. For example, in October 2007, a Hungarian Member of Parliament was questioned by police for suspected corruption involving his staff.13 Making the Member of Parlia- III. Increasing the Risk of Engaging in Corruption ment legally responsible for the corruption offences of his staff should increase his interest in monitoring their activities and Another important issue for the effective implementation of hence make corruption all the more risky for them. international anti-corruption requirements is to find ways of in- creasing the risk of engaging in corruption. A standard recom- The criminal prosecution of corruption cases is difficult be- mendation for legal reform in corruption-prone countries is to cause of the high burden of proof required in order to obtain increase the risk to bribe-taking civil servants and bribe-giving a conviction. The burden of proof requirement in criminal private individuals of engaging in corruption.11 In numerous cases14 requires the prosecutor to show “beyond a reasonable countries around the world, engaging in corruption is low-risk doubt” (to use a famous phrase from the American and Eng- behaviour. In Germany, for example (until 2000), companies lish legal systems) that the accused participated in corruption.

eucrim 3–4 / 2007 | 129 National Implementation of International Criminal Law Standards

In other words, if even a 1% chance exists in the mind of the implementation; on the other hand, these conventions do not judge (or jury in the case of a jury trial) that the accused did answer the question of how extra money can be provided to not participate in the corrupt act, then the judge/jury has the help realize the obligations they impose on governments. The duty to acquit the accused person. The high burden of proof UN Convention requires investigators to turn over evidence called for by the international anti-corruption conventions re- to foreign prosecutors in international corruption cases15 and duces the ability of law enforcement agencies to stop individu- to protect witnesses who observe corrupt transactions.16 The als from engaging in corruption. OECD Convention requires signatory states to impose “dissu- asive” penalties for corruption – which are very expensive to Law enforcement agencies would have more success imple- implement as the cost of an investigation can run into several menting these international conventions – and thus stopping tens of thousands of dollars.17 Indeed, public budgets in deve- corruption – if they were to choose prosecutorial strategies that loping countries are often too small to fund large-scale anti- involve a less stringent burden of proof than that required in corruption work. Even the OECD countries − which include criminal proceedings. Accordingly, a prosecutor could choose the richest countries in the world − are failing to implement to pursue certain offences as disciplinary or administrative in- the OECD Convention because certain measures cannot be fi- fractions to which a less stringent burden of proof applies; this nanced.18 As a result, it is crucial to generate funds. Funding less stringent burden of proof would require the prosecutor to could come from a number of sources, including proceeds of show only “on the balance of probabilities” (to again borrow a corruption that have been recovered by means of so-called phrase from the legal community in the USA and UK) that the “qui tam actions” (as will be explained below), civil damages accused participated in corruption. In other words, if convinced imposed on corrupt parties, and fines imposed on negligent that the accused is more likely guilty than not, the judge or jury companies or organisations. − based on the evidence that investigators were able to collect − would be able to convict. In simple terms, if the judge or jury The international conventions against corruption would be believes that there is a 51% chance that the accused took a bribe more effective if they encouraged anti-corruption work to be (or engaged in any other form of corruption), then the judge/ self-financing. Allowing law enforcement agencies to keep (or jury is obliged to render a guilty verdict. However, because this claim from the budget) a portion of the value of the corruption level of proof is much lower than the burden of proof required that they successfully detect and prosecute would provide an in criminal cases, the sanctions imposed following conviction incentive to fight corruption and would tie anti-corruption ef- in such a proceeding would have to be less severe than those forts to the amount of corruption affecting a particular agency. imposed on persons convicted of criminal activity. Such sanc- Such payments would also allocate resources to the investiga- tions could involve small fines, a bad review in the convicted tor or even the private whistle-blower as well as to the agency officer’s personnel file, or dismissal from work. Despite these that can best fight corruption. A good example can be given lighter sanctions, the increased probability of a successful con- from Turkey: Turkish law enforcement agencies were at one viction would increase the risk of engaging in corruption. time allowed to resell or keep a portion of the value of the contraband goods they found. While some countries have had Finally, so-called “integrity probes” could dramatically in- good experiences using schemes such as this one, the policy crease the risk to law enforcement officers and other govern- of paying law enforcement officers based on the amount of ment officials who engage in corruption. The British Customs crime and corruption they find can lead to “shake-downs” and Service has conducted such probes for years. In these probes, more inspections than economically, socially, or legally desi- a plain-clothes individual working with the Customs Service rable. However, rewards to departments and civil servants (in tries to smuggle contraband. The individual notes whether the the form of promotion prospects or perquisites such as social customs officials on duty find the contraband and waits for housing or subsidies on public services) can be used to create them to make suggestions or to solicit bribes. Many countries incentives for law enforcement officials without encouraging are concerned about using such integrity probes for fear that excessive shake-downs of public service users. these probes are illegal or unconstitutional because they en- courage government officials to commit crimes. Entrapment The international anti-corruption conventions do not provide of this nature can be avoided if the officers consent to these mechanisms for rewarding the investigation and prosecution probes at the start of their employment (to the extent they are of corruption. Few cases of corruption are successfully pro- statutorily permissible) and if the person who has the contra- secuted because rewards are not provided to witnesses, plain- band is not the one to suggest that the situation can be handled tiffs, investigators, or prosecutors for participating in legal ac- through the payment of a bribe. tions against corrupt officials. However, qui tam rewards can encourage individuals to report cases of suspected corruption. The term qui tam derives from the Latin phrase “qui tam pro IV. Financing Anti-Corruption Measures domino rege quam pro se ipso in hoc parte sequitur”, meaning “he who sues for the king as well as for himself”. Qui tam One of the most important issues in practice is the financing provisions allow individuals to sue those who harm the State of state anti-corruption activities. On the one hand, the in- and to claim a share of the damages paid by the offender. The ternational conventions against corruption require effective damages that a whistle-blower can be awarded in a qui tam ac-

130 | eucrim 3–4 / 2007 Effective Implementation of International Anti-Corruption Conventions tion concerning corruption may include the value of the bribes dent and several foreign heads of state directly participated in paid as well as the value of revenue the State loses due to cor- (or at least had active knowledge of) the illegal activities. ruption. In the United States, such qui tam rewards have allo- wed the government to reclaim over $12 billion since 1986.19 The prosecutorial strategies presented in the previous part il- lustrate the remedies that prosecutors could have sought if the Fines levied on companies potentially engaged in corrupti- Elf-Aquitaine case had taken place in 2008 rather than 1993. on represent another manner in which cash-strapped prose- Today, the UN Convention against Corruption, which entered cutors’ departments can raise the funds needed to continue into force in December 2005, would allow for the restitution investigating and prosecuting the corruption targeted by the (return) of the funds collected by the foreign officials who re- international anti-corruption conventions. At present, compa- ceived bribes and kickbacks from the French oil company. In nies engaging in corruption do not pay for the damage their the Elf-Aquitaine case, these assets included € 6 million in corrupt activities cause. For example, the global engineering jewellery, five antique statues worth about € 40,000, and a € company Siemens paid over € 400 million in bribes to win 23m pied-à-terre in Corsica.22 However, the UN Convention telecommunications contracts.20 The harm to the purchasing does not indicate who should receive these recovered funds. governments’ agencies and, ultimately, to the consumers who The claims of four possible beneficiaries should be considered: received Siemens products (which were presumably of in- First, a case could be made that the funds should be turned over ferior quality to those of the company that would have won to the French investigators and prosecutors who investigated the contract had Siemens not paid the bribe) was certainly the case. Rewarding successful anti-corruption work clearly much larger than the € 400 million Siemens paid in bribes. directs resources to their most efficient use and provides fur- Nevertheless, Siemens is not required to pay damages to the- ther encouragement to investigate corruption (although the se aggrieved parties (in the form of money to the individuals agency rather than the individuals would most likely receive and agencies harmed by corruption). the cheque). Second, the direct victims of Elf-Aquitaine’s cor- ruption could be compensated. Bribes and kickbacks to foreign Because proving corruption remains difficult – mainly due to officials presumably came from the company’s shareholders the high burden of proof in criminal cases and the difficulty and customers. As such, any funds recovered should be di- in punishing legal persons – the imposition of fines on com- vided among these victims. Third, the individuals harmed by panies for failing to take sufficient precautions against - cor such corruption could be compensated − the consumers who ruption must be considered. Such “negligence fines” would paid higher prices at the gas pump and the company’s com- punish companies for failing to engage in activities that help petition who lost contracts to the French oil giant are obvious prevent corruption in the course of their operations. Clearly, injured parties. Fourth, the funds should be spent on the pov- if a company is accused of engaging in bribery or corruption erty-stricken Africans who most need these funds (as a general − as in the above-mentioned Siemens case − prosecutors have principle, public funds go to those who need them most). As a difficult time proving that individual natural persons physi- government agencies begin filing petitions with foreign gov- cally handed out brown paper bags filled with cash bribes. ernments in order to recover assets located in foreign countries However, prosecutors have an easier time showing that legal and purchased with the benefits of corruption, they will need to persons failed to monitor their staff and the way the staff spent decide which of the four beneficiaries mentioned above should company money. be the preferred recipient of restituted funds.

Another issue to consider in the hypothetical application of the V. Handling International Corruption Cases UN Convention against Corruption to the Elf-Aquitaine case is that of jurisdiction. What if Russian investigators − and not Some of the issues mentioned above become much more diffi- French investigators − had discovered the corruption commit- cult when cases are examined that play not only at the national ted in the Elf-Aquitaine case? How should the French autho- level but at the international level as well. These cases show rities treat claims from Russian courts for Russian assets loca- the possibilities provided by the international legal framework ted in Paris? The UN Convention does not clearly define how to find a suitable solution to the problem of international cor- countries should co-operate on asset recovery.23 In general, ruption. The following case will serve as an illustration of however, requests for the restitution of assets can be handled the application of the UN Convention against Corruption: In in four ways. First, the country receiving the request (France 2003, almost forty senior officials went on trial in Paris for in the Elf-Aquitaine example) could translate the request into corruption associated with the activities of the former French a property seizure order and arrange for the transfer of the oil giant Elf-Aquitaine.21 The case involved the payment of property (or the proceeds after sale) directly based on the re- kickbacks amounting to almost € 200 million to public offi- quest. Second, the French authorities could request to review cials in Gabon, Cameroon, Congo-Brazzaville, Russia, Spain, the evidence used by the Russian court before they process Germany, and other countries. According to investigators, sen- the request to seize the Russian-financed assets held in Paris. ior company officials transferred over €150 million into their Third, the French authorities could decide to render assistance own personal (foreign) bank accounts. The accused (and later only if their law enforcement officials participated in the trial convicted) senior oil executives testified that the French presi- in Russia. Fourth, the French authorities could refuse all re-

eucrim 3–4 / 2007 | 131 National Implementation of International Criminal Law Standards quests. These four possibilities can be referred to, in order, as: law enforcement agencies – could be paid for from recovered foreign jurisdiction, translated judgment, joint judgment, and proceeds of corruption, qui tam rewards, civil damages im- no foreign (local) jurisdiction. posed on corrupt parties, and fines imposed on negligent com- panies or organisations. In order to illustrate how these rem- The Elf- Aquitaine example illustrates how the UN Convention edies might be applied in corruption cases of an international against Corruption could be used today to correct injustices dimension, the Elf-Aquitaine case, which took place prior to which used to be unresolvable in the past. The UN Convention the entry into force of the UN Convention, was used as a hy- provides for increased international co-operation and assist- pothetical – showing how the new legal framework would pro- ance (allowing for easier sharing of evidence and facilitating vide for better outcomes (in terms of convicting guilty parties extradition). However, the Convention does not clearly define and recovering funds) than were possible in the past. how such arrangements are to be made (necessitating either more detailed national implementing legislation or agency- As a recommendation, officials working in executive agencies level regulation where such rule-making has been delegated to (such as customs, police, or tax) need to draft regulations im- the law enforcement agency). The UN Convention is a useful plementing the international anti-corruption standards. Each tool for fighting corruption and for recovering the proceeds article of these regulations should address a separate issue of corruption (which can then be used to fund additional law contained in the national anti-corruption law (which enacts the enforcement activity). three international conventions examined in this article). Ex- perience in Eastern Europe indicates that such an implement- ing regulation usually runs no longer than about 20 pages. The VI. Conclusive Remarks agency should circulate the draft regulation (or rule as these regulations are sometimes known) among interested pub- How can the signatory states to the international conventions lic service users and should then publish the draft rule in the against corruption help ensure their effective implementation? country’s version of the Federal Register (to use the US exam- While an answer has many dimensions, this article looked at ple) or as a green paper (as it is practised in the UK and by the specific areas where practical steps could be incorporated into EU Commission). For example, the country’s customs service agency-level regulation. This article argued for a clearer legal would consult major importers and exports and any business delineation between bribes and gifts, the removal of unneces- associations that have a direct interest in trade and customs sary regulation, and the introduction of clear regulatory draft- issues. The important parts of the regulation should be widely ing to help compensate for the vagueness of the conventions advertised. For example, part of the regulation in the border themselves. Other suggested measures include increasing the guard service could call – on the basis of the OECD Anit- liability of a civil servant’s superiors, charging suspects with Bribery Convention – for signs to be placed at border crossing non-criminal corruption offences so as to employ a burden of points informing border crossers (in the English language as proof lower than that required in criminal cases, and imple- the lingua franca of the 21st century) that a bribe paid at the menting “integrity probes.” The increased burden (in terms border makes the crosser a criminal in his or her home country of the cost of enforcement) imposed by the international anti- if the person comes from a North American, European, or East corruption convention on executive agencies – particularly Asian country such as Japan or South Korea.

1 The authors would like to thank the colleagues from the Max Planck Institute for 6 Art. 8 para. 5 of the United Nations Convention against Corruption. Foreign and International Criminal Law, Thomas Wahl, Dr. Emily Silverman, Dr. 7 Susan Rose-Ackerman, Corruption and Government: Causes, Consequences, Marianne Wade, and Indira Tie, who heavily edited this article and helped us to and Reform, Cambridge University Press (1999). crystalise our ideas for this piece. Naturally, any substantive or grammatical errors 8 Bineswaree Bolaky and Caroline Freund, Trade, Regulations, and Growth. World remain our own responsibility. Bank Policy Research Working Paper Series No. 3255. 2 This article distils some ideas from a much longer academic and technical text 9 Frank Anechiarico, James Jacobs, The Pursuit of Absolute Integrity: How Cor- written for legal scholars. The text is available at: http://www.qeh.ox.ac.uk/RePEc/ ruption Control Makes Government Ineffective, University of Chicago Press (1996). qeh/qehwps/qehwps150.pdf 10 Bryane Michael, What Does the UN Convention on Corruption Teach Us About 3 United Nations Convention against Corruption, published at http://www.unodc. International Regulatory Harmonisation? Paper presented at the Japanese Econo- org/pdf/corruption/publications_unodc_convention-e.pdf. The UN Convention was mic Association Conference in Nagoya (2003). adopted by the United Nations General Assembly on 31 October 2003 (Resolution 11 Cheryl Williamson Gray, Joel Hellman, Randi Ryterman, Anticorruption in 58/4). It entered into force on 14 December 2005. Transition 2: Corruption in Enterprise-State Interactions in Europe and Central 4 OECD Convention on Combating Bribery of Foreign Public Officials in Interna- Asia, World Bank (2004). tional Business Transactions, available at http://www.oecd.org/document/21/0,3 12 Mitchell A. Seligson, The Measurement and Impact of Corruption Victimization: 343,en_2649_34859_2017813_1_1_1_1,00.html#Text_of_the_Convention. The Survey Evidence from Latin America, 34 World Development 381 (2006). OECD Anit-Bribery Convention was adopted by the Negotiating Conference on 21 13 Sandor Peto, Hungarian PM Pledges Laws to Clean Up Politics, Reu- November 1997 and entered into force on 15 February 1999. ters, 1 October 2007, at http://ca.today.reuters.com/news/newsArticle. 5 Civil Law Convention on Corruption, CETS No.: 174. Published at http://conven- aspx?type=topNews&storyID=2007-10-01T181243Z_01_L01743732_RTRIDST_0_ tions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=174&CM=8&DF=3/11/200 NEWS-HUNGARY-POLITICS-COL.XML&archived=False 8&CL=ENG. The CoE Convention was opened for signature on 4 November 1999 14 Most corruption offenses are now categorised as crimes under the UN, OECD and entered into force on 1 November 2003. and CoE, conventions against corruption.

132 | eucrim 3–4 / 2007 Implementation of the European Arrest Warrant in Slovenia

15 Art. 37-38 of the United Nations Convention against Corruption. 16 Art. 32-33 of the United Nations Convention against Corruption. 17 Art. 3 of the OECD Anti-Bribery Convention. The cost of an investigation of Bryane Michael alleged corruption is based on the authors’ own experience and interviews as no formal figures are released. Linacre College (Oxford); 18 Enforcement of the OECD Convention on Combating Bribery of Foreign Public Senior advisor to the EU on anti-corruption in Ukraine and Officials in International Business Transactions, Transparency International (2007). Moldova (with the EUBAM), Romania, Azerbaijan and Turkey 19 “Justice Dept. Civil Fraud Recoveries Total $2.1 Billion for FY 2003 – False Claims Act Recoveries Exceed $12 Billion Since 1986”. US Department of Justice Press Release. At http://www.usdoj.gov/opa/pr/2003/November/03_civ_613.htm 20 “Siemens names new board member to fight corruption”. AFP. At http://afp. google.com/article/ALeqM5isms888At2Y2tOf3e4rGRtZ2Md1Q 21 “Elf Corruption Trial Reaches French Courts”. Deutsche Welle. At http://www. dw-world.de/dw/article/0,,811008,00.html Habit Hajredini 22 The proceeds from the Elf case were used to buy expensive jewelry, real estate, and other luxury goods. See Jon Henley, Gigantic sleaze scandal winds up Prime Minister’s Office (Kosovo) as former Elf oil chiefs are jailed. Guardian Unlimited. At http://www.guardian.co.uk/ and Office for Good Governance france/story/0,11882,1083784,00.html 23 A promising direction in anti-corruption work involves the UN Stolen Asset Re- covery Initiative. See Stolen Asset Recovery Initiative, World Bank (2007) at http:// siteresources.worldbank.org/NEWS/Resources/Star-rep-full.pdf

The Implementation of the European Arrest Warrant in the Republic of Slovenia

Dr. Katja Šugman Stubbs

I. Introduction warrant and the surrender procedures between Member States (hereinafter: FD EAW) was the amendment of the Constitu- The following article will first give an overview of the legisla- tion of the Republic of Slovenia (hereinafter: CRS) in 2003.1 tive implementation of the European Arrest Warrant in Slovenia With the newly introduced Article 3a CRS, Slovenia partly (II.). Despite the fact that the first Slovenian law implementing transferred a part of its sovereignty to the EU, providing in- the EU Framework Decision on the European arrest warrant had ter alia for the following: “Legal acts and decisions adopted been adopted in April 2004, a new Act was recently adopted in within international organizations to which Slovenia has trans- October 2007. It introduced only slight changes but regrettably ferred the exercise of part of its sovereign rights shall be ap- did not use the opportunity to fully align with the Framework plied in Slovenia in accordance with the legal regulation of Decision (in particular as regards the institution of a central these organizations.”2 Next, Art. 47 of the Constitution was authority that would most likely improve the effectiveness of amended since it previously explicitly forbade the extradition the EAW procedure). Furthermore, this article will go into the of Slovenian nationals to foreign countries. The newly adopt- proceedings before the Constitutional Court which raised the ed Art. 47 CRS3 now provides for extradition as follows: “No question of the constitutionality of the Slovenian law on the citizen of Slovenia may be extradited or surrendered unless European Arrest Warrant; however, the Constitutional Court such obligation to extradite or surrender arises from a treaty by unfortunately did not decide on the merits of this legal instru- which, in accordance with the provisions of the first paragraph ment (III.). Ultimately, the author will also relate some of the of Art. 3a, Slovenia has transferred the exercise of part of its experiences of Slovenian judges collected through interviews sovereign rights to an international organization”.4 conducted with them (IV.). An extensive debate had been held on the question of whether During the Slovenian accession process, the first step taken Slovenia should implement the Framework Decision on the towards the implementation of the Council’s Framework De- European arrest warrant in the form of a special statute or as cision 2002/585/JHA of 13 June 2002 on the European arrest an amendment of the Code of Criminal Procedure (hereinafter:

eucrim 3–4 / 2007 | 133 National Implementation of International Criminal Law Standards

CCP) since Slovenian national law already contained provi- similar measure executable in connection with the custodial sions on extradition in the CCP. The legislator decided on the sentence of imprisonment of at least 4 months. In both cases, first option and passed a special act. Therefore, Slovenia im- the act has to be punishable according to Slovenian law as well plemented the FD EAW by adopting the Act on the European (double criminality – Articles 8(1) and 40 AICCM). In the case Arrest Warrant and Surrender Procedures (hereinafter: AEAW) of any the 32 categories of criminal offences for which the which came into force on the day of Slovenia’s accession to double criminality check has been abolished, the Slovenian the EU (1 May 2004).5 The rules on the form of the European legislator strictly followed the provisions of the FD (Articles arrest and surrender warrant were published in May 2007.6 2(2) FD EAW, 8(2) AICCM).

However, this legislation did not last long. On 26 October 2007, We can see that the Slovenian legislator strictly followed the the National Assembly adopted the Act on International Co-op- provisions of the FD when providing for the conditions for ex- eration in Criminal Matters between the Member States of the ecution of the EAW regarding criminal offences for which the European Union (hereinafter: AICCM),7 regulating cooperation double criminality check has been abolished, but somewhat under international law in criminal matters with EU Member altering the scope of criminal offences for which the double States and replacing the provisions of the Act on the European criminality check is still in power. The FD EAW does not men- Arrest Warrant and Surrender Procedures and the rules on the tion “prosecutable ex officio” criminal offences, but merely de- form of the European arrest and surrender warrant of 2004. The fines them by the severity of punishment. The Slovenian legis- AICCM was adopted with the purpose of regulating the sub- lator, however, limited to a slight extent the scope of criminal stance of cooperation in criminal matters between the Member offences for which Slovenia will execute the EAW, namely to States (MS) wholly, transparently, and efficiently in one single those prosecutable ex officio. act. It also changed some solutions adopted by the AEAW. Be- sides the EAW, the AICCM also implemented some additional It is probably interesting to know that the Slovenian law dis- EU Framework Decisions in the criminal law field.8 tinguishes between different types of prosecution: (1) for the great majority of the offences, the competent prosecutor is the state prosecutor; (2) for certain criminal offences (the ones II. Legislative Implementation of the EAW in Slovenia with a personal element, e.g. slander), the substantive crimi- nal law explicitly provides for private-law prosecution; or (3) In the general part, the AICCM emphasizes four general prin- criminal prosecution on the basis of a motion of the victim. In ciples which guide the implementation of the EAW in Slov- case criminal prosecution is based on a motion, it is up to the enian law (Articles 3-6 AICCM): victim to file a motion for the prosecution to begin but, from ● the principle of mutual recognition, then on, the competent prosecutor is the public prosecutor. It is ● the principle of speciality, not clear why the Slovenian legislator introduced the “ex offi- ● the principle of aid effectiveness,9 and cio” criteria as one of the conditions for the EAWs to be issued ● the principle of accelerated proceedings. or executed, but we can presume that the purpose was to try to The AICCM does not apply in cases where cooperation in avoid surrender for minor criminal offences, the prosecution criminal matters is regulated differently by another EU act of which was not entrusted to the professional judgment of the entailing direct effect or by other international agreements be- public prosecutor. One cannot yet assess the consequences of tween the MS. The Act also provides for the subsidiary use this limitation since we do not yet have data on how this pros- of the Code of Criminal Procedure (CCP) or other national ecution is organized in all 27 MS. criminal law legislation. The CCP’s provisions on extradition remain in force since they have to be applied in cases of extra- dition in relation to third states. 2. Formalities for the Execution of EAWs

It is a requirement that the issuing state must translate the EAW 1. Scope of the EAW in Slovenia into either Slovenian or English. If the requested person is al- ready in pre-trial detention, then the Slovenian judge can order The second part of the Act is entirely dedicated to procedures that the EAW is to be translated into Slovenian in order to speed of the European Arrest Warrant (Articles 8-46 AICCM). By up proceedings (Art. 15 AICCM). The judicial authority compe- defining for which criminal offences it is possible to execute tent in the execution of the EAW is an investigating judge from the surrender of a requested person, the AICCM mostly fol- the district court responsible for the area in which the requested lows the FD EAW. person resides or is located (Art. 13 AICCM). In cases where the requested person consents to being surrendered, it is the in- The surrender can be granted or issued (on the proposal of vestigating judge who makes the decision (Art. 21(1) AICCM). the state prosecutor or by a competent judge)10 for criminal In cases where the requested person does not consent to the sur- offences (1) prosecutable in the issuing state ex officio, pun- render, a panel of three district court judges makes the decision ishable with a custodial sentence of at least 12 months or (2) to permit or refuse the surrender after it receives a reasoned pro- for the execution of the custodial sentence or other security or posal from the investigating judge (Art. 22(4) AICCM).

134 | eucrim 3–4 / 2007 Implementation of the European Arrest Warrant in Slovenia

Upon receiving the EAW, the competent investigating judge CCP provisions. All surrender decisions must be treated as a must first formally check the EAW to establish whether the matter of urgency; in this respect, the Slovenian implementa- EAW contains all the required information (Art. 17(1) AICCM tion law directly follows the time limits of the FD EAW.11 implementing Art. 8(1) FD EAW). If all the requirements are met, the investigating judge must schedule the hearing and no other check is provided for. The newly adopted AICCM changed 4. Grounds for Refusal the provisions of the AEAW in one respect in that it is now ob- ligatory for the investigating judge to issue an arrest warrant for The Slovenian law distinguishes between mandatory and op- the requested person. Before the change of legislation, the arrest tional grounds for refusal of the surrender of a person. Specifi- of the requested person was not obligatory. It was up to the in- cally, these grounds are laid out in the following. The surren- vestigating judge to decide whether the requested person was to der of a requested person must be refused in all of the cases be arrested or whether it was sufficient to summon him/her only provided for by the FD EAW: to the hearing. Unfortunately, the legislator did not provide the • if a warrant has been issued for a criminal offence covered reasoning for implementing such a change. by an amnesty in the Republic of Slovenia, under the condi- tion that a domestic court is competent to prosecute (Art. 9(1) AICCM); 3. The Surrender Procedure • if the warrant has been issued for a criminal offence for which the requested person has already been finally acquit- Upon arresting the requested person, the police must advise ted or convicted in Slovenia, in another Member State, or in him/her that the arrest is pursuant to an EAW and inform him/ a third country, on condition that, in the event that a sentence her of the country that is requesting the surrender and why it was passed, the sentence has been served or is being served, is doing so. The arrested person must be advised immediately or that, according to the legislation of the country in which the that he/she is not obliged to make a statement, that he/she has sentence was passed, the sentence can no longer be executed a right to the immediate legal assistance of an attorney freely (principle of ne bis in idem – Art. 9(2) AICCM); chosen, and the competent authority is obliged, if so requested, • if a warrant has been issued for a criminal offence for which to inform his/her next of kin of the detention. If the requested criminal proceedings against the requested person in Slovenia person is not a Slovenian citizen, he/she must also be advised were conclusively terminated or the charge finally rejected, or that the competent authority is obliged, if so requested, to if the competent state prosecutor rejected the criminal charge inform his/her country’s consulate of his/her detention (Art. because the suspect met the agreed conditions in the settle- 18(1) AICCM). As soon as possible, within 48 hours at most, ment procedure or fulfilled the tasks imposed to lessen or rec- the person must be brought before the investigating judge for a tify the damaging consequences of the criminal offence in ac- hearing. When the person is brought in, the investigating judge cordance with the instructions of the state prosecutor and the must once again inform him/her of his/her rights, then inform provisions of the act regulating the criminal procedure (Art. the person of the meaning of the principle of speciality and 9(3) AICCM); the possibility to consent to surrender. The requested person • if the warrant has been issued for a criminal offence commit- is then questioned as to the possible existence of grounds for ted by a requested person who is under the Slovenian domestic non-execution (Art. 19(2) AICCM). If reasons for suspicion age limit for criminal responsibility (Art. 9(4) AICCM), that exist that the requested person might flee, the investigating is, 14 years of age (Art. 71 Criminal Code);12 judge can order pre-trial detention according to the rules of the • if the warrant has been issued for a criminal offence for national CCP (Art. 23(2) AICCM). which prosecution or the execution of a sentence have be- come statute-barred, under the condition that a domestic The procedure on executing the EAW cannot continue without court is competent to prosecute or execute the sentence (Art. the requested person being present. At the hearing following 9(5) AICCM); the arrest of the requested person, the presence of the state • if the warrant has been issued for a criminal offence that is prosecutor is obligatory (Art. 19(2) AICCM). The requested not punishable in domestic criminal legislation and the excep- person must have a legal counsel for the entire duration of the tions from the second paragraph of Art. 2 of the FD may not be surrender procedure − from the time he/she is brought before applied (double criminality principle – Art. 9(6) AICCM); the investigating judge, or from the first hearing to decide on • if criminal proceedings are taking place against a requested the surrender, to the surrender itself. If the requested person person in Slovenia for the same criminal offence for which does not engage a legal counsel, the president of the competent the warrant was issued, if this criminal offence was commit- court appoints one ex officio (Art. 16(1) AICCM). ted against the Republic of Slovenia, or if the criminal offence was committed against a Slovenian citizen, and no financial According to the provisions of the AICCM, the requested per- guarantee has been provided to enforce the victim’s indemnifi- son specifically has the right to request the warrant to be trans- cation claim (Art. 9(7) AICCM); lated into his/her native language or into another language he/ • if there are reasonable grounds for concluding that the war- she understands (Art. 16(2) AICCM). The requested person rant was issued for the purpose of instigating criminal prosecu- also has the right to request an interpreter according to the tion against and sentencing the requested person on the basis

eucrim 3–4 / 2007 | 135 National Implementation of International Criminal Law Standards of his/her sex, race, faith, ethnic origin, nationality, language, became a mandatory ground for the non-execution (Art. 9(5) political conviction, or sexual orientation, or if his/her chance AICCM). Thirdly, Slovenian law sometimes splits the grounds of a fair trial would be significantly impaired for any of these for optional non-execution into two parts: one part is covered reasons (Art. 9(8) AICCM);13 and by a mandatory ground and the other by an optional ground • if the issuing judicial authority has not given certain assur- for the non-execution. For example, an optional ground from ances, defined in Art. 5 FD EAW and Art. 11 AICCM (Art. 9(9) Art. 4(2) FD EAW (where the person who is the subject of the AICCM). European Arrest Warrant is being prosecuted in the executing Member State for the same act as that on which the European Art. 10 AICCM provides grounds for optional non-execution. Arrest Warrant is based) has been split into two parts: a man- The surrender of a requested person may be refused for the datory ground is covered by Art. 9(7) AICCM (if criminal pro- following reasons: ceedings are taking place against a requested person in Slov- • if criminal proceedings are taking place against the request- enia for the same criminal offence for which the warrant was ed person in the Republic of Slovenia for the same criminal of- issued) and an optional ground by Art. 10(1) AICCM (if crimi- fence for which the warrant was issued and if it would clearly nal proceedings are taking place against the requested person be easier for criminal proceedings to be held in Slovenia (Art. in the Republic of Slovenia for the same criminal offence for 10(1) AICCM); which the warrant was issued and if it would clearly be easier • if a request for investigation has been rejected in the Repub- for criminal proceedings to be held in Slovenia).14 lic of Slovenia in a final decision taken to this effect because no reasonable grounds were adduced to support the suspicion that the requested person committed the criminal offence for III. Constitutional Court Case which the warrant was issued (Art. 10(2) AICCM); • if the warrant has been issued for the execution of a custo- Until now, one interesting case regarding the EAW has been dial sentence and the requested person is a citizen of the Re- brought to the Constitutional Court of the Republic of Slov- public of Slovenia or a Member State residing in the territory enia.15 The applicant (the requested person and his attorney) of the Republic of Slovenia, or a foreign person with a permit claimed that the former law implementing the FD EAW, for permanent residence in Slovenia, if the requested person so namely the AEAW, was not in line with the Slovenian Consti- wishes and provided that the domestic court agrees to execute tution. The applicant claimed that the then valid AEAW was the judgement of the court of the issuing Member State in ac- unconstitutional because it breached Articles 23, 25, and 29 cordance with domestic law (Art. 10(3) AICCM); of the Constitution of the Republic of Slovenia. Art. 23 CRS • if the EAW has been issued for criminal offences that, ac- guarantees the right to judicial protection.16 The applicant cording to domestic criminal law, are dealt with as if they had claimed that, according to the well-established constitutional been committed outside the territory of the Republic of Slov- doctrine, the right to judicial protection has to be effective and enia (Art. 10(4) AICCM) or if the EAW has been issued for not merely formal. In the case of the EAW, this would mean criminal offences committed outside the territory of the issu- that the judicial protection can only be effective if the court ing Member State but domestic criminal law does not permit can perform an in-depth reflection on the merits and not only prosecution for the same offence when committed outside the a formal check.17 The right to judicial protection was therefore territory of the Republic of Slovenia (Art. 10(5) AICCM). breached by the fact that the procedure of deciding on the Eu- ropean Arrest Warrant allows only for a formal check and the Ultimately, Slovenian law provides for the possibility to post- court is not allowed to check the legal basis or the evidence of pone surrender as an exception for serious humanitarian rea- the case. The same logic applies to the right deriving from Art. sons, in particular if it is likely that surrender would clearly 25 CRS – the right to legal remedies. The right to legal remedy seriously threaten the life or health of the requested person has to be effective which means that the appellate court must (Art. 34(3) AICCM). be able to decide on the merits of the case and not only do a formal check. Art. 29 CRS contains legal guarantees in crimi- A closer analysis reveals that the Slovenian legislator decid- nal proceedings.18 Since there can be no doubt that, in the case ed to organize the grounds for mandatory and optional non- of an EAW, the concept of a ‘criminal charge’ can be applied, execution in a manner different to that of the FD EAW. The the rights guaranteed in Art. 29 CRS should also apply to the Slovenian legislation first introduces some more mandatory EAW procedures. The applicant claimed that the right of Art. grounds for the non-execution other than those provided by the 29(4) CRS had been breached – namely the right to produce FD EAW: e.g., ground for a mandatory non-execution of the evidence to his benefit – since the court deciding on the EAW EAW on the basis of discrimination which is not provided for did not asses the evidence or the probability that the criminal by the FD EAW (Art. 9(8) AICCM). Secondly, it makes some offence in question was committed. optional grounds provided for in the FD EAW mandatory: e.g., Art. 4(4) FD EAW (where the criminal prosecution or punish- It would have been very interesting to see how the Constitu- ment of the requested person is statute-barred according to the tional Court would have answered all these assertions but, un- law of the executing Member State and the acts fall within the fortunately, the application19 was rejected by the Constitutional jurisdiction of that Member State under its own criminal law) Court since the requested person had already been surrendered

136 | eucrim 3–4 / 2007 Implementation of the European Arrest Warrant in Slovenia to the issuing Member State. Art. 24 of the Constitutional The exact number of executed EAWs issued by Slovenian au- Court Act namely provides that only a person holding a so- thorities is therefore not available, due to the continuing lack called ‘legal interest’ may file a request.20 Since the applicant of a central authority for the proceedings within the Slovenian had already been surrendered, the Constitutional Court held system. However, the Slovenian Ministry of Justice has man- that he no longer had a legal interest in the case and therefore dated the Institute of Criminology at the Faculty of Law of rejected the request as inadmissible. The decision was criti- the University of Ljubljana to conduct a study of all the EAW cized in the academic journals.21 The commentators claimed files that Slovenia has either issued or executed. A more de- that the Constitutional Court did not show enough courage in tailed analysis will thus be available at the end of 2008. The tackling the question of the jurisdiction of the Slovenian con- researchers have also conducted interviews with the investi- stitution within the legal framework of the European Union.22 gating judges and established that the judiciary in Slovenia is generally quite satisfied with the way surrender procedures function. The judges consider the procedures to be much IV. Final Remarks quicker and more efficient in comparison to those required for formal extradition. Most judges remark that the judge-to- It is unusual that the new legislation on the EAW was introduced judge communication, unfortunately, still does not work since so soon after the initial implementing law had been adopted (see most countries still communicate with them through the cen- I.). Although the new law repeats or only slightly changes the tral authority or even through Interpol, despite the fact that provisions of the old law, the legislator unfortunately did not the foreign court is sometimes only few kilometres across the seize the opportunity to improve some solutions, the most noto- border. Such proceedings prolong the surrender unnecessarily, rious being the problem with the central authority (according to sometimes even for months. Art. 7(2) FD EAW): Slovenian law still does not provide for it. However, the notification to the Council designates23 the Minis- Some judges also complained about how the scope of check- try of Justice as being competent to act as the central authority ing the legal context of the EAW differs from state to state. to assist the competent judicial authorities if difficulties arise in Slovenian investigating judges find it very frustrating that they transmitting the arrest warrant. At present, it is only SIRENE24 cannot check whether the offence can reasonably be subsumed (managed by the Slovenian Interpol Unit) which performs, at under one of the 32 listed offences for which the double crimi- least in part, the role of a central authority. It maintains the reg- nality check has been dropped, even in cases where the de- ister of EAWs, but only when the whereabouts of the requested scription is very vague and the category is broad. However, persons are unknown; otherwise they are sent directly to a com- there have been cases in which Slovenia was an issuing state petent judicial authority. When a request is executed (the per- for one of the listed offences, such as fraud, and the execut- son is surrendered), the EAW is also entered into the SIRENE ing judicial authority of another EU Member State did in fact system. Therefore, if a certain judicial authority wants to know request information from our judicial authority regarding the whether there was a warrant issued for a certain person, there is factual side of the offence, hence questioning the application no Slovenian authority which can provide the relevant informa- of the legal norm. This is one example which shows that some tion in cases in which the whereabouts of the person are known states thus obviously still check the factual and legal context, and the EAW proceedings are in progress. There is also no cen- even regarding one of the above-mentioned 32 offences, and tral registration of outgoing EAWs. Judicial authorities as well assume they have the right to do so. There is still a lot to be as the police are also lacking an authority to provide advice or learned about the empirical side of how the principle of mutual expertise in this matter. recognition works.

1 Official Journal of the Republic of Slovenia (hereinafter: O.J.) No. 24/03 from 7 March 2003. Dr. Katja Šugman Stubbs 2 For the complete text see: http://www.us-rs.si/en/index.php?sv_path=6. 3 Constitutional Act Amending the First Chapter and Articles 47 and 68 of the Associate Professor of Criminal Law, Faculty of Law, Constitution of the Republic of Slovenia, O. J. 24-899/2003. University of Ljubljana/ Slovenia; Researcher at the Insti- 4 C. Ribičič, Položaj slovenske ustave po vključitvi v EU (The Position of the tute of Criminology, Ljubljana; President of the Slovenian Slovenian Constitution after joining the EU). Pravna praksa, V. 25, no. 29-30, 2006, Association of Criminal Law and Criminology. pp. II-VI. 5 O.J. No. 37/04 of 15 April 2004. http://www.pf.uni-lj.si/pravnik.php?id=4 6 O.J. No. 51/04 of 7 May 2004. 7 O.J. No. 102/07 of 9 November 2007. 8 The AICCM has also implemented the FD of 13 June 2002 on joint investigati- on teams (2002/465/JHA); the Council Decision of 28 February 2002 setting up (98/428/JHA); the FD of 24 February 2005 on the application of the principle of Eurojust with a view to reinforcing the fight against serious crime (2002/187/JHA); mutual recognition to financial penalties (2005/214/JHA); the FD of 22 July 2003 on the Joint Action of 29 June 1998 adopted by the Council on the basis of Art. K.3 the execution in the EU of orders freezing property and evidence (2003/577/JHA); of the Treaty on European Union on the creation of a European Judicial Network the FD of 24 February 2005 on confiscation of crime-related proceeds, instrumen-

eucrim 3–4 / 2007 | 137 National Implementation of International Criminal Law Standards

talities and property (2005/212/JHA); the FD of 6 October on the application of the with a criminal offence must, in addition to absolute equality, be guaranteed the principle of mutual recognition to confiscation orders (2006/783/JHA); the Council following rights: (2) the right to have adequate time and facilities to prepare his Decision of 21 November 2005 on the exchange of information extracted from the defence; (3) the right to be present at his trial and to conduct his own defence or criminal records. to be defended by a legal representative; (4) the right to present all evidence to his 9 Art. 5 AICCM provides that the competent authorities of the Republic of Slovenia benefit; (5) the right not to incriminate himself or his relatives or those close to him, are obliged within the legal limits of their powers to act in such a way that most or to admit guilt. accomplishes the goal of cooperating with other MS to the greatest possible extent. 19 The legal remedy is called “Request for assessment of the constitutionality and 10 The competent authorities for issuing an EAW are state prosecutors or district legality of a law”. courts which can issue it ex officio as soon as the conditions mentioned above are 20 Art. 24 Constitutional Court Act: (1) Anyone who demonstrates legal interest met (Art. 40 AICCM). may lodge a petition that the procedure for the review of the constitutionality or 11 See Art. 17 FD EAW. legality of regulations or general acts issued for the exercise of public authority be 12 This ground will certainly prove to be an obstacle to surrender since the age initiated. limit for criminal responsibility is substantially lower in some of the Member States (2) Legal interest is deemed to be demonstrated if a regulation or general act than in others. issued for the exercise of public authority whose review has been requested by the 13 S. Alegre/M. Leaf, European Arrest Warrant: A solution ahead of its time?, petitioner directly interferes with his rights, legal interests, or legal position. Justice, London, 2003, pp. 29-31. 21 B. Kovačič Mlinar, Je ZENPP v neskladju z Ustavo? (“Is the AEAW in accor- 14 For more detailed analysis, see K. Šugman, Slovenian national report on the dance with the Constitution?”), Pravna praksa, 25, no. 14, 2006, pp. 13-14. implementation of the EAW on: http://www.eurowarrant.net/ (5.1.2008) 22 B. Kovačič Mlinar, Pomanjkanje poguma pri odločitvi o pobudi za oceno usta- 15 U-I-14/06, from 22. 6. 2006. There was one more case (Up-261/06 from vnosti ZENPP (“Lack of courage while deciding on the Request for assessment of 11.4.2006) brought to the Constitutional Court but was not even admitted to the the constitutionality of the AEAW”), Pravna praksa, 25, no. 37, 2006, p. 15; procedure since the applicant did not use the right legal remedy. A. Erbežnik, Ustavno sodišče RS ter ENPP (“Constitutional Court of the Republic 16 Art. 23(1) CRS: “Everyone has the right to have any decision regarding his of Slovenia and EAW”), Pravna praksa, 27, no. 1, 2008, pp. 22-24. rights, duties and any charges brought against him made without undue delay by an 23 Slovenian notification concerning the EAW independent, impartial court constituted by law.” http://www.eurowarrant.net/documents/cms_eaw_2_1_EJN537.pdf (20. 10. 2005) 17 Both the FD EAW and and the AEAW provide only for the duty of the judge to 24 The Schengen information system (SIS) was set up to allow police forces check the EAW formally: whether the EAW contains all the required information (Art. from the Schengen countries to access data on certain individuals (e. g. suspects 16(1) AEAW implementing Art. 8(1) FWD). If all the conditions are met the investiga- wanted for arrest or extradition, missing persons etc.) and on goods which have ting judge must schedule the hearing and no other check is provided for. Therefore, been lost or stolen. The SIS is supplemented by a network known as SIRENE (Sup- the judge, cannot and must not check the evidential base of the EAW nor he/she can plementary Information Request at the National Entry). It allows communication asses the question whether the acts for which the EAW was issued can reasonably between the SIRENE offices in every Schengen State. The SIRENE offices serve be qualified as one of the 32 categories enumerated in Art. 2(2) FD EAW. as the intermediaries between the national authorities responsible for the data on 18 Art. 29 CRS (Legal Guarantees in Criminal Proceedings: (1) Anyone charged the SIS (judges, police).

The Nordic Answer to the European Arrest Warrant: The Nordic Arrest Warrant

Professor Dr. Asbjørn Strandbakken

I. Introduction However, among the Nordic countries, there is a long tradition of cooperation in the field of criminal law. The principle of On 28 June 2006, the Council Presidency signed a judicial mutual recognition of judgments was introduced among the agreement on behalf of the EU on the surrender procedure Nordic countries in 1948, long before the EU put it on the between Member States of the EU and Norway and Iceland, agenda at the meeting in Tampere in 1999.2 Later, new instru- respectively.1 The outcome of this agreement will provide pos- ments were developed, e.g., on the simplification of the ex- sibilities to apply to a very large extent the provisions of the tradition process in 1963, the transfer of criminal prosecution Framework Decision on the European Arrest Warrant (herein- in 1970, and the agreement on police cooperation in 1972. In after: FD EAW) in cases involving Norway and Iceland in re- the last few years, the European Union has played a more im- lation to the European Union. It is difficult to say when exact- portant role, also regarding the cooperation among the Nordic ly the agreement will be in force since all contracting parties countries.3 However, the impact of this development has taken must accept it first in order for it to enter into force. Therefore, different forms since two of the countries, Norway and Ice- it will be some time before Norwegian courts have to deal with land, are not members of the Union. The cooperation between problems arising from surrender procedures. Denmark, Finland, and Sweden is primarily governed by the

138 | eucrim 3–4 / 2007 The Nordic Arrest Warrant instruments introduced by the Union, and the cooperation bet- process but the prosecuting (judicial) authorities themselves ween Iceland/Norway versus the three other Nordic Member shall take the decision on surrender. It is further worth mentio- States is still based on the inter-Nordic framework. ning that only if the arrested person does not give his consent is a court required to make the decision. Fourth, the time limits When the Nordic extradition process was adopted in the 1960s, for enforcement of an arrest warrant will be shortened. it was regarded as a smooth tool for more effective cooperation between the states. After the introduction of the European Arrest In sum, the procedure concerning extradition is far simpler Warrant, for which the Nordic framework might have been an compared with the present extradition process between the inspiration,4 the original extradition process between the Nordic Nordic countries. According to the Ministry of Justice of Nor- countries seemed to be old-fashioned compared with the pro- way, the new system will be an effective tool in combating cess under the European Arrest Warrant. Today, we have two cross-border crime. As already mentioned, the right to judicial sets of regulations on extradition in the Nordic states: extraditi- review will be maintained in cases in which the said person on between Denmark, Finland, and Sweden can be based on the does not consent to the surrender. European Arrest Warrant, while extradition to or from Norway/ Iceland has to be built on the legislation from 1963. The Norwegian Ministry of Justice additionally emphasized, that there is a need for the new instrument due to the increa- Some commentators have criticized the fact that the European sing rate of organized and cross-border crime. Effective com- Arrest Warrant has gone too far when it comes to the States’ ob- bating of crime in an area of free movement of persons and ligation to surrender citizens. This criticism has not been an ob- goods requires that there are no obstacles to investigation and stacle in that the Nordic countries have decided to develop a new prosecution in each state. If any such obstacle should be in tool for extraditions which will be even more effective than the place, a particular state might be regarded as a save haven for EAW. The new instrument is named the Nordic Arrest Warrant criminals. At the same time, the preamble to the convention and, for the time being, each of the Nordic countries has started states that it is built on the principles of freedom, democracy, the legislative process to introduce this particular arrest warrant respect for fundamental human rights, and a high degree of into its domestic law. The Nordic Arrest Warrant will probably trust in each other’s legal systems. The rhetoric used followed come into force in 2008. In this article, I will give a brief over- the same line as is often used when introducing new and far- view of the content of the new Nordic legal tool in the field of reaching measures in the area of criminal law within the Euro- extradition. pean Union. So far, this rhetoric has had the requested effect in the Norwegian parliament. Parliamentarians were convinced that amendments to the Norwegian criminal law are necessary II. The Nordic Arrest Warrant (NAW) in order to prevent Norway from being regarded as safe har- bour for foreign criminals. The European Arrest Warrant (EAW) was adopted on 13th June 2002.5 As a follow-up to the creation of this instrument, the Nor- Compared with the EAW, the NAW goes even further on six dic Ministers of Justice, at a meeting on Svalbard/Norway on points. First of all, the double criminality clause has been com- 25th June 2002, decided that the Nordic extradition acts should pletely abandoned (Article 2 para. 3 of the NAW Convention). be revised based on the EAW.6 It was a basic principle for this Thus, the receiving state will be unable to refuse the arrest revision that extradition between the Nordic countries should at with the argument that the said act is not criminalized in the least be at the same level of efficiency as the EAW. receiving country. For instance, Norwegian or Danish citizens shall be surrendered to Sweden if they have bought sexual ser- The convention for the revision was adopted at the Nordic Mi- vices in Sweden, even if this is not a criminal act in Norway or nisters of Justice meeting in Skagen/Denmark on 21st June Denmark.8 Even though the limitation of the double criminali- 2005 and signed by the competent authorities in Copenhagen ty clause in the EAW has been criticised, the criticism had no on 15th December 2005. Based on this convention (herein- impact on the Nordic countries’ effort to create an even more after: NAW Convention7), each of the Nordic countries has to far-reaching tool in the field of extradition. implement the convention by adopting new extradition acts. Furthermore, in comparison to Article 2 para. 1 of the FD Compared with the existing Nordic legislation on extradition, EAW − which requires that an arrest warrant may be issued the Nordic Arrest Warrant (NAW) will differ on four points: for acts punishable by the issuing state by a custodial sentence First, the term ”extradition request“ will be replaced with ”ar- or detention order for a maximum period of at least 12 months rest warrant“ and the term ”extradition“ will be replaced with − there is no such requirement in the NAW. The act for which ”surrender“. Second, the new instrument ends the system in the arrest warrant is issued need not contain a certain level of which the states had the option of whether an extradition re- custodial sentence or a detention order (Article 2 para. 1 of the quest shall be granted or not; now, the receiving state of an NAW Convention). It is sufficient that the act is punishable arrest warrant will be obliged to arrest the said person and with such a sanction. Surrender can also take place for several surrender him to the state which has instituted the warrant. acts as long as only one of them fulfils this condition (Article Third, governmental authorities shall not be involved in the 2 para. 2 of the NAW Convention).

eucrim 3–4 / 2007 | 139 National Implementation of International Criminal Law Standards

There is no exception in the surrender of nationals which means according to the NAW is 3 days in these cases (Article 14 para. that foreigners as well as nationals of the executing state shall 2). In cases without consent, the EAW sets a time limit of 60 be surrendered. The exception for non-execution due to the fact days (Article 17 para. 3 of the FD), while the NAW Conventi- that the act is a political offence, which is included in the Nor- on puts the limit at 30 days (Article 14 para. 3). As regards the dic extradition legislation from 1963, has been abolished in the time limits for the surrender of the person requested, the FD NAW Convention. However, even if the states are obliged to EAW sets a time limit of no later than 10 days after the final execute a NAW as a starting point, there are some reasons for decision on the execution (Art. 23 para. 2 of the FD), whereas mandatory non-execution of the warrant (Article 4 of the NAW the NAW Convention puts the time limit at no later than 5 days Convention). The exceptions listed in Article 4 are actually the (see Article 19 para. 2). same as those listed in Article 3 of the EAW. However, the list of grounds for optional non-execution in Article 5 of the NAW Finally, the EAW and the NAW differ when it comes to possi- Convention does not include some exceptions of the correspon- ble prosecution for other offences committed prior to the sur- dent article of the FD EAW; as a consequence, the grounds for render. Under the NAW regime (Article 23 of the Convention), optional non-execution in paragraphs 1, 4, and 7 lit. b of article 4 the person who is surrendered can be prosecuted for offences of the FD EAW were not included into the NAW Convention. prior to his or her surrender to a wider extent than under the parallel provision of the EAW framework (Article 27 of the FD When it comes to the surrender procedure, the content and EAW). While Article 27 of the FD EAW is framed as an excep- form of the Nordic Arrest Warrant is actually the same as that tion, Article 23 of the NAW Convention states as a principle of the European Arrest Warrant (cf. Article 7 of the NAW Con- that prosecution may take place for other offences committed vention and Article 8 of the FD EAW). In a similar way as the prior to the surrender and then makes certain exceptions. EAW, the NAW gives the said persons certain rights in the course of the procedure (Article 9 of the the NAW Convention, Article 11 of the FD EAW), and it is also possible to keep the III. Closing Remarks person in detention during the surrender procedure (Articles 10 of the NAW Convention and the FD EAW respectively). Even if the European Union will play an essential role in the fu- ture when it comes to harmonization and cooperation in the field The two instruments diverge when it comes to the time limits. of criminal law, the conditions are favourable for developing an While the 1963 instrument for extradition between the Nordic even closer cooperation between the Nordic countries.9 Today, a countries does not include any time limits for the execution system with mutual recognition and enforcement of judgments of an extradition request, the introduction of time limits in the exists, but this system can be improved and extended to other judi- EAW was one of the major novelties – a big step forward in cial decisions.10 For instance, when it comes to wiretapping of mo- speeding up the extradition process. In general, the time li- bile phones, it would be an improvement if such a decision could mits are far more stringent in the NAW compared with the apply to the whole Nordic area, whether or not the phone owner EAW. Time limits are laid down in Article 17 (for a decision to moves from one country to another.11 In addition, other aspects of execute the European Arrest Warrant) and Article 23 (for the police cooperation could be subject to improvement.12 The solid surrender) of the FD. In cases where the requested person con- foundation for this potential improvement is the mutual trust that sents, the final decision on the execution of a request shall be exists between the Nordic countries. Against this background, it taken within a period of 10 days after consent has been given is worth mentioning that the implementation of the Nordic Arrest (Art. 17 para. 2 of the FD EAW). In contrast, the time limit Warrant has not been met with any critical public debate so far.

5 Council Framework Decision of 13 June 2002 on the European arrest warrant Asbjørn Strandbakken and the surrender procedures between Member States (2002/584/JHA); OJ L 190, 18.7.2002, p. 1-18. Professor at the Law Faculty of the University 6 See Wersäll (note 2) p. 123 who, criticising that the EAW was the model for the of Bergen/Norway; initiative, suggested that it would be better to improve the common Nordic legislati- National Contact Point for Norway in the European Criminal on on extradition in order to improve the extradition process. Law Academic Network (ECLAN). 7 The Nordic arrest warrant is published in Norvegian at: http://www.regjeringen. no/upload/JD/Vedlegg/Vedlegg%20II%20h%C3%B8ringsnotat%20arrestordre. http://www.jur.uib.no/ansatte/joras/default.html pdf. In Danish as Bilag B at: https://www.retsinformation.dk/Forms/R0710. aspx?id=88198. 8 The Norwegian Government has stated that, before 2009, it will put forward a proposal with a similar statute than Sweden that criminalizes the act of buying sexual services. 1 Council Decision 2006/697/EC, OJ L 292, 21.10.2006, p. 1-19. 9 See Wersäll (note 2) p. 123. See also Wersäll (note 2) pp. 124-126 on the vision 2 See Fredrik Wersäll, Straffrätsligt samarbete i ett gränslöst Norden NTfK 2006 of a Nordic area without borders and unconditional recognition of judicial decisions. p. 124. 10 See likewise Wersäll (note 2) p. 124. 3 See Wersäll (note 2) pp. 122-123. 11 See likewise Wersäll (note 2) p. 125. 4 See Wersäll (note 2) p. 122. 12 See further Wersäll (note 2) pp. 125-126.

140 | eucrim 3–4 / 2007 Imprint Impressum

Published by:

Max Planck Society for the Advancement of Science The publication is co-financed by the c/o Max Planck Institute for Foreign and International European Commission, European Criminal Law Anti-Fraud Office (OLAF), Brussels represented by Director Prof. Dr. Dr. h.c. Ulrich Sieber Guenterstalstrasse 73, 79100 Freiburg i.Br./Germany

Tel: +49 (0)761 7081-1, © Max Planck Institute for Foreign and International Criminal Law Fax: +49 (0)761 7081-294 2007. All rights reserved: no part of this publication may be reprodu- Email: [email protected] ced, stored in a retrieval system, or transmitted in any form or by any Internet: http://www.mpicc.de means, electronic, mechanical photocopying, recording, or otherwise without the prior written permission of the publishers. Official Registration Number: The views expressed in the material contained in eucrim are not neces- VR 13378 Nz (Amtsgericht sarily those of the editors, the editorial board, the publisher, the Commis- Berlin Charlottenburg) sion or other contributors. Sole responsibility lies with the author of the VAT Number: DE 129517720 contribution. The publisher and the Commission are not responsible for ISSN: 1862-6947 any use that may be made of the information contained therein.

Editor in Chief: Prof. Dr. Dr. h.c. Ulrich Sieber Subscription: Editorial Board: Luc Bihain, Université de Liège, Belgique; Julian eucrim is published two to four times per year and distributed Owen, Office for Criminal Justice Reform, United Kingdom; Dr. Tuo- electronically for free. mas Pöysti, Ministry of Finance, Finland; Lorenzo Salazar, Commis- In order to receive issues of the periodical on a regular basis, sion Européenne, Belgique; Prof. Rosaria Sicurella, Università degli please write an e-mail to: Studi di Catania, Italia [email protected]. Managing Editor: Thomas Wahl, Max Planck Institute for Foreign For cancellations of the subscription, please write an e-mail to: and International Criminal Law, Freiburg [email protected]. Editorial Assistants: Julia Macke, Johannes Schäuble, Leonard Ghione, all Max Planck Institute for Foreign and International Crimi- For further information, please contact: nal Law, Freiburg Language Consultant: Indira Tie, Certified Translator, Max Planck Thomas Wahl Institute for Foreign and International Criminal Law, Freiburg Max Planck Institute for Foreign and International Criminal Law Typeset: Ines Hofmann, Petra Lehser, Max Planck Institute for Guenterstalstrasse 73, Foreign and International Criminal Law, Freiburg 79100 Freiburg i.Br./Germany Produced in Cooperation with: Vereinigung für Europäisches Strafrecht e.V. Tel: +49(0)761-7081-227 or +49(0)761-7081-1 (central unit) Layout: JUSTMEDIA DESIGN, Cologne Fax: +49(0)761-7081-294 Printed by: Stückle Druck und Verlag, Ettenheim/Germany E-mail: [email protected]