The Needed Balances in EU Criminal Law: Past, Present and Future 9781509917006, 9781509917037, 9781509917013

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THE NEEDED BALANCES IN EU CRIMINAL LAW This important volume provides an up-to-date overview of the main questions currently discussed in the field of EU criminal law. It makes a stimulating addition to literature in the field, while offering its own distinctive features. It takes a fourpart approach: firstly, it addresses issues of a constitutional nature, such as the EU competence in the field of criminal law, the importance of the principle of subsidiarity and the role played by the different EU institutions. Secondly, it looks at issues linked to the quest of the right balance between diversity and unity, and focuses in particular on the special relationship between approximation and mutual recognition. Thirdly, it focuses on the balance between security and freedom, or, in other words, between the shield and sword functions of EU criminal law. Special attention is given here to transatlantic cooperation, data protection, terrorism, the European Arrest Warrant and the European Investigation Order. Finally, it examines the importance of balanced relations between criminal justice actors. Volume 5 in the series Hart Studies in European Criminal Law

Hart Studies in European Criminal Law Series Editors: Professor Katalin Ligeti, University of Luxembourg; Professor Valsamis Mitsilegas, Queen Mary University of London; Professor Anne Weyembergh, Brussels Free University Since the Lisbon Treaty, European criminal law has become an increasingly important field of research and debate. Working with the European Criminal Law Academic Network (ECLAN), the series will publish works of the highest intellectual rigour and cutting edge scholarship which will be required reading for all European criminal lawyers. The series is happy to consider both edited and single authored titles. The series defines ‘European’ and ‘criminal law’ in the broadest sense, so books on European criminal law, justice and policy will be considered. The series also welcomes books which offer different methodological approaches. Volume 1: EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe by Valsamis Mitsilegas Volume 2: Challenges in the Field of Economic and Financial Crime in Europe and the US Edited by Vanessa Franssen and Katalin Ligeti Volume 3: Chasing Criminal Money: Challenges and Perspectives On Asset Recovery in the EU Edited by Katalin Ligeti and Michele Simonato Volume 4: Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Öberg Volume 5: The Needed Balances in EU Criminal Law: Past, Present and Future Edited by Chloé Brière and Anne Weyembergh Volume 6: Redefining Organised Crime: A Challenge for the European Union? Edited by Stefania Carnevale, Serena Forlati and Orsetta Giolo

The Needed Balances in EU Criminal Law Past, Present and Future

Edited by

Chloé Brière and Anne Weyembergh

OXFORD AND PORTLAND, OREGON 2018

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2018 © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50991-700-6 ePDF: 978-1-50991-701-3 ePub: 978-1-50991-702-0 Library of Congress Cataloging-in-Publication Data A catalogue record for this book is available from the Library of Congress. Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

ACKNOWLEDGEMENTS

This book is the result of the international conference ‘The Needed Balances in EU Criminal Law: Past, Present and Future’, organised by the European Criminal Law Academic Network (ECLAN) on 25 and 26 April 2016. This event intended to celebrate the 10th anniversary of the Network. The editors would like to thank those who supported the organisation of the conference, namely the Grand-Duchy of Luxembourg, the European Commission, the Université Libre de Bruxelles—Institut d’Etudes européennes, the University of Luxembourg, the University of Basel, the Queen Mary University London, the Foundation Wiener-Anspach, the Foundation Roi Baudouin, the Fonds National pour la Recherche Scientifique (FNRS) and Deloitte. The editors wish to express their gratitude to all those involved in the pre­ paration of the conference, particularly Giulia Giacomelli, Lorenzo Colzi and Dominique Dembour. Special thanks are also due to Julian Hale and Selma Mitri for their precious help in finalising the manuscript. The editors would like to stress that the manuscript was finalised in April 2017, and hence discussions in this volume do not reflect developments that occured after that date.

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CONTENTS

Acknowledgements������������������������������������������������������������������������������������������������������v List of Contributors��������������������������������������������������������������������������������������������������� xi Abbreviations���������������������������������������������������������������������������������������������������������� xiii

Part I: Introduction 1. Introduction by Vera Jourova, EU Commissioner for Justice, Consumers and Gender Equality�����������������������������������������������������������������������3 2. Introduction by Minister Koen Geens, Minister of Justice, Belgium������������11 3. Introduction by Minister Félix Braz, Minister of Justice, Luxembourg������������������������������������������������������������������������������������������������������17 4. Introduction: About ECLAN and the Balances that Need to be Struck in EU Criminal Law������������������������������������������������������������������������������19 Chloé Brière and Anne Weyembergh (Editors) Part II: The Quest for the Right Balance in the Institutional Design/Between the EU and the Member States and Between the EU Institutions 5. The Evolution of Competence Distribution Between the European Union and the Member States in the Criminal Field�������������������������������������35 Samuli Miettinen 6. ‘The Evolution of Competence Distribution Between the EU and the Member States in the Criminal Field’ (by Samuli Miettinen)—A (Short) Reaction������������������������������������������������������������������������������������������������������������65 Pedro Caeiro 7. The Principle of Subsidiarity in EU Criminal Law�����������������������������������������71 Irene Wieczorek 8. Challenges Facing the Academic Community: A Practitioner’s Point of View in Reaction to Irene Wieczorek’s Paper����������������������������������107 Eugenio Selvaggi 9. Stepping into Uncharted Waters No More: The Court of Justice and EU Criminal Law�������������������������������������������������������������������������������������111 Adam Lazowski

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Contents

10. The Evolution of the Relationship and Balance Between the Different EU Institutions������������������������������������������������������������������������������141 Emilio de Capitani Part III: The Quest for the Right Balance Between Diversity and Unity 11. The Issue of Mutual Trust and the Needed Balance Between Diversity and Unity���������������������������������������������������������������������������������������157 Daniel Flore 12. The Sensitive Relationship Between the Different Means of Legal Integration: Mutual Recognition and Approximation�������������������������������165 Annika Suominen 13. Mutual Recognition in EU Criminal Law and Fundamental Rights—The Necessity for a Sensitive Approach����������������������������������������185 Anže Erbežnik Part IV: The Quest for the Right Balance Between Liberty and Security 14. The External Dimension of Mutual Trust: The Coming of Age of Transatlantic Counter-terrorism Cooperation��������������������������������215 Valsamis Mitsilegas 15. The Role of the Data Protection Authorities in Supervising Police and Criminal Justice Authorities Processing Personal Data�����������������������243 Paul de Hert and Juraj Sajfert 16. ‘Foreign Terrorist Fighters’—De-Radicalisation and Inclusion vs Law Enforcement and Corrections in Denmark�����������������������������������������257 Jørn Vestergaard 17. A New Hope? The Court of Justice Restores the Balance Between Fundamental Rights Protection and Enforcement Demands in the European Arrest Warrant System������������������������������������������������������285 Leandro Mancano 18. Mutual Recognition and Cross-Border Interception of Communications: The Way Ahead for the European Investigation Order�������������������������������313 Lorena Bachmaier Part V: The Quest for Balance Regarding Criminal Justice Actors and in Their Mutual Relations 19. A Comparison of the Evolution and Pace of Police and Judicial Cooperation in Criminal Matters: A Race Between Europol and Eurojust?������������������������������������������������������������������������������������������������339 Sabine Gless and Thomas Wahl

Contents 20

 ix

The Cooperation Between Police and Justice at the EU Level: The Representative Example of Joint Investigation Teams�������������������������355 Anne Weyembergh, Inés Armada and Chloé Brière

21. The Draft Regulation on the Establishment of the European Public Prosecutor’s Office—Issues of Balance Between the Prosecution and the Defence�����������������������������������������������������������������383 Hans-Holger Herrnfeld 22. The Material Scope of Competence of the European Public Prosecutor’s Office: Lex uncerta and unpraevia?�����������������������������������������413 John A.E. Vervaele Part VI: Conclusion 23. Afterword(s) on Mutual Recognition and the Respect for Fundamental Rights Revisited—Following the Judgment in Aranyosi and Căldăraru����������������������������������������������������������������������������433 Judge Lars Bay Larsen

Index�����������������������������������������������������������������������������������������������������������������������443

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LIST OF CONTRIBUTORS

Ines ARMADA – LLM (College of Europe, Bruges). Qualified lawyer (Spain). PhD researcher, Université Libre de Bruxelles and Vrij Universiteit Brussel. Currently working as Legal officer, Institutional Affairs Office, Eurojust. Lorena BACHMAIER – Prof Dr Law, Full Professor, Law Faculty, Complutense University, Madrid. Chloé BRIÈRE – PhD in Law, Université Libre de Bruxelles and Université de Genève. Visiting professor, Vrij Universiteit Brussel and Associate member, Centre for European Law, Université Libre de Bruxelles. Pedro CAIERO – Prof Dr Law, Professor, Faculty of Law, University of C ­ oimbra. Member of the European Commission’s Expert Group on Criminal Policy. Member of ECLAN’s Management Committee and Contact Point for Portugal. Emilio De CAPITANI – Former Secretary of the European Parliament Civil Liberties Committee (1998–2011). Teaching Fellow for several years at Scuola Superiore S’Anna, Pisa, and visiting Professor at ‘L’Orientale’ University, Naples. Currently visiting Professor at Queen Mary Law School, London. Paul De HERT – Professor at the Vrije Universitet Brussel (LSTS), Belgium and the University of Tilburg (TILT), The Netherlands. ECLAN Contact Point for Belgium. Anze ERBEZNIK – Prof Dr in Law, Professor of Criminal Law and Procedure, European Law Faculty, Slovenia, and Administrator, Committee on Civil Liberties, Justice and Home Affairs, European Parliament. Daniel FLORE – Professor at University of Liège, Invited lecturer at University of Louvain, Assisting lecturer at University of Luxembourg, and Director General Legislation, Fundamental Rights and Freedoms at Belgian Ministry of Justice. Sabine GLESS – Prof Dr iur University of Basel. Member of ECLAN’s Management Committee and Contact Point for Switzerland. Hans-Holger HERRNFELD – First and Second State Examination (law) Doctor juris, University of Hamburg, Senior Prosecutor at the Federal Ministry of ­Justice (Germany), Head of Division ‘European Public Prosecutor’s Office; European Criminal Law Policy’. Adam LAZOWSKI – Prof Dr Law, Professor of EU Law, Westminster Law School, University of Westminster, London.

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List of Contributors

Leandro MANCANO – PhD in Law, Scuola Superiore Sant’Anna (Pisa). Lecturer in EU Law, University of Edinburgh. Samuli MIETTINEN – PhD in Law, University of Helsinki, LLM (Dunelm). Associate Professor of Transnational Law, Tallinn University and ­ ­ University Lecturer and Adjunct Professor (Dosentti) in European Law, University of ­ ­Helsinki. ECLAN Contact Point for Finland. Valsamis MITSILEGAS – Professor of European Criminal Law, Head of the Department of Law and Dean for Research (Humanities and Social Sciences), Queen Mary University of London. Co-coordinator of ECLAN. Member of ­European Commission’s Expert Group on Criminal Policy. Judge Lars BAY LARSEN – cand jur & art (Master of Laws & BA Political Science, University of Copenhagen), Judge, Court of Justice of the European Union (since 2006). Juraj SAJFERT – LLM (Central European University, Budapest), LLB (Croatia), Croatian Bar Exam. Currently Policy Officer, Data Protection Unit, DirectorateGeneral Justice and Consumer, European Commission. Eugenio SELVAGGI – Magistrate, Court of Cassation, Italy, current position ­Consultant of the Ministry of Justice. Annika SUOMINEN – PhD in Law, Faculty of Law, University of Bergen. Current position Dr and Associate Professor, University of Bergen. ECLAN Contact Point for Norway. Jørn VESTERGAARD – Professor of Criminal Law, Faculty of Law, University of Copenhagen. Member of ECLAN Management Committee and Contact Point for Denmark. John AE VERVAELE – Master in Law; Master in Criminology; PhD in criminal law, Professor Dr in Economic and European Criminal Law and Co-Director of Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), ­Utrecht Law School, the Netherlands and Professor Dr in European Criminal Law at College of Europe, Bruges, Belgium. President of the International Association of Penal Law (AIDP/IAPL). Thomas WAHL – First State Bar Exam, University of Passau (1999), Second State Bar Exam, OLG München (2003), Senior Researcher, Max Planck Institute for Foreign and International Criminal Law, Freiburg im Breisgau, and researcher, University of Basel. Anne WEYEMBERGH – Professor, Université Libre de Bruxelles. Director, ­Institute for European Studies. Co-coordinator of ECLAN. Irene WIECZOREK – PhD in Law, VUB-ULB. Postdoctoral Research Associate, University of Cambridge.

ABBREVIATIONS

AFSJ CATS CFREU (or ‘the Charter’) CISA CJEL CJEU CMLRev COPEN COSI CT CTTF DEIO DHS DPD EAW EAW FD EC ECTC ECtHR EC3 EDP EDU EEC Treaty EEW EIO EJN EMPACT ENCS EPPO ESMA EU EuCLR GDPR FD

Area of Freedom, Security and Justice Coordinating Committee in the area of police and judicial cooperation in criminal matters Charter of Fundamental Rights of the European Union Convention Implementing the Schengen Agreement Columbia Journal of European Law Court of Justice of the European Union Common Market Law Review Council Working Party on cooperation in criminal matters Committee on operational cooperation on internal security Counter-Terrorism Counter-Terrorist Task Force Directive on the European Investigation Order in criminal matters Department of Homeland Security, United States Data Protection Directive (EU) 2016/680 for Police and Criminal Justice Authorities European Arrest Warrant Framework Decision on the European Arrest Warrant and the surrender procedures between Member States European Commission European Counter Terrorism Centre European Court of Human Rights European Cybercrime Centre European Delegated Prosecutor European Drugs Unit Treaty establishing the European Economic Community European Evidence Warrant European Investigation Order European Judicial Network European multidisciplinary platform against criminal threats Eurojust National Coordination System European Public Prosecutor’s Office European Securities and Markets Authority European Union European Criminal Law Review General Data Protection Regulation Framework Decision

xiv  ICCPR ICTY IHL IP ISIL J-CAT JHA JIT(s) JPSG JSB LIBE MJECL MLA NJECL OAP OLAF PIF PNR PPU TEU TFEU TFTP UCEA VAT

Abbreviations International Covenant on Civil and Political Rights International Criminal Tribunal for the former Yugoslavia  International Humanitarian Law Internet protocol address Islamic State of Iraq and the Levant Joint Cybercrime Action Taskforce Justice and Home Affairs Joint Investigation Team(s) Joint Parliamentary Scrutiny Group Joint Supervisory Body Civil Liberties, Justice and Home Affairs Maastricht Journal of European and Comparative Law Mutual legal assistance New Journal of European Criminal Law Operational Action Plan European Anti-Fraud Office Protection of the Union’s Financial Interests Passenger Name Record urgent preliminary ruling procedure Treaty on the European Union Treaty on the Functioning of the European Union Terrorist Finance Tracking Programme Uniform Criminal Extradition Act Value-Added Tax

Part I

Introduction

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1 Introduction by Vera Jourova, EU Commissioner for Justice, Consumers and Gender Equality This publication is the outcome of a conference entitled ‘The Needed Balances of EU Criminal Law: Past, Present and Future’, held on 25–26 April 2016 in Brussels, which marked the celebration of the tenth anniversary of the European Criminal Law Academic Network (ECLAN). 25 years after the signature of the Maastricht Treaty and the creation of the Justice and Home Affairs ‘third pillar’, the Union today constitutes an area of ­freedom, security and justice with a comprehensive body of common EU c­ riminal law rules. The Law is not something that is static, and developing criminal law in the European Union is a process that is in a constant state of change. Not only are we continually confronted with new challenges which require comprehensive answers, but furthermore, the interpretation of the law through the courts may alter over time. Moreover, with the creation of the Single Market and the opening of the EU’s internal borders, elevating criminal law from a purely national level to a European level has become a necessity. The need for common rules on criminal law has become even more apparent most recently, when Europe was struck at its very heart by terrorist acts. Threats are becoming more varied in nature and more international in scope. Crime does not stop at national borders. We need a clear European response to the security threats that Europe is facing as a whole. Developing EU criminal law is therefore a very challenging task, as the need for EU rules has to be balanced with the long-standing criminal law traditions that exist in individual EU Member States, which can often vary widely from country to country. In the development of criminal law, the views and contributions of academia, practitioners and civil society are vital. Since I took office as Commissioner for Justice, Consumers and Gender Equality, I have listened attentively to all of these views, in order to provide myself with a sort of ‘reality check’. ECLAN has not only closely accompanied the evolution of EU criminal law over the years, but it has also actively taken part in shaping it. Through its dedicated ‘scientific’ research and education in the field of EU criminal law, and the continuous production of

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scientific publications in this area, it provides an invaluable contribution to the development of EU criminal law. The question is now, where do we stand today? Although still a relatively new area of law, EU criminal law has developed significantly over recent years. Today EU criminal law is based on mutual trust and close cooperation between national authorities. The European Arrest Warrant is a successful tool for the simplified surrender of suspects among EU Member States, while Europol and Eurojust facilitate cooperation between police and judicial authorities on a daily basis. Access to information about convicted persons has been significantly improved with the creation of the European Criminal Record Information System (ECRIS). The EU’s Anti-Fraud Office (OLAF) carries out administrative investigations into fraud against the Union’s budget as well as corruption and serious misconduct within the European Institutions. There is a set of harmonised definitions of serious criminal offences in place, while the procedural rights package has been successfully adopted and will strengthen the rights of victims and the accused in criminal proceedings. This will reinforce the trust between investigating authorities of Member States, and thus foster mutual recognition of judgments and judicial decisions within the EU. Moreover, we are currently in the process of establishing a European Public Prosecutor’s Office, which would be a truly independent prosecution office, equipped with all the necessary investigative and prosecutorial powers in order to operate as one single Office across the whole of the EU. There have also been important changes from an institutional point of view. The inter-governmental ‘pillar’ approach to EU criminal law under the Treaties of Maastricht, Amsterdam and Nice has been abolished with the entry into force of the Lisbon Treaty. Under the Lisbon Treaty, the European Parliament and the Council have become co-legislators in most areas of justice matters. The previous limitations to judicial control by the Court of Justice of the European Union and to the European Commission’s power, as the guardian of the Treaty, to launch infringement proceedings also in criminal justice matters have been lifted. Today, the European Commission can also ensure the implementation of EU legislation in the area of criminal justice. However, challenges remain. New and more complex security threats have come to the surface in recent years. A new form of radicalisation, violence and terrorism, thus far never experienced on such a scale and to such a degree, is challenging the freedom, security and justice systems within the EU. Financial systems have become more vulnerable as a result of the use of modern technology for criminal purposes. We are confronted with sophisticated financial crimes, including money laundering, terrorist financing, tax fraud and corruption. Serious organised crime, trafficking in human beings and drugs, and cybercrime are all at the top of the list of cases being dealt with by Europol and Eurojust. This poses even further ­challenges from the point of view of striking the right balance between freedom and security, and reinforces the need to have a truly robust set of common rules on procedural rights of suspects and of the accused in criminal proceedings.

Introduction by Vera Jourova

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I would like to highlight the following five points, which deserve particular attention in the area of EU criminal law now, and in the future. 1) First, it is absolutely crucial to further improve judicial cooperation and deepen the exchanges of information between Member States. Rapid reaction and follow-up across national borders are a fundamental prerequisite for successful investigations and prosecutions. This point has also been outlined in the European Commission’s Communication on the European Agenda on Security of 28 April 2015, which sets out how the Union can bring added value to support the Member States in ensuring security. Improving judicial cooperation and the exchange of information requires full transposition and implementation of existing instruments, but may also require addressing additional needs or filling gaps with new instruments. Existing instruments such as the European Arrest Warrant or the mutual recognition of detention and transfer of prisoners, can only work if they are fully implemented and also correctly applied by all Member States. The same applies to confiscation and freezing of criminal assets. Member States make too little use of the existing acquis, which results in criminals being able to hold on to illicitly obtained proceeds and reusing them for further crimes. Furthermore, practitioners need to become more familiar with the content and procedures of the existing instruments. This is why relevant handbooks and guidelines are in preparation in this respect. The revised handbook on the European Arrest Warrant is to be published in the course of 2017. Moreover, in May this year, the European Investigation Order comes into force (Directive 2014/41/EU) and will provide a modern and efficient tool to obtain evidence in other EU countries for criminal cases that involve more than one country. Having the European Investigation Order fully implemented by all Member States is fundamental to its effectiveness. Access to digital evidence or e-evidence has become a real practical and legal challenge in cases where we need very quickly to find answers. Accessing electronic data—often stored abroad—and making use of it as evidence in criminal proceedings is more relevant today than ever before. This not only concerns the use of social media and virtual platforms as means for radicalisation and for the planning of terrorist attacks; it is far broader than this, as electronic evidence now plays an intrinsic role in almost each and every criminal investigation, no matter what the crime. The European Commission is currently examining various options as to how to effectively address this issue in the future. For the same reasons as those outlined above, improving judicial cooperation in relation to third countries is also one of the European Commission’s current priorities. As regards new initiatives, the improvement of the European Criminal Record Information System (ECRIS) regarding convicted third country nationals is a key priority for the European Commission, and concrete results are expected in 2017. We are working on an efficient electronic tool which can

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Introduction by Vera Jourova

easily and quickly identify a Member State in which a particular third country national has been convicted. Secure identification of third country nationals independently of where they have been convicted in the EU will not only rely on alpha-numerical data, but also on fingerprints. This will be a hugely significant improvement compared with the possibilities offered to date. 2) The second point is dedicated to the fight against radicalisation and incitement to hatred, and is also reflected in the European Agenda on Security. Preventing terrorism starts with preventing radicalisation. The European Commission has put a strong emphasis on fighting radicalisation in, and outside of prisons. It will fully support Member States to better equip and better prepare prison facilities, to set up tailor-made de-radicalisation, disengagement and rehabilitation programmes, as well as developing risk-assessment tools, encompassing also the juvenile justice system, and providing appropriate training. In the same vein, we must be vigilant in the fight against hate speech and hate crime. The European Commission is working intensively to ensure that all Member States effectively fulfil their obligations under the EU Framework Decision on Combating Racism and Xenophobia (2008/913/JHA). However, it is also essential that we intensify the dialogue with IT companies and emphasise to them their responsibilities and obligations. Manifestly illegal content and incitement to violence and hatred must be removed, and without delay. This is about upholding our laws online, as we do offline, in relation to content which is clearly not protected under the right to freedom of expression. In 2016, however, major IT companies agreed to comply with a ‘Code of Conduct’ on countering illegal hate speech online. The progress and impact will be regularly assessed in cooperation with the IT companies concerned, with Member States’ authorities and with civil society in the context of the recently launched Commission’s High Level Group on combating racism, xenophobia and other forms of intolerance. 3) Thirdly, concerted efforts are essential to ensuring full compliance with the procedural rights and victims’ rights acquis. The EU has made very significant progress in this field. In 2016 the Directive on Presumption of Innocence (Directive 2016/343/EU), the Directive on Procedural Safeguards for Children involved in Criminal Proceedings (Directive 2016/800/EU), and the Directive on Legal Aid (Directive 2016/1919/EU) were adopted. This completes the EU Roadmap to strengthen procedural rights of suspected or accused people in criminal proceedings, set up in 2009. The main focus today lies on the transposition process and an effective application of these measures in practice. Moreover, the European Commission is reflecting on filling the existing gaps. For instance, the lack of minimum procedural safeguards for pre-trial detention may give rise to concerns and can hinder judicial cooperation. Poor detention conditions may result in violations or risks of violation of fundamental rights of the persons concerned. This may all lead to the postponement and even the refusal of requests for surrender under the European Arrest Warrant, as the European Court of Justice recently

Introduction by Vera Jourova

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made clear (cf judgment in Joined Cases C-404/15 Aranyosi and C-659/15 Căldăraru of 5 April 2016). In parallel, the European Commission will advance its work to strengthen victims’ rights in the European Union. It will closely monitor the implementation of the Victims’ Rights Directive (Directive 2012/29/EU) so as to ensure that all victims of crime can fully rely on their rights in all Member States of the EU. It will also continue raising awareness of victims’ rights via the ‘victims’ corner’ of the e-Justice portal. Furthermore, the Commission will promote the mainstreaming of victims’ rights policy into neighbouring EU policies, thereby ensuring that the specific needs of different victims are taken into account whenever the EU takes specific relevant actions. One such example is the upcoming adoption of the Counter-Terrorism Directive, which includes several provisions on assistance, support and protection of victims of terrorism. 4) Fourthly, the importance of tackling economic and financial crimes cannot, under any circumstances, be underestimated. This is an equally complex and expansive area, ranging from high-level corruption and money laundering to illegal financing of terrorism. These crimes are not abstract or limited to ­certain economic actors, but pervade deeply in our societies and have an impact on all of our lives. In the wake of recent terrorist attacks on European soil and the revelations of the Panama Papers, the European Commission proposed a number of significant changes to the current framework, ie the 4th Anti-Money Laundering Directive (Directive 2015/849/EU), in order to try to prevent money laundering, tax crimes and the financing of terrorism (see COM(2016) 826 final). These changes, which originate in the European Commission’s Action Plan for Strengthening the Fight against Terrorist Financing of 2 February 2016, concern the identification of beneficial owners of companies and trusts. Such information will be accessible in a central register. These changes will therefore establish greater transparency in financial transactions and provide national authorities with a tool in which they can identify persons who disguise their financial situation in order to commit crimes such as terrorism. They will also tackle new means of terrorist financing, such as prepaid cards and virtual currencies, and will facilitate improved cooperation amongst Financial Intelligence Units. Once adopted, this legislative act will be a huge step forward in ensuring access to information in financial transactions. 5) And the fifth and final point, is the absolute necessity in establishing the European Public Prosecutor’s Office (EPPO). The EPPO is indeed a key priority for the European Commission. The European Commission’s proposal for a Regulation establishing the EPPO was issued in July 2013 and the negotiations are now in their final stage. Agreement is expected for 2017. The EPPO will modify EU criminal law in various ways as it leaves the mere ­cooperation-approach behind. It will—unlike, for example, Eurojust—have full

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Introduction by Vera Jourova

investigatory and prosecutorial powers, and it will operate as an independent single Office across all of the participating Member States. Although the initial proposal of the European Commission has been amended in various ways over time, the EPPO’s structure and material competence would be a real game-changer. The EPPO would be an independent, efficient and highly specialised Prosecution Office whose mandate would be to fight fraud, ­organised crime, high-level corruption, sophisticated VAT ‘carousel’ fraud, money ­laundering and other crimes that affect the financial interests of the EU. Furthermore, unhindered by any language barriers, it would have a common toolbox enabling it to carry out investigation measures across participating Member States, even if national law does not provide for them, and without the need for lengthy and complex judicial cooperation procedures. Suspects and accused on the other hand would benefit from a robust set of procedural rights. This integrative nature of the European Public Prosecutor’s Office is also highly significant when it comes to another key element of criminal law: judicial review. Primarily it will be national courts which will have the competence to listen to and decide on cases, while the European Court of Justice will ensure that the Regulation is applied in the same manner in all participating ­Member States. Despite the richness in legal traditions and customs across the E ­ uropean Union, the approach adopted by the European Public Prosecutor’s Office offers an ­ efficient pan-European solution to strengthening the current efforts in ­protecting the Union’s budget. To date, there is no comparable judicial actor in place in the EU’s landscape. There is also one overarching element inherent in all of the five points described above, and that element is: ‘Training’. Training plays a vital role in all of this, and the European Commission has ensured the adoption of a structured strategic approach, which connects the funding of training activities with the European Commission’s own objectives. It is not sufficient to enact new laws in the area of EU criminal law without providing practitioners with the appropriate tools to put these new laws into practice. Training is the indispensable link between legislation and practice and with this in mind, the European Commission supports judicial training activities for judges, prosecutors and lawyers, but also for prison and probation staff in all of the Member States. Furthermore, training of professionals working in the justice area is also about exchanging practical experiences on the ways in which to implement legislation. Judicial training at EU level therefore nurtures a coherent application of EU criminal law and fosters mutual trust amongst practitioners across the Union. At the end of 2016, the European Commission provided financial support for the training of 20 per cent of judicial practitioners in EU law, or in the law of another EU Member State. It encourages Member States to do more in this regard, in particular for newly-appointed legal professionals since data shows a lack of training provided for them on EU law. Furthermore, with regard to the quality of the training, the European Commission fully supports the ‘9 principles of judicial training’ issued by the European Judicial Training Network in 2016, which

Introduction by Vera Jourova

 9

brings together interactive, practical and multi-disciplinary training. Moreover, ­training also provides a forum where professionals within the justice area can come together to exchange views and information, unhindered by their various different roles in individual criminal cases. In the past so much has already been done to develop EU criminal law. ­However, much more can be, and needs to be done in the future. ECLAN will without doubt closely accompany this process and with its constant contributions, continue to shape its future.

10 

2 Introduction by Minister Koen Geens, Minister of Justice, Belgium This contribution is as much part of a celebration of ECLAN’s tenth anniversary as it is a tribute to and a reflection on the development of EU criminal law. Now taking part in the evolution in this field as Minister of Justice of an EU Member State, I am at the same time looking at it from the outside, with the eyes of an academic and a lawyer who has been following for decades—and also for a briefer period as a politician—a very different and older EU field, namely the financial sector. Whether one sets the beginning of EU criminal law at the Treaty of Maastricht or with the Treaty of Amsterdam, there is no doubt that its evolution in such a brief period of time is impressive. The system that has been built over relatively few years is a complex and massive one that has relentlessly developed across major institutional evolutions, such as the enlargement of the Union in 2004 and the absorption of the sector of cooperation in criminal matters (the former third Pillar) into the first Pillar of the EU with the Lisbon Treaty in 2009. EU criminal law has become not only massive and complex but also just mature enough to face the current troubled waters of the development of the EU. I also believe that it is an essential role for the EU not only to resist but also to come out of this difficult phase stronger. But EU criminal law is also still fragile in many aspects. We will have to navigate carefully and steadily in the coming years. The fight against terrorism is one of the first aspects that come to mind when discussing EU criminal law. The simultaneity of the current wave of terrorist attacks with the migration crisis has led many people to believe that terrorism is closely related to EU policy on refugees, on the one hand, and to Schengen, on the other hand. Both are wrong conclusions. It is true that the emergence of the Foreign Terrorist Fighters phenomenon, because it concerns more than ever before our own nationals or residents, has required a change of paradigm, in particular the issue of controls on EU nationals at borders and the use of the Schengen Information System. And we have to admit that it has taken too much time for the European ship to deviate from its course to pursue the new objectives. The slow reaction at EU level on these specific issues, when all the information and intelligence available was pointing to the growing threat and its new features, needs to be taken seriously. But despite the fact that the EU should have been quicker in its reaction, no one can reasonably defend the idea that the Member States would have been safer if

12 

Introduction by Minister Koen Geens, Minister of Justice, Belgium

this terrorist threat had emerged in a context of inter-governmental ­cooperation in criminal matters as it would exist without Schengen and the EU. Defending such a position is based on the false assumption that, without Schengen, each Member State would be able to have full control on its borders, which in practice is simply not possible in a territory as densely populated and with so many different countries with so much common borders as the current EU. On the contrary, and even if there is still room for improvement in a sector that remains relatively young, the EU instruments have been and are still extremely useful in facing the existing threat. One needs only to look at the cooperation between France and Belgium and imagine what the counter-terrorism investigation following the attacks would have been if the European Arrest Warrant and the Joint Investigation Teams did not exist. The reality is that the main responses in the sector of criminal law which the EU could have come up with were adopted already in 2002, after the 9/11 attacks: the common definition of terrorism, Eurojust, the European Arrest Warrant and the Joint Investigation Teams. It is often said in the Council that the fight against terrorism at EU level is too much left to the Ministers of Home Affairs with not enough discussions between the Ministers of Justice. This is certainly true but is also partly due to the fact that, as far as criminal law is concerned, the most needed instruments already existed before the new threat emerged. This may have given the false impression that criminal law was not part of the EU policy against terrorism while it was in fact a core aspect of it. Medhi Nemmouche (the s­ uspected ­terrorist of the attack in the Jewish Museum in Brussels in 2014) and Salah Abdeslam (suspected of having taken part in the coordinated terrorist attack in Paris in 2015), for example, were surrendered on the basis of the E ­ uropean Arrest Warrant which replaced extradition in 2002. This ‘jewel in the crown’ of EU criminal law is now so much part of the acquis that the population and the press do not even notice how much it has improved judicial cooperation. Yet there is one issue of criminal law on which the EU should have concentrated more efforts in a more timely manner given its importance for counter-terrorism, knowing also that it is crucial for most criminal investigations even if they are not related to terrorism. That issue is the access in the framework of criminal investigations to communication data managed by providers of Internet services such as Facebook, Twitter, Google, Microsoft, Whatsapp, Viber, Skype, etc. There may be diverging views as to what the solution is regarding jurisdiction and direct contacts (or not) between the State of the investigation and those private companies usually located abroad. But no one can deny that this issue needs to be solved and that this cannot be done solely at national level. Belgium’s Supreme Court had to step in in this issue back in 2011. Its decision in the so-called ‘Yahoo!’ case is controversial but also world famous. The issue was therefore already well known. But one had to wait until the second semester of 2015 and the Luxembourg Presidency to see the EU starting to work on this. By then, many if not most criminals had moved to communication services such as Whatsapp, Telegram or Skype, knowing that it seriously complicates c­ riminal

Introduction by Minister Koen Geens, Minister of Justice, Belgium

 13

investigations. It took another year for the Council to make it a top priority through conclusions adopted under Dutch Presidency. The Commissioner for Justice, Vera Jourova, responded to the call and her services are now working hard on the issue. If a legislative instrument is proposed in the beginning of 2018, as announced by Commissioner Jourova, it will probably take another four years for the negotiation and the implementation period, which means that the actual response will come more than 10 years after the problem emerged. Leaving the European Public Prosecutor aside for now (I will come back to it later), EU criminal law has been developing along four complementary paths during the last 15 years: approximation of substantive criminal law, approximation of procedural rights, mutual recognition of judicial decisions and finally, mechanisms of coordinating the investigations and prosecutions. As indicated before, the result is impressive. But it also reaches its limits. The challenge for EU criminal law is to be able to renew itself by facing issues that require a totally different approach from the ones that underlie the existing work. Cross-border access to internet communications data cannot be dealt with through the existing tools. It requires a different mind-set and creativity. Mutual recognition, within the EU, and mutual legal assistance, with partners such as the United States, provide frameworks that cannot appropriately deal with cases where the State of the prosecution, the State of the seat of the provider, the State of the storage of the data and the State of the location of the target are all different. To solve this problem, we need to either push aside or at least fully rethink the notions of sovereignty and territoriality which are not adequate in the field of electronic evidence. Instead, the question must be: what is the best and most balanced way to protect the privacy of the person with regard to the investigative measures concerned? Finding a solution will require EU criminal law specialists to reach out to the sectors of EU data protection and the EU internal market of electronic communications. These three sectors are too often functioning separately. More than seven years after the absorption of the third pillar (cooperation in criminal matters) by the first pillar of the EU, it is time for EU criminal law to become fully part of a global EU policy on new technologies. If Whatsapp or Skype need to apply EU data protection and telecom rules, they should also be submitted to EU rules on cooperation with criminal investigations. It will also be necessary to engage in a constructive discussion with the ­European Parliament. One can already see that jurisdiction in cyberspace, which involves electronic data, privacy and security, is the perfect recipe for a new inter-­ institutional battle. This probably partly explains why this file took so much time before being put on the table. This should make us reflect on the stereotyped opposition between the Council and the Committee for Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament on these issues. One of the difficulties is that the sector of security and criminal law has not yet fully adapted to the working methods of the European Parliament and in particular to the practice of lobbying. There is no association, federation or lobbying firm active around the

14 

Introduction by Minister Koen Geens, Minister of Justice, Belgium

European Parliament to promote and defend the interests of criminal investigations as there is for those defending privacy or the business interests of the internet providers. That does not mean of course that the Parliament has a one-sided view or that it is insensitive to the needs of the investigators. But it mainly receives its views via the hearing of EU agencies like Europol and Eurojust or via the contacts between national MEPs and the Permanent Representations of their Member States, all of them being naturally seen as linked to the Council, which is the other party in the negotiation. This reflection on how the needs of the criminal investigations are expressed in and around the European Parliament is all the more crucial in a period of understandable suspicion around mass surveillance of electronic communications. Jurisdiction in cyberspace is not about mass surveillance but about targeted access, in specific criminal investigations, to internet communications data, with all the checks and balances of criminal law procedure. This distinction between targeted access and mass surveillance raises the ­question of another difficult file: data retention. Data retention is about the generalised retention of non-content data with a view to enabling afterwards this ­targeted access within criminal investigations. On 21 December 2016, the ­European Court of Justice has issued a very important decision in the case Tele2 Sverige, which has shaken many police officers, prosecutors and investigative judges. While it seems that data retention as it exists in many Member States is at least not entirely compatible with EU law, it is less clear what the wider impact is on the possibilities left for Member States. After all, the Court itself seems to suggest that the retention of communications data would be acceptable if restricted to certain categories of people, in particular on the basis of geographic criteria, which may give rise to other fears, this time of discrimination. The prohibition of generalised data retention arrives at a moment when the negotiations are beginning on the new e-Privacy Directive, which will replace the directive on the basis of which the Court has rendered its above-mentioned decision on data retention. The question will be whether or not the new directive will maintain the rule that basically allows the operators and possibly internet service providers to keep data as long as is necessary for billing and marketing purposes, provided that the user gives his consent. It is likely that the rule will be maintained, which means that investigations will depend on the commercial strategies of those private companies knowing that the user has little impact on and even ­knowledge of what data are retained and for how long. This reinforces the need to have a coherent and global discussion at EU level on the relation between ­electronic ­communications, privacy and criminal investigations. Another related aspect that needs to be tackled at EU level is the issue of encryption of data and communications. Encryption is a key aspect of cybersecurity and privacy but it also creates a huge obstacle for criminal investigations. The combination of national approaches will not suffice to solve the issue. An EU approach will be necessary. Here as well, work has started, albeit very slowly.

Introduction by Minister Koen Geens, Minister of Justice, Belgium

 15

I strongly believe that these three issues (jurisdiction in access to communication data, data retention and encryption) justify a shift of resources in the Council and in the Commission to open a whole new front in the development of EU criminal law. To the specialists of criminal law, these issues may not seem as noble as the definition of the criminal liability of legal persons or the precise scope of the principle ne bis in idem. But it is an area where EU action is desperately needed and where the EU could emerge as the leading forum of innovation. Speaking of innovation, another important file is the setting up of a European Public Prosecutor (EPPO). As a Minister of Finance in the previous government, and now as Minister of Justice, I was involved in the Belgian participation in two activations of enhanced cooperation, namely the EU Financial Transaction Tax and the rules for matrimonial regimes. I remain convinced that enhanced cooperation is needed to bring the EU forward. But it needs to be used wisely. I am optimistic in the case of the EPPO. A ‘critical mass’ of participating Member States was needed, beyond the minimum threshold of nine Member States required by the Treaty. The EPPO will necessarily act on cross-border cases which may cover the whole EU territory. This means that the EPPO will have to cooperate with non-participating Member States. The EPPO can only take off and bring added value if it does not create new complexities given the amount of non-participating States. In the Council in June 2017, 20 Member States have confirmed their intention to participate in the EPPO. More can join until the adoption of the regulation and, obviously, afterward. With more than two thirds of countries participating, we are in any case well beyond the necessary ‘critical mass’ to make the EPPO work in practice. Experience shows that the combination of national prosecutions is not sufficient to successfully fight EU fraud. An EPPO is needed to develop a real EU prosecution strategy. I have to admit that the text that is the result of three years of negotiations is far from perfect. In particular, the change compared to the initial proposal of the Commission regarding the structure of the EPPO and the use of a ‘College’ of European Public Prosecutors coming from each Member State is regrettable because it undermines the EU dimension of the EPPO. Nevertheless, the compromise obtained through difficult negotiations in the Council maintains the minimum level of integration that is necessary for the EPPO to bring added value if there are enough Member States taking part in the system. The EPPO is first of all a tool needed to protect the financial interests of the EU. But it is also a step into the future at a time where the EU is in crisis. It represents more than a new instrument to be added to the list, for example, of mutual recognition instruments or instruments of approximation of criminal law. It opens a new door and as such it creates largely irrational fears and uncertainties. But the EPPO is still far from a federal criminal law system. It represents a major change but does not amount to a supranational regime. Moving forward with new solutions—such as the EPPO or a system sui generis to access communication data as discussed before—does not mean of course that the more traditional paths of EU criminal law should be left aside.

16 

Introduction by Minister Koen Geens, Minister of Justice, Belgium

Mutual recognition in particular is about to be put to the test soon with the beginning of application of the Directive on the European Investigation Order (EIO). The EIO Directive has the potential to significantly improve judicial ­cooperation in the gathering of evidence, which is now still handled through the old instrument of ‘letters rogatory’. The EIO Directive is not an easy instrument. It is crucial that it covers all types of investigative measures but, for that reason, it also contains a complex gradation on the automaticity (or not) of the recognition or execution of the EIO. It will no doubt raise legal and practical difficulties. It is essential therefore that the Council, the Commission and the Member States give priority to the follow up of this implementation. Approximation of legislation remains of course a crucial tool, both for substantive and for procedural criminal law. We may be reaching here the end of a cycle and, after so many framework decisions and directives, the need for new instruments is less obvious right now than it was 10 years ago. But new needs will come up progressively with new forms of criminality or further development of mutual recognition. The fact that so much has been done regarding mutual recognition and approximation of legislation and that the priority now is on implementation of the existing instruments, also means that the legislative resources can be dedicated to the new field of electronic evidence and the questions around territoriality and jurisdictions. The EU is mature enough to tackle these issues. They are also an opportunity for EU criminal law to renew itself and to bring balanced solutions that are strongly needed. I hope that when ECLAN celebrates its twentieth anniversary, a completely new field and set of instruments of EU criminal law will have emerged to deal with these challenges.

3 Introduction by Minister Félix Braz, Minister of Justice, Luxembourg There is a whole array of balances that need to be struck in making EU policy and legislation: the balance between the EU and the Member States, the balance between diversity and unity, the balance between prosecution and defence, to only name a few. In EU criminal law, and the instruments that are currently under discussion in the said area, it is of utmost importance to strike these balances. It is something we strive for every day. The European Union needs common minimum standards in the field of procedural rights in criminal proceedings in order to guarantee that the basic rights of suspects and accused persons are protected sufficiently. According to the principle of mutual recognition, these minimum standards are essential for judicial decisions taken by one Member State to be recognised by the other Member States. A Roadmap on procedural rights was adopted in 2009 by the Justice Council, setting out a gradual approach towards establishing a full catalogue of procedural rights for suspects and accused persons in criminal proceedings. In the meantime, the European Union legislature has adopted the most important initiatives of the roadmap. Under the Luxembourg Presidency of the Council of the EU, the European Parliament and the Council of the European Union found agreement on the Directive on the presumption of innocence and the right to be present at trial in criminal proceedings and on the Directive on procedural safeguards for children suspected or accused in criminal proceedings. The Directive on legal aid was the last text of the Roadmap approved by the European Union legislature. These directives will strengthen criminal proceedings by enhancing mutual trust between judicial authorities and improving the mutual recognition of decisions in criminal matters. A major project in the area of freedom, justice and security is without a doubt the establishment of a European Public Prosecutor’s Office (EPPO). The EPPO will also have to apply robust standards in the field of procedural rights when it prosecutes offences related to the protection of the Union’s financial interests. It is crucial that the EPPO will have a strong and effective material competence in order to increase the prosecution and sanctioning of crimes against the EU budget, and facilitate the recovery of misused EU funds. After three years of negotiation on the Commission’s proposal on EPPO, a lot of progress has been made towards ­setting up a consolidated text that preserves the essential ­features

18 

Introduction by Minister Félix Braz, Minister of Justice, Luxembourg

of an ­independent and efficient office. However, as unanimity is required for this ­instrument, and not all Member States in the Council can yet agree on this ­consolidated text, it is now of utmost importance to continue the procedure ­provided for in Article 86 of the Treaty on the Functioning of the EU. If it will not be possible to reach unanimity in a reasonable time, the use of enhanced cooperation, by taking on board as many Member States as possible, is an option. Enhanced cooperation must always remain a tool of last resort. Thus, in the field of justice and home affairs, where sensibilities regarding national sovereignty or the respect of national legal systems are real, enhanced cooperation appears to be an indispensable way not to stop those Member States that wish to deepen the process of European integration. In October 2015, the Luxembourg Presidency of the Council of the EU, in ­collaboration with the University of Luxembourg, organised a conference on the subject of Mutual legal assistance in the digital age. The conference contributed to pointing out the difficulties that our prosecution and law enforcement authorities face in the collection and retention of e-evidence. These struggles need to be addressed either by using efficiently the instruments already adopted, in particular the European Investigation Order, or by bringing forward new ones. In this respect, close cooperation with the private sector is very important. However, providing the judicial and law enforcement authorities with the right instruments to collect and store evidence has to go hand in hand with a convincing regime on the protection of fundamental rights, and in particular the right to privacy and the right to data protection under Articles 7 and 8 of the ­Charter of Fundamental Rights of the European Union. In the ‘Tele2’ judgment of 21 December 2016 (Joined Cases C-203/15 and C-698/15), the Court of Justice of the ­European Union clarified its case law with regard to data retention schemes. The European Union can no longer remain dependent on 28 divergent data retention regimes. A uniform interpretation of the recent Court’s judgment, common guidelines and subsequent initiatives need to be drawn up. This exercise is a major challenge: the consequences for criminal investigations and prosecutions will be considerable. It will no longer be sufficient to guarantee the proportionality of a data retention regime by imposing strict rules on access to data or e­ nhancing the security of data retention by operators. Widespread, undifferentiated ­retention of metadata, without exceptions, will not pass the proportionality test of the Charter.

4 Introduction: About ECLAN and the Balances that Need to be Struck in EU Criminal Law CHLOÉ BRIÈRE AND ANNE WEYEMBERGH (EDITORS)

Twenty-five years ago, the entry into force of the Treaty of Maastricht granted the European Union competences in the field of police and judicial cooperation in criminal matters. Subsequent Treaty revisions have modified the role of the different EU institutions, the scope of their competences and the instruments available to the EU legislator. Cross-border cooperation has become a growing priority in efforts to prevent and to combat crime. This has led to a considerable development in EU criminal law. As this area of the EU integration process is particularly sensitive, delicate balances have had to be struck. Not only does EU action in this field encroach upon national sovereignties but it must also ensure that any interference with the fundamental rights of individuals remains proportionate to the objectives pursued. This edited volume is based on presentations given during the tenth anniversary conference of the European Criminal Law Academic Network (ECLAN). It aims to provide reflections on the past, the present and the future of EU criminal law, focusing more particularly on the balances that need to be struck in this particularly sensitive field (section II). Before discussing these, a few words will be dedicated to the history of the ECLAN network (section I).

I.  A Brief History of the Network1 The emergence of EU criminal law as a field of academic research is closely ­intertwined with the developments mentioned above, ie the conferral of competences on the European Union and the increasing number of measures adopted 1  For further information, see Documentary on ‘ECLAN—The first ten years’, available at: https:// www.youtube.com/watch?v=IBMVC_VPUgU.

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Chloé Brière and Anne Weyembergh

and implemented on the basis of changing legal bases in the Treaties. There has admittedly been academic research in this field since the time when EU criminal law was in its infancy but the creation of a specialised academic network, namely the European Criminal Law Academic Network (ECLAN), only dates back to December 2004. It was set up by Serge de Biolley and Anne Weyembergh (coordinators) based on EU funding obtained via the European Commission’s Agis Framework programme (2003–06) and co-funding from Luxembourg’s Ministry of Justice. The establishment of the network clearly benefited from the precious collaboration of the first contact points, ‘the founding fathers and mothers of the network’, particularly Pedro Caeiro (University of Coimbra, Portugal), Sabine Gless (then ­belonging to the Max Planck Institüt für Ausländisches und Internationales ­Strafrecht, representing Germany), Katja Sugman (University of Ljubjana, ­ Slovenia), Henri Labayle (Université de Pau, France), Giovanni Grasso (University of ­Catania, Italy), Franck Höfpel (University of Wien, Austria) and Adam Lazowski (then belonging to the Asser Institute, the Hague, but representing Poland). The network was set up to pursue the objectives of fostering research and teaching in the field of EU criminal law and of developing links between researchers working in this field. It has also aimed at developing academic research and training in the field of EU criminal law by facilitating cooperation and synergies between universities and research centres. The idea has also been to develop a constructive dialogue with practitioners and experts working in the field as EU civil servants, judges from the Court of Justice of the European Union (CJEU), national civil servants, lawyers, etc. Anne Weyembergh has been jointly coordinating the network with ­Katalin Ligeti (University of Luxembourg) and Valsamis Mitsilegas (Queen Mary ­University in London) since 2013. Since its creation, the number of ECLAN ­contact points, who are all academics or researchers specialising in European criminal law, has increased markedly. Thirty-two states are represented in the network, namely the 28 Member States of the EU, Iceland, Norway, Switzerland and Bosnia-Herzegovina. Some of these contact points are, together with the three coordinators, members of the management committee of the network, which is in charge of managing the network on a daily basis and of organising ECLAN’s events: Pedro Caiero (University of Coimbra), Sabine Gless (University of Basel), Jorn Vestergaard (University of Copenhagen) and Robert Kert (Vienna University of Economics and Business). The contact points and the management committee can be considered as being the nucleus of the network. The network has succeeded in creating a European community combining around 120 academics, some older and more experienced and some younger and less experienced. Indeed, besides its contact points, ECLAN brings together other members representing the 32 abovementioned states. The coordinators and management committee have always been actively supported in their efforts to set up, manage and develop the network by the members of the Brussels team: by Veronica Santamaria, Emanuele Pitto and Ozlem Ozen

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 21 at the outset; Vanessa Ricci, Laura Surano, Isabelle Andoulsi, Emanuela Politi, ­Francesca Galli and Cleo Feoli subsequently; and, more recently, by Chloé Brière, Ines Armada, Céline Cocq, Anthony Rizzo and Giulia Giacomelli. All of them have contributed to ECLAN’s achievements and success. Researchers from the University of Luxembourg, particularly Chiara Ricci, and from Queen Mary University in London, particularly Niovi Vavoula, are increasingly involved in the daily ­management of the network.

A.  Main Achievements Over the years, the network’s activities have developed considerably. ECLAN’s 10-year anniversary offered an ideal opportunity to highlight its achievements. The network has fostered the teaching of European criminal law across Europe. It has especially done so via the Summer School on the EU area of criminal justice, which it has been co-organising with the Institute for European Studies of the Université Libre de Bruxelles2 (IEE-ULB) on an annual basis since July 2004. The summer programme offers students/practitioners/researchers the opportunity to further develop their knowledge of and interest in the subject. Since 2010, ECLAN has been organising an annual PhD seminar, which is organised on a rotating basis. These PhD seminars offer a friendly environment in which PhD students can develop contacts with academics and other researchers in the field and gain experience in presenting their research. ECLAN has also contributed to training professionals in the field via its two generations of Copen training projects, funded by the Agis and Criminal Justice programmes. ECLAN has organised annual conferences which have provided many opportunities to address and debate topical issues, such as the impact of EU counterterrorism offences on national laws or the influence of the EU on the blurring boundaries between administrative and criminal law. The network has also (co-)organised other academic events such as workshops and seminars.3 Besides its quarterly newsletter dedicated to recent developments in EU criminal law, ECLAN has been particularly active in terms of publications, thereby supporting and promoting dialogue within the academic community. The network has been a framework within which its members and external contributors have been able to work together to publish edited volumes that address various topical issues of EU criminal law. These books have addressed the evaluation of criminal law,4

2 

See http://www.summerschool-ulb-criminaljustice.eu. See ECLAN website: http://eclan.eu/en. 4  A Weyembergh and S de Biolley (eds), Comment évaluer le droit européen? (Editions de l’Université Libre de Bruxelles, 2006) and A Weyembergh and V Santamaria (eds), The ­Evaluation of EU Criminal Law: the Example of the Framework Decision on Combating Trafficking in Human Beings (Editions de l’Université de Bruxelles, 2009). 3 

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Chloé Brière and Anne Weyembergh

the future of mutual recognition,5 EU counterterrorism offences,6 the approximation of substantive criminal law7 and the blurring boundaries between administrative and criminal law.8 ECLAN is one of the patrons of the New Journal of European Criminal Law, a peer-reviewed journal, which serves as a forum for both legal practitioners and academics interested in issues related to European Criminal Law. It contains a wide variety of articles, ranging from short case notes with little or no comment to opinionated comments on developments, to long in-depth critiques of judgments and legislative measures with proposals for reform or change. The journal has been particularly sensitive to the need not only to shine a light on promising young researchers, notably through a special edition focusing on ‘new voices in EU criminal law’ but also to follow policy developments. The network has also recently launched a new series: the Hart Studies in European Criminal Law, edited by three of the network’s coordinators. It has coordinated or been involved in various research projects, which have fed academic debates as well as policy debates.9 These activities would not have been possible without the financial support of Luxembourg’s Ministry of Justice, which has continued to support the network throughout the years. It has also benefited from financial support from the EU via the Commission’s funding programmes.

B.  Close Links with Practitioners and Independence The network is of an academic nature, composed of academics and researchers specialising in EU criminal law but it has always interacted very closely with practitioners in the broad sense of the word, ie national experts, EU civil servants and practitioners. As is demonstrated by Serge de Biolley’s major role in the network, the link between academia and practice has always been key to ECLAN. At the time when it was launched and during the course of its development, the network has benefited from the vital support of certain key EU civil servants (such as Gilles de Kerchove, Charles Elsen and Hans Nilsson from the General Secretariat of the Council, and Gisèle Vernimmen and Isabelle Jegouzo from the European Commission) and from the input and support of national experts (especially Daniel Flore from

5  G Verminnen-Van Tiggelen, L Surano and A Weyembergh (eds), The future of mutual recognition in criminal matters in the European Union / L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne (Editions de l’Université de Bruxelles, 2009). 6  F Galli and A Weyembergh (eds), EU Counter-terrorism Offences: What impact on national legislations and case-law? (Editions de l’Université de Bruxelles, 2012). 7  F Galli and A Weyembergh (eds), Approximation of substantive criminal law in the EU: The way forward (Editions de l’Université de Bruxelles, 2013). 8  F Galli and A Weyembergh (eds), Do labels still matter? Blurring boundaries between administrative and criminal law, The influence of the EU (Editions de l’Université de Bruxelles, 2014). 9  See ECLAN website: http://eclan.eu/en and infra.

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 23 ­ elgium, Roland Genson from Luxembourg and Emmanuel Barbe from France). B ECLAN has enjoyed the cooperation of Lars Bay Larsen, a judge at the CJEU and Françoise Tulkens, a former judge at the European Court Human Rights, alongside a few senior academics—eg John Vervaele and Robert Roth—some of whom are members of the ECLAN steering committee. Practitioners have recognised the role played by ECLAN. As pointed out by Gilles de Kerchove in a documentary retracing the history of the academic ­network,10 from the early 2000s, the decision was taken to organise regular brainstorming between practitioners and academics: ‘We really needed, as EU officials, to be fed and challenged by academics.’ These exchanges allowed for the development of and/or a sound reflection on new concepts, such as mutual recognition or the availability of information; and the formulation of objectives to achieve, ie the building of the EU area of freedom, security and justice.11 ECLAN has fed policy developments at the EU level, notably by carrying out ambitious research projects. These research projects have contributed to different stages of the decision-making­process. Some have nourished general reflections, taking stock for instance of the diversity of national laws on certain issues.12 Other projects have contributed to the preparation of new legislative instruments and to the impact assessments accompanying proposals for EU legislation.13 Finally, other projects have focused on the evaluation of the implementation of EU criminal law instruments, notably those requiring transposition into the national legal orders of the Member States.14 In spite of these privileged contacts with practitioners, key features of the network have been its independence and its diversity. Its contact points and its members represent a plurality of views and opinions regarding EU criminal law and, more generally, substantive and procedural criminal law. A similar diversity of views and opinions is also present in the exchanges and discussions between members of the network and practitioners.

10 Documentary on ‘ECLAN—The first ten years’, available at: https://www.youtube.com/ watch?v=IBMVC_VPUgU. 11  Intervention by Gilles de Kerchove in the documentary ‘ECLAN—The first ten years’, available at: https://www.youtube.com/watch?v=IBMVC_VPUgU, accessed 5 April 2017. 12  See for example the study on minimum sanctions in the EU Member States (JUST/2013/JPEN/ PR/0047/A4), or the study ‘Analysis of the future of mutual recognition in criminal matters in the European Union’ (JLS/2007/JPEN/221). 13  See for example the Preparatory study for an impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit drug trafficking (2011–2012) or the Study on the impact of the different policy options to protect the financial interest of the Union by means of criminal law, including the possibility of establishing a European Public Prosecutor’s Office (2012). 14  See for example the Evaluation of the Legal Framework Applicable to Combating Terrorism in the EU Member States (2013–2015).

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II.  Striking Much Needed Balances in EU Criminal Law A. Criminal Law: A Challenging Field of Law, particularly from the Human Rights Protection Point of View The importance of striking balances in criminal law does not only concern the field of EU criminal law. It is an issue relevant for criminal law at any level: at the national criminal justice system level, at the regional and international criminal law level. For many years, authors have discussed the importance of the challenges faced by the legislator when enacting criminal norms. Indeed, criminal law is of key importance in society and, as H. Wechsler observed, it is the law ‘on which men place their ultimate reliance for the protection against all the deepest injuries that human conduct can inflict on individuals and institutions’. However, it is also the law that ‘governs the strongest force that we permit official agencies to bring to bear on individuals’.15 As a consequence, ‘if penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its coils’.16 This illustrates the crucial necessity, or even the requirement, to find an appropriate balance between preventing and fighting crime and protecting the fundamental rights of individuals in criminal law. The latter constitutes a guarantee for the respect of the rule of law, and serves notably to ensure that the fundamental rights of individuals involved in criminal proceedings—be they victims of crime, witnesses, suspects or accused persons—are adequately protected. Although such a requirement has been addressed through different perspectives that we will briefly comment on, attention must always be focused on the close relationship between criminal law and fundamental rights. A first perspective on this general balance has been expressed by F. Tulkens, who has detailed the defensive and offensive roles of human rights in criminal law.17 Human rights have a defensive role, which refers to their primary and traditional role of affording protection from criminal law. Referring to Bentham, criminal justice, throughout the whole course of its operation, can only be a train of evils—evils in the threats and constraint of the law—evils in the pursuit of the accused, before the innocent

15  H Wechsler, ‘The challenges of a Model Penal Code’ (1952) 65 Harvard Law Review 1097, RE 1098. 16 Ibid. 17 F Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9 Journal of International Criminal Justice 577.

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 25 can be distinguished from the guilty—evils in the infliction of judicial sentences—evils in the inevitable consequences which reverberate upon the innocent.18

Human rights thus intervene in this respect as safeguards to circumscribe and limit the application of criminal law. By contrast, human rights also have an offensive role, as criminal law can be called into play to protect them. In this regard, the case law of the European Court of Human Rights is particularly interesting as the Court has inferred positive obligations for states parties to use criminal law provisions in order to prevent violations of the Convention perpetrated by individuals.19 A second perspective on the crucial relationship between criminal law and ­fundamental rights focuses on the functions of criminal law: the ‘shield’ and ‘sword’ functions.20 This perspective has notably been followed by JAE Vervaele, who has analysed it in the field of EU criminal law.21 According to him, the ‘sword’ function of criminal law refers to its objective to protect society against crime and criminals. In contrast the ‘shield’ function refers to the limitation/framing of the use of force, and the protection of individuals against arbitrariness and abuses by repressive authorities. These illustrations demonstrate the importance of ensuring adequate balances in the field of criminal law. This exercise lies in the hands of national legislators, but it also concerns those involved in the drafting of EU criminal law.

B. The Five Main Balances that Need to be Struck in EU Criminal Law As mentioned earlier, the European Union has been granted certain competences to enact criminal norms at EU level. Its margin of manoeuvre is strictly framed by the Treaties22 and general principles of EU law. The scope of its competences has evolved following the subsequent revisions of the EU Treaties. As a consequence, a certain amount of diversity has long prevailed, marked by the co-existence of instruments of different generations, containing norms of fluctuating binding force and with variable geometry in the jurisdiction of the Court of Justice of the European Union.23 This situation may have had an impact on the ability of the 18 

Ibid, p 581. Ibid, p 584. See also ECtHR, X and Y v The Netherlands, 26 March 1985, Application No 8978/80, § 24, Series A no 91. 20  For an overview of some authors who have followed this perspective, see F Tulkens (n 17 above) p 578, fn 5. 21 J AE Vervaele, ‘Régulation et répression au sein de l’Etat providence. La fonction “bouclier” et la fonction “épée” du droit pénal en déséquilibre’ (1997) 21 Déviance et société 121. 22  Articles 82 to 86 TFEU on judicial cooperation in criminal matters and Articles 87 to 89 on police cooperation in criminal matters. 23  Prior to the entry into force of the Lisbon Treaty, and the end of the transitional period, the jurisdiction of the CJEU was conditioned to a declaration by the Member States, and not all of them recognised the jurisdiction of the Court (see ex Article 35 TEU). 19 

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European Union to develop a comprehensive set of criminal norms that serve not only to prevent and combat crime but also to protect the individuals’ fundamental rights. It can be considered that EU criminal law has today reached a certain level of maturity in the field of EU criminal law and this allows us to assess whether it is striking the balances that are (or should be) essential. Five balances have been identified and will be assessed one by one in this introduction.

(i)  The Balance between the Member States and the European Union Itself The allocation of competences between the national level, ie the competences of the Member States, and the supranational level, ie the competences conferred on the European Union, is an issue that is particularly sensitive with regard to national sovereignty. Even though the scope of the competences conferred on the EU has evolved over time, the allocation of competences has certain permanent characteristics. While national security remains an exclusive competence of the Member States,24 police cooperation and judicial cooperation in criminal matters belong to shared competences between the Member States and the EU.25 As a consequence, the interventions of the European Union must satisfy the principles of subsidiarity and proportionality, as enshrined in the Treaties,26 which are subject to particular attention in the field of criminal law. The current context, marked by a crisis in the goals of European integration and more particularly by the prospect of Brexit, may weaken the balance between the Member States and the European Union. In her letter of 29 March 2017 to the European Council, Theresa May, the current Prime Minister, has indicated the desire of the UK government to ‘agree with the European Union a deep and special partnership that takes in both economic and security cooperation … [and] a failure to reach agreement would mean that our cooperation in the fight against crime and terrorism would be weakened.’27 However, for the time being little is predictable concerning the form and content of this ‘deep and special partnership’. Besides the key question of determining what types of cooperation mechanism will replace the EU criminal law instruments which are currently binding for the United Kingdom,28 one of the most sensitive questions is about who will negotiate

24 

See especially Article 4 para 2 TEU. Article 4 para 2 TFEU. 26  See particularly Article 5 TEU. 27  Article 50 notification letter from the United Kingdom, 29 March 2017: http://www.consilium. europa.eu/en/press/press-releases/2017/03/pdf/070329_UK_letter_Tusk_Art50_pdf/, accessed 5 April 2017, p 2. 28 About this question, see especially V Mitsilegas, ‘The Uneasy Relationship between the UK and European Criminal Law: From Opt-Outs to Brexit?’ (2016) 63 Criminal Law Review 517–36; ­German Bundestag, European Affairs Directorate Research Section for European Affairs, ‘Consequences of Brexit for the realm of justice and home affairs Scope for future EU cooperation with the United Kingdom’, PE 6-3000—115/16, 2016; A Weyembergh, ‘Des conséquences du Brexit pour le droit pénal de l’Union européenne’ in Liber Amicorum C. Van den Wyngaert (2017, forthcoming). 25 

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 27 and conclude new agreements with the UK in the field. The attitude of the ­Member States will be crucial, especially if they demonstrate their willingness to present a united front and to negotiate an agreement (or agreements) concluded between the EU, the Member States and the UK rather than bilateral agreements concluded separately by each Member State with the UK. If the Member States, and especially those who cooperate the most with the UK, prefer pragmatism and opt for different cooperation arrangements, there is a real risk of the European Union being marginalised. Cooperation in criminal matters could indeed be developed outside the EU legal framework and this would thus weaken the position of the EU in its relations with the Member States in the criminal field.

(ii)  The Balance between the EU Institutions Relations between the EU institutions also reflect the institutional balance sought by the Treaty drafters, with the idea of providing interactions and counterbalances between competing interests, supposedly voiced by the institutions. Initially the institutional setting gave a predominant role to the Council of the EU, which was able to adopt criminal law instruments on its own, while the power of initiative belonged to the EU Member States. These elements demonstrated that cooperation in criminal matters was still marked by a strong inter-governmentalism. The entry into force of the Treaty of Lisbon profoundly changed the competences and role granted to the different EU institutions in the field of criminal law, redrawing the institutional map in this field and moving it in the direction of supranationalism. This change may in turn allow for the elaboration of a more balanced EU area of criminal justice. The European Parliament is now on an equal footing with the Council of the EU, as almost all the instruments of EU criminal law are to be adopted under the ordinary legislative procedure, formerly known as the co-decision procedure. As co-legislator, the European Parliament thus has the opportunity to assess whether the EU criminal law instruments proposed and under negotiation ensure that there is sufficient balance between efficiency in the fight against crime and the protection of fundamental rights. The European Parliament has also the opportunity to correct any imbalance that is identified. The role of the Parliament is particularly important as it is the last institution able to have a comprehensive overview of developments in the area of EU criminal justice. By contrast, a separation between justice and internal affairs can be observed in other institutions: these issues are dealt with by two separate Directorate-Generals in the European Commission and by two different services within the General Secretariat of the Council of the EU. The changes introduced by the Lisbon Treaty extend to other institutions as well. The European Commission has obtained new competences, in particular the option to launch enforcement proceedings against Member States that fail to transpose EU instruments in criminal matters on time. This possibility helps ensure that all instruments are effectively transposed and implemented and ends

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the ‘pick-and-choose’ approach of the Member States, which have often failed to transpose those instruments perceived by them as unnecessary, on time. The Court of Justice also plays a completely new role given that the scope of its jurisdiction has been extended and its competence is no longer subject to a declaration from the Member States. The change is already perceptible when looking at the number of cases and applications pending before the CJEU concerning EU criminal law instruments. This offers the Court the opportunity to address sensitive issues and to pronounce ground-breaking judgments, notably with regard to the implementation of the principle of mutual recognition.

(iii)  The Balance between Diversity and Unity The question here is to determine how far the European Union should go in its efforts to approximate criminal norms, and whether it should even consider the unification of these rules. The issue is at the heart of the articulation of the complementary relationship between mutual recognition and approximation of laws and at the heart of the numerous discussions surrounding the establishment of the European Public Prosecutor’s Office. The relationship between mutual recognition and approximation of laws is at the centre of vigorous debates concerning the added value of the EU’s efforts in the field of approximation. The principle of mutual recognition has been always considered attractive by the Member States who resist further approximation. From their perspective, mutual recognition is thought to enhance cross-border cooperation in criminal matters without having to change their national laws to comply with EU approximation requirements. Treaty provisions have strengthened these arguments by insisting on the importance of respecting national identities, inherent in their fundamental structures, both political and constitutional (Article 4(2) TEU). Nevertheless, the close links between approximation and mutual recognition should not be neglected. Indeed, the approximation of legislation contributes to mutual trust among Member States, which constitutes the basis for the implementation of the instruments based on the principle of mutual recognition. The directives aiming at approximating the procedural guarantees in criminal proceedings constitute a clear example of how approximation efforts can (and must) complement mutual recognition. Article 82(2) TFEU recognised this strong link. The balance between diversity and unity has been at the core of academic and policy debates for many years. However, despite the developments in the fields of approximation and mutual recognition, there is a lot that still needs to be done. The Directive on the European Investigation Order, which sets out the legal framework for the cross-border collection of evidence, does not go beyond traditional rules concerning the admissibility of evidence, as it still relies on the ‘forum regit actum’ rule, ie procedure determined by the law of the state requesting mutual assistance. One could consider that its practical implementation might reveal that there is a need to adopt approximation measures in the field of evidence.

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 29

(iv)  The Balance between Liberty and Security The balance between liberty and security appears to be a caricature in some ways, but a reference to the aforementioned balance between the sword and the shield functions of criminal law clearly depicts the complex relations between criminal law and fundamental rights. A positive evolution can be observed when an analysis is carried out of the EU legislative instruments that have been adopted since the entry into force of the Lisbon Treaty. One can, for instance, think of the negotiation and adoption of the six directives aiming to approximate procedural criminal laws and thus providing common procedural safeguards throughout the European Union.29 The tensions between the sword and the shield functions of criminal law remain present and are even stronger in a context marked by intensive efforts to fight cross-border crime and terrorism in particular. These tensions are, for instance, noticeable when one considers the latest directives that aim to approximate the definition of terrorist offences,30 the role of the data protection authorities in supervising police and criminal justice authorities processing personal data, or the cross-border collection of evidence. Concerning the latter, special attention is to be paid to national transposing laws, which must be adopted soon, given that the transposition deadline for the Directive on the European Investigation Order expires in May 2017. These national laws might be able to correct the limited role granted to the defence in the Directive, a situation that may lead to the principle of equality of arms being breached. The CJEU can also play a role in correcting potential imbalances via its interpretation of EU instruments. The Court has recently demonstrated its capacity to fulfil this role, when it was called on to interpret the European Arrest Warrant Framework Decision and to answer whether the executing authority should refuse to execute an EAW when surrender might lead

29  Directive 2010/64/EU of 22 May 2012 on the right to interpretation and translation in criminal proceedings (OJ 2010 L280/1); Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L142/1); Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L294/1); Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L65/1); Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ 2016 L132/1) and Directive (EU) 2016/1919 of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ 2016 L297/1). 30  Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, COM(2015) 625 final. Negotiations have reached their end, and the text has been adopted by the European Parliament on 16 February 2017 (European Parliament legislative resolution of 16 February 2017 on the proposal for a directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism, P8_TA-PROV(2017)0046), and by the Council on 7 March 2017 (Council, Voting result, Council Doc 7068/17).

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to a violation of Article 3 of the European Convention on Human Rights (ECHR) and Article 4 of the EU Charter of Fundamental Rights.31 The importance of ensuring an appropriate balance between security and liberty is also valid with regard to cooperation with third countries in criminal matters. Such a balance is particularly difficult to reach when cooperating with influential partners, such as the United States of America, and the negotiation of agreements, notably those envisaging the exchange of personal data, must include the provision of adequate safeguards. In this field, the CJEU again plays an important role in upholding the protection of fundamental rights. This was notably the case when the Court was called upon to assist the Latvian authorities in examining an extradition request from the Russian authorities concerning an Estonian national arrested on their territory.32 In its judgment, the Court took the opportunity to refer to the application of Article 19 of the Charter33 and the duty of the Latvian authorities to verify whether the extradition will not prejudice the rights of the person requested.34 The importance of this issue is reflected by pending cases raising similar issues.35

(v)  Balance between the Different Criminal Justice Actors The European Union has been particularly active in establishing different types of criminal justice actors. Its efforts started in the late 1990s with the creation of the European Judicial Network36 and they have led throughout the years to the establishment of agencies, such as Europol and Eurojust, whose role is to support and foster cross-border cooperation in criminal matters between law enforcement authorities (Europol) and judicial authorities (Eurojust). A new actor, the ­European Public Prosecutor’s Office (EPPO), in charge of investigating, prosecuting and bringing to justice the perpetrators of offences against the Union’s financial interest, will also be established in the near future given that, on 3 April 2017, 16 Member States notified the three institutions of their intention to launch an enhanced cooperation process in that regard.37 These different actors intervene 31  Joined cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen [2016] ECLI:EU:C:2016:198. 32  Case C-182/15, Aleksei Petruhhin [2016] ECLI:EU:C:2016:630. 33  Ibid, para 54. Under Article 19 of the Charter, ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. 34  Ibid, paras 58–60. 35  See for instance Case C-473/15, Peter Schotthöfer & Florian Steiner Application [2015] OJ C406/15 [rejection of an application for extradition emanating from a non-Member State concerning an EU citizen residing in that Member State where the criminal proceedings from which the application for extradition arose and the decision rendered in absentia in the non-Member State did not respect among others the right to a fair trial?]. 36  Joint Action 98/428/JHA [1998] OJ L191/4, replaced by Council Decision 2008/976/JHA [2008] OJ L348/130. 37  Council, Press release ‘European public prosecutor’s office: 16 member states together to fight fraud against the EU budget’: http://www.consilium.europa.eu/en/press/press-releases/2017/04/ 03-eppo/, accessed on 5 April 2017.

About ECLAN and the Balances that Need to be Struck in EU Criminal Law 31 in different fields and possess different mandates and competences and they will cooperate together to support the development of a genuine European area of criminal justice. However, a few imbalances can be pointed out. The first imbalance concerns the relationship between the police and judicial authorities. A comparison between the budgetary and human resources of the two competent agencies, ie Europol and Eurojust, reveals that Europol is ‘better equipped’ than Eurojust. The police cooperation agency has a predominant role in the elaboration of the EU’s Internal Security Strategy and of the EU policy cycle on combating serious and organised crime.38 It also benefits from a new legal framework as, from 1 May 2017, the entry into force of its new Regulation39 will bring its legal regime into line with the Lisbon Treaty and boost its capacities, notably with regard to the funding of Joint Investigation Teams. By contrast, Eurojust is more ‘discreet’ in the elaboration of these policy instruments. A proposal has also been put forward to update its legal regime.40 However, although the text was proposed the same year as a Proposal for a Regulation on Europol, the proposal for a Regulation on Eurojust is still being negotiated. No discussions have taken place since 2014 as they were frozen while waiting for the text on the EPPO to be finalised. The second imbalance concerns the relationship between prosecution and defence. The EU legal framework has been criticised for being ‘almost exclusively preoccupied with measures designed to facilitate the investigation, prosecution, and sentencing of offenders’,41 while assuming that the rights of suspects or accused persons are adequately protected through the Member States’ adherence to the ECHR.42 Indeed, many of the instruments adopted at EU level pursue the objective of fostering cross-border cooperation in the investigation and prosecution of criminal cases. This contrasts sharply with the limited efforts made to strengthen cross-border cooperation among defence lawyers. In addition to careful monitoring of the implementation of the procedural rights’ directives, non-legislative measures could be envisaged, such as further promotion and funding of ­training activities or the creation of an institutionalised network of defence lawyers.43 38  See A Weyembergh, I Armada and C Brière, Research paper for the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament on ‘the interagency cooperation and future architecture of the EU criminal justice and law enforcement area’: http://www.europarl.europa.eu/ thinktank/fr/document.html?reference=IPOL_STU(2014)510000, accessed on 5 April 2017. 39  Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, 2016 OJ L135/53. 40 Commission, Proposal for a regulation on the EU Agency for Criminal Justice Cooperation (Eurojust), 17 July 2013, COM(2013) 535 final. 41  Jacqueline Hodgson, ‘Safeguarding suspects’ rights in Europe: a comparative perspective’ (2011) 14 New Criminal Law Review 616. 42  Ibid, 612. 43 For more details, see A Weyembergh, I Armada and C Brière, Research paper on ‘­ Critical ­assessment of the existing European Arrest Warrant Framework Decision’, requested by the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament: http://www.europarl.europa. eu/RegData/etudes/etudes/join/2013/510979/IPOL-JOIN_ET(2013)510979_EN.pdf, accessed 5 April 2017.

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This balance between prosecution and defence should also be safeguarded in the way in which the European Public Prosecutor’s Office functions.

III. Conclusion The discussions on the balances needed in EU criminal law reveal their importance for the establishment and smooth functioning of an EU area of criminal justice that ensures an equally high level of security for EU citizens and respect for fundamental rights. In that regard, the existence of imbalances, which are further exacerbated by the variable geometry that can be observed in EU criminal law, is to be regretted. Brexit is probably the issue that is most in the spotlight, but the variable geometry that will result from the establishment of the European Public Prosecutor’s Office via enhanced cooperation should not be forgotten. EU criminal law will face several challenges in the future and the way in which it addresses them will be closely followed, in particular by academic researchers and by ECLAN, as has been done in this edited volume.

Part II

The Quest for the Right Balance in the Institutional Design/Between the EU and the Member States and Between the EU Institutions

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5 The Evolution of Competence Distribution Between the European Union and the Member States in the Criminal Field SAMULI MIETTINEN*

I. Introduction The European Union is a constitutional system governed by the principle of ­conferral. Now found in Article 5 of the Treaty on European Union (TEU), the principle is quite simple: ‘The Union shall have competence to act only in so far as this has been conferred upon it by the Member States’. This is not unlike the original Article 4 EEC, which provided that the institutions should act within the limits of the powers conferred on them. But what has in fact been conferred? This is a much harder question to answer.1 It is a hard question because the Treaty assigned goals to the European Communities, and these goals in turn influenced the interpretation of specific legal basis provisions.2 It is at least as difficult to evaluate whether this competence has, as required by Article 5 TEU, been exercised in accordance with the principles of subsidiarity and proportionality. Scholarship often describes the spill-over of competences as an intended engine of European integration: The Union begins with an objective which then requires action that may not obviously fall within the originally conferred powers. A well-known example involves environmental protection, which requires greater harmonisation following the success of the internal market. Thus it was first

*  This text draws on earlier work The Europeanization of Criminal Law (Helsinki 2015) and Criminal Law and Policy in the European Union (Routledge 2012). 1  For an early and holistic ‘constitutional’ approach: E Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart Publishing 2012). 2  L Serena Rossi, ‘Does the Lisbon Treaty Provide a Clearer Separation of Competences between EU and Member States?’ in A Biondi and P Eeckhout (eds), EU Law after Lisbon (OUP 2012) 85–106 at 86.

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c­ onnected to other legal bases before eventually being codified in its own right in Treaty revision.3 The evolution of the Union’s criminal competence is also linked to this story: the context in which the Court of Justice accepts implied powers in the field of criminal law involves a need to ensure the effectiveness of EU environmental (civil and administrative) law. This competence then develops in the context of later Treaty revisions. Criminal competence has developed by several different means. The two principal means involve Treaty revision and the interpretation of existing Treaty provisions by the Court of Justice of the European Union (CJEU). But criminal competence has indeed developed—there is an evolution to speak of. This is clear even from a few quotes taken out of context: ‘Criminal law is a subject which does not as such enter the Community’s sphere of competence, but remains within the province of each Member State’.4 In the 1970s, when the Commission is on record doubting the relevance of Community integration to criminal law, criminal lawyers had already obtained some experience of the interaction between Community law and national law. Basic courses on EU law today still cover the early case law of the court on free movement. But how many students will recall that Dassonville was on trial—that his conviction depended on whether national criminal law was contrary to EU law?5 This theme of course continues today: about half of the Court’s preliminary references in 2015 and 2016 have some link to criminal law. And today, the need for the Union to act in the area of criminal law is difficult to dispute. As Commissioner Reding put it in 2013, introducing the European Public Prosecutor’s Office proposal: ‘A federal budget needs federal protection’.6 This underlines a central theme in the competence discussion that has also guided its evolution: criminal law is necessary for some purpose. Just as in the early stages of EU criminal law, necessity remains a primary driver in developing this competence. The evolution of EU action is examined in three contexts. First, a brief overview is presented through the lens of scholarship on EU criminal law (section II). The main section of the text (section III) then examines the development and exercise of competences established through Treaty revision and selected jurisprudence

3  See the synthesis above and a seminal account in JHH Weiler, ‘The Transformation of Europe’ in JHH Weiler (eds), The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (CUP 1999) 10–101. 4 European Coal and Steel Community, European Economic Community, European Atomic Energy Community, European Commission: Eighth General Report on the Activities of the ­European Community in 1974, February 1975: https://publications.europa.eu/en/publication-detail/-/ publication/90965f8e-0668-41eb-a20a-4949c143742a/language-en/format-PDF/source-31411071, accessed 26 June 2017, para 145. 5  Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 874. For another prominent internal market example, Joined Cases C-267/91 and C-268/91 Criminal proceedings against ­Bernard Keck and Daniel Mithouard [1993] ECR I-06097. 6  Commissioner Viviane Reding, ‘Establishing a European Public Prosecutor’s Office—A federal budget needs federal protection’, 17 July 2013.

The Evolution of Competence Distribution

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of the Court of Justice of the European Union (CJEU). Finally, the present Lisbon era raises some questions about the future evolution of EU action in the field of criminal law (section IV).

II.  Overviews from Academia A longitudinal overview of policymaking in ‘justice and home affairs’ reveals that the relationship between Member States and the Union has evolved over time. ­Delmas-Marty, writing in 1998, on the eve of the Amsterdam reforms, suggested the Union’s constitutional structure would ‘rule out supranational criminal law’.7 In 2000, den Boer and William Wallace described the Union’s policy agenda as ‘incrementalist integration.8 In 2005, Lavenex and William Wallace identified that the conflicting cross-winds between mutual recognition and harmonisation framed Union policy.9 By 2010, Lavenex could conclude that the cooperation which was initially justified as a compensatory set of measures when border controls were abolished was now ‘elevated to a central objective of the EU’.10 Longitudinal studies specific to EU criminal law show similar evolutions. Early writings examined the problem from the perspective of a level playing-field in the internal market.11 Dine, writing in 1993, claimed it was always the intention of the framers to exclude criminal law.12 Near the turn of the twenty-first century, Albrecht and Braum still suggested ‘European criminal law’ was meaningless as a legal concept.13 Nevertheless in 2000, Harding’s tentative exploration of the ‘intersection of European law and national criminal law’ already noted autonomous EU networks and offices as well as the Corpus Juris proposal.14 Weyembergh’s 2004 study examined in detail why also criminal law ought to be approximated

7 

M Delmas-Marty, ‘The European Union and Penal Law’ (1998) 4 European Law Journal 87, 87. M den Boer and W Wallace, ‘Justice and Home Affairs: Integration through Incrementalism?’ in H Wallace and W Wallace (eds), Policy-Making in the European Union (OUP 4th edn 2000) 493–518, noting a gradual move from the periphery to the centre, p 518. 9  S Lavenex and W Wallace, ‘Justice and Home Affairs: Towards a European Public Order?’ in H Wallace, W Wallace and M A Pollack, Policy-Making in the European Union (OUP 5th edn 2005) 457–80, 497. 10  Sandra Lavenex, ‘Justice and Home Affairs: Communautarisation with Hesitation’ in H ­Wallace, MA Pollack and Alasdair R Young, Policy-Makling in the European Union (OUP 6th edn 2010) 457–77, 476. 11  See H Sevenster, ‘Criminal Law and EC Law’ (1992) 29 Common Market Law Review 29–70. 12  J Dine, ‘European Community Criminal Law?’ [1993] Criminal Law Review 246–54, 246–47; in a similar vein, E Baker, ‘Taking European Criminal Law Seriously’ [1998] Criminal Law Review 361–80, 361–62. 13  P Albrecht and S Braum, ‘Deficiencies in the Development of the European Criminal Law’ (1999) 5 European Law Journal 293–310, 297. 14  C Harding, ‘Exploring the intersection of European law and national criminal law’ (2000) 25 European Law Review 374–90, 382–86. 8 

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in the EU.15 Baker and Harding, writing in 2009,16 and Mitsilegas’s review of the same year,17 offered catalogues of legal provisions that do precisely what Dine denied in 1993. All EU policymaking raises a core question of European integration: why is it desirable? This is ultimately a question of values, which in the EU context rarely leads to a predetermined and fixed answer. It has been claimed that integration, or more starkly, ideology, is an independent objective in its own right.18 Criminal law expresses, but also forms, common understandings of justice: the EU seeks through criminal law ‘to strengthen its political identity’19 or to communicate values.20 This seems unsatisfactory when balanced against the values the criminal law seeks to protect.21 At the other extreme, some states have considered this to be within a core of sovereignty reserved for the nation state,22 or less starkly, that core domestic values of criminal law must be protected in the context of EU integration.23 On the basis of past experience, it can be predicted that pragmatic and incremental development will continue to guide EU integration in the field of criminal law. Approximation can be necessary in order to facilitate cooperation, or to protect some relevant transnational interest that is not satisfactorily addressed

15  A Weyembergh, L’harmonisation des législations: condition de l’espace pénal européen et ­révélateur de ses tensions (Editions de l’Universite Libre de Bruxelles 2004). 16  E Baker and C Harding, ‘From past imperfect to future imperfect? A longitudinal study of the third pillar’ (2009) 34 European Law Review 25–54, observing at 38 ‘a frangible and mobile content’ in the provisions. 17  V Mitsilegas, ‘The Third Wave of Third Pillar Law: Which Direction for EU Criminal ­Justice?’ (2009) 34 European Law Review 523. 18 M Hildebrandt, ‘European criminal law and European identity’ (2007) 1 Criminal Law and Philosophy 57–78, suggesting EU criminal law as a method of constructing European identity. See also J Turner, ‘The Expressive Dimension Expressive Dimension of EU criminal law’ (2012) 60 ­American Journal of Comparative Law 555–83. 19  Turner (n 18 above), 359. 20 M Fichera, ‘Criminal Law Beyond the State: The European Model’ (2013) 19 ­ European Law Journal 174, 188, referring to A Duff, Punishment, Communication and Community (OUP 2001). 21  J R. Spencer, ‘Why is harmonisation necessary?’ in A Klip and H Van der Wilt (eds), Harmonisation and harmonising measures in criminal law (Royal Dutch Academy of Sciences 2002) 43–55, 43–44; integration for this reason was criticised in J Vogel, ‘Why is the harmonisation of penal law necessary? A comment’ in A Klip and H Van der Wilt (eds), Harmonisation and harmonising measures in criminal law (Royal Dutch Academy of Sciences 2002) 55–64. 22  See the recently Lisbon judgment [BVerfG, Judgment of the Second Senate of 30 June 2009—2 BvE 2/08—paras [1-421], in this respect annotated in A Steinbach, ‘The Lisbon Judgment of the German Federal Constitutional Court—New Guidance on the Limits of European Integration?’ (2010) 11 German Law Journal 367–90, 376–78. As Steinbach puts it at 377: ‘The FCC identifies a number of fields (family law, criminal law, dealing with religions, citizenship), where cultural differences prevent the creation of a homogenous political community as source of democratic legitimisation.’ For earlier discussion, JHH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law Journal 219. 23 Resistance can be partly due to a wish to preserve important domestic values: K Nuotio ­‘Terrorism as a Catalyst for the Emergence, Harmonization and Reform of Criminal Law’ [2006] 4 Journal of International Criminal Justice 998–1016, 1012–16.

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by national laws.24 Mutual recognition is not independent of approximation, but requires the latter in order to facilitate mutual trust.25 Approximation also has ‘autonomous’ functions: combating crime and establishing coherent penalty systems are necessary but Union-level norms also facilitate individual rights, free movement and equality of treatment.26 It is in this way that the current treaties frame the EU criminal competence: necessary for functional rather than ideological reasons, and exercised to the extent that it is necessary to act at EU level.27 In the wake of the Lisbon Treaty, observations focused on how the Union’s policy was developing rather than whether it might have one at all.28 Discussion on competence is increasingly moving away from whether a European criminal policy ought to exist, and toward ‘What kind of criminal policy for Europe?’29 is appropriate for fleshing out ‘A Programme for European Criminal Justice’30 or ‘Manifesto on European Criminal Policy’.31 The Commission,32 the European ­Parliament,33 and the Council34 have all also weighed in with at least one major policy statement on criminal law.35 Several attempts have been made to extrapolate

24  See, however, J Turner, ‘Interstate Conflict and Cooperation in Criminal Cases: An American Perspective’ (2014) 4 European Criminal Law Review 114–46 at 119, suggesting that easy US federal prosecution helps maintain local diversity without endangering cooperation. 25  Weyembergh (n 15 above), 144–66; C Janssens, The Principle of Mutual Recognition in EU Law (OUP 2013) 184–99. 26 A Weyembergh, ‘The Functions of Approximation of Penal Legislation within the European Union’ (2005) 12 Maastricht Journal of European and Comparative Law 149–72, 156–86. 27  See for example the cross-border criteria in Article 83 TFEU. 28  K Nuotio, ‘European Criminal Law Under the Developing Constitutional Setting of the ­European Union’ in N Walker, J Shaw and S Tierney (eds), Europe’s Constitutional Mosaic (Hart Publishing 2011) 311–36; A Klip, ‘Editorial: European Criminal Policy’ (2012) 20 European Journal of Crime, Criminal Law and Criminal Justice 3–12, citing Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’ COM/2011/0573 final, 20/09/2011; Noting the disconnect between law (national) and policy (already international) K Nuotio, ‘On the significance of criminal justice for a Europe ‘United in Diversity’ in K Nuotio (eds), Europe in Search of ‘Meaning and P ­ urpose’ (Forum Iuris Helsinki 2004) 171–210. 29  M Delmas-Marty (eds), What kind of criminal policy for Europe? (Kluwer 1996). 30  B Schünemann (eds), Ein Gesamtkonzept für die europäische Strefrechtspflege/A Programme for European Criminal Justice (Carl Heymanns Verlag 2006). 31 European Criminal Policy Initiative, ‘The Manifesto on European Criminal Policy’, see ‘The ­Manifesto on European Criminal Policy in 2011’ (2011) 1 European Criminal Law Review 86–103. 32  Communication from the Commission to the European Parliament, the council, the European Economic and Social Committee and the Committee of the Regions ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’ COM/2011/0573 final, 20/09/2011. 33  European Parliament resolution of 22 May 2012 on an EU approach to criminal law, 2010/2310/ INI). 34  Council Document 9141/02 Council conclusions on the approach to apply regarding approximation of penalties; Council Press Release, Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, press release to 2979th Justice and Home Affairs council meeting in Brussels on 30.11.2009. 35  On the detail of the Commission and Council approaches, see S Miettinen, Criminal Law and Policy in the European Union (Routledge 2012) 118–21, 138–43, and 236–38.

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working models of policy decision-making based on these documents.36 Despite the Europeanisation of policy discourse, criminal justice retains some national character also in the eyes of the EU institutions. Even the Court of Justice accepts that criminal law is part of a criminal justice system that is inherently national in nature: ‘Criminal punishment for particular behaviour, which is intended by the national legislature, is linked to the economic and social situation of the relevant Member State’.37 Trends in criminal justice are not yet European: they are national or regional.38

III.  Evolution of the Union’s Competence in Criminal Matters A.  Criminal Law and the European Economic Community It seems trite to observe that, in the beginning, there was no express EU-level ­competence in the field of criminal law. Typically, the effects of the EEC Treaty are to prevent national legal systems from applying their own criminal law in cases where this would be contrary to the law of the European Communities. Thus, penalties could not be imposed where they would disproportionately restrict free movement.39 Criminal legislation is a matter for Member States, but the ‘­Community law sets certain limits to their power’.40 A public official, faced with a domestic norm of criminal law that conflicts with Community law, is obliged to set aside the domestic norm.41

36 For a theory extrapolated from the Commission’s 2011 communication, see C Harding and J Banch-Gutierrez, ‘The emergent EU criminal policy: identifying the species’ (2012) 37 E ­ uropean Law Review 758–70, 763–70. 37  Case C-156/04 Commission of the European Communities v Hellenic Republic [2007] ECR I-4129, 71, explaining why it was appropriate for Greece to punish car registration tax evasion in this way, inter alia the relatively high value of the tax that was evaded. M Dougan, ‘From the velvet glove to the iron fist: Criminal sanctions for the enforcement of EU law’ in M Cremona (ed), Compliance and the enforcement of EU law (OUP 2012) 91. 38  T Lappi-Seppälä, ‘Explaining national differences in the use of imprisonment’ in S Snacken and E Dumortier (eds), Resisting Punitiveness in Europe? Welfare, human rights and d­ emocracy? (Routledge 2012) 35–72 at 61, explaining that the trends are not explained by differences in crime but by welfare provisions, differences in income equality, trust and political and legal cultures. 39  Case C-193/94 Criminal proceedings against Sofia Skanavi and Konstantin Chryssanthakopoulos [1996] ECR I-929. In Case C-299/95 Friedrich Kremzow v Republik Österreich [1997] ECR I-2629 ­paragraph 16, the ECJ observes that in a hypothetical situation not in fact connected with free movement, even imprisonment which is found to violate the ECHR Article 6 right to a fair trial is outside the scope of Community law. 40  Case 186/87 Ian William Cowan v Trésor public [1989] ECR 195, para 19. 41  Case 103/88 Fratelli Costanzo SpA v Comune di Milano [1989] ECR 1839.

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Nevertheless, the idea that other competences spill over to the field of criminal law was explored back in the pre-Maastricht era.42 Questions were also asked how far national legal systems had to use also their own criminal laws to protect Community interests. The principle of loyal cooperation, in Article 5 of the original Treaty Establishing the European Economic Community states that ­‘Member States shall take all appropriate measures … to ensure fulfilment of [their] obligations … [and] abstain from any measure which could jeopardise the attainment of the objectives of this Treaty’. In Greek Maize, the CJEU eventually confirmed that Member States were required to treat infringements of EC law as seriously as they treated infringements of national law: where acts against the national interest were treated as criminal so, too, should acts against similar EC interests. Where fraud against the domestic government resulted in criminal sanctions, fraud against a similar Community interest must also attract criminal sanctions. Infringements of Community law must be ‘penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive’.43 Member States must treat ‘infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws’.44 Despite the widespread view that the Communities did not have competence to enact positive rules of criminal law, there were several attempts to explore this possibility between 1957 and 1985.45 Working parties of government representatives examined the investigation and prosecution of violations of Community law, the status of Community officials in criminal proceedings, and the sanctions which Member States employed when pursuing violations of Community law. This led to two draft Treaties in 1976 but no concrete results.46 The contents of the draft Treaty on crimes against the interests of the Community remained on

42  J Vervaele, ‘The Europeanisation of Criminal Law and the Criminal Law Dimension of E ­ uropean Integration’ in P Demaret, I Govaere and D Hanf (eds), 30 Years of European Legal Studies at the College of Europe/30 and d’études juridiques européennes au Collège d’Europe: Liber Professorum 1973–74—2003–04 (PIE Peter Lang 2005) 277–98, 282–83. 43  Case C-68/88 Commission of the European Communities v Hellenic Republic [1989] ECR 2965, ECLI: EU:C:1989:339, para 24. 44  Ibid, para 25. 45  Sevenster (n 11 above), 35–37. 46  Draft for a Treaty amending the Treaties establishing the European Communities so as to permit the adoption of common rules on the protection under criminal law of the financial interests of the Communities and the prosecution of infringements of the provisions of those Treaties OJ 1976 C222/2 and Draft for a Treaty amending the Treaty establishing a Single Council and a Single Commission of the European Communities so as to permit the adoption of common rules on the liability and protection under criminal law of officials and other servants of the European Communities OJ 1976 C 222/13. Sevenster (n 11 above) 36, observes that proposed alternative forms included directives based on Article 100 EEC, regulations based on Article 235 EEC, and Treaties on the basis of articles 220 or 239 EEC—thus illustrating that the possibility of competence within the pre-existing Treaty instruments was not ruled out at the time.

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the agenda,47 as it became gradually accepted that fraud against the Community budget was a common and widespread problem.48 The European Parliament, for its part, had argued for EC competence as well as Treaty change. Its proposed Treaty on European Union in the 1980s laid the foundations for the Maastricht Treaty. Likewise, policy reports consistently emphasised Community competence in annexed fields: the 1984 Tyrrell report, for example, argued for counterterrorism measures as EC initiatives.49 At least as early as 1990 the Council Legal Service accepted that the EC could in practice require criminalisation under fisheries regulations ‘if it proved impossible, under the national law in question, to take appropriate criminal action’.50 However, in the context of the legislative processes that led to the environmental legislation litigation, it found that EC competence ‘is limited to the definition of rules to be respected in substantive areas … and to the imposition of an obligation on Member States to provide for (effective, dissuasive and proportionate) criminal sanctions if those substantive rules are violated.’51 The Community could not adopt measures relating to questions such as the type and level of penalties to be applied, jurisdiction, the liability of natural and legal persons, restrictions on public proceedings and other obstacles to prosecution … [or] questions relating to criminal procedure within the Member States.52

The ‘criminalisation by regulation’ discussion continued until the twilight of the Amsterdam era: the proposal for the Dual Use Trade Regulation,53 based on EC common commercial policy competence, originally included criminal law provisions.54 In the late 1980s, the Commission and Council began to introduce sanctions into Community policies, particularly those which were exclusive competences of the Community.55 Those sanctions were clearly punitive,56 and some expressly 47 Both were formally withdrawn only in 1994: http://ec.europa.eu/prelex/detail_dossier_real. cfm?CL=en&DosId=128825, accessed 12 December 2016. 48  S White, Protection of the Financial Interests of the European Communities: The Fight against Fraud and Corruption (Kluwer 1998), especially 10–11. 49  D Freestone, ‘The EEC Treaty and Common Action on Terrorism’ (1984) 4 Yearbook of ­European Law 207–30. 50 Opinion of the Council Legal Service 6793/01, p 3, referring to Council Regulation (EEC) No 3483/88 of 7 November 1988 amending Regulation (EEC) No 2241/87 establishing certain control measures for fishing activities [1988] OJ L306, 11 November 1988 and the opinion of its legal service in Council Document 7161/90. 51  Opinion of the Council Legal Service 6793/01, p 5. 52  Ibid, 6. 53 Regulation 428/2009/EC Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a ­Community regime for the control of exports, transfer, brokering and transit of dual-use items [2009] OJ L134, 29 May 2009, 1–269. 54  A Wetter, ‘Making EU Legislation in the Area of Criminal Law. A Swedish Perspective’ (­Doctoral thesis Uppsala University 2013), 260–71. 55  See further White (n 48 above), 7–21; G Corstens and J Pradel, European Criminal Law (Kluwer Law 2002). 56 White (n 48 above), 14 citing J Heine, ‘Community penalties in agriculture and fisheries— Legislative activity in the Commission’ in The Legal Protection of the financial interests of the Community: Progress and prospects since the Brussels seminar of 1989 (OOPEC 1994), 18.

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recognised ‘penal’ sanctions as one of the options open to Member States.57 Others required Member States to ‘prohibit’ activity, such as insider dealing58 or money laundering.59 In Germany v Commission, the Court confirmed the long-standing legislative practice to include an expressly punitive standard for penalties in certain Regulations: ‘it is for the Community legislature alone to determine the solutions most appropriate for attaining the objectives of the common agricultural policy.’60 However, the distinction between ‘criminal’ and ‘punitive’ sanctions remained contested. Several legislative proposals originally drafted in the 1980s or 1990s were passed only after express references to criminal sanctions had been removed. By this time the Commission clearly considered that internal market legal bases could be used to approximate areas of criminal law, whereas the Member States disagreed and systematically stripped such provisions from Community measures. One well-documented example of this is the 1990 draft directive on Money Laundering: The original proposal in 1990 contained an article that required Member States to legislate for the offence to be a ‘serious criminal offence’.61 This was removed in the final version of the directive, which simply requires each Member State to ‘take appropriate measures to ensure full application of all the provisions of this Directive and … determine the penalties to be applied’.62 As Community law with criminal sanctions could not be passed, the M ­ ember States instead concluded Conventions: A 1987 EC Convention on ne bis in idem,63 an EC Convention on the application of the Council of Europe Treaty on the Transfer of Sentenced Persons,64 and the Convention on the application of the European Treaty for the Combat of Terrorism.65 EC Treaties, like some earlier Council of Europe and later EU counterparts, generally remained poorly ratified and demonstrate some initiative but inadequate political will to achieve effective legislative regimes. They were also more or less ad hoc initiatives which, by

57  See Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities OJ 187/1, Article 1(2) which obligated Member States to ‘take penal or administrative action’. 58  Council Directive 89/592 of 13 November 1989 coordinating regulations on insider dealing. OJ L334/30. 59  Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering OJ L166/77 28.6.1991. Modern measures also resort to this on occasion: See Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency OJ L326/1 8 December 2011, Article 3. 60  Case C-240/90 Germany v Commission (Agricultural penalties) [1992] ECR I-5383, para 20. 61  Proposal for a Council directive on prevention of the financial system for the purpose of money laundering COM(1990) 106 final, OJ 1990 C106/6. 62  Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, OJ 1991 C166, Article 14. 63  Convention between the Member States of the European Communities on Double Jeopardy, signed in Brussels on 25 May 1987. This was formulated in the framework of European Political Cooperation, the framework to which the EU was successor in title. J Vervaele, ‘The Transnational ne bis in idem Principle in the EU: Mutual Recognition and Equivalent Protection of Human Rights’ (2005) 1(2) Utrecht Law Review 100–18, 107. 64  Also concluded in Brussels 25 May 1987. 65  European Convention on the suppression of terrorism. Concluded in Strasbourg on 27 January 1077, UN Treaty Series 1137, 96: Treaty I:17828. Sevenster (n 11 above), 37–38.

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­ roposing measures external to the ordinary legislative mechanisms, reinforced p the notion that Community criminal law was a contradiction in terms. Member States also engaged in frameworks fully outside the Community system, notable examples of which include the TREVI cooperation from 1975, and the 1985 Schengen Agreement.66 Member States also remained active within the Council of Europe.67

B.  EU Competence under Maastricht 1992 was a turning point in the history of EU-led criminal justice integration. When the European Union was formally established, the Treaty of Maastricht for the first time at Treaty level expressly conferred on the Union powers to act in the field of criminal law. However, whilst the Communities had developed a tradition of effective legal instruments coupled by an influential Court of Justice, the compromise at Maastricht inserted the objective of developing ‘close cooperation on justice and home affairs’ but left provisions on criminal justice cooperation to a separate entity, the third pillar of the European Union.68 This compromise was influenced by some Member States’ reluctance to transfer powers in these areas to the supranational European Community. Under the original Maastricht Treaty arrangements, the Member States were to regard certain areas as items of ‘common interest’.69 Article K1 listed ‘combatting drug addiction’, ‘combatting fraud on an international scale’, ‘judicial cooperation in criminal matters’, ‘customs cooperation’ and ‘police cooperation’ for specified purposes, as Union competences. In relation to police cooperation, Article K1(9) seemed to limit police cooperation to the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol).

Despite such apparent limits to police cooperation, judicial cooperation in criminal matters seemed far-reaching from the outset. If the competences inserted into the Treaty of Maastricht were broad in their scope, they were correspondingly weak in the instruments that could be used to exercise those competences. Article K.3(2) stipulated that third pillar initiatives

66 

S Peers, EU Justice and Home Affairs Law (1st edn, Harlow 2000) 2. Corstens and J Pradel, European Criminal Law (Kluwer 2002) 47. See The Council of Europe Treaty office website for full details: http://conventions.coe.int/Treaty/Commun/ListeTraites. asp?CM=8&CL=ENG, accessed 12 December 2016. 68 Treaty on the European Union (The Maastrict Treaty) OJ C191 of 29 July 1992, Article B. See further Peers (n 66 above), 16–30. 69  Article K1 Maastricht Treaty. E Denza, The Intergovernmental Pillars of the European Union (OUP 2002) 193, the distinction between common ‘policies’ referred to in other areas and ‘cooperation’ for the benefit of national policies in the fields of justice and home affairs. 67 G

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could be adopted as joint positions, joint actions, or as EU conventions: legal instruments which were poorly defined or, in the case of conventions, did not add to the range of options already open to the Member States in their international relations. The new powers lay firmly with Member States. Proposals could, in the case of judicial cooperation in criminal matters, customs cooperation, and police cooperation, be made only by Member States, whereas the Commission was also empowered to propose action in other fields including combating drug addiction and fraud.70 The passage of joint positions and joint actions required unanimity in Council,71 whereas conventions drawn up by the EU were simply to be recommended for ratification by domestic legislatures, and thus resembled international treaties.72 Measures implementing joint actions and conventions could be subject to more lenient requirements.73 The role of other EU institutions was also more limited in relation to the third pillar as opposed to their functions in the first pillar. The European Parliament had the right to ask questions, make recommendations, and be informed and consulted. However, whilst its views were to be ‘duly taken into consideration’, it had no powers to initiate action or to amend or veto proposed instruments.74 Judicial control over the third pillar was also limited. The European Court of Justice was granted no mandatory jurisdiction over third pillar instruments, with only Article K.2 stipulating the possibility of jurisdiction to interpret EU conventions where the instrument itself awards the ECJ jurisdiction. Article L provided for mandatory jurisdiction only over the final provisions of the Treaty and those which were inserted into the EC Treaty.

C.  Instruments Adopted between 1992 and 1999 Three key types of EU criminal justice instruments were adopted between the entry into force of the Maastricht Treaty (which established them) and the ­Amsterdam Treaty, which withdrew some and added new types of instruments in their place. Joint positions, joint actions, and EU conventions were all used during this period. The few joint positions adopted between 1992 and the entry into force of the Amsterdam Treaty in May 1999 either concerned visa and immigration, rather than criminal justice issues, or concerned negotiating positions for international instruments between the EU Member States and third countries.75 70 

Article K3(2) Maastricht Treaty. Article K4(3) Maastricht Treaty. 72  Article K3(2)(c) Maastricht Treaty. 73  Articles K3(2)(b) and (c) Maastricht Treaty. 74  Article K6 Maastricht Treaty. 75  Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonised application of the definition of the term ‘refugee’ in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees [1996] OJ L63/2; Joint Position of 25 October 1996 defined by the Council on the basis of Article K.3(2)(a) of the Treaty on European Union, on pre-frontier assistance and training assignments [1996] OJ L281/1; Joint ­Position 71 

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Conventions were more common, and tended to implement obligations entered into by Member States at an international level. Thus, the Council adopted criminal justice conventions on extradition,76 driving disqualifications,77 customs cooperation,78 the corruption of public officials,79 protecting the financial interests of the Community,80 and establishing Europol.81 However, none of the conventions had fully entered into force before the negotiation of the Treaty of Amsterdam, and the Europol Convention, the first to enter into force, did so only in October 1998.82 Thus, if the purpose of those conventions that mirrored the Council of Europe conventions was predominantly to increase rates of ratification amongst EU Member States, they were at least as unsuccessful as the ­Council of Europe conventions themselves. Whilst several conventions permitted ­Member States, when ratifying those conventions, to declare its provisions in force as between those countries that had thus far ratified conventions, this led at best to an uneven application of rules the principal virtue of which was in their common application. Joint actions were more common than EU conventions. These were adopted on a wide range of substantive and procedural issues. Substantive initiatives addressed: corruption in the private sector,83 membership of criminal o ­rganisations,84 of 29 March 1999 defined by the Council on the basis of Article K.3 of the Treaty on European Union, on the proposed United Nations convention against organised crime [1999] OJ L87/1; Second Joint Position of 13 November 1997 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations held in the Council of Europe and the OECD on the fight against corruption [1997] OJ L321/1; Common Position of 6 October 1997 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations in the Council of Europe and the OECD relating to corruption [1997] OJ L279/1; Joint Position of 25 October 1996 defined by the Council on the basis of Article K.3(2)(a) of the Treaty on European Union, on pre-frontier assistance and training assignments; Joint Position of 25 October 1996 defined by the Council on the basis of Article K.3(2)(a) of the Treaty on European Union, on pre-frontier assistance and training assignments [1996] OJ L281/1. 76  Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on simplified extradition procedure between the Member States of the European Union [1995] OJ C78/2. 77  Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Driving Disqualifications [1998] OJ C216/1. 78  Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual assistance and cooperation between customs administrations [1998] OJ C24/2. See also Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the use of information technology for customs purposes [1995] OJ C316/34. 79  Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union [1997] OJ C195/2. 80  Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests [1995] OJ C316/49. 81  Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) [1995] OJ C316/2. 82  Peers (n 66 above), 28. 83  Joint Action of 22 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector [1998] OJ L358/2. 84  Joint action of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union [1998] OJ L351/1.

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money laundering and the proceeds of crime,85 the control of new synthetic drugs,86 combating drug trafficking and drug addiction,87 human trafficking and the sexual exploitation of children,88 as well as racism and xenophobia.89 ­Operational instruments set up90 and extended the mandate of the Europol drugs unit,91 oversaw the creation of a European judicial network,92 established the FALCONE programme for combating organised crime,93 provided for the evaluation of applicant countries’ JHA rules94 and the evaluation of national measures taken to combat organised crime,95 shared good practice in mutual assistance in criminal matters,96 coordinated the collection of police information97 and oversaw security cooperation.98 They also provided for common training for law enforcement

85  Joint Action of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime [1998] OJ L333/1. 86  Joint Action of 16 June 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning the information exchange, risk assessment and the control of new synthetic drugs [1997] OJ L167/1. 87  Joint Action of 17 December 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking [1996] OJ L342/6. 88  Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation of children [1997] OJ L63/2. See also 96/700/JHA: Joint Action of 29 November 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing an incentive and exchange programme for persons responsible for combating trade in human beings and the sexual exploitation of children [1996] OJ L322/7. 89  Joint Action of 15 July 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning action to combat racism and xenophobia [1996] OJ L185/5. 90  Joint Action of 10 March 1995 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the Europol Drugs Unit [1995] OJ L62/1. 91  Joint Action of 16 December 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union extending the mandate given to the Europol Drugs Unit [1996] OJ L342/4. 92  Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network [1998] OJ L191/4. 93  Joint Action of 19 March 1998 adopted by the Council, on the basis of Article K.3 of the Treaty on European Union, establishing a programme of exchanges, training and cooperation for persons responsible for action to combat organised crime (Falcone programme) [1998] OJ L99/8. 94  Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for collective evaluation of the enactment, application and effective implementation by the applicant countries of the acquis of the European Union in the field of Justice and Home Affairs [1998] OJ L191/8. 95  Joint Action of 5 December 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime [1997] OJ L344/7. 96  Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on good practice in mutual legal assistance in criminal matters [1998] OJ L191/1. 97  Joint Action of 9 June 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, for the refining of targeting criteria, selection methods, et., and collection of customs and police information [1997] OJ L159/1. 98  Joint Action of 26 May 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union with regard to cooperation on law and order and security [1997] OJ L147/1.

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officials,99 directories of law enforcement personnel,100 exchange of information on controlled substances,101 customs cooperation for the purposes of combating drug trafficking,102 funding for the training103 and exchange of legal personnel,104 and a common framework for liaison officers.105 The only measure during this period which was primarily aimed at protecting individual rights under criminal procedures regulated measures to protect against the extraterritorial application of third countries’ legislation.106 The focus was thus clearly on the creation of offences and ensuring smooth cooperation between domestic law enforcement agencies. The legal effects of the Maastricht third pillar instruments were in many cases uncertain. Policy instruments such as resolutions and recommendations were not mentioned as an option under the third pillar, but were nevertheless used by the Council.107 Of the instruments that were listed under article K.3, joint actions were considered by the Council legal service to be capable of being legally ­binding,108

99  Joint Action of 20 December 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union providing a common programme for the exchange and training of, and cooperation between, law enforcement authorities (‘Oisin’) [1997] OJ L7/5. 100  Joint Action of 29 November 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning the creation and maintenance of a directory of specialized competences, skills and expertise in the fight against international organized crime, in order to facilitate law enforcement cooperation between the Member States of the European Union [1996] OJ L342/2. See also 96/610/JHA: Joint Action of 15 October 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the creation and maintenance of a Directory of specialized counter-terrorist competences, skills and expertise to facilitate counter- terrorist cooperation between the Member States of the European Union [1996] OJ L273/1. 101  Joint Action of 29 November 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning the exchange of information on the chemical profiling of drugs to facilitate improved cooperation between Member States in combating illicit drug trafficking [1996] OJ L322/5. 102  Joint Action of 29 November 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on cooperation between customs authorities and business organizations in combating drug trafficking [1996] OJ L322/3. 103  Joint Action of 28 October 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on a programme of incentives and exchanges for legal practitioners (‘Grotius’) [1996] OJ L287/3. 104  Joint Action of 22 April 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union [1996] OJ L105/1. 105  Joint Action of 14 October 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union providing for a common framework for the initiatives of the Member States concerning liaison officers [1996] OJ L268/2. 106  Joint Action of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/7. 107 B Meyring, ‘Intergovernmentalism and Supranationality: Two Stereotypes for a Complex ­Reality’ (1997) 22 European Law Review 221. On an analogous use in the first pillar, see Case 22/70 Commission of the European Communities v Council of the European Communities. European Agreement on Road Transport (ERTA) [1971] ECR 263. 108  Minutes of K.4 Committee 7 April 1995, Council Document 6684/95, 4.5.1995 cited in Peers, n 66 above, p 29.

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whilst conventions were treated as other international instruments and required ratification. Academic debate on the binding effects of third pillar instruments remained academic, given the limited possibility of judicial control before the Court of Justice.109

D.  EU Criminal Law after the Treaty of Amsterdam The 1997 Amsterdam Treaty altered the third pillar arrangements relevant to criminal law in four key ways. Firstly, it provided a newly-formulated set of objectives linked to the notion of the EU as an ‘area of freedom, security and justice’. Secondly, it rewrote the list of the types of secondary instruments that could be adopted by Council, and included common positions, framework decisions and third pillar decisions as new legal instruments in place of joint actions and joint positions. Thirdly, the Amsterdam Treaty increased the role of the Commission and the European Parliament in the legislative processes. Finally, the role of the European Court of Justice was increased. Thus, the Amsterdam Treaty took several steps to transform what was viewed as an intergovernmental area of cooperation governed by international law into a more supranational legal system that closely resembled the European Community system.110 Article 29 of the post-Amsterdam EU Treaty introduced the objective of the Union provisions on police and judicial cooperation in criminal matters as the provision of ‘a high level of safety within an area of freedom, security and justice’. This involved developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and ­xenophobia … [and] by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud.

Three key methods were envisaged: closer cooperation between enforcement agencies, closer cooperation between domestic judicial authorities, and ‘approximation, where necessary, of rules on criminal matters in the Member States’. Thus, the ‘area of freedom, security and justice’ was primarily intended to be achieved through operational cooperation between (decentralised) domestic authorities, with approximation of rules as a tool only to be used where necessary.

109  Compare P-C Müller-Graf, ‘The Legal Bases of the Third Pillar and Its Position in the Framework of the Union Treaty (1994) 31 Common Market Law Review 495–510, taking the view that joint actions were not binding, and D O’Keefe, ‘Recasting the Third Pillar (1995) 32 Common Market Law Review 893–920, considering that they could be binding. On absence of judicial control prior to the 1997 Amsterdam Treaty, see Denza (n 69 above), 311–22. 110  See further E Denza, ‘Two Legal Orders: Divergent or Convergent’? (1999) 48 International and Comparative Law Quarterly 257–84.

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When approximation was the perceived solution, the EU Treaty after ­ msterdam offered new alternatives to conventions. Of the third pillar EU A ­conventions concluded between 1992 and 1999, only one had come into force before the negotiations of the Amsterdam Treaty began. After Amsterdam, the re-numbered Article 34(2) of the EU Treaty entitled the Council, acting unanimously, to create common positions, framework decisions and decisions, and to propose conventions. These instruments replaced previous instruments, and unlike joint actions and joint positions, were defined in the new Article 34(2) of the EU Treaty. Articles 34(2)(b) and (c), defining framework decisions and EU decisions respectively, were modelled on Article 249 of the EC Treaty that governed EC directives and EC decisions. Like directives, framework decisions, adopted for the purpose of approximating laws of Member States, would be ‘be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods.’111 Decisions, adopted for any other purpose, were also intended to be binding.112 Whilst the direct effect of both framework decisions and EU decisions was expressly denied, their legal effect was instead affirmed. The Court declared in Pupino that framework decisions require Member States’ loyal cooperation and that, as a result, national courts must interpret national law in line with framework decisions.113 Common Positions, too, have been the subject of case law of the Court which suggests they, too, have legal effects.114 The Amsterdam Treaty also inched the intergovernmental decision-making slightly towards the methods usual in the EC, increasing the role of the Commission and the Parliament in the legislative process115 and enabling implementing measures to be agreed with less than a unanimous vote.116 This had the effect of gradually reducing the dependency of EU third pillar policy on the interests of Member States. Many post-Amsterdam legal instruments were nevertheless the result of Member States’ initiatives. These initiatives usually promoted mutual recognition of Member State decisions rather than centralised policy solutions.117

111  Article 34(2)(b) EU (post-Amsterdam). The consolidated version incorporating the changes can be found in OJ C340/1, 10.11.1997. 112  Article 34(2)(c) EU (post-Amsterdam). 113  Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. 114 Case C-354/04 P Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union [2007] ECR I-1579; Case C-355/04 P Segi, Araitz Zubimendi Izaga and Aritza Galarraga v Council of the European Union [2007] ECR I-1657. 115  The Commission could initiate any proposal within the third Pillar. The European Parliament must be consulted before any measure is adopted. Article 39 EU (post-Amsterdam). 116  See Articles 34(2)(c) and (d) EU (post-Amsterdam). 117 See for example Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties OJ L76/16, 22.3.2005 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders OJ L328/59 24.11.2006; 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence OJ L196/45, 2.8.2003; Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision

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The Amsterdam revisions also included an ambiguous change to the EC powers to combat fraud and replaced Article 209a of the EC Treaty. This had originally been inserted by the Maastricht Treaty, and stated that Member States shall take the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests. Without prejudice to other provisions of this Treaty, Member States shall coordinate their action aimed at protecting the financial interests of the Community against fraud. To this end they shall organize, with the help of the Commission, close and regular cooperation between the competent departments of their administrations.118

The new Article 280, which replaced this competence to coordinate action, provided for a competence to ‘adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States.’ However, Article 280(4) EC now expressly excluded the impact of Community measures on domestic criminal justice: such ‘measures shall not concern the application of national criminal law or the national administration of justice.’ Thus, in the process of strengthening third pillar criminal competence, the Member States were also signalling that in those areas where Community rules could conceivably impact on domestic criminal law, such measures were outside the competence of the EC.119 The Amsterdam Treaty left some substantial questions unanswered both as to the extent of EU competences and as to the legal effects of new EU instruments. Firstly, it was unclear whether the ‘area of freedom, security and justice’ entailed action in areas not expressly envisaged in Title VI of the revised EU Treaty. Articles 30 and 31 expressly noted certain topics as subject to Union Action. Article 31 stated that EU judicial cooperation shall include (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States … in relation to proceedings and the enforcement of decisions; of probation measures and alternative sanctions OJ L337/102 16.12.2008, re Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union OJ L327/27 5.12.2008 and Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial OJ L81/24 27.3.2009, all resulting from proposals of Member States. 118 

Article G, point 77, Treaty of Maastricht. Article 280(4) has now been repealed by the Treaty of Lisbon. Its successor, the new Article 325 of the Treaty on the Functioning of the European Union, simply permits ‘the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union …’ ­Article 33 TFEU, replacing Article 135 EC, also omits the reference to ‘the application of national criminal law or the national administration of justice’. 119 

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(b) facilitating extradition between Member States; (c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation; (d) preventing conflicts of jurisdiction between Member States; [and] (e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

Thus, when organised crime, terrorism, and illicit drug trafficking were expressly mentioned, did this exclude other forms of crime? Secondly, since the EU Treaty had from the outset been declared to hierarchically inferior to the EC Treaty, what was the relationship between the competences expressly enumerated between the EU Treaty and those which could arise from EC provisions? Thirdly, whilst the new legal instruments were at least defined, it was unclear what their legal effects would be. Whilst ‘binding’ according to the Treaty, they were expressly denied direct effect. Could such instruments nevertheless be relied upon before national courts?

E.  Instruments Adopted between 1999 and 2009 The legal effects of joint actions and joint positions in the Maastricht Treaty were unclear. Conventions required ratification, and were generally not widely ratified even though their passage required unanimity in Council. Thus, when the Union attempted to define offences, require penalties, or approximate procedural rules in the period between the Maastricht and Amsterdam Treaties, its instruments remained of theoretical, but not often practical, interest. The changes introduced by the Amsterdam Treaty led to EU legislation on a broader set of issues, but also to forms of legislation that appeared stronger than the Maastricht framework. Framework decisions were defined in Article 34(2)(b) EU in similar terms to the EC Directive. Member States were bound to achieve the aims stated in framework decisions, even if they were expressly stated to lack direct effect. Unlike conventions, they required no ratification. After Amsterdam, the EU began by attempting to provide a more detailed criminal law framework in relation to issues already regulated at EU level,120 and to recast obligations expressed in joint actions or conventions as framework decisions,121 often with only minor modifications. Conventions, with a few notable exceptions,122 ceased to be introduced. 120  For example Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2000] OJ L140/1. 121  For example, Council Framework Decision 2001/500/JHA of 26. June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [2001] OJ L182/1. 122  Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union [2000] OJ C197/3 12.7.2000. This itself was based on the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, ETS 30.

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The favoured instrument during this period was the framework decision. Between June 2000 when the first framework decision was successfully passed (on counterfeiting the euro) and 1 December 2009, when the Treaty of Lisbon entered into force, a total of 26 initiatives were adopted. Mutual recognition instruments led the development of procedural EU criminal law. Framework decisions broadly based on the principle of mutual recognition included instruments on post-conviction supervision measures,123 exchange of criminal records,124 in absentia trials,125 obtaining evidence for criminal trials,126 recognition of probation orders and alternative (non-custodial) sanctions,127 custodial sentences,128 recognition of convictions in other Member States,129 recognition of confiscation orders,130 recognition of financial penalties,131 and on the recognition of freezing orders.132 Only three general instruments seeking partial harmonisation of procedural rules were passed during this time. These included the Framework Decisions on the protection of personal data,133 confiscation of criminal assets134 and rules

123  Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20. 124  Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States [2009] OJ L93/23. 125 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework ­Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24. 126  Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matter [2008] OJ L350/72. 127  Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102. 128  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27. 129 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings [2008] OJ L220/32. 130  Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders [2006] OJ L328/59. 131  Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16. 132  Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [2003] OJ L196/45. 133  Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters [2008] OJ L350/60. 134 Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of ­Crime-Related Proceeds, Instrumentalities and Property [2005] OJ L68/49.

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on the standing of victims in criminal trials.135 However, whilst a general procedural rights instrument was mooted throughout this period, the defence rights movement has seen success only after the Lisbon Treaty.136 Measures focused primarily on harmonisation of substantive law (and introducing penalties) included instruments on terrorism,137 racism and ­ ­xenophobia,138 organised crime,139 penalising ship-source pollution140 and serious environmental offences,141 attacks on information systems,142 drug trafficking,143 sexual exploitation of children,144 corruption in the private sector,145 penalties for unauthorised transit,146 trafficking in human beings,147 counterfeiting the euro148 and non-cash means of payment,149 and money-laundering.150 Measures

135  Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceeding [2001] OJ L82/1. 136  See the Green Paper from the Commission: Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM(2003) 75 final, 19.2.2003 followed by the original Commission Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union COM(2004) 328, 28 April 2004 discussed until mid-2007. The 2009 roadmap for procedural rights and its products are discussed below, in the context of defence rights. 137 Council Framework Decision 2002/475/JHA on combating terrorism [2002] OJ L164/3, amended by Council Framework Decision 2008/919/JHA of 28 November 2008 [2008] OJ L330/21. 138  Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55. 139  Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime [2008] OJ L300/42. 140  Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164. 141  Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55. 142  Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems [2005] OJ L69/67. 143  Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking [2004] OJ L335/8. 144 Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography [2004] OJ L13/44. 145  Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector [2003] OJ L192/54. 146 Council framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1. 147  Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings [2002] OJ L203/1. 148 Council Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2000] OJ L140/1 amended by Council Framework Decision 2001/888/JHA amending Framework Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2001] OJ L329/3. 149  Council Framework Decision 2001/413/JHA of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment [2001] OJ L149/1. 150  Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [2001] OJ L182/1. This involved both substantive and procedural requirements.

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­ rimarily targeted at enhancing operational cooperation between police authorip ties include the Framework Decisions on the exchange of information between law enforcement ­authorities151 and on joint investigation teams.152 In addition to the procedural and substantive rules introduced during this period through framework decisions, the EU developed or set up a number of institutions with criminal law implications, and modified pre-existing institutions to cater for these purposes. Thus, Europol, established by the 1995 Europol Convention originally to coordinate domestic police forces’ efforts to combat cross-border crime, became subject to most EU institutional arrangements following a 2009 Council Decision which also expanded its competences.153 Eurojust was founded to facilitate the coordination of investigations,154 and the European Anti-Fraud Office was established to continue the work of previous anti-fraud initiatives.155

F.  Implied Community Criminal Competence Even as the new EU powers were used to develop cooperation in the field of criminal law, the question remained whether the Community could act in this field either with or without the involvement of the Union pillar. Could the Community act where it was ‘necessary’ for the effectiveness of its policies? The allocation of competence had potential implications for the legislative instruments which could be used. In theory, some areas of Community competence could be exercised by way of Regulations. As a consequence, these offered some promise of free-standing EU criminal law, independent of the implementation processes of Member States. The Community pillar also offered opportunities for forms of decision-making that did not, unlike EU action, require unanimity. This might translate into more precise proposals than Union initiatives. Community law also had established methods of judicial review, judicial protection, and enforcement.

151  Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union [2006] OJ L386/89. 152  Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams [2002] OJ L162/1. 153 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol) [2009] OJ L121/37. 154  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime OJ L63/1 6/3/2002, amended by Council Decision 2003/659/ JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime [2003] OJ L245/44 and repealed by Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA [2009] OJ L138/14. 155  Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-fraud Office (OLAF) [1999] OJ L136/20. OLAF was preceded by the Commission’s anti-fraud unit, established in 1987.

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The question of implied Community criminal competence came to a head when the Commission and Council both submitted legislative proposals that sought to protect the environment (a Community competence under Article 175 EC) by requiring Member States to impose criminal sanctions for serious environmental offences (argued by the Council to constitute a third pillar competence under Article 31 EU).156 The Commission’s proposed directive met opposition in Council, and was never passed. Instead, Council passed a framework decision on the protection of the environment through criminal sanctions.157 The Commission’s subsequent legal challenge led to seminal cases on the extent of the implied Community criminal competence under the EC Treaty. In the Environmental Legislation Litigation judgment,158 the Court of Justice ruled that the framework decision passed by the Council had sought to protect the environment, and could therefore have been passed under the Community environmental competence.159 Therefore the EU measure encroached on that EC competence. This violated Article 47 EU, which stated that ‘nothing in the EU Treaty shall affect the EC Treaty.’ The Court’s judgment implied that areas within Community competence could never fall within the proper jurisdiction of the EU pillars, since—following the logic in the Environmental Legislation Litigation case—any measure that could properly be adopted under the Community pillar would, if adopted as a framework decision, encroach on the Community’s ­powers. The Commission drew far-reaching conclusions from this case. In its ­November 2005 communication,160 the Commission argued that Community powers to require criminal penalties may be invoked in any EC Treaty policy sector that required, in the opinion of the Commission, criminal penalties to ensure the effectiveness of those policies.161 The Council162 and the European Parliament also responded to the judgment.163

156  Commission ‘Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law’ COM(2001) 139 of 13 March 2001; Amended proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law COM(2002) 544. 157  Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55. 158  Case C-176/03 Commission v Council (Environmental legislation litigation) [2005] ECR I-7879. 159  Ibid, paras 47–51. 160 Commission, ‘Communication from the Commission to the European Parliament and the Council on the implications of the Court’s judgment of 13 September 2005 (Case C-176/03 Commission v Council)’ COM(2005) 583 final/2, 24.11.2005. 161  See the table in COM(2005) 583 final/2 pp 7–9, citing as appropriate legal bases Articles 47(2), 57(2), 123(4), 61(a), 63(3)(b), 80(2), 95 and 280(4) of the EC Treaty. 162  Council Document 6466/06, ‘Procedural consequences of the judgment of the Court of Justice in case Case C–176/03 Commission of the European Communities v Council of the European Union [2005] ECR I-7879’, Brussels, 16 February 2006. 163 European Parliament, ‘Implications of Case C-176/03’ European Parliament resolution on the consequences of the judgment of the Court of 13 September 2005 (C-176/03 Commission v ­Council) (2006/2007(INI)): http://www.europarl.europa.eu/registre/seance_pleniere/textes_adoptes/ definitif/2006/06-14/0260/P6_TA(2006)0260_EN.pdf, accessed 12.12.2016.

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However, whilst the Environmental Legislation Litigation164 judgment made clear that Community competences existed, it left uncertainty as to the level of precision with which implied Community criminal competences could be exercised. In the 2007 Ship-Source Pollution case,165 the Court imposed some limits on that competence. In its judgment, it found that rules ‘requiring Member States to apply criminal penalties to certain forms of conduct’ were within the competence of the Community for ‘improving maritime safety, as well as environmental ­protection’.166 However, the Court also stated that ‘the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence’:167 only the third pillar instruments were capable of providing for the ‘the type and level of the applicable criminal penalties’.168 The extent of Member State opposition to implied EC criminal competence is apparent from the interveners to the proceedings. It is interesting to note that Member States’ opposition was nevertheless completely unpersuasive in these cases.169 Following the judgments, the Member States did agree acts under the EC ancillary criminal competence. Some of the Commission’s proposals for EC competence, notably the intellectual property criminalisation proposal,170 and an early proposal for a directive criminalising fraud against the EU’s financial interests171 failed. However, directives were passed on unauthorised entry and residence,172 and on environmental crime.173 Meanwhile, the need to rely on the Court’s case law was significantly reduced following the entry into force of the Lisbon Treaty.

G.  Criminal Competence after the Lisbon Treaty The Treaty of Lisbon, in force from 1 December 2009, amended the EU and EC Treaties, and renamed the EC treaty as the Treaty on the Functioning of the 164 

Case C-176/03 Commission v Council (Environmental Legislation Litigation) [2005] ECR I-7879. C-440/05 Commission of the European Communities v Council of the European Union (­Ship-Source Pollution) [2007] ECR I-9097. 166  Ibid, para 68. 167  Ibid, para 69. 168  Ibid, para 71. 169  So, too, in the recent Opinion 2/13, judgment of 18 September 2014, where 25 Member States argued unsuccessfully in favour of a draft agreement to join the European Convention on Human Rights. 170  Commission, ‘Proposal for a European Parliament and Council Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights’ COM/2005/0276 final. See also, V Mitsilegas, EU Criminal Law (Hart Publishing 2009), 79, who considered that the procedural provisions in the original proposal went beyond even the widest reading of ancillary competence after Case C-176/03 Commission of the European Communities v Council of the European Union [2005] ECR I-7879. 171  Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests’ COM(2001) 272 final. 172  Council Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168. 173  Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law [2008] OJ L328. 165 Case

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­European Union.174 The entire body, including the former Community pillar, is now referred to as the European Union. The Lisbon Treaty also made the Charter of Fundamental Rights binding and established parity between these three primary instruments of EU law. Criminal law is now an express component of the Union’s objective to offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.175

The TFEU lists the area of freedom, security and justice as a principal area of shared competence between the Union and Member States.176 Title V of the TFEU is dedicated to this area of freedom, security and justice. Chapter 1 lays down a general objective to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.

Under Article 82 TFEU, judicial cooperation in criminal matters is now expressly based on the principle of mutual recognition. The powers of the EU legislative are broad: initiatives may (a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions; (b) prevent and settle conflicts of jurisdiction between Member States; (c) support the training of the judiciary and judicial staff; (d) facilitate cooperation between judicial or equivalent authorities of the ­Member States in relation to proceedings in criminal matters and the enforcement of decisions.177

A general power is granted to establish ‘minimum rules’ to approximate national laws where this is ‘necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’. The possibility of minimum rules is envisaged in three areas, but other issues in criminal procedure may be added to the list where the European Parliament consents to a unanimous proposal for a Council decision.178 Whilst Article 82(2) TFEU declares that such minimum rules do not preclude 174  See House of Lords European Union Committee, Lisbon Treaty Impact Assessment (10th report, session 2007–2008, HL Paper 62). 175  Article 3(2) EU Treaty. 176  Article 4(2)(j) Treaty on the Functioning of the European Union. 177  Article 82(1)(a)–(d) TFEU. 178  Article 82(2) TFEU, citing (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime, and (d) any other aspect later identified by a unanimous Council decision.

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Member States from maintaining a higher standard of protection for individuals, it is not clear whether this refers to the victims of crime, the accused, or to all parties (in which case the approximation rules leave much at the discretion of Member States). Article 83 TFEU attempts to clarify the substantive criminal competences of the EU. Two specific legal bases are provided for substantive criminal law. In predefined areas of crime, the Union has the power to create minimum rules regardless of whether it or the Member States have already acted on related issues. ­Article 83(1) grants the Union broad powers to ‘establish minimum rules concerning the definition of criminal offences and sanctions’. This applies to ‘particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’, but does not require that the Union has acted to harmonise other legislation in that field.179 Article 83(1) lists ‘terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime’, but permits the Council to add to these with the consent of the European Parliament. The second legal basis for the approximation of criminal law, under Article 83(2), can be relied upon when the Union has already exercised powers to harmonise domestic rules but where the approximation180 of ‘criminal laws and regulations’ proves ‘essential to ensure the effective implementation’ of those Union policies.181 The TFEU also provides for some EU institutions. It lays down a mission statement for Eurojust,182 provides Treaty rules relevant to Europol,183 and a legal basis for the establishment of a European Public Prosecutor’s Office.184 The balance between the Member States and the Union in the ‘area of freedom, security and justice’ is now much like that in other field of EU action. Legislative procedures and rules on jurisdiction and enforcement are modelled on the ‘­ordinary legislative procedure’185 of the former first (Community) pillar. There are some differences. First, proposals in the field of criminal law and police and judicial cooperation in criminal matters are to be considered not only by the EU institutions, but by national parliaments who are empowered to examine whether they comply with the principle of subsidiarity.186 In the field of criminal law, where 179 

Article 83(1) TFEU. Article 82(2) TFEU refers to both ‘approximation’ and ‘harmonisation’. 181  Article 83(2) TFEU. 182  Article 85(1) TFEU: ‘to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases’. 183  Article 88 TFEU. 184  Article 86(1) TFEU. 185  Article 82(1) and 81(2) TFEU regarding judicial cooperation, Articles 83(1) and 83(2) regarding criminal rules and sanctions. 186  Article 69 TFEU. See further Protocol (no 2) on the Application of the Principles of Subsidiarity and Proportionality. 180 

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only one quarter of national parliaments doubt the subsidiarity of a proposal, they may require a proposal to be reviewed.187 Secondly, while qualified majority voting, now called ‘the ordinary legislative procedure’, is adopted in these fields despite a historical unanimity rule, Member States retain some special privileges. They may no longer unilaterally propose measures, but retain a right of initiative to be exercised by a quarter of them together.188 In practice Member States retain a veto-like power because they may invoke an ‘emergency brake’ procedure where they consider a measure ‘would affect fundamental aspects of its criminal justice system’.189 Measures adopted after an ‘emergency brake’ will only bind those ­Member States which agree to them.190 Finally, the UK, Ireland and Denmark have special arrangements: under Protocol 21, the UK and Ireland may choose whether to participate in AFSJ measures; Under Protocol 22, Denmark does not participate in new measures and instead concludes international agreements with the EU on these matters. The UK has also exercised its rights under Protocol 36 to opt out of all pre-Lisbon measures. It later opted into many of these.191 At the time of writing the UK is also expected to leave the European Union following an advisory referendum on 23 June 2016 in which a majority voted to ‘leave the European Union’.

H.  Post-Lisbon Legislative Measures Since 1 December 2009, when the Treaty of Lisbon entered into force, the Union has passed many significant measures involving cooperation in criminal matters. Several framework decisions have been updated as directives, and the EU has also managed to make significant headway in procedural cooperation such as the 2014 Directive on the European Investigation Order and a set of procedural rights instruments. On the other hand, questions remain about the extent of EU competences under Article 83 TFEU in particular, and about the political will of EU Member States to engage in some measures which do have a clear legal basis, like the European Public Prosecutor’s Office. In the field of substantive criminal law, the Union has passed directives on trafficking in persons,192 sexual exploitation of children,193 criminal sanctions

187 

Article 7(2) Protocol no 2. Article 76 TFEU. Articles 81(3) and 82(3) TFEU. 190  Article 20(2) EU Treaty (post-Lisbon). 191  The UK opted back into 35 measures: ‘Response to the House of Lords EU Committee Inquiry on the UK’s 2014 opt-out decision’: http://www.parliament.uk/documents/lords-committees/eu-subcom-f/Protocol36OptOut/p36followup/govtrsponse311213.pdf, accessed 12.12.2016, p 4. 192  Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101. 193  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance [2012] OJ L26 (renumbered in a corrigendum from 2011/92/EU). 188  189 

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against market abuse,194 attacks on information systems,195 freezing and confiscation of assets,196 and counterfeiting currency.197 Proposals are pending on directives on combating terrorism,198 illicit drug trafficking199 and on fraud against the EU financial interests.200 The Union has also signed several international ­conventions.201 A proposal for a directive on fraud against the EU’s financial interest is pending. On procedural rights, the EU has passed directives on the presumption of ­innocence,202 the right to information on criminal proceedings,203 rights to interpretation and translation in the framework of criminal proceedings,204 access to a lawyer and communication rights,205 on procedural safeguards for children,206 on legal aid,207 and a separate instrument protecting crime victims’ rights.208

194  Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) [2014] OJ L173. 195  Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA [2013] OJ L218. 196  Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union [2014] OJ L127. 197  Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA [2014] OJ L151. 198  Commission, ‘Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism’ COM(2015) 625 final. 199  Commission, ‘Proposal for a directive of the European Parliament and of the Council amending Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, as regards the definition of drug’ COM(2013) 618 final. 200  Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law’ COM(2012) 363 final. 201  See eg Council Decision 2015/1913 on signing the Council of Europe Convention on Terrorism. 202  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65. 203  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142. 204  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280. 205  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294. 206  Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132. 207  Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297. 208  Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315.

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Other procedural cooperation measures include directives on the European protection order,209 the European investigation order,210 on the exchange of information on traffic offences,211 and on the use of the passenger name records.212 The directive on freezing and confiscation of criminal proceeds213 and the proposal on combating terrorism214 contain both procedural and substantive elements and are based on Articles 82(2) and 83(1). Proposals are pending on the European Criminal Records Information System,215 a new Europol regulation,216 a new Eurojust regulation,217 and on establishing the European Public Prosecutor’s Office.218 The EU has also agreed a number of new treaties including those on access to Swift information between the EU and US, on the exchange of PNR data between the EU and Australia, the USA and Canada, and on criminal law aspects of tobacco control. In 2016, the EU acted to repeal obsolete measures from the pre-Lisbon period.219

209  Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338. 210  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130. 211  Directive (EU) 2015/413 of the European Parliament and of the Council of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences Text with EEA relevance [2015] OJ L68. 212  Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime [2016] OJ L119. 213  Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union [2014] OJ L127. 214  Commission, ‘Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism’ COM(2015) 625 final. 215  Commission, ‘Proposal for a Directive of the European Parliament and of the Council amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third-country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA’ COM(2016) 7 Final. 216  Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA’ COM(2013) 173 final. 217  Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust)’ COM(2013) 535. 218  Commission, ‘Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office’ COM/2013/0534 final. 219  Regulation (EU) 2016/95 of the European Parliament and of the Council of 20 January 2016 repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters and Regulation (EU) 2016/94 of the European Parliament and of the Council of 20 January 2016 repealing certain acts from the Schengen acquis in the field of police cooperation and judicial cooperation in criminal matters.

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IV.  Future Outlook/Conclusion After the Lisbon Treaty, the new articles on the Treaty on the Functioning of the European Union provide almost a checklist of constitutional requirements for EU action in the field of criminal law.220 Article 83 TFEU in particular has been subject to an extensive discussion on its meaning and limits. What are ‘criminal offences’,221 ‘minimum rules’,222 or ‘serious crimes’ within the meaning of ­Article 83(1)? How much of a ‘cross-border dimension’ is required? When is it ‘essential’ to enact criminal law?223 There is also a continuing discussion on the extent to which criminal law provisions may be included in measures outside Articles 82 and 83 TFEU.224 The above examination of the measures pending in 2016 demonstrates that even though the powers of the Union have developed greatly in recent years, the Member States may not be prepared to exercise them to their full extent. The proposal on the European Public Prosecutor’s Office, which the Treaty suggests ‘shall’ be established, raises serious questions about the extent to which the Member States are prepared to centralise investigation and prosecution even where its focus is primarily on crimes against the financial interests of the EU.225 A related proposal for a directive on fraud against the EU’s financial interests has also been controversial.226 In this case, the Commission proposed that the directive should be based outside Article 83, on Article 325. This has been unanimously opposed by Member States in Council, which argue that there can be no criminal law competence outside of Article 83 TFEU. If they are c­ orrect,

220  J Öberg, ‘Limits to EU powers: a case study on individual criminal sanctions for the enforcement of EU law’ (Doctoral thesis European University Institute 2014); S Miettinen ‘Europeanization of Criminal Law’ (Doctoral thesis University of Helsinki 2015) 89–118. 221  Dougan (n 37 above), 88–90. 222  See eg H Nilsson, ‘How to combine minimum rules with maximum legal certainty? [2011] ­Europarättslig tidskrift 665 at 670 and A Klip, European Criminal Law (Intersentia 2009) at 154; A Klip, European Criminal Law (2nd edn, Intersentia 2012) at 67; W DeBondt and S Miettinen, ‘Minimum Criminal Penalties in the European Union: In Search of a Credible Justification’ (2015) 21 European Law Journal 722–37, on whether ‘minimum penalties’ are permitted. 223  J Öberg, ‘Union Regulatory Criminal Law Competence after Lisbon Treaty’ (2011) 19 E ­ uropean Journal of Crime, Criminal Law and Criminal Justice 289; J Öberg, ‘Criminal Sanctions in the Field of EU Environmental Law’ (2011) 2 New Journal of European Criminal Law 402; and J Öberg, ‘The ­definition of criminal sanctions in the EU’ (2013) 3 European Criminal Law Review 273; M Migletti, ‘The first exercise of Article 83(2) TFEU under review: an assessment of the essential need of introducing criminal sanctions’ (2014) 5 New Journal of European Criminal Law 5–25. 224  On the drafting process leading to Article 83 TFEU, S Miettinen, ‘Implied ancillary criminal competence after Lisbon’ (2013) 3 European Criminal Law Review 194. 225  See the Commission’s response to the subsidiarity concerns of national parliaments: Commission, Communication on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM(2013) 851 final. 226  See COM(2012) 363 final, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the fight against fraud to the Union’s financial interests by means of criminal law.

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the EU will not be able to impose regulations—directly applicable criminal law—without Treaty change. However, the Court of Justice has continued to breathe new life into the ancillary legal basis discussion in other contexts. A directive on the exchange of information on road traffic offences was annulled in 2014 because, according to the Court, it was in fact an instrument of EU transport ­policy.227 This and analogous cases228 leave somewhat open the extent to which the Union’s powers in the field of criminal law must be based on Title V of the Treaty on the Functioning of the European Union. They also call into question the extent to which Denmark, Ireland, and the UK can rely on their special arrangements under Protocols 21 and 22. What might be the future evolution of EU action in the field of criminal law— and in particular, the division between the EU and its Member States? It is tempting to draw some parallels from biological evolution. Most EU acts in the field have some evolutionary precedent: a past proposal, an international convention, or informal cooperation which is later put on a formal legislative basis. Many of the instruments that exist today are the product of a gradual evolution: deepening cooperation that is established because there is a practical need to do so, based on earlier experience. But evolution is also shaped by outside events. We do not know for certain why dinosaurs ceased to exist some tens of millions of years ago, but theories of cataclysmic events might also have parallels in EU criminal law. ­Cooperation has at times been visibly accelerated by events which lend greater credibility to claims for deeper EU integration. Equally it remains somewhat uncertain in the light of the Brexit referendum in the United Kingdom whether integration will continue in one direction, or whether evolution may also lead to extinction in the field of criminal cooperation. For much of its history, EU integration in the field of criminal law has been linked to needs arising from integration in other areas. As long as integration is presented in this way, the two will remain closely connected.

227  Case C-43/12 European Commission v European Parliament and Council of the European Union, ECLI:EU:C:2014:298. 228  See Miettinen (n 224 above).

6 ‘The Evolution of Competence Distribution Between the EU and the Member States in the Criminal Field’ (by Samuli Miettinen)—A (Short) Reaction* PEDRO CAEIRO

I.  Preliminary Issues: EU Jurisdiction (‘Competence’) Over Criminal Matters; Responsibility; Three Streams of Legal Interests A. This short commentary to Samuli Miettinen’s chapter starts with some preliminary remarks. The choice of the word jurisdiction instead of competence is not innocent: competence is a power in a technical sense, whereas jurisdiction goes deeper than that and implies a political element, because it calls for the justification of the power borne by an entity in the context of plural holders. This choice of terms entails also a slight change of perspective regarding the issue at hand: indeed, competence is crucial to exert jurisdiction, but the assessment of the latter should not be based on the provisions of the treaties that regulate the former. My starting point is a quite obvious assertion: the penal jurisdiction of the EU does not and should not emulate that of the states, precisely because the EU is not a state. As obvious as this assertion may be, it has an important consequence for conceiving the EU’s jurisdiction over criminal matters: unlike that of the states, which is inherent and open-ended, the EU’s jurisdiction is conferred and purposive, because it is necessarily bound to the pursuit of specific, designated goals. *  I wish to thank Prof Anne Weyembergh and Dr Chloé Brière for their valuable comments on the first version of this chapter, which is integrated in the activity of the research group ‘Crisis, Sustainability and Citizenship(s)’ of the University of Coimbra Institute for Legal Research (UCILeR), within the project ‘Societal Challenges, Uncertainty and Law’ (UID/DIR/04643/2013), financed by the Portuguese Foundation for Science and Technology (FCT).

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B. Assuming that the goal of the criminal law is always the protection of the most important legal interests, an original feature of European criminal law is that— again, contrary to what happens in the state context—the responsibility of the EU for such protection might vary in nature and in intensity. Along with the cases where the EU bears exclusive and full responsibility for safeguarding some legal interests (what I would call a state-like situation), there are other cases where the EU’s responsibility is limited, because it is shared with the Member States, who have their own programmes and views on the subject. The distinction between exclusive and shared responsibility I am referring to is not to be mistaken for the exclusive/shared competence regulated in articles 2, 3 and 4 of the TFEU: the former assesses the relation between one or more entities and certain legal interests; the latter organises the interaction between the EU and the Member States in the relevant set of domains or policy areas. Accordingly, variations in the degree of responsibility should be reflected in the tailoring of the EU’s legislative powers in the particular criminal law area. Hence, the (sui generis) ‘prescriptive jurisdiction’ of the EU might vary depending on the nature and intensity of its responsibility for the protection of certain legal interests. C. In the current situation, there are three possible streams of legal interests for the protection of which the EU might adopt penal legislation. It is submitted that their different natures call for a differentiated approach. Almost 30 years ago, Giovanni Grasso was one of the first scholars to acknowledge the existence of two different kinds of legal interests emerging from the integration process, which should be the object of penal and/or administrative protection.1 In the first place, there are what the author then called the ‘institutional’ legal interests, which bear a state-like nature and were eventually gathered in the project Corpus Iuris (eg the financial interests of the Union). In the second place, there are those interests arising from the development of Community policies, the ‘function-legal interests’, which are roughly the object of what Valsamis Mitsilegas has named ‘functional criminalisation’2 and which call for an ‘annex competence’ in the realm of the criminal law, as has also been declared by the ECJ in its controversial judgment of 2005 (Case C-176/03, Commission v Council), dealing with the penal protection of the environment.3 Some years later, those two streams of first pillar legal interests were joined by a third one, consisting of the agglomerate of legal interests embodied in the Area of Freedom, Security and Justice.

1  G Grasso, Comunità europee e diritto penale: i rapporti tra l’ordinamento comunitario e i sistemi penali degli stati membri (Giuffrè 1989), 9 ff. 2  V Mitsilegas, EU Criminal Law after Lisbon (Hart 2016), 52 ff. 3  Case C-176/03, Commission v Council [2005] ECR I-7879.

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II.  The Treaties and the Relationship Between Jurisdiction and Responsibility: How the Third Pillar Logic Hijacked the Penal Protection of First Pillar Legal Interests A. Samuli Miettinen’s chapter analyses in great detail the evolution of primary law concerning ‘competence’. From a complementary perspective, it might be questioned whether the treaties draft the prescriptive jurisdiction of the EU on substantive criminal law in a way that reflects appropriately the different degrees of responsibility the EU bears for the protection of those three streams of legal interests. Notwithstanding the concern with an enhanced international cooperation, as a matter of ‘common interest’, present already in the Treaty of Maastricht, it was only with the Treaty of Amsterdam that the EU first became an autonomous holder of (prescriptive) jurisdiction over criminal matters, in terms that were already peculiar, even unique, in the international context. Actually, it was the first time that the EU had the power to pass binding acts—the framework decisions—which would ultimately produce penal norms. The sui generis nature of this power revealed itself in four aspects: —— its formal autonomy was somehow belied by the need for a unanimous vote of the Member States in the Council; —— its scope was limited to terrorism, organised crime and drug trafficking, and thus not consistent with the EU’s broader responsibility for the protection of many other interests; —— the framework decisions did not create duties for individuals, as they had to be implemented in domestic law by the Member States; —— the minimum rules clause allowed for setting minimum elements of the offences and minimum penalties, but allowed neither for decriminalisation as a genuine decision of criminal policy, nor for setting maximum penalties. The Lisbon Treaty changed the first two aspects by extending the common legislative procedure to directives on criminal matters (majority vote) and by extending the material scope of the EU’s penal jurisdiction to a broader catalogue of offences (the so-called ‘euro-crimes’) and to the non-specified areas of harmonised law mentioned in Article 83(2) TFEU. However, the last two aspects remained untouched. Hence, now that the treaties make clear that the EU holds an autonomous penal jurisdiction in criminal matters, which cannot be reduced to the actual agreement of each and every Member State for the passing of legislation in that field, one should look into how well this power fits into the EU’s assignments. Without this assessment, it does not seem possible to identify to what extent some of the features of the current regime are appropriate—from a legal and rational point of

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view—or rather mere political options that can, and possibly should, be reversed. In this context, one should address three specific dimensions of the EU’s jurisdiction over substantive criminal law: the direct or indirect applicability of the legislative acts; the minimum rules limit, which leaves it open for the Member States to pass broader definitions of the offences and/or increase the severity of the sanctions; and the power to decriminalise behaviour or lower the severity of the sanctions. It will be submitted that the current features and limitations of the EU’s penal jurisdiction are not dogmas or transcendental categories of EU powers on criminal law. In fact, while drafting EU powers in this field, the Lisbon Treaty went only half-way—and arguably not in the best direction. B. The answer to the question of the appropriateness of the current rules on the EU’s prescriptive jurisdiction depends, in the first place, on whether we confine the legal basis for legislating on substantive criminal law to Article 83 TFEU or rather acknowledge the existence of other possible legal bases, and especially, ­Article 325 TFEU. In that respect, I share the view that there can be no criminal law acts outside the scope of Article 83, which works as a lex specialis in relation to Article 325 and similar provisions—the speciality being, of course, the criminal law nature of the measures to be adopted. The circumstance that Article 325 TFEU is no longer subject to the limitation once set in former Article 280(4) of the EC Treaty does not seem relevant. It is reasonable to assume that the drafters found that such clause was now redundant, given that the penal jurisdiction of the EU and its conditions are explicitly regulated in the Treaty (which was not the case with the EC Treaty). For the same reason, the ruling of the ECJ in the notorious Commission v Council case should not be an obstacle: irrespective of whether or not the decision was founded on solid grounds, it was taken in a context where the treaties did not explicitly provide for functional criminalisation. Moreover, the current Article 325 TFEU, by omitting any reference to criminal law, is now in the same position as other norms (eg, Article 175 of the EC Treaty) from which the great majority of the legal literature refused to infer, in the past, an implicit penal competence. A clear legal basis is required, it was rightly argued then, and the same applies now. C. The consequence of this interpretation is that the ‘institutional’ legal ­interests—which were the first to raise concern for the lack of effective penal protection, and are still, in a sense, the most important ones—are not explicitly included in the EU’s penal jurisdiction. In this context, the Council and Parliament seem to purport a generous interpretation of the expression ‘a Union policy in an area that has been subject to harmonisation measures’ (Article 83(2) TFEU), in order to encompass the institutional legal interests (see, eg, the proposal for a directive on PIF offences).

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As a consequence, it seems safe to say that the treaties conceive the jurisdiction of the EU in criminal matters as a monolith, a one-size-fits-all power regulated in Article 83(1) and 83(2) TFEU, subject to the same basic conditions in both provisions, irrespective of which stream of legal interests is at stake. In fact, there are no true significant normative differences between the requirements set in the two provisions: the ‘security’ aimed at in Article 83(1) TFEU is also a ‘policy of the Union’, although the broadness of the notion calls for a restriction (hence the domains of offences); the offences against the legal interests protected by EU policies to which Article 83(2) TFEU refers are prone, by definition, to bear a crossborder impact; and it is unclear whether the requirement that criminalisation be ‘essential’ to ensure fulfilment of a EU policy adds anything to the subsidiarity principle that conditions EU legislative action in general (including acts passed under Article 83(1) TFEU).

III.  Reshaping the EU’s Jurisdiction Over Criminal Offences and Penalties It is paradoxical that the third stream of legal interests—which was the last to come up and is by far the one where the responsibility of the EU is more tenuous (‘securitised criminalisation’)4—has dictated the regime that is now in force for the first two streams. If we take a close look back, the power to approximate and harmonise criminal law, brought by the Treaty of Amsterdam as a corollary of the Area of Freedom, Security and Justice, actually got in the way of European criminal law and prevented it from developing in different terms. Approximation and harmonisation through minimum rules and directives became the paradigm of European criminal law. However, it seems clear that, when it comes to fraud against the EU budget, corruption or abuse of office of EU officials, market-rigging under European law, misappropriation of EU funds, etc, the full responsibility of the EU for the protection of those interests should also attract the power to define exhaustively and exclusively the offences and the applicable penalties (minimum and maximum rules), through directly applicable acts (regulations). It does not make much sense to harmonise/approximate national criminal laws to protect legal interests proper to the EU, and assimilation is clearly a solution of last resort, coming from a time past, where the EU did not enjoy penal jurisdiction. In this realm, the EU should also enjoy the power to decriminalise certain behaviour, a power that does not exist as such under the current minimum rules scheme.

4 

V Mitsilegas (n 2 above).

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The same should apply to the criminal law prohibitions necessary for ensuring the effectiveness of a Union policy. It is not clear why and how Member States should interfere with the definition of the offences and the applicable penalties in order to afford penal protection to a policy for which they are not responsible. As for the so-called ‘euro-crimes’, there might be added value in common ­minimum definitions in the sense that a common house needs some common minimum rules. However, it is clear that such need is not as strong as it might have been before mutual recognition. In conclusion, when the Member States wish to reform the whole matter in a sensible way, maybe they should follow the advice of the King of Hearts in ­Wonderland: ‘go on till you come to the end; then stop’.

7 The Principle of Subsidiarity in EU Criminal Law IRENE WIECZOREK

I. Introduction What does the regulation of wild animals in zoos have to do with the production of computer-generated images of child pornography, with the rights of French citizens standing trial in France, with the advertising of tobacco products on ­ashtrays, with the distribution of anti-Muslim pamphlets outside schools in Italy or even with the ownership of dangerous dogs? Not much, admittedly. These are simply all widely differing kinds of cases in which the EU has legislated or in which there have been proposals for EU legislation, and where the need for supranational regulation as opposed to national regulation has been at least debated.1 Probably the most truthful answer to the question ‘what justifies EU action as opposed to national regulation?’ in these situations, as in many other cases, is political consensus among Member State governments, united in the Council, and where needed, agreement with the European Parliament. However, this answer would satisfy a political scientist but not a lawyer. Lawyers focus their attention on pre-established, legal principles, which are meant to steer and constrain the ­number of policy options on which political consensus can then be sought. When it comes to the legal justifications for EU action, lawyers have to confront themselves with the well-known yet malleable concept of subsidiarity. Introduced as a safeguard for Member States’ prerogatives, the principle has been the object

1  On victims’ rights and on racism and xenophobia see the discussion later in Section VII, on environmental policy and subsidiarity see Wouter PJ Wils, ‘Subsidiarity and EC Environmental Policy: Taking People’s concerns seriously’ (1994) 6 Journal of Environmental Law 85–91, on subsidiarity in harmonisation of legislation in the field health protection see Alberto Alemanno, Amandine Garde, ‘The emergence of an EU lifestyle policy: The case of alcohol, tobacco and unhealthy diets’ (2013) 50 Common Market Law Review 1745–86, on the proposal for EU criminal law on ownership of dangerous dogs, see De Hert Paul, ‘Division of competences between National and European Levles with regard to Justice and Home Affairs’ in Anderson Malcom and Apap Joanna (eds), Police and Justice Cooperation in the new European Borders (Kluwer Law International 2002) 65, 70.

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of a considerable amount of scholarly commentary concerning the content of the principle, namely the substance of the test,2 its policing by the Court of Justice3 and by national parliaments,4 and its actual capacity to effectively perform the function of a powers allocation criterion.5 This chapter aims to contribute to the discussion on subsidiarity by offering some theoretical analysis of the application of the principle in the specific field of criminal justice. The core argument is that subsidiarity, understood as it is in the official documents as an efficiency-based criterion, postulates a role for the EU government level as a platform for enhancing the enforcement of, primarily, Member States’ criminalisation agendas, and, secondly, EU regulatory norms. Yet, the chapter illustrates that on several occasions, the EU has gone beyond these boundaries and claimed a broader role for itself, namely that of an actor in the criminal justice field embarking on normative choices as to what behaviours deserve public condemnation through criminal sanctions and on where the balance between prosecution and defence should be struck in criminal proceedings. With this aim in mind, the chapter devotes the next section to a theoretical discussion on the general problem of the allocation of powers across levels of government in multi-level polities, identifying ‘performance’, ‘normative’, and ‘political values’ criteria, and identifies the implications of the choice in favour of one or another criterion for the envisaged role of each level of government (section II); it then focuses on the selected criteria for the allocation of power within the EU, concentrating especially on subsidiarity (section III) and illustrating its performance, efficiency-based, nature (section IV). It then goes on to discuss, in more detail, the various arguments on when the EU would be more efficient than Member States in the field of criminal justice (section V), and the weight that is granted to each of these efficiency-based arguments within official policy documents and the Treaty structure (section VI). It finally provides several examples of legislation where, arguably, the EU acted on normative grounds even where efficiency-based considerations in favour of EU legislation were more nuanced (section VII), and it draws the relevant conclusions in terms of the role envisaged for, and the role actually exercised by, the EU level of government as a criminal justice actor (section VIII). The last section provides some concluding remarks (section IX).

2 

On this see section IV below. among others Thomas Horsley, ‘Subsidiarity and the European Court of Justice: Missing Pieces in the Subsidiarity Jigsaw’ (2012) 50 Journal of Common Market Studies 267 and Grainne De Burca, ‘The Principle of Subsidiarity and the Court of Justice as an Institutional Actor’ (1998) 36 Journal of Common Market Studies 217. 4  See among others Ian Cooper, ‘The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the EU’ (2006) 44 Journal of Common Market Studies 281, Jean Louis-Victor ‘National Parliaments and the Principle of Subsidiarity: Legal Options and Practical Limits’ (2008) 4 European Constitutional Law Review 429. 5 Among the most authoritative critics of the principle see Antonio Estella, The Principle of ­Subsidiarity and its critique (OUP 2002), see also Davies for instance who argues that the principle is structurally unfit to do so. Gareth Davies, ‘Subsidiarity: the wrong idea, in the wrong place, at the wrong time’ (2006) 43 Common Market Law Review 63. 3  See

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II.  The Problem of the Allocation of Powers: Performance (Efficiency), Normative and Political Values Criteria In every multi-level polity, be they confederations, federal states, centralised states with a limited degree of devolution, or even multi-level supranational organisations, such as the EU, a crucial question is that of the allocation of powers.6 Whenever several levels of government are involved, it is necessary to identify the criteria that determine which level is entitled to regulate which aspect of citizens’ lives. From a theoretical point of view, various approaches to the matter exist. Partially drawing on De Burca’s classification of the various approaches to the problem,7 one can identify at least three criteria for the allocation of power. These can be defined as the ‘performance criterion’ the ‘normative criterion’ and the ‘political values criterion’.8 The various criteria differ both from an analytical and a conceptual point of view. Analytically speaking, what distinguish the various approaches are the factors (or criteria) determining the choice of the government level entitled to regulate a specific matter. These are: the potential performance of each level in achieving the policy objective (performance criterion); the content of the measure and the substantive interests at stake (normative criterion); or the political values the choice in favour of one or another level can ensure, bearing in mind especially the characteristics of the decision-making process at each level (political values criterion). Conceptually speaking, what distinguishes the various criteria, and especially the performance one from the normative one, is the different role that they envisage for each regulatory level. Both aspects are detailed below. As far as the analytical distinction is concerned, employing a performance criterion means considering the performance of each level to achieve the desired objective. This criterion can be interpreted in a broad sense, thus looking at how effective one governmental level is in achieving the desired policy objective, namely which level can achieve the best result. Or it can be interpreted also in a narrower sense, looking not only at how effective each governmental level is, but also at at

6  Paul Craig defines this problem as endemic to any multi-level polity. Paul Craig, ‘Subsidiarity: A Political and Legal Analysis’ (2012) 50 Journal of Common Market Studies 72, 73. 7  This classification draws from De Burca who focuses on the issue of process for the adoption of the decisions, the outcome of such process, or on the willingness of each level of government to take specific policy decisions. Grainne de Burca, ‘Reapprasing Subsidiarity’s significance after ­Amsterdam’, (1999) 7/99 Harvard Jean Monnet Working Paper 4: www.jeanmonnetprogram.org/archive/papers/99/990701. rtf, accessed on September 2017. De Burca does not extensively elaborate on the “willingness” criterion. This chapter starts from her observations on the point to develop the specific “normative” criterion. 8  Grainne de Burca, ‘Reapprasing Subsidiarity’s significance after Amsterdam’, (1999) 7/99 Harvard Jean Monnet Working Paper 4: www.jeanmonnetprogram.org/archive/papers/99/990701.rtf, accessed on September 2017.

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what cost such performance is achieved. This would be a performance, efficiencybased, criterion. Adopting a performance-based criterion means choosing the level that can perform more effectively or even more efficiently in achieving the policy objective.9 Conversely, relying on a normative criterion implies considering the content of the envisaged regulatory action and especially the interests that are at stake. Adopting a normative criterion implies selecting as the governmental level that should act the one more interested in protecting those interests and setting a ­normative standard in a certain policy area. Admittedly, in her classification of possible criteria for the allocation of powers, De Burca does not explicitly speak of normative criterion. However, one can arguably see a hint in this direction when she affirms that a factor one might take into account when allocating powers is the ‘willingness’ of each level to address a certain matter.10 One can reasonably connect the ‘willingness’ of each level to act to the substantive interests involved in the specific policy action. The arguments sometimes raised for local or supranational action linked to the concepts of ‘identity’11 can arguably also be classified as an expression of a normative criterion, as is further explained in the next section. Finally, drawing on a political values criterion implies looking at the values that the choice in favour of each governmental level can ensure. One should in particular take into account the decision-making process at each governmental level, and assess which values each legislative procedure allows to be preserved. Such values can include a high degree of citizens’ participation in the law-­making ­process,12 political liberty stemming from a high degree of fragmentation of power,13 the respect for internal division of powers within local entities,14 or respect for ­diversity.15 Adopting this criterion would imply selecting, all other things being equal, the governmental level whose characteristics, including the selected ­decision-making process, can better protect these aspects. For instance, it would imply selecting the governmental level where the decision-making process is more democratic, because this would ensure a better safeguarding of the political value of citizens’ participation. As far as the conceptual distinction is concerned, one should note that the three criteria, ie performance criterion, normative criterion and political values criterion, are to be considered separate, given that one does not imply necessarily the

9  Grainne De Burca, (n 3 above), 3. Mathias Kumm, ‘Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union’ (2006) 4 European Law Journal 503, 518. 10  Grainne De Burca, (n 3 above), 3. 11  Mathias Kumm, ‘Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union’ (2006) 4 European Law Journal 503, 518. George A Bermann, ‘Taking Subsidiarity Seriously’ (1994) 94 Columbia Law Review 331, 341. 12  Grainne De Burca, (n 3 above), 3. 13  George A Bermann, ‘Taking Subsidiarity Seriously’ (1994) 94 Columbia Law Review 331, 341. 14  Bermann (n 13 above). 15  Bermann (n 13 above). Mathias Kumm (n 11 above).

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other and given that they can work as stand-alone criteria. For instance, one level can decide to act on normative grounds even if it would not be the best performing one in addressing a specific matter. Nonetheless, naturally, no polity bases the choice of allocation of powers on only one single criterion (eg the values ensured by the specific decision-making procedure, the efficiency of each level and the interests at stake); rather it normally relies on a combination of them. Moreover, albeit conceptually distinct, the different criteria might overlap in practice. For instance, when regulating a local matter, which is very close to the identity of one single local entity, the lower level would not only be more inclined to act, due to the subject-matter (normative criterion), but it will also have more insights on the matter and thus will also be more efficient (performance-efficiency criterion). Nevertheless, leaving aside possible combinations or even overlaps, it is interesting to enquire into where the focus is—if any—among those various approaches within each polity. This is because each criterion can imply a different understanding of the role for each governmental level. Admittedly, a selection in favour of the political values criterion is relatively neutral in this respect. Conversely, a difference can be appreciated between the performance and the normative criterion. For instance, entrusting one specific regulatory forum with the right to act on a normative basis, ie when it judges that there are some important interests at stake, necessarily implies that that level is acknowledged as the one where normative choices on what interests matter—and thus as to what aspects of citizens’ lives should be regulated—are made. Moreover, looking closely at what interests each local or supranational level is entitled to protect can be quite revealing as to the identity of the local or supranational community. Conversely, grounding one level’s (eg the supranational) right to act only on efficiency grounds relegates the given level to a subsidiarity instrumental level, only entrusted with the task of correcting the other level’s (eg the national) inefficiencies. Given that there are various possible approaches to the question of the allocation of power, one should also note that there are also different contexts in which the relevant question is raised and in each context a different approach can be selected. More specifically, the question on the allocation of powers can have a double dimension, a ‘static’ and a ‘dynamic’ one. In the first case—static understanding of the right to act—a decision is necessary as to which level has, in principle, the competence to act in which policy area. In the second case— dynamic definition of the right to act—the decision concerns whether the exercise of the given competence is justified in practice.16 It might be that one level

16  See Weatherill, who highlights how competence definitions, and the allocation of the right to act by means of the principle of subsidiarity are fundamentally different in principle, but that the two issues are functionally closely associated. They bear heavily on what shall be left in the hands of Member States as regulators. Stephen Weatherill, ‘Why Harmonise?’ in Takis Tridimas and Paola Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order (Hart Publishing 2003) 11, 29. See in this respect also the related analysis of Daniel Halberstam who pushes the reasoning further and distinguishes between a first ‘substantive’ test, which relates to the choice of the

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has a competence to act in a given field, but for some reason it is not advisable that it exercises such a right, and the matter is better left to the other governmental level, which might have a default right to regulate citizens’ behaviour. Normally, the static dimension of the allocation of competence is regulated once and for all in constitutional texts that distinguish between local and federal (or supranational) level competences on a content basis, thus allocating a certain policy area to one level and certain others to another.17 Referring to the theoretical framework outlined above, the approach seems rather normative. The actual debate on the choice of the criteria normally concerns the dynamic allocation of competences, namely the identification of some criteria to decide whether a certain level, which would have in principle the competence to act, has in fact the right to exercise it. On the basis of this theoretical framework, the next sections turn to the analysis of the specific criteria selected for power allocation in the context of the EU legal order, and to what are the relevant implications for the role of the EU as a governmental level.

III.  Power Allocation Within the EU Legal Order: Subsidiarity and other Criteria As in other multi-level polities, within the EU, both the local level (Member States) and the supranational one (the EU) are entitled to regulate citizens’ behaviour. Also in this context, the enquiry as to the criteria determining which level has the right to act has a double dimension; a ‘static’ and a ‘dynamic’ one. The static boundaries of action for the supranational level, that is the competence of the EU, are defined, in a more or less precise way, within the Treaties, which list the competences of the EU, leaving a residual competence to Member States. Only the ­Member States can amend this division of competences through revisions of the Treaty, even though, in some cases, the Court of Justice has also intervened to interpret Treaty provisions very broadly, to the extent of creating new competences for the EU, which were not explicitly included in the Treaties.18 One should note, nevertheless, that EU provisions have been drafted in a rather flexible

level that decides which objectives should be pursued at all, and a second instrumental of nature, which relates to which level has the right to act in order to achieve these pre-established policy goals. D ­ aniel Halberstam, ‘Comparative Federalism and the Role of the Judiciary’ in Keith Whittington, Daniel ­Kelemen, and Gregory Caldeira (eds), The Oxford Handbook of Law and Politics (OUP 2008) 142, 157. 17  This can be appreciated in the EU Treaties defining EU competences, but also in the constitutions of federal states, see for instance Art 73 of the German Constitution. 18  This was the case in the context of EU criminal law, with the environmental crime cases. On this see below, Section VI.C.

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manner and that the Treaty also includes some express flexibility clauses to expand the range of EU action, such as Article 325 TFEU.19 There is not a specific consistent criterion defining in which cases the EU should have a ‘static right to act’ (ie competence). Nevertheless, some authors have underlined how the cross-border dimension of the relevant activity is a criterion that often delimits the EU scope of action.20 Remarkably, EU competences are distinguished between exclusive, shared and supporting competences.21 Except for the first category (exclusive competences), Member States maintain the right to regulate the area if the EU has not exercised its competence. In these two cases (shared and supportive competences), the ­question of the dynamic dimension of the right to act, namely ‘granted a specific competence, when can the EU exercise it?’ is raised. As is well known, within the EU legal order, the question of the dynamic allocation of powers is chiefly regulated by the principle of subsidiarity. The principle was codified in the Treaty of Maastricht as a limitation to EU action and meant as a safeguard for Member States, which had seen their role within the EU decisionmaking process declining due to the expansion of the qualified majority rule.22 Article 5 of the TEC (consolidated in Maastricht) introduces the well-known formula: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

This formulation was to remain unmodified in the Amsterdam, Nice and Lisbon versions of the Treaty.23 The principle of subsidiarity presents itself as relatively neutral. The Treaty does not specify when it is considered that the EU can ‘better’ achieve a certain policy objective. ‘Better achieve’ might indeed mean ‘through a specific decisionmaking procedure’ (political values criterion), but it might also mean achieve more effectively (performance criterion). Admittedly, a hint towards the latter performance-based understanding of the criterion can be found when the Treaty mentions the ‘effects’ of the action. Article 3(5) TEU indeed says that the higher

19  Such flexibility is meant to allow the EU to effectively achieve its objectives and thus increase its output legitimacy. This is argued in Anand Menon and Stephen Weatherill, ‘Legitimacy, Accountability, and Delegation in the European Union’ in Anthony Arnull and Daniel Wincott (eds), Accountability and Legitimacy in the European Union (OUP 2003). 20  Jacob Öberg, ‘Subsidiarity and EU Procedural Criminal Law’ (2015) 5 European Criminal Law Review 19, 26. This occurs for instance in the field of civil justice (see Article 81(1) TFEU) and criminal justice (see Article 82(2) TFEU, and Article 83(1) TFEU). 21  See Arts 4, 5 and 6 TFEU. 22  Bermann (n 13 above), 354. 23  Art 5(3) TEU in Lisbon.

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suitability of the supranational level can stem from either the scale or the effects of the required action. A clear explanation of the actual nature of the criterion can nonetheless be found in the policy documents, which have followed the introduction of the principle within the Treaties. The Commission and the Council published, right after the adoption of the Treaty of Maastricht, policy documents in which they provided an interpretation of this principle. These are discussed in the next section and they show a clear efficiency-based understanding of subsidiarity, thus insisting on the performance of each governmental level. Before turning to a more in-depth analysis of the substance of the principle, it is worth recalling that, while subsidiarity remains the key criterion for allocations of powers, the Treaties also included mention of some other general criteria, which influence the distribution of the right to act between the national and supranational levels. Firstly, already in Maastricht, Article A of the Treaty on European Union introduced the concept of an ever closer union and it stated that all decisions should be taken as close as possible to the citizens, setting a general preference for the local level. This has been reproduced in the other versions of the Treaty and it features in Article 1 TEU (Lisbon Treaty). This reference can arguably be construed as an expression of a political values criterion: decision-making should allow as far as possible for citizen participation.24 Secondly, again already in Maastricht, Article F of the TEU imposed on the EU respect for the national identities of Member States. The principle was maintained throughout the various versions of the Treaty and it finds an even wider acknowledgement within the Lisbon Treaty. Firstly, its location within the Treaty is particularly relevant because it is placed right next to the principle of conferral of competences (Article 4(1) TEU) and the principle of loyalty (Article 4(2) TEU). This indicates its fundamental character and its centrality in maintaining the balance between Member States’ and the EU’s prerogatives. Moreover, it should be noted that the Treaty of Lisbon provides a much wider elaboration on what aspects might constitute a national identity, thus giving the criterion more substance than it had in the previous versions of the Treaty. In particular, it defines national identities as stemming from Member States’ fundamental structures, political and constitutional, inclusive of regional and local self-government. Remarkably, a connected principle, namely that of respecting national diversity, is specifically mentioned in the Title on the Area of Freedom, Security and Justice (Article 67(3) TFEU). Furthermore, both the principles of respect of national identities and of Member States’ diversity are mentioned within the Preamble of the Charter of Fundamental Rights of the EU. As was anticipated in the first section, one could argue that the obligation to respect national identities implies a normative understanding of the allocation of powers across levels. Indeed, safeguarding national

24  See Cross’s concept of democratic subsidiarity in Gerry Cross, ‘Subsidiarity and the Environment’ (1995) 15 Yearbook of European Law 107.

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identities presupposes a need to look at the content of the legislative measure at stake—namely, what are the interests pursued—and to see whether it impacts on some aspects related to the identity of Member States. In the latter case, the ­content of the measure would determine that the national level is the one more entitled to act.25

IV.  Subsidiarity as a Performance (Efficiency-Based) Criterion and its Implication for the Role of the EU As stated, some indications on the content of the principle are to be found in policy documents. The Commission Communication of 1992 on the Principle of Subsidiarity, the first authoritative policy document on the subject of subsidiarity, explicitly spoke about a ‘comparative efficiency’ test.26 The EU is meant to act only when Member States are not capable of sufficiently tackling a certain phenomenon and the EU is comparatively more efficient. The perspective appears thus purely efficiency based. The Commission also specified that the principle of subsidiarity ‘has nothing to do with a “democratic deficit” that has to be made good: it should not be confused with democratic control of Community Action’.27 What stems from the Commission Communication is that the political values criterion (eg choosing one level instead of another in order to ensure a more democratic procedure) is extraneous to subsidiarity. The Commission shows a clear preference for the performance, efficiency-based, approach. In 1992, the European Council also established some specific guidelines on how to interpret the newly introduced principle of subsidiarity. These were later ­constitutionalised within the Protocol on subsidiarity attached to the Amsterdam Treaty. These guidelines were not explicitly acknowledged within the Lisbon version of the Protocol. Nonetheless, the Commission has declared that it will still rely on them28 and the Court has defined them as an authoritative guidance.29 The Amsterdam Protocol lists three factors that should be taken into account when assessing national insufficiency and the comparative added value

25  In this respect, it is interesting to mention the concept of ‘normative subsidiarity’, introduced by Van Staden, namely the idea that when adjudicating on acts of national governments, international courts should show some particular deference to the idea of self-government, in specific sectors. Andreas Von Staden, ‘The Democratic Legitimacy of Judicial Review beyond the State: Normative Subsidiarity and judicial standards of Review’, 10/11 Jean Monnet Working Paper (2011). 26  The Principle of Subsidiarity. Communication of the Commission to the Council and European Parliament, SEC(92) 1990 final, 2. 27  Better Lawmaking 1998: A Shared Responsibility. Commission Report to the Council, COM (98) 715 final, 3. 28  Report from the Commission on Subsidiarity and Proportionality. COM(2011)344 final, 2. 29 Case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco ­(Investments) Ltd and Imperial Tobacco Ltd [2002] ECR I-11453, para 178.

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of the EU: the transnational character of the conduct at stake (1); the need to respect Treaty requirements and the interests of Member States (2); and the presence of clear benefits stemming from an EU action (3). Out of the three guidelines, the one that has had more resonance in legislation and in doctrinal discussion is the first, ie the transnational aspects criterion. Scholars seem to concur that the presence of transnational aspects sets a presumption in favour of the supranational level.30 Advocate General Maduro has proposed a similar interpretation in his notorious opinion on the Vodafone case.31 Moreover, the fact that the transnational dimension of the activity to regulate is sometimes used as a criterion also for the static allocation of powers, namely competence definitions, attests to the importance of this criterion.32 The other two criteria mentioned in the Council conclusions have not received particular attention. The second criterion tells us that EU primary law must be respected, and that Member States’ interests must be taken into account. These indications appear rather vague and do not really provide us with any operational criteria. Finally, the third criterion essentially re-states what was already mentioned in Article 5(3) TFEU: the EU should act only when there is an added value, in other words, when it can better achieve the policy objectives.33 The relationship between the comparative efficiency test mentioned in the ­Commission Communication and the various guidelines included in the Amsterdam Protocol is not straightforward. Moreover, the relationship— ­ cumulative or alternative—between the various guidelines is also not fully explained.34 One might think that each guideline is a possible indicator of when EU action is more efficient. In this case, efficiency would be the general criterion, and then the various guidelines’ different sub-criteria. It will be shown in the next section that when the fight against crime is at stake the EU is more effective and possibly more ­efficient in tackling cross-border crime. Nevertheless, in his Opinion on the V ­ odafone case mentioned above, Advocate General Maduro conversely argued that the ‘transnational aspects’ guideline used with reference to economic activities can also work as a stand-alone criterion regardless of efficiency considerations. However, it is not clear whether the transnational aspects criterion can also work as a stand-alone criterion beyond the sphere of economic activities. Briefly, it seems that the concept of EU comparative higher efficiency and the transnational nature of the phenomenon to be regulated played a crucial role, at least at the beginning when the concept of subsidiarity was introduced.

30 

Bermann (n 13 above), 370. Grainne De Burca (n 3 above), 25, Horsley (n 3 above), 275. Opinion of Advocate General Maduro in Case C-58/08 Vodafone & Others v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-4999, para 32. 32  See above (n 20 and text). In these cases, the presence of some transnational features in the phenomena at stake has a double importance: it serves to assess whether the EU has the competence to act, and arguably also to check whether subsidiarity is complied with. 33  Grainne De Burca, (n 3 above), 35. 34  Edward T Swaine, ‘Subsidiarity and Self-Interest: Federalism at the Court of Justice’ (2000) 41 Harvard International Law Journal 1, 53. 31 

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Having said this, despite the centrality of this concept, it is remarkable that the Commission does not provide an official definition of ‘efficiency’. Nevertheless, among the most authoritative scholars’ opinions on the efficiency-based substance of the subsidiarity test comes the ‘collective action problem’ described by Kumm. This author argues that EU action should be justified only when action by individual Member States is structurally tainted by a collective action problem.35 Such a collective action problem materialises when a certain objective—for instance a specific policy objective—would benefit each individual part of a collectivity, or each Member State, but the costs of achieving such an objective for each individual, or each Member State, acting alone, would in any case outweigh the benefits. The only situation in which final benefits would be greater than costs for everyone is if the various individuals, or Member States, act jointly as a collective, or as the EU, to achieve the objectives, and thus share the costs. This is the only situation in which EU action would lead to an efficient solution. According to Kumm, the collective action problem is the only possible justification and other possible alternatives are excluded.36 For instance, substantive judgments on the wisdom of each Member States’ policies, which the EU and the other Member States consider inadequate, should not be a ground for further EU action.37 Once one has grasped how the substance of subsidiarity is traditionally understood, it is interesting to assess what are the conceptual implications of this specific approach to the allocation of powers within the EU. It was mentioned before that connecting the right to act of a government level solely to its better performance implies an understanding of it as a subsidiary platform aimed at efficiency enhancement. It flows that, as a matter of principle, the choice in favour of subsidiarity as a criterion to allocate entitlement to act implies an instrumental understanding of the supranational governmental level. The choice of justifying EU action only when it is more efficient than Member States’ action basically postulates a conceptualisation of the EU as a platform to correct Member States’ inefficiencies in their own regulatory processes rather than an autonomous governmental level where independent normative choices are taken as to what aspects of citizens’ lives should be regulated regardless of each level’s performance rate.38

35 

Mathias Kumm (n 11 above), 520.

36 Ibid. 37 Ibid.

38  Note, however, Davies, who argues that subsidiarity operates in a context where both M ­ ember States and and the EU are engaged in attempting to achieve EU objectives, which are enshrined in the Treaty. Davies observes that subsidiarity is not a principle that allows one to take into consideration Member States’ objectives and interests, and that the locus for considering them is the principle of proportionality. Davies Gareth, ‘Subsidiarity: the wrong idea, in the wrong place, at the wrong time’ (2006) 43 Common Market Law Review 63. Davies’ argument is not in contradiction with what is argued here. Indeed, first of all one has to consider that the EU objectives listed in the Treaty objectives are often very broadly drafted, and are not exclusively EU objectives, but shared objectives. The fight against crime is a paramount example of an objective which is listed in the Treaty (see Art 67 TFEU), but is naturally also a policy objective of single Member States. Secondly, one has to take into

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The following sections show how this conceptualisation fits very well with the understanding of the role of the EU in criminal matters in principle, but that EU legislation in this field show us, at least to some extent, a different picture.

V.  Subsidiarity and EU Criminal Law: When is the EU More Efficient in the Criminal Justice Field? It was explained that the principle of subsidiarity legitimates resorting to EU action only where the EU is comparatively more efficient than Member States in achieving one of the objectives established by the Treaty. It was also mentioned that one clear example in which the EU can perform comparatively better than Member States is when the phenomenon to be regulated is transnational. This section illustrates how this argument unfolds in the field of criminal justice. In particular, it investigates in which cases the EU would be more efficient than Member States—as a matter of principle—when pursuing criminal justice policy objectives. The core argument of this section is that the distinction between ‘cross-border and national’ crimes is a crucial one and that the EU enjoys a much wider legitimacy in tackling the former than the latter. The next paragraph first goes into more detail about the distinction between ‘transnational’ and ‘national’ crime (a). The following ones respectively discuss the EU’s added value in the fight against, respectively, transnational (b), (c) and national crime (d), as well as the specific kind of EU intervention that is justified, namely the design of judicial cooperation or mutual recognition instruments, harmonisation of national criminal procedure and harmonisation of substantive criminal law.

A.  The Distinction between National and Transnational Crime When mentioning national and transnational crime this section refers to two different forms of criminality that respectively occur either within the borders of one Member State (national crime) or which—for one reason or another—have some implications outside the borders of individual Member States (cross-border

account that from a broader, upstream, perspective such as that embraced in this chapter, EU objectives enshrined in the Treaty were in any case given to the EU by the Member States, who retain the ‘kompetenz-kompetenz’ power. Indeed, here it is argued that Member States autonomously decided to entrust the supranational level with some tasks—which would be in Davies’ argument EU objectives— but only allowed it to act if they are under-performing in that respect.

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crime). This distinction is arguably a crucial one for assessing the legitimacy of EU action in the field of criminal justice. Yet, one should keep in mind that the judgement on whether a certain area of crime has cross-border implications is naturally a prospective and somewhat artificial one. Indeed, one can only assess which area of criminality is most likely to have cross-border implications. These can for instance derive from the way the offences are perpetrated—as in the case of trafficking in human beings, which often implies the transfer and the exploitation of people against their will, and which is often committed by big criminal networks operating transnationally. Such transnational implications can also consist of the harmful consequences of the relevant crime which do not remain limited within the boundaries of one Member State. For instance corruption, even if perpetrated nationally, can have some far-reaching economic consequences which go beyond the Member State in which the act is perpetrated, given the interconnection of markets.39 Conversely, crimes such as theft or murder do not have, as such, any obvious transnational implications. Nevertheless, one should bear in mind that arguably any crime can easily become cross-border for the purposes of the current analysis—namely for the purposes of judging whether EU intervention is justified. Indeed, it suffices that the perpetrator flees abroad to trigger a need for cooperation and consequently the need for a framework regulating such cooperation, which can only be provided by the supranational governmental level, as is further explained below. This being said, the assumption of this section is that, when referring to ‘national crime’, one is thinking of those areas of crime that are less likely to have some crossborder implications, while bearing in mind that even single crimes of this sort can have occasionally some cross-border implications.

B.  EU Comparative Efficiency in Fighting ‘Cross-border Crimes’ As was anticipated, there is arguably a strong efficiency-based case for EU ­intervention in addressing the problem of cross-border crime. This argument can be summarised as follows. It is well documented that crimes can and do occur transnationally. On the one hand, criminal networks act in a cross-­border ­fashion;40 and on the other hand, individuals can exploit their rights of free movement to seek refuge abroad.41 Conversely, the administration of justice is 39 Remarkably, Article 83 TFEU, granting the competence to the EU to harmonise crimes’ ­ efinitions, includes reference to these two criteria, and it adds a third one which, however, remains d rather general, namely ‘the need to combat the given crimes on a common basis’. 40 On globalisation and crime see widely and extensively Mireille Delmas-Marty, Les forces ­imaginantes du droit. Tome I. Le relatif et l’universel (PUF 2004). 41 It was highlighted that despite the fact that the argument is often recalled, the connection between free movement rules and increase of cross-border criminality is far from having been empirically proven: Maria Fletcher, Robin Lööf, and Bill Gilmore, EU Criminal Law and Justice (Edward Elgar ­Publishing 2008) 26. However, the phenomenonof fugitives seeking refuge abroad is certainly a possibility.

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still largely nationally based; judicial and police forces depend on national governments and have only territorial reach. Yet, in order to dismantle transnational criminal networks, national authorities need cooperation from foreign ones: (i) during the investigative phase, for instance in the collection of information and/or evidence, or the arrest of fugitives; (ii) during the prosecution phase, for instance, to make some resources available, such as hearing witnesses staying abroad, which would otherwise not be available for the trial; and (iii) finally during the execution phase, for instance in order to share the costs of prison populations by transferring prisoners from one jurisdiction to another.42 Given the need for transnational cooperation, the EU has a significant comparative advantage with respect to Member States in designing the legal framework for such cooperation. To use Kumm’s terms, it can solve the problem collectively with the least cost for each participant. Certainly, Member States could establish bilateral conventions between one another setting the rules for such cooperation, or they could simply rely on each other’s willingness to cooperate and have done so in the past.43 However, these measures have proven widely inadequate to effectively counteract transnational crime due to the length of time they implied, their dependence on the political will of Member States to actually cooperate and the potential lack of coordination existing within various bilateral arrangements. A common regime defined at supranational level appears necessary to overcome these difficulties and to better serve the final objective. Defining such a common regime is an objective that can only be obtained through EU law.

C. What Kind of EU Intervention does the ‘Fight against Cross-border Crime’ Argument Justify? Remarkably, the argument of the joint fight against cross-border crime justifies a quite diversified type of EU action. First and foremost, the legal regime enabling Member States’ enforcement agencies to cooperate in cross-border law enforcement should be composed of legislative instruments imposing cooperation duties and streamlining the procedures for such cooperation. Thus the EU’s enactment of judicial cooperation instruments, or more specifically mutual recognition instruments, such as the European

42 This argument is explained in Jean Pradel, Geert Cortens and Gert Vermeulen, Droit Pénal ­Européen (3rd edn, Dalloz 2009) 6 ff. On the need of cooperation especially in the execution phase see interestingly Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319, 370. 43  On the history of judicial cooperation within Europe see Daniel Flore, ‘Fondements et objectifs de la coopération internationale en matière pénale’ in Diane Bernard, Yves Cartuyvels, Christine ­Guillain, Damien Scalia and Michel van de Kerchove (eds), Fondements et Objectifs des incriminations et des peines en droit Européen et International (Anthemis 2013) 427, 434.

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Arrest Warrant,44 or the European Investigation Order45 can be justified on these grounds. Secondly, this regime should also be composed of legislative instruments ­harmonising the rules of criminal procedure. Indeed, it is argued that a shared core of norms regulating especially suspects’ and victims’ rights would create a climate of mutual trust. More specifically, it would reassure national authorities that the suspects they surrender abroad will enjoy the same rights they would have in the home state, or that if they agree to a transfer of proceedings to another Member State this will not jeopardise the rights of the victims involved.46 The justification for the harmonisation of criminal procedure is thus a spill-over justification only indirectly connected to the core argument—namely the fight against cross-border crime. Needless to specify, this justification only applies to the harmonisation of aspects of criminal procedure that concern cross-border cases. There seems to be hardly any reason for harmonising aspects of criminal procedure that would not apply to cross-border cases, as the link between harmonisation and judicial cooperation—which is the primary objective, the one that the EU is comparatively more efficient to achieve—would be missing. It is unclear how awarding the same rights to all EU citizens in national procedures too would help judicial cooperation unless one interprets the need to establish mutual trust in a very broad way, namely that of building in national authorities the belief that they are cooperating with a generally laudable legal system that grants a high level of rights to all its citizens. Admittedly, it has been discussed whether it would not be advisable, from a pragmatic point of view, to draft the envisaged rights in a sufficiently broad manner so as to apply them to national and transnational cases. The argument is based on the assumption that the transnational dimension of any particular case might appear at a later stage of the procedure. Keeping the scope of application of the procedural rights sufficiently wide would avoid excluding cases that appear national at first sight but reveal themselves as involving a cross-border dimension afterwards.47 This argument is, however, not universally shared. Other authors have argued that embracing a sufficiently broad interpretation of the ‘cross-border’ dimension of the proceedings would obviate this problem, namely it would include also those proceedings that have a chance to reveal themselves as cross-border at a later stage.48 This would avoid stretching too much the spill-over argument connecting harmonisation to the primary goal of judicial cooperation.

44  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. 45  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. 46  These arguments are used to justify the adoption of the victims’ rights directive, see below in Section VIII.B. 47  See Steve Peers, EU Justice and Home Affairs Law (OUP 2011) 670–71. 48  Jacob Öberg (n 20 above), 7.

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Thirdly, the common regime to fight cross-border crime might also include instruments harmonising substantive criminal law. The same spill-over argument mentioned for the harmonisation of procedural rights also applies in this case. A shared core of substantive norms would also foster mutual trust among judicial authorities. It would also make it easier to meet the double criminality requirement, where it is still applicable, and would also help clarify the scope of application/competence of JHA Agencies, such as Eurojust, Europol and, when it has entered into force, also the European Public Prosecutor’s Office. Furthermore, independently of the need for judicial cooperation, a minimum of harmonisation might be necessary in order to avoid safe havens across the EU that criminals might exploit, locating themselves in Member States with more lenient legislation. Benefiting from a more permissive legal framework, criminals might still be able to perpetrate their harmful activities, which are considered as criminal in other jurisdictions, potentially victimising EU citizens residing in other Member States.49

D.  EU Comparative Efficiency in Fighting ‘National Crime’ The general discussion on subsidiarity in section V listed the transnational ­character of the relevant phenomenon as one of the possible indicators for the EU’s higher efficiency. Yet, it was not excluded that there can be a case for EU action even when such a transnational dimension is absent. It was explained in the previous paragraph that the undeniable cross-border dimension of the great part of criminality justifies the adoption by the EU of ­judicial cooperation instruments, in the first place, and instruments harmonising substantive and procedural criminal law in areas of cross-border crime, mostly on the basis of a spill-over efficiency argument. Nonetheless, it is still worth exploring whether an efficiency-based case exists, at least in principle, for the EU to harmonise national criminal law, outside the areas of cross-border crime. It was anticipated that the EU harmonisation of aspects of criminal procedures that do not pertain to transnationality can hardly be justified on efficiency grounds. The link with cooperation is missing and so is the indirect efficiency-based legitimation, and there does not seem to be any other autonomous reason why the EU would be comparatively more efficient than the various Member States at defining the rights which individuals should enjoy when facing trial in their own country,

49  This argument can be read in Herman van der Wilt, ‘Some Critical Reflections on the Process of Harmonisation of Criminal Law within the European Union’ in André Klip and Harmen van der Wilt (eds), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of Science 2002), and is also used by the Commission in Communication ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, COM(2011) 573 final. One should note, however, that it is not universally shared, see Sakari Melander, ‘Ultima Ratio in European Criminal Law’ (2013) 3 European Criminal Law Review 56–57.

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or having been victimised in their own country. Admittedly, one good reason to harmonise the rights of ‘national’ suspects and victims as well would be that of avoiding a situation of reverse discrimination in which individuals involved in cross-border proceedings are in a better situation—assuming that the EU grants more rights than national law—than those involved in ‘national’ ones. However, this is hardly an efficiency-based argument. The EU would not be acting because it has a comparative advantage in regulating the matter, but arguably to correct a shortcoming stemming from its previous regulatory ­intervention—namely lack of formal equality between EU citizens—which is considered normatively undesirable. Conversely, as far as substantive criminal law is concerned, there are at least two contexts in which it is worth exploring whether the EU can be more efficient than Member State action in the criminal justice field, even when the relevant areas of crime do not present an evident cross-border dimension. The first case is that of the regulation of behaviours that are harmful to specific EU interests. For instance, one might understandably assume that, when EU financial or institutional interests are at stake, the EU would be better placed to regulate the matter via harmonised or unified criminal norms. This would be the case for instance of fraud against the EU budget, which evidently affect the EU’s financial interests; or perjury before the European Court of Justice, which can impair the good administration of justice within the EU legal order. In these contexts, the EU seems intuitively to be the natural locus for the regulation of these behaviours regardless of a potential or actual cross-border dimension of the relevant conduct and the consequent needs of judicial cooperation. One should reflect nonetheless on whether the argument for EU action in these contexts is actually based on efficiency grounds. The core argument in this respect would be that the EU should regulate these aspects because Member States would be unwilling to address them. The EU would be comparatively more efficient simply because Member State action would be lacking and thus by definition ineffective. This is arguably still an efficiency-based argument, even if interestingly predicated on normative premises. Namely, it is because of the interests at stake (normative perspective) that the EU would be more efficient in addressing the problem (efficiency perspective). Remarkably, in her classification of the various criteria for power allocation, De Burca precisely distinguishes between an objective criterion—which would be our performance criterion—and the willingness criterion—which we defined as a normative criterion. A second case where EU action would be more efficient in criminal matters, even if the crimes at stake are not cross-border, is when EU criminal law is used to enforce non-criminal justice policies. This is for instance when harmonised definitions of crimes are envisaged to enforce EU environmental policies, consumer protection policies or EU data protection rules. In this context, resorting to EU criminal law is not justified by the needs of Member States to enforce their agenda transnationally, but by the EU’s need to enforce its own norms. The situation is that in which the EU has already legislated in a specific policy area,

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which is not inherently criminal, and then it resorts to criminal sanctions in order to secure the enforcement of the relevant substantive norms. In this context, a bi-partite subsidiarity test of the capacity of Member States to sufficiently achieve the given policy objective must take place. Such a test must include Member States’ comparative advantages in drafting the substantive norms (first subsidiarity test) as well as their capacity to secure their enforcement (second subsidiarity test). Remarkably, it might be the case that, due to the different national contexts, eg the different weight granted to the interests at stake, centralised criminal law enforcement might not be necessary, and in some Member States, administrative sanctions would be sufficient, while in others penal sanctions might be required. In the situation in which it is necessary that each Member State envisages a criminal law regime for the sake of the effectiveness of the substantive policy, then obviously the supranational level is the better placed to ensure uniformity or at least harmonisation in this respect. In this second case—EU criminal law used to enforce EU policies—EU intervention in criminal matters is justified on efficiency grounds, ie Member States’ inability to secure the effectiveness of EU policies by maintaining a diversified enforcement regime. Yet, it does not necessarily depend on the transnational dimension of the phenomenon to be regulated. As a matter of fact, it might very well be that EU action was justified in the first place to regulate non-transnational phenomena. For instance, EU action in the field of environmental law might have been justified even if the relevant behaviours did not present a strong transnational component. If then the EU decides to resort to criminal law to enforce such environmental policies, such EU criminal norms, eg harmonised definition of crimes, would then concern non-cross-border phenomena.

VI.  Subsidiarity and EU Criminal Law: The Efficiency Dimension in Policy and Treaty Language The previous section provided some general discussion on possible efficiencybased rationales for the EU to act in the criminal justice field. This one aims to account for how much weight the EU legal order grants to each rationale. These observations, together with the ones drawn in the next section as to the rationales actually guiding legislation, will enable us to gain an insight into the role the EU has set for itself as a governmental level in the criminal justice field. The two efficiency-based arguments for the intervention of the EU in the criminal justice field—the fight against cross-border crime and the protection of EU interests as well as effectiveness of EU policies—found different weight and acceptance within the EU legal order in different times, with the first rationale being the historically more prominent one. The next two paragraphs discuss them in turn.

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A. The Fight Against Cross-border Crime within Policy and Treaty Language The need to join forces through judicial cooperation to counteract cross-­border crimes has historically been the traditional argument justifying EU action in the criminal field. The argument is explicitly mentioned within EU policy documents, including Multi Annual Programmes and ad hoc EU criminal policy documents.50 In this context, also the specific argument of the need for harmonisation of substantive, and at a later stage procedural, criminal law to support judicial cooperation, and secondarily to prevent the creation of safe havens, is similarly mentioned.51 Furthermore, a careful look at the evolution within Treaty developments can provide some insights into the justification for EU action in criminal justice, and especially into the role for harmonisation of criminal law. Admittedly, as was stated above, competences’ definitions are meant to illustrate the static boundaries to EU action, meaning they indicate which governmental level has a right to act in which policy areas. Nevertheless, both a literal and a systemic reading of the Treaty provisions provide insights also into when the EU should exercise its harmonising competences, and thus on the dynamic dimension of the allocation of powers. In particular, one can appreciate that the EU Treaty framework limited, at least to a certain extent, the EU competence to harmonise criminal law to cross-border matters, and it arguably connected it to the goal of effective cooperation. The Maastricht Treaty generally spoke of ‘police cooperation for the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime’ as a matter of common interest for Member States, and it did not include any mention of harmonisation.52 The Amsterdam

50  See the Parliament Resolution of 11 June 2013, P7_TA(2013)0245, which provides an extensive illustration of the transnational dimension of organised crime, corruption and money laundering, and of the consequent need for a EU common approach. See also the Strockholm Program that recalls the need for further judicial cooperation when faced with cross-border crime (Stockholm Program 3.1.1), and the most recent Commission Comunication on an Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law (COM(2011) 573final), which recalls that ‘in view of the cross-border dimension of many crimes, the adoption of EU criminal law measures can help ensuring that criminals can neither hide behind borders nor abuse differences between national legal systems for criminal purposes’. 51  Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security And Justice [1999] OJ C190/1, pt 17, 18, Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security And Justice [1999] OJ C190/1, pt 17, 18. European ­Council, The Hague Program—Strengthening Freedom Security and Justice in the European Union [2005] OJ C53/1, pt 3.3.2. The same is re-stated in the Action plan implementing the Hague program, Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union [2005] OJ C198/1, pt 15. European Council, The Stockholm Programme—An open and secure Europe serving and protecting citizens [2010] C115/1, pt 3.1.1. 52  Article K.1, p 9 TEU.

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Treaty included the competence for the EU to adopt a Framework Decision harmonising substantive criminal law but it arguably justified resorting to harmonisation only to the extent that it could support judicial cooperation objectives. This claim is based on at least two arguments. Firstly, Article 31 TEU (consolidated in ­Amsterdam), which deals with judicial cooperation, lists harmonisation among the strategies for ‘common action in the field of judicial cooperation’. Secondly, within the title on the Area of Freedom Security and Justice, the strategy of judicial cooperation is mentioned as the main one and it is stated that approximation— the technical term used in the Treaty for harmonisation—should be relied upon only if necessary. Harmonisation is therefore in a clearly subordinate position. The Treaty does not specify what is meant by the expression ‘approximation should be used only if necessary’. However, the overall framework, as explained above, seems to suggest a tight link between harmonisation and cooperation. A plausible interpretation is thus that ‘necessary’ could mean instrumental to cooperation: it should be used when it is necessary to support this privileged strategy of integration. In the architecture of the Lisbon Treaty, the link between harmonisation and cooperation is attenuated, yet still present. To begin with, Article 67 TFEU, which sets the objective of building an Area of Freedom, Security and Justice, lists in paragraph 3 the various strategies or tools at the disposal of the EU for ensuring a high level of security. These tools include measures to prevent and combat crime and racism and xenophobia, measures to promote judicial and police cooperation, mutual recognition of judgments in criminal matters and, if necessary, the approximation of criminal laws. As happened with former Article 29 TEU (consolidated in Amsterdam), the Lisbon provision enumerates harmonisation among the instruments for achieving security and it lists this form of legislative intervention again at the end, imposing a ‘necessity condition’, which is not clearly further elaborated on. Harmonisation is placed in a sort of ‘default’ position with respect to judicial cooperation and mutual recognition. The content of this ‘necessity requirement’ is again not entirely clear, but it could be interpreted, in line with the relevant provision in the Amsterdam Treaty, as meaning ‘used when necessary to support cooperation’. Moreover, similarly to what happened in the Amsterdam Treaty, the specific provisions dealing with harmonisation are inserted within chapter IV devoted to judicial cooperation. Interestingly, Article 82 TFEU states that judicial cooperation shall include harmonisation of national criminal law. It appears from these institutional settings that harmonisation remains in a subordinate position with respect to judicial cooperation.53

53  Among the authors who identify a link between harmonisation and cooperation also in L ­ isbon, see Luis Arroyo Zapatero and Marta Munoz de Morales Romero, ‘Droit pénal européen et Traité de Lisbonne: le cas de l’harmonisation autonome (article 83.1 TFEU)’ in Giudicielli-Delage and ­Lazerges Christine (eds), Le Droit Pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Société de Législation Comparée 2012) 113, 127, Eliette, Rubi-Cavagna, ‘Le domaine et les methods de l’harmonisation autonome’ in Giudicielli-Delage and Lazerges Christine (eds), Le Droit Pénal de

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Then, if one looks specifically at the provisions on harmonisation, one can observe the following. In Article 82 TFEU, The Lisbon Treaty grants, for the first time, a competence to harmonise aspects of criminal procedure, including for instance rules on the rights of the defendant or rights of victims during the criminal trial. This article limits the competence of the EU to harmonise procedural rights to the extent that it facilitates judicial cooperation in cross-border matters. This provision enshrines the spill-over efficiency justification for resorting to harmonised procedural criminal law identified above. The Lisbon Treaty also maintains the competence to harmonise substantive criminal law in the field of cross-border crime. Nevertheless, in a break with the pre-existing framework, rather than including a reference to the harmonisation of substantive criminal law within the provisions on judicial cooperation, the Treaty devotes an ad hoc provision to this strategy of integration, namely Article 83 TFEU, whose first paragraph is specifically devoted to the EU competence with regard to serious and cross-border crime. Moreover, contrary to what happened with the harmonisation of procedural criminal law, Article 83 TFEU does not mention judicial cooperation or mutual recognition at all.54 This has led several authors to argue in favour of a Treaty acknowledgment of an autonomous function for harmonisation independent of cooperation, possibly the function of avoiding the creation of safe havens. This in particular is the opinion held by ­Weyembergh,55 and of Sicurella who calls the location of Article 83 TFEU in the Treaty ‘critical’,56 and of Bernardi, who thinks that the formulation of Article 82 includes harmonisation of substantive criminal law as a tool to achieve mutual recognition is just unfortunate.57 l’Union Européenne au Lendemain du Traité de Lisbonne (Société de Législation Comparée 2012) 141, 143. See also Labayle, who discusses the important links still existing within the Lisbon framework between harmonisation and mutual recognition. Henri Labayle, ‘Le Traité de Lisbonne et l’entraide repressive dans l’Union européenne’ (2007/2008) 2 Revue des Affairs Européens 209, 216. 54  One could note incidentally that the fact that harmonisation of procedural norms, granting rights to individuals, is subordinated to mutual recognition purposes, as Article 82 indicates, while the harmonisation of substantive criminal law has also an autonomous function has been considered as evidence of an illiberal approach to criminal law, where the sword function of criminal law (repress crimes) can autonomously develop, while the shield one (protect fundamental rights), is circularly subordinated to cooperation in repressing crimes. Julie Alix, Les Frontières de l’harmonisation autonome, in Geneviève Giudicielli-Delage and Christine Lazerges (eds), Le droit pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Société de Législation Comparée 2012) 147, 148. Nonetheless, this author also notes that in any case also the text containing norms of substantive criminal law sometimes also contain procedural norms, making the distinction between these forms of harmonisation somehow blurry, ibid 149. 55  Anne Weyembergh is of this opinion, Anne Weyembergh, ‘Introduction’ in Anne Weyembergh and Francesca Galli (eds), Approximation of Substantive Criminal law in the EU. The way forward ­(Éditions de l’Université de Bruxelles 2013) 9, 21. 56  Rosaria Sicurella, ‘“Prove tecniche” per una metodologia dell’esercizio delle nuove competenze concorrenti dell’Unione Europea in materia penale’ in Giovanni Grasso, Rosaria Sicurella, Lorenzo ­Piccotti (eds), L’evoluzione del diritto penale nei settori d’interesse europeo alla luce del Trattato di ­Lisbona (Giuffré 2011) 3, 38. 57  Alessandro Bernardi, ‘La competenza penale accessoria dell’Unione Europea. Problemi e Prospettive’ (2012) 1 Diritto Penale Contemporaneo 43, 44. See also Julie Tricot who considers that in the Treaty

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Remarkably, the second paragraph of Article 83 TFEU does not deal with crossborder crime and it is therefore discussed in the next paragraph. Briefly, the efficiency-based argument of ‘joint fight against cross-border crime’ is a key, long-standing one within the EU legal order. This, as is further explained in section VIII, has interesting implications for the conceptualisation of the role of the EU polity as a criminal justice actor.

B. The Fight Against ‘National Crime’ in Policy and Treaty Language: The Protection of EU Interests Next to the traditional rationale of the joint fight against cross-border crime, the EU legal order has also granted some space to the other two potentially efficiencybased rationales for EU action in the criminal field, which do not depend on the transnational aspects of the criminal activity. They are discussed in turn, in this and the following paragraph. Admittedly, policy documents have not included a discussion on whether the protection of the EU’s interests, broadly speaking, can represent a valid justification for EU action in criminal justice, nor are there any ad hoc provisions within the Treaty that provide some insights in this respect. One has to look at the specific sectorial discussion on the EU legitimacy to use criminal law to protect its own financial interests. Interestingly enough, the protection of the EU’s financial interests was one of the first fields in which the EU legislated by drawing on criminal law instruments.58 However, an elaborate discussion on why the EU should legislate in this field can be found in the recent Proposal for a directive on the protection of the EU’s financial interests by means of criminal law. The preamble to the proposal

of Lisbon there has been a reversal of perspective and that now autonomous harmonisation aimed at protecting certain values is on the forefront of the European project in criminal matters. Julie T ­ ricot, ‘L’harmonisation pénale accessoire: question(s) de method: observations sur l’art et la manière de légiférer pénalement selon l’Union Européenne’ in Geneviève Giudicielli-Delage and Christine L ­ azerges (eds), Le droit pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Société de Législation Comparée 2012) 185, 190. See also, Julie Alix who stresses the role given by the Treaty to harmonisation of substantive criminal law as only instrumental to the greater objective of the Area of Freedom Security and Justice and not merely instrumental to cooperation, and who claims that the same should go for harmonisation of procedural criminal law. If the latter is only considered as instrumental to cooperation and not aimed at the independent goal of protecting individuals there is risk of a drift in a direction too security-centered. Julie Alix, ‘Les Frontières de l’harmonisation autonome’ in Geneviève GiudicielliDelage and Christine Lazerges (eds), Le droit pénal de l’Union Européenne au Lendemain du Traité de Lisbonne (Société de Législation Comparée 2012) 147, 148. 58  Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, [1997] OJ C195/2, Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests [1995] OJ C316/49.

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mentions the traditional, efficiency-based rationale directly linked to the alleged transnational character of the crimes at stake.59 However, firstly, one should note that at least some of the case studies mentioned in the Impact Assessment show a focus of the Commission also on non-cross-border crimes, which already weakens the effectiveness-based judicial cooperation rationale for harmonisation.60 ­Secondly, the Commission also mentions at least two other interlinked rationales for EU action that do not arise from the transnational features of the crimes at stake: the inherent supranational nature of the interests at stake and the fact that what is involved is the credibility of the EU.61 These two arguments would also justify the repression of the targeted conduct even if the nature of the crime were not cross-border at all. More in detail, the Commission explains the specific supranational nature of the EU financial interests and states that protection of these is in the interests of solidarity at Union level, which is different from the sum of the Member States’ national financial interests, and that they are, by nature and from the start, placed at Union level.62 This alone justifies EU action, because Member States would have no inclination to act on types of conduct which do not affect their own interests. Concerning the need to ensure the credibility of the Union’s institutions, bodies, offices and agencies, the Commission recalls that Article 325(4) TFEU sets the objective of ensuring equivalent protection for the EU’s financial interests and that only such equivalence can ensure the credibility of the EU. It is interesting to note that the credibility of the EU alone is elevated to the rank of interest worthy of protection by the criminal law, which, incidentally, Member States have no interest in safeguarding. Remarkably, the importance of safeguarding EU credibility is also strengthened by the Parliament’s amendments.63 As was anticipated, the justifications for EU action by means of criminal law in the context of the protection of its financial interests are performance, efficiencybased, but stemming from a normative rationale. The Commission itself acknowledges that the EU would be comparatively better performing because it cares more about the interests at stake.

59  See Recital 14 of the proposed text. Proposal for a Directive of the European Parliament and the Council on the protection of the Union’s financial interests by means of criminal law COM(2012) 363 final. 60  Commission Impact Assessment (Part I) Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the protection of the financial interests of the ­European Union by criminal law, SWD(2012) 195 final, pp 15, 18, 19, 21, 24. 61  Commission Impact Assessment (Part I) Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the protection of the financial interests of the ­European Union by criminal law, SWD(2012) 195 final, p 28. 62  Commission Impact Assessment (Part I) Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the protection of the financial interests of the ­European Union by criminal law, SWD(2012) 195 final, p 27. 63  See amendment no 46 in the European Parliament Draft Report, 2012/0193(COD).

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C. The Fight Against ‘National Crime’ in Policy and Treaty Language: The Enforcement of EU Policies The argument about the need for EU criminal law in order to secure centralised enforcement of EU policies did not feature among the initial key rationales for EU intervention in this field, and it was only acknowledged at a later stage. Admittedly, for a significant amount of time, the debate on the soundness of this rationale for EU action in criminal matters did not pertain to the aspect of the dynamic allocation of power, but rather to that of the static allocation of powers. In other words, it was not even certain that the EU had the competence to enact criminal norms for the sake of ensuring the effectiveness of EU policies. The Commission has had this aspect on the agenda since the early 1990s, but it has been routinely opposed by the Council.64 It was not until 2005 that the Court of Justice clarified that EU primary law allowed the EU to draw on criminal law to secure the enforcement of its policies. In 2009 the Treaty of Lisbon then codified such a competence in Article 83(2) TFEU. This shifted the focus from the static dimension (competence definition) to the dynamic dimension (right to exercise these competences in compliance with the principle of subsidiarity). So, granted that the EU has this competence, when is it justified to use it? So far, there has not been a thorough discussion at the official level on how to understand subsidiarity specifically in this context. The EU institutions have enacted ad hoc policy documents, which were meant to illustrate, among other aspects, the justifications for drawing on EU action to enforce EU policies. These are, respectively, the 2009 Council Conclusions on model provisions for criminal law,65 the 2011 Commission Communication of an EU Criminal Policy66 and the 2012 Parliament Resolution on an EU approach to criminal law.67 Each of these documents strongly underlines the need to respect subsidiarity when exercising the competence established in Article 83 TFEU and, in particular, by ­Article 83(2) TFEU, especially in light of the particular sensitivity of criminal law.68 This ­confirms the need for a double subsidiarity test—which was referred to in the

64  On the various attempts of the Commission to introduce criminal law in the first pillar to enforce EU policies, see largely John AE Vervaele, ‘Harmonised Union policies and the harmonisation of substantive criminal law’ in Anne Weyembergh and Francesca Galli (eds), Approximation of Substantive Criminal law in the EU. The way forward (Éditions de l’Université de Bruxelles 2013) 43. 65  Council of the European Union, Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, JHA Council, 30 November 2009, published in Anne Weyembergh and Francesca Galli (eds), Approximation of Substantive Criminal law in the EU. The way forward, (Éditions de l’Université de Bruxelles, 2013) 226. 66  European Commission, ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, COM(2011) 573 final. 67 European Parliament, Resolution of 22 May 2012 on an EU approach to criminal law, P7_TA(2012)0208. 68  Council Conclusions (n 65 above), p 2, Commission Communication, p 6, European Parliament Resolution (n 67 above), pt 1.

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previous section—one to assess the need for EU intervention in the substantive policy area and one concerning the justification for harmonised criminal sanctions. Nevertheless, no specific institution provides particular details on how this second subsidiarity test should be carried out, namely on when one must consider EU harmonised criminal law enforcement justified. The Council puts a lot of emphasis on the criteria that should justify drawing on criminal law as opposed to other less intrusive means of regulation, such as administrative or civil law. It thus elaborates in particular on the proportionality dimension.69 Conversely, it does not provide any specific indications of the reasons that should justify resorting to EU (criminal) law as opposed to national (criminal) law, namely the subsidiarity dimension. The Parliament recalls the need to connect harmonisation to judicial cooperation, which, however, as was mentioned, refers to the harmonisation of cross-­ border crime.70 Similarly to the Council, the Parliament also details some criteria on when to choose between criminal law and other regulatory instruments.71 Yet, it does not elaborate on specific criteria for the choice between national and supranational regulation. Finally, the Commission’s Communication of 2011, which was specifically designed with the aim of detailing when the exercise of Article 83(2) TFEU is justified, does not provide much insight on the subsidiarity aspect either. The introduction to the Communication provides some general considerations on what is the added value of EU criminal law. These include the arguments mentioned in the context of the fight against cross-border crime, namely the creation of a climate of mutual trust, which can facilitate mutual recognition, and the prevention of the creation of safe havens. It then re-states what one can already read in Article 83(2) TFEU, namely that EU criminal law helps reinforce EU policies. Finally, it generally refers to the potential of EU criminal law to foster EU citizens’ confidence in their right to free movement.72 In the course of the 2011 document, the Commission then includes some, admittedly quite general, discussions on how should the principle of subsidiarity apply when EU criminal law is used to enforce EU policies. In particular, it insists on the fact that the need for EU action should be substantiated on the basis of clear and factual evidence and that the key question should be whether a diverging legal situation in all Member States could jeopardise the effective enforcement of an EU policy subject to harmonisation. Particular attention should be devoted to the situation in which differences amongst the Member States lead to an inconsistent application of EU rules.73 This discussion on the principle of subsidiarity is not particularly elaborated but it does tell us that, predictably, the focus is on the

69 

Council Conclusions (n 65 above), p 2. European Parliament Resolution (n 67 above), pt 7. Ibid, pt 3. 72  Commission Communication, p 2. 73  Ibid, p 8. 70  71 

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effective achievement of the final goal, namely the enforcement of the policy, as opposed to a normative dimension, namely the relevance of the protected interest. By comparison, an alternative, more normatively inspired, justification for resorting to EU criminal law in this context might have been that the interests protected by the relevant EU policy are particularly important for the EU polity and as such deserve to be protected via the criminal law in each Member State, for symbolic purposes, regardless of the actual effectiveness of the single national regime. This paragraph concludes the discussion on the weight of the various efficiencybased rationales for EU action in the criminal justice systems. The aim was to illustrate how the efficiency-based subsidiarity principle is translated into the field of criminal justice. It was shown that the policy discourse on EU criminal law and the wording and the structure of the Treaty grant important weight to the ‘fight cross-border crime’ argument and secondarily to the limited higher efficiency of the EU in fighting ‘national crime’. The next section nonetheless shows that not all EU legislative developments have been guided by this efficiency-based rationale, but conversely, and on more than one occasion, normative considerations have been determining factors.

VII.  Subsidiarity and EU Criminal Law: The Normative Dimension in Legislative Texts From the entry into force of the Treaty of Maastricht up until now, an impressive number of EU legislative instruments dealing with criminal law have been adopted, including conventions, framework decisions and directives. These have included instruments regulating cooperation among Member States as well as instruments harmonising substantive and procedural criminal law.74 The first sort of instruments can naturally be justified on the traditional efficiency-based need to fight cross-border crime jointly. Conversely, the justifications for harmonisation of national criminal law were more diversified and are as a consequence more interesting to look at, when investigating the envisaged role of the EU polity in the criminal justice field. The next two paragraphs illustrate how normative

74  For an analysis of the alternation of the two strategies of integration, harmonisation and mutual recognition, and for the balance between the two see the ‘croniques du droit de l’Union Européenne’ by Stefano Manacorda in the Revue de Science Criminelle et de Droit Comparé. See in particular, Stefano Manacorda, ‘La consolidation de l’Espace de Liberté Securité et Justice: vers une mise à l’écart du rapprochement pénal?’ (2007) Revue de Science Criminelle et de Droit Comparé 890. Stefano Manacorda, ‘La mutation “à droit constant” du Troisième Pilier: renforcement et élargissement de la cooperation’ (2008) Revue de science criminelle et de droit comparé 995, Stefano Manacorda, ‘Un bilan des dynamiques d’intégration pénale à l’aube du traité de Lisbonne’ (2009) Revue de Science Criminelle et de Droit Pénal Comparé 927, Stefano Manacorda, ‘L’age de la Maturité: stabilisation et traits conservateurs dans la politique pénale de l’Union Européenne’ (2012) Revue de Science Criminelle et de Droit Pénal Comparé 931.

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c­ onsiderations have played a role in instruments harmonising substantive criminal law and procedural criminal law respectively.

A. The Normative Dimension Within the Harmonisation of Substantive Criminal Law The areas of crime in which the EU has legislated so far are for the most part actually, or potentially, very ‘cross-border’. Let us think about trafficking in human beings, which often implies transfer of victims from one country to another where they are exploited,75 or cybercrime, which is rendered transnational by the borderless nature of the internet.76 It is easy to see how the efficiency-based argument related to the support of judicial cooperation works in this context. Nevertheless, upon a closer look, it is interesting to see that, at least in some cases, the justification for single policy choices has not consisted very much on the cross-border dimension of the relevant areas of crime and on the interconnected efficiencybased judicial cooperation argument. Conversely, what one can deduce from the legislative history of some texts is that the EU acted mainly because of normative considerations, namely because of the importance of the interests at stake, which arguably deserved criminal law protection. It has already been pointed out that the proposed directive on the protection of the financial interests of the EU is an example of a legislative instrument where efficiency considerations are predicated on normative considerations. In other words, the comparative advantage of the EU in regulating a policy area that Member States are unwilling to address stems from the specific supranational dimension of the interests to be regulated. This can be considered a hybrid, efficiency-normative justification. Next to this example, there have been hypotheses in which a normative consideration even worked as stand-alone justification, for EU legislation. The Framework Decision on racism and xenophobia and, to a certain extent, also the Framework Decision on terrorism provide examples of legislation where the EU arguably did not act to correct Member States’ inefficiencies but rather because it considered that the relevant interests deserved protection throughout Europe. The 2008/913/JHA Framework Decision on racism and xenophobia targets two sorts of conduct: hate speech (Article 1(1)(a) and (b)), and the behaviour of ‘denialism’ (Article 1(1)(c) and (d)). The latter is to be understood as publicly condoning, denying or grossly trivialising heinous crimes, whose historical truth, and widespread harmful character is uncontested.

75  See the discussion on the cross-border nature of trafficking in human beings in the Strasbourg Court case Rantsev v Cyprus and Russia, Application No 25965/04 (ECtHR 7 January 2010). 76  See the discussion on cybercrime as a borderless form of crime in the 2012 Commission Communication ‘Tackling Crime in our Digital Age: Establishing a European Cybercrime Centre’, COM(2012) 140 final, p 2.

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At first sight, by reading the preamble to the Framework Decision, the rationale for the adoption of this instrument criminalising these types of conduct seems to be the traditional ‘collective action problem’ described above. Assuming that the crimes at stake have a cross-border dimension and thus cannot be fought by Member States alone and require interstate judicial cooperation, the preamble of the Framework Decision recalls the fact that diverging definitions of offences can represent an obstacle to such judicial cooperation and therefore further approximation is needed.77 Obviously, the supranational level is more efficient in providing such harmonisation and hence the justification for the EU to act. Nevertheless, there are few elements that point to the fact that the rationale for the EU’s adopting the text was not effectiveness-based (supporting judicial cooperation) but rather normative (ensuring that harmful types of conduct are prohibited across Europe and making a point that the EU as a community rejects racism and xenophobia). Firstly, admittedly, racist and xenophobic speech can, and actually does, spread through the internet, which is naturally borderless, and thus can spread transnationally. As a consequence, judicial cooperation might be actually necessary to fight these sorts of crimes. However, in the FD’s preparatory documents, the EU institutions do not extensively focus on this aspect. Conversely, when discussing the spread of racist speech in cyberspace, the Commission in particular only mentions relevant websites outside the EU. Moreover, within the text of the Framework Decision, there is only one reference to the internet, and Member States are requested to extend their jurisdiction to cases where the conduct is committed through an information system (Article 9(2) FD), implying that the FD similarly and primarily targeted offline cases, which do not necessarily include an evident transnational dimension. This arguably suggests that the focus of the drafters of the Framework Decision was not necessarily on cross-border cases which occur through the cyberspace, and thus the focus was not on supporting cooperation. Secondly, before the adoption of the Framework Decision, Member States admittedly might have encountered difficulties in cooperating in the field due to divergent legislation. This was particularly relevant because judicial cooperation instruments required that the cooperating state had similar criminalisation provisions for racism and xenophobia in order for cooperation to be established (ie they included the ‘double criminality’ requirement). A joint action was adopted in 1996 (Joint Action 96/443/JHA), which envisaged two alternative options for efficiently tackling racist and xenophobic speech when it occurred in a transnational form. The first was to modify the EU conventions on mutual legal assistance, eliminating the double criminality requirements. The second option was to adopt texts harmonising the definition of crimes across Europe, thus ensuring

77  Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55, Recital 12.

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that all Member States had similar legislation and that the double criminality requirement could be met. By the time the Framework Decision on racism and xenophobia was adopted, the main judicial cooperation instruments had already eliminated the double criminality requirement, thus favouring the first option envisaged by the Joint Action (eg see the 2002/584/JHA European Arrest Warrant Framework Decision). Thus cooperation could work even without harmonisation of definitions of the crimes. Yet the EU still adopted harmonising legislation in the form of the Framework Decision on racism and xenophobia. This might lead one to think that facilitating cooperation in the fight against cross-border crime was not the primary goal of this Framework Decision. Thirdly, one can observe that the way the offences were designed is a rather watertight compromise unlikely to lead to much impact in terms of harmonisation, especially considering that Framework Decisions grant Member States quite a lot of freedom in the required degree of harmonisation for one of the most contentious aspects of racist speech—holocaust denial.78 If the Framework ­Decision is not actually able to bring national legislation together then the final goal of creating a level playing-field to facilitate cooperation is doomed to fail. In the light of these factors, scholars have argued that the reason for the adoption of the text was not to harmonise legislation in the field to support cooperation, but it was rather the EU’s desire to express its moral position on a particularly important subject. It is argued that, while Member States might or might not have been able to counteract the spread of racist and xenophobic speech on their own without having recourse to harmonised legislation, the EU felt the need to legislate in the field to ensure that types of conduct which it considered harmful are repressed throughout Europe and in order to reaffirm its identity as a community where racism and xenophobia are not tolerated.79 This is arguably an example of a text where normative reasons rather than efficiency-based ones played a considerable role in justifying EU action. Similar arguments can be raised in the context of the EU legislation on terrorism. The EU introduced legislation containing a definition of terrorism for the first time in 2002. It subsequently amended it in 2008 and most recently, in 2015, a Directive was proposed in order to repeal the pre-existing legal framework.80 Interestingly enough, the pre-existing international legal framework constituted

78  On the subject of criminalisation of holocaust denial and especially on the Framework Decision approach, see Paolo Lobba, ‘Punishing denialism Beyond Holocaust Denial: EU Framework Decision 2008/913/JHA and other expansive trends’ (2014) 5 New Journal of European Law 58. 79  Jenia Iontcheva Turner, ‘The Expressive Dimension of EU Criminal Law’, SMU Dedman School of Law Legal Studies Research Paper No 99: http://ssrn.com/abstract=1980295, accessed 20 September 2016, 17, Fletcher et al, EU Criminal Law and Justice, n 41 above, 2009. 80 Council Framework Decision 2002/475/JHA on combating terrorism, Council Framework ­Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on ­combating terrorism, Commission Proposal for a Directive on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism COM/2015/0625 final.

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by the Council of Europe and UN conventions did not include a definition of what generally constitutes a terrorist offence but rather referred to a list of crimes.81 The EU texts conversely introduced an unprecedented general definition. Terrorism is referred to as the commission of a number of harmful behaviours (eg attacks on a person’s life or physical integrity, kidnapping or hostage taking) when committed with specific aims, namely, seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.82 What is interesting about this newly introduced EU definition of terrorism is that the actual harmful behaviours (the objective element) were most likely already criminalised as such in at least a good number of the Member States.83 What the Framework Decision did is to re-define these offences and attach to them arguably higher sanctions, in light of the aims with which these were carried out. The interesting and innovative element of the decision is therefore the subjective one. In this context, it seems unlikely that there were a great number of safe havens where the relevant behaviours would go fully unpunished, which the Framework Decision aimed to eradicate by introducing a harmonised definition of crimes, or that cooperation was hindered by the lack of substantive criminal law legislation.84 Conversely, one might infer that the Council was determined to adopt a new definition of crimes because it considered that the relevant behaviours were more despicable if committed with terrorist intent, and thus deserved higher punishment.85 In other words, it seems that the supranational level in this context embarked on a normative judgement exercise, assessing that some specific motives deserved greater punishment, a normative judgement that Member States would have nonetheless been capable of carrying out themselves. In this sense, one

81  For an overview of the International Law definitions see Cian Murphy, EU Counter-Terrorism Law (Hart 2015) 52–53. 82  Article 1 of the 2002/475/JHA Framework Decision. 83  See nonetheless the observations in Murphy as to the diverse criminalisation in Member States of the various objective elements of the terrorism definition, Murphy, n 81 above, p 56. 84  Remarkably, even if the objective of the Framework Decision had been that of ensuring that all Member States had very similar definition of terrorism so as to ensure perfectly smooth cooperation, Murphy argues that this is not achieved in practice, because of the rather poor implementation of the text. Moreover, he recalls that in any case one of the most relevant counter-terrorism instruments, the European Arrest Warrant, does not refer to EU legislation on terrorism, and nor do the EU and the UN regimes on anti-terrorist sanctions. The two legal frameworks actually still refer to terrorist offences as defined in national law, thus attenuating the link between judicial cooperation and harmonisation. Murphy, n 81 above, p 77. 85  Interestingly, Murphy elaborates even further on the reasoning which has led to the adoption of the Framework Decision, and he identifies the reason for the adoption of the instrument as the determination to define the scope of application of some far-reaching investigative powers, thus with preventive purposes. Murphy, n 81 above, p 54.

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could see a similarity with the Framework Decision on racism and xenophobia, namely that what justified EU action was not the comparative advantage of the supranational level, but rather its determination to set a normative standard. To use Kumm’s terms, rather than putting the focus on the collective action problem that Member States were trying to address, in both cases, racism and x­ enophobia and terrorism, the EU seemed to have made a judgement on the wisdom of Member States’ policies and to have acted accordingly.

B. The Normative Dimension Within the Harmonisation of Procedural Criminal Law As was mentioned in section V above, the efficiency-based rationale for harmonisation of procedural criminal law is enshrined in the Treaty. Article 82(2) TFEU grants the competence to the EU to harmonise criminal procedural norms, namely norms regulating how criminal trials take place, but only to the extent that it is necessary ‘to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’ (emphasis added) and it lists the areas where the EU has the competence to act, namely: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime. Nevertheless, and, interestingly enough, the EU has adopted, on the basis of this legal basis, harmonising legislation that also touches upon non-cross-border matters. Rather than relying on efficiency-based grounds (the EU comparative advantage in regulating the matter), supranational intervention can be and has been justified in these cases on the basis of normative interests. This paragraph discusses in detail the case of the Victims’ Rights Directive, with the understanding nonetheless that similar observations could be advanced to other instruments harmonising procedural rights with a similar scope of application, such as for instance the Directive on the right to information.86 The Directive harmonising the rights of victims in criminal proceedings was adopted in 2012. Remarkably, both the recitals and the text of the Directive clarify that the rights set out in this Directive are not made conditional on the victim’s residence status in their territory or on the victim’s citizenship or nationality.87 This wording has been interpreted as extending the scope of the Directive both to

86  The EU has so far adopted five directives on the basis of Article 82(2) TFEU, the Directive on victims’ rights (2012/29/EU), the Directive on the right of interpretation and translation (Directive 2010/64/EU), the Directives on the right to information (2012/13/EU), and right to access to a lawyer (2013/48/EU), and a Directive on the presumption of innocence (2016/343/EU). There have then been proposals for directives on the safeguards for children suspected and accused in criminal proceedings (COM/2013/0822 final), and on the right to legal aid (COM/2013/0824 final). 87  This can be deduced from Recital 10, Article 1(1) and Article 2 of the Directive.

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cross-border and national victims, namely victims who are resident in the country where the trial takes place and who have been victimised in a case of non-crossborder crime.88 According to the Commission’s proposal, the EU’s intervention in the field is justified on three grounds: (i) the rising cross-border dimension of the victimisation phenomenon—the fact that a large number of EU citizens are victimised abroad; (ii) the fact that enjoying the same rights as at home would foster free movement of EU citizens; and finally (iii) the need to ensure that national judicial authorities are not discouraged from cooperating with one another, due to the lack of trust which might occur as a result of diverse applicable rules.89 Given that harmonisation is needed to achieve all these objectives, the EU was naturally more efficient in imposing harmonised rules than Member States acting alone. In short, the instrument seems to be justified on efficiency grounds. Yet, it was pointed out above that the effectiveness-based reasoning obviously only works for the harmonisation of the rights of individuals victimised in cross-border cases, and this requirement is also crystallised in EU primary law. This justification does not stand for national victims. Conversely, the reasons for regulating victims’ rights in general, and not only in the context of cross-border proceedings and thus judicial cooperation, are to be found in normative considerations, which the Commission itself actually acknowledges. Indeed, the Impact Assessment for the proposed directive openly states that in an Area of Freedom, Security and Justice, it is unacceptable that minimum standards on victims’ rights would fall below a certain level as established by international instruments and through European Court of Human Rights (ECtHR) case law.90 The EU is thus meant to step in, not because Member States are unable to make a judgement on what is the adequate level of protection for national victims, but because a certain standard must be ensured. In this sense, the Commission presents the Directive not so much as an instrument to correct Member State inefficiencies in addressing a collective action problem, but rather as an international human rights instrument, which is meant to complement the existing ones. One contributor has gone even further by arguing that the EU not only meant to set a general standard but also to spread a sense of justice among EU citizens stemming from the fact that each of them would enjoy the same procedural rights.91

88 

Jacob Öberg, (n 20 above), 23. Impact Assessment, accompanying the Proposal for a Directive establishing minimum standards on the rights, support and protection of victims of crime (SEC(2011) 58 final), 18–20. 90  Impact Assessment, accompanying the Proposal for a Directive establishing minimum standards on the rights, support and protection of victims of crime (SEC(2011) 58 final), 18. 91  Jacob Öberg, (n 20 above), 30. 89 

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VIII.  Subsidiarity and EU Criminal Law: What is the Envisaged Role for the EU in the Area of Criminal Justice? The previous sections have provided an analytical overview of the EU legal order approach to the allocation of power across different levels. It was explained that the main criterion, namely subsidiarity, is conceptualised as an efficiency-based criterion, and it was explained how this efficiency-based rationale unfolds in the criminal justice field. As illustrated, the EU has, however, overstepped its boundaries and adopted legislation mainly on the basis of normative considerations in some cases. This section aims to connect this analysis with the theoretical discussion carried out in section II as to the role envisaged for each governmental level following the choice of the criteria for allocating powers. In particular, it asks what role is envisaged for the EU polity as a criminal justice actor in light of the policy discourse and Treaty language, as well as of the legislative developments. In section II, it was clarified that opting for an efficiency-based criterion for justifying supranational action implies an understanding of the EU as a subsidiary governmental level where there is little space for normative choices as to what aspects of citizens’ behaviours should be regulated. This implication is well exemplified in the criminal justice field where, it was argued, subsidiarity translates chiefly into the ‘joint forces against cross-border crime’ argument. Entrusting the supranational level to step in to support Member States’ cooperation in their fight against cross-border crime implies conceptualising the EU simply as an enforcement enhancement platform. The supranational level is intended as a forum providing some regulatory support to Member States when trying to enforce their own criminal law agenda abroad and not as a normatively autonomous governance level pursuing its own criminalisation and criminal justice agenda. The main focus on judicial cooperation and the mainly instrumental understanding of harmonisation, as well as the consequent emphasis on keeping amendment of national procedural and substantive criminal law to a minimum— indispensable for securing smooth cooperation—are telling in this respect. In particular, if one sticks to the traditional and long-standing argument that harmonisation, especially of substantive criminal law, is meant to facilitate judicial cooperation, it is clear that EU intervention is only meant to attenuate the differences between existing Member States’ legislation, which are the expression of national criminalisation policies. It is not meant to carry out independent choices as to what behaviours ought to be punished throughout Europe because of their harmful character, or on the delicate balance between public interest in prosecution and the individual’s suspect’s rights. Admittedly, the ‘safe havens’ argument, which was mentioned above as potentially justifying harmonisation of cross-border crimes’ definitions, does leave some space for an autonomous supranational judgement to define which types

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of behaviour deserve criminal sanctions and which ones do not. The mere fact of referring to certain criminal justice systems as ‘safe havens’ that ought to be eliminated, rather than ‘legitimate choices of not to punish certain behaviours’ which should be respected, is the expression of a normative position on criminalisation. Nevertheless, the most likely scenario is arguably that of a few Member States maintaining particularly lenient legislation on a harmful behaviour which is otherwise considered criminal throughout all other Member States, rather than that of a controversial subject on which Member State legislation radically differs for historical or cultural reasons. It can still be said that, even when relying on the ‘safe heavens’ argument, harmonisation is actually attempting to reduce differences between existing criminal justice policies rather than pursuing an independent supranational criminal justice policy agenda.92 A comparable line of reasoning can be applied when EU criminal law is used to enforce EU policies. The overall objective of harmonised criminal law is to secure the enforcement of EU law, which arguably Member States cannot achieve by themselves. The relevant harmonisation choices on the substantive policy areas might be justified purely on efficiency grounds, namely on the need to approximate national legislation to a minimum extent so as to smoothen economic transactions (eg harmonisation on product labelling), or on the basis of the EU’s determination to set a specific normative standard in a particularly important policy area (eg environmental protection). Yet, regardless of these policy choices, the use of criminal law itself is nonetheless justified by enforcement needs, rather than by normative ones. Nevertheless, whilst a correct application of the principle of subsidiarity in the criminal field would relegate the EU governmental level to the position of being a mere platform for enforcement enhancement, the actual legislative developments have shown that the EU has not confined itself to this role. In the field of the EU’s financial interests, the EU has made autonomous normative choices as to what types of behaviour deserve public condemnation. Admittedly, in this field, such choices are also given legitimacy in light of the fact that Member States

92  Remarkably, the expression of ‘policy decisions taken at a supranational level’ is meant as opposed to ‘policy decisions taken at national level’. Nevertheless this is obviously not meant to negate the role for the single national government in the process of EU decision-making. In the pre-Lisbon framework the Council adopted Framework Decisions at unanimity; thus national governments were the most important players. However, even within the Lisbon framework, which envisages qualified majority voting in the Council and which involves the European Parliament as co-legislator, one has to consider the role for the Member State which has lobbied for the adoption of the proposal, in case it is a Member State’s initiative, and the fact that decisions might still be taken by consensus within the Council. Thus in specific cases the national and the supranational policy choices might coincide but they do not necessarily do so, and this is what is relevant in this context. On Institutional changes within the Area of Freedom Security and Justice from an intergovernmental to a ‘communitarised procedure’, especially the role for the Council, and the impact of these on the content of policies, see the study of Trauner and Ripoll Serventi. Florian Trauner and Ariadna Ripoll Serventi, Policy Change in the Area of Freedom, Security and Justice: How EU Institutions Matter (Routledge 2015).

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would be, by definition, ineffective in addressing them. Yet, in the field of racism and xenophobia and of terrorism and victims’ rights more specifically, as well as arguably procedural rights more generally, the EU has legislated following a precise normative agenda regardless of the Member States’ capacity to address the matter. The EU has claimed for itself in these contexts its own role as criminal justice actor entitled to autonomous normative policy choices. In particular, it has claimed for itself the role of a criminalisation actor and as a fundamental rights actor establishing the correct balance between the public interest in prosecution and the interests of granting rights to individuals.

IX. Conclusions This chapter has discussed the question of the allocation of powers in criminal matters between the EU and the local levels. It has pointed out that, although policy language and the structure of the Treaty envisage a limited role for the supranational governmental level, meant to act only as an enforcement enhancement platform, the EU has claimed for itself a broader role as a criminal justice actor in its own right with a precise normative agenda. Admittedly, the fact that the EU is overstretching the boundaries of its action in order to achieve substantive policy objectives, regardless of Member States’ higher or lower capacity to regulate the field, is not a phenomenon confined to the criminal justice field. Conversely, various examples exist of EU legislation where compliance with subsidiarity, as traditionally understood, has been questioned. This is the case for instance in the context of environmental protection,93 social policies,94 or as illustrated by Muir, transversally when it comes to various EU policies which have to different extents, fundamental rights implications.95 It can be argued that, as it did in the criminal justice areas in these contexts as well, the EU has followed, at least in some cases, an independent and normative agenda. However, the undertaking of a normatively independent role in the criminal field has arguably a particularly significant symbolic value for the EU. Indeed, the monopoly on the use of force and the administration of criminal justice is one of the sovereign functions of the state (jura regalia). As a consequence, acquiring competence in this policy

93  For a debate on the application of subsidiarity in environmental policies, and in particular on the case of the Zoos Directive see Wouter PJ Wils, ‘Subsidiarity and EC Environmental Policy: Taking People’s concerns seriously’ (1994) 85 Journal of Environmental Law 6. 94  See the discussion on the lack of integration rationales in EU anti-discrimination law in Fritz Scharpf, ‘Perpetual momentum: directed and unconstrained?’ (2012) 19 Journal of European Public Policy 127–39, 133. 95 Elise Muir, ‘The Fundamental Rights Implications of EU Legislation: Some Constitutional ­Challenges’ (2014) 51 Common Market Law Review 219, 241 ff.

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area and adopting autonomous policy decisions therein has a specific symbolic significance for a supranational organisation. Indeed, it might work as a legitimising factor for the EU project and move it towards being a state-like entity.96 Having observed such trends in the EU’s understanding of subsidiarity in the criminal justice field, even if the following has not been the core function of the chapter, one should also say a few words as a final concluding remark on what are the practical implications of the EU claiming for itself such a normative function. As a matter of fact, keeping a de lege lata perspective, some authors have convincingly argued that, at least in some of the cases where the EU demonstrated this normative understanding of its role, compliance with Article 5 TEU on the subsidiarity principle, in the way in which it is currently conceptualised, can probably be questioned.97 Nonetheless, on a broader de lege ferenda level, one could also wonder if the problem actually lies with EU secondary law or if one should not reconsider how EU primary law is interpreted. This is where observations of what has actually been the object of political consensus, which were mentioned in the introduction, become interesting for a lawyer. Indeed, political consensus on the side of the EU on a matter on which it lacks legislative competence, or where its competence is contested, can still be a sign that amendment is required to keep the law in line with developments in society This contribution has focused on criminal justice. However, as highlighted, the phenomenon is not confined to this policy area. In the light of these observed trends, one could wonder whether it is not the criterion for allocating powers across levels, namely the subsidiarity principle, that should actually be revised and updated to take into account a new and more encompassing understanding of the EU as a partially, normatively autonomous legal system. We have argued in a different context that the efficiency-based nature of subsidiarity is ill-suited to address allocation of powers in the criminal field, where value questions are at stake,98 and similar observations of the unsuitability of subsidiarity as a guiding principle have been advanced in the context of EU secondary law with fundamental rights implications.99 Better framing the EU’s normative ambitions at an EU primary level would prevent these legislative developments—which the EU seems in any case determined to pursue—from occurring through competence and subsidiarity creep, which ultimately harm the legitimacy of EU action.

96  The appeal of criminal law as a legitimating factor for the EU is discussed by Carlo Sotis, ‘“Criminaliser sans punir.” Reflexions sur le pouvoir d’incrimination (directe et indirecte) de l’Union européenne prévu par le traité de Lisbonne’ (2011) 4 Revue de Science criminelle et de droit pénal comparé 773. 97  Jacob Öberg (n 20 above), 27, Maria Fletcher, Robin Lööf, and Bill Gilmore, EU Criminal Law and Justice (Edward Elgar Publishing 2008) 202. 98  De Hert Paul and Wieczorek Irene, ‘Testing the Principle of Subsidiarity in EU Criminal Policy— The Omitted Exercise in the Recent EU Documents on Principles for Substantive European Criminal Law’ (2012) 3 New Journal of European Criminal Law 394. 99  Elise Muir (n 95 above), 242.

8 Challenges Facing the Academic Community: A Practitioner’s Point of View in Reaction to Irene Wieczorek’s Paper EUGENIO SELVAGGI

This short contribution is intended as a reaction to Irene Wieczorek’s chapter and is based on almost 25 years of experience. As a judge and a public prosecutor I have been involved in judicial cooperation and European community law for a long time, both in the judiciary and in leading positions within the Italian Ministry of Justice (where I was the Head of the Office for Extraditions and Mutual Legal Assistance at the Ministry of Justice) and international fora such as the Council of Europe or the G7/G8. I am also the President of EURGIT, the Italian Association for the Protection of the Financial Interests of the European Union. This helps to highlight my background. Towards the end of the 1990s I became convinced that the academic world has to make some major effort to envisage and tailor a criminal justice system to suit the situation of the European Union. I remember that I had some passionate ­discussions on this matter with Joachim Vogel, who unfortunately passed away prematurely in 2013. This is not an easy task: criminal justice represents one of the strongest expressions of national sovereignty and nation states guard their sovereignty jealously. All initiatives at the European level have struggled to find a way around this obstacle. I am referring here to the Corpus Iuris, both in its original draft1 and in its Florentine edition.2 I am also referring to initiatives such as the so-called ­Europadelikte3 and to some other initiatives.

1  M Delmas-Marty (ed), Corpus Juris, Introducing Penal provisions for the purpose of the financial interests of the European Union (Economica 1997). 2  M Delmas-Marty and JAE Vervaele (eds), The Implementation of the Corpus Juris in the Member States (Intersentia 2000). 3  About this project, see for instance K Tiedemann (ed), Wirtschaftsstrafrecht in der Europäischen Union. Rechtsdogmatik-Rechtsvergleich-Rechtspolitik. Freiburg-Symposium (Köln, Heymanns 2002).

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Because of my professional experience which I have mentioned above, I ­recommended that academics hurry up. If they do not, elsewhere, at the level of European bodies, concrete action will have been put in place due to the need to face problems of, for example, security, equality and freedom of movement in the European common area. This is exactly what happened with the European Arrest Warrant, which received a new and decisive impetus after the events of 9/11. Another example consists of the European Court’s decisions on environmental matters. All of this opens the way to overcome a taboo that has represented a fundamental principle for a long time, ie that the Communities and later the Union must not have general jurisdiction in the criminal field. History and the realities of history are overtaking the theoretical questions that the academic world is looking into. I believe that we should ask ourselves a question (this is mostly true for the ­academic world on the continent and less so for the Anglo-Saxon world): Are we sure that anything done or proposed by the European legislator has to be brought back to our traditional theoretical categories? And as a consequence, are we reluctant to accept European legislative proposals purely because they do not fit within our (traditional) categories? Or, should we not look at this issue from the opposite point of view, ie should we not follow the European legislator’s proposals, think over those categories again and possibly establish new ones? In my opinion this is the challenge facing us and especially facing the academic world. It is not an easy challenge for two reasons. The first reason is that the challenge concerns the whole academic community. As an example of such challenge, one can mention the evolution of the relationship between criminal procedural law and substantive criminal law: while criminal procedural law has been usually regarded as being a servant to substantive criminal law, criminal procedural law has now become the ‘leading’ reason for initiatives in the domain of criminal justice. Here I would cite an Italian academic, Professor Tullio Padovani, who said that criminal procedural law has progressed from being ancillary to substantive criminal law, to becoming its ‘tyrannical partner’. The second reason is related to the constitutional way in which the EU is set up. And here, the principle of subsidiarity becomes part of the story. I would like to share the distinction that Irene Wieczorek has made between ‘normative subsidiarity’ and ‘subsidiarity moved by efficiency’. This is an excellent distinction in theory, although it is difficult to implement in practice. I would like to take the Court of Justice of the European Union (CJEU) ­judgment in the Taricco case as an example.4 The European Court ruled as follows: when statutes provide for absolute limitation periods in the field of VAT evasion, they do not allow adequate protection of the Union’s financial interests. This was precisely the criticism levelled at Italian law, which provides for quite short terms

4 

Case C-105/14 Criminal proceedings against Ivo Taricco and Others ECLI:EU:C:2015:555.

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in its statute of limitations. Here, the following question needs to be answered: can we regard this decision as an invitation to generally consider that, if a ­limitation period is too short for any particular national fiscal offence, this would be against Community law in general, or against the Union’s interests in some other way? This interpretation would be in the Union’s interest, as it would mean that all other fiscal offences should be prosecuted by domestic judges according to the same principles as those set out in the Taricco judgment, which would help ensure free circulation within the Union. One argument in favour of such extensive interpretation of the judgment, potentially clashing with a strict interpretation of the principle of subsidiarity, could be that it would ensure at a national level the equality of individuals before the (criminal) law. Indeed, a contrary interpretation would mean that individuals suspected of VAT-related fraud cannot benefit from the same short limitation period as those applied to individuals suspected of other fiscal offences, thus breaching their equality before the law. This is not an easy question and deserves further reflection. Within the Council of Europe, the European Court of Human Rights held many times (I quote the Alikaj case,5 against Italy, where, in 2005, the national legislator decided to reduce the terms of limitations in the statute) that a set of rules not allowing—because of its statute of limitations—for offences to be prosecuted and for victims’ rights to be safeguarded infringes the fundamental principles enshrined in the European Convention on Human Rights (in this case the right to life). The previous comments lead me to the real challenge that we are facing: Are we ready to envisage a model of Europe which is not just the sum of all the Member States’ models in the field of criminal justice? What happened and is happening now for the European Public Prosecutor’s Office (EPPO) seems to be moving us towards a negative answer to this question. I would simply quote what Judge Ezio Perillo (a judge at the European Civil Service Tribunal) said during a Conference held in Rome in June 2015, when referring to what the EPPO appears to be turning into after lengthy negotiations: ‘An institutional monster, something that has a European façade, is intergovernmental in composition and national in substance.’ I can understand that the principle of subsidiarity is enshrined in the ­Treaties (TEU, Article 5). However, I believe that the principle of subsidiarity must be ­considered as a reasonable way to share interests in the light of the political ­construction of Europe rather than be regarded as a fortress from which to defend nation states and national interests.

5 

Alikaj and others v Italy, Application no 47357/08 (ECtHR, 29 March 2011).

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9 Stepping into Uncharted Waters No More: The Court of Justice and EU Criminal Law ADAM LAZOWSKI*

I. Introduction When the Court of Justice was created little did one know that the judicial arm of the European Steel and Coal Community would develop into a powerful ­international court, whose reach would go beyond the borders of the European Communities (now the European Union).1 Over the next six decades the ­Luxembourg-based court changed beyond recognition, putting a mark of enormous proportions on EU law and its enforcement in national courts.2 As the competences of the C ­ ommunities/Union increased, and the EU membership more than quadrupled, the Court established itself as an essential feature of the EU’s institutional landscape and, many a time, the driving force of the European integration project. Criticised and praised in equal measure, it has managed to build solid foundations for what is now the European Union legal order.3 Until the entry into force of the Treaty of Maastricht4 the judges at Kirchberg had, however, very little opportunity to venture into criminal law.5 The reason was rather self-explanatory. Until that point in time the area of law in question was not within the attributed powers transferred to the three original European

*  The author is most grateful to the editors for their comments to the early draft of this chapter. The usual disclaimer applies. 1  See, inter alia, A Rosas, E Levits, Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (Asser Press 2013). 2  See, inter alia, A Arnull, The European Union and its Court of Justice (2nd edn, Oxford University Press 2006). 3  See, inter alia, M Adams and others (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing 2013). 4  Treaty on European Union [1992] OJ C191/1. See further, inter alia, D O’Keeffe, P Twomey (eds), Legal Issues of the Treaty of Maastricht (Wiley Chancery Law 1994). 5  See, for instance, case 203/80 Criminal proceedings against Guerrino Casati, ECLI:EU:C:1981:261.

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Communities.6 It was only with the creation of three-pillar European Union that co-operation in criminal matters became an area of EU competence, although in the early years pre-dating the Treaty of Amsterdam the Court of Justice had very limited jurisdiction in this respect. In turn, the Treaty of Amsterdam7 and the Treaty of Lisbon8 equipped the Court with necessary tools to step into the emerging EU Criminal Law.9 Following the expiry of a five-year transitional period laid down in Protocol No 36 to the Founding Treaties, the Court of Justice has become a fully-fledged actor, at last empowered to perform its main function, which—in accordance with Article 19(1) TEU—is to make sure that ‘in the interpretation and application of the Treaties the law is observed’.10 One should emphasise, however, that despite its limited armoury the Court of Justice has made a firm mark on EU Criminal Law ever since it gained the jurisdiction as per Treaty of Amsterdam. This chapter aims to put under the microscope all those developments, with the aim of proving that with almost two decades of jurisprudence under its belt, the Court of Justice is no longer proceeding through uncharted waters of EU Criminal Law. At the same time, it must face a challenge, as this area of law is constantly gaining prominence. Furthermore, references from national courts demonstrate the difficulties with application of the EU acquis in the daily practice of domestic judges. This, in turn, is likely to translate into increased volume of references from national courts (Article 267 TFEU), infraction proceedings submitted by the European Commission (Articles 258 and 260 TFEU)11 as well as requests 6 See R Sicurella, ‘EU competence in criminal matters’ in V Mitsilegas, M Bergström, Th ­Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar Publishing 2016) 49–77. More on the attributed powers and division of competences see, inter alia, G Davies, ‘The post-Laeken division of competences’ (2003) 28 European Law Review 686–98; M Dougan, ‘The Convention’s draft Constitutional Treaty: bringing Europe closer to its lawyers?’ (2003) 28 European Law Review 763–93; P Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 European Law Review 323–44; T Tridimas, ‘Competence after Lisbon. The elusive search for bright lines’ in D Ashiagbor, N Countouris, I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge University Press 2012), 50–51, M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds not Hearts’ (2008) 45 Common Market Law Review 617–703; M Claes, B de Witte, ‘Competences: Codification and Contestation’ in A Łazowski, S Blockmans (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016), 46–87. 7  Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts [1997] OJ C340/1. See further, inter alia, D O’Keeffe, P Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing 1999). 8 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the ­European Community, signed at Lisbon, [2007] OJ C306/1. See further, inter alia, M Trybus, L Rubini (eds) The Treaty of Lisbon and the Future of European Law and Policy (Edward Elgar Publishing 2012); J-C Piris, The Lisbon Treaty. A Legal and Political Analysis (Cambridge University Press 2010); P Craig, The Lisbon Treaty. Law, Politics, and Treaty Reform (Oxford University Press 2010); A Biondi, P Eeckhout, S Ripley (eds), EU Law after Lisbon (Oxford University Press 2012). 9  More on the general evolution of EU Criminal Law see, inter alia, Ch. Harding, ‘EU Criminal Law under the Area of Freedom, Security, and Justice’ in A Arnull, D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press 2015), 837–66. 10 For a comprehensive overview of evolution of Court’s powers in the area in question see A Hinarejos, Judicial Control in the European Union. Reforming Jurisdiction in the Intergovernmental Pillars (Oxford University Press 2009). 11  One should also not exclude actions submitted by Member States against one another as per Article 259 TFEU.

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for judicial review brought by the parties equipped with locus standi as per Article 263 TFEU. The analysis that follows is organised in the following way. First, in section II, the author looks at the evolution of Court’s jurisdiction, with particular emphasis on the preliminary ruling procedure. In section III the analysis shifts to the way in which the Court of Justice, despite an unfavourable treaty framework, extended the landmark principles governing enforcement of EU legislation to EU Criminal Law. In the closing part (section IV) the centre of gravity moves to the interpretation of substantive provisions of EU legislation applicable in the area in question.

II.  Procedural Aspects of the Court’s Involvement in EU Criminal Law A. Introduction As indicated in the Introduction, the jurisdiction of the Court of Justice in criminal matters developed steadily over the years. This long-term process culminated on 1 December 2014 with expiry of a five-year transitional period laid down in the Treaty of Lisbon. As of that date, the Area of Freedom, Security and Justice (which comprises, inter alia, Judicial and Police Co-operation in Criminal Matters) is fully integrated into the mainstream of EU policies. This translates into full jurisdiction of the Court of Justice, comprising, in particular, infringement proceedings, the preliminary ruling procedure and the action for annulment. Since this incremental extension of the Court’s jurisdiction has had considerable influence on the ability of judges at Kirchberg to shape EU Criminal Law, it merits a closer look at how it has developed during a period spanning over two decades. It is notable that out of the three procedures listed above, the preliminary ruling modus operandi has been chiefly employed in practice. Since many times questions are raised by national courts in the course of criminal proceedings, where a person prosecuted/charged is in detention, the EU took the initiative to develop a tailor-made internal mechanism for speedy treatment of references that cannot afford to wait for a standard procedure taking, on the average, 14 months.12 Hence, the urgent preliminary ruling procedure (PPU) was invented by the Court and approved (not without problems) by the Council.13

12  See Annual Report of the Court of Justice of the European Union, available at: http://curia. europa.eu/jcms/jcms/Jo2_7000/en/. 13  See further C Barnard, ‘The PPU: Is it worth the candle? An early assessment’ (2009) 34 European Law Review 281–97; A Łazowski, ‘Towards the Reform of the Preliminary Ruling Procedure in JHA Area’ in S Braum and A Weyembergh (eds), Quel contrôle juridictionnel dans l’espace pénal européen? (Brussels 2009), 211–26.

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B. Evolution of the Court’s Jurisdiction in Criminal Matters: From Maastricht to Lisbon (i)  Treaty of Maastricht At the time of approval of the Treaty of Maastricht one thing was clear. On the one hand, the majority of Member States were ready to take a giant leap forward and to equip the newly established European Union with competences in Justice and Home Affairs. On the other hand, there was no desire to introduce the traditional supranational procedural mechanism and sources of secondary legislation known from the mainstream areas of European integration. This explains why originally in the Third Pillar, the powers of the European Commission, the European Parliament and the Court of Justice were either very limited or non-existent. Shortly after entry into force of the Treaty of Maastricht, it became abundantly clear that this newly emerging area of European integration needed a solid boost to make it more effective to face numerous challenges. The latter included, inter alia, increased immigration from the EU’s neighbouring countries, which was partly attributable to a domino effect caused by the war in the Balkans, entry into force of the Schengen Agreements and consequential lifting of border controls, as well as ineffective police and judicial co-operation in criminal matters based on the original legal framework envisaged by the Treaty of Maastricht. The end result was the Treaty of Amsterdam, which—among other things—equipped the Court of Justice with partial jurisdiction in the Third Pillar. The reforms introduced therein are analysed in the next section of this chapter.

(ii)  Partial jurisdiction under the Treaty of Amsterdam To begin with, the Treaty of Amsterdam inserted Article 35 into the EU Treaty determining the jurisdiction of the Court.14 In hindsight it is not surprising that it did not include infringement proceedings. Out of all court procedures envisaged by EU law, they remain the most supranational modus operandi, empowering the European Commission as well as the Court to engage in public enforcement of EU law. As is well known, they allow the Court of Justice to impose financial penalties on disobedient Member States.15 Bearing in mind the sensitivities associated with Police and Judicial Co-operation in Criminal Matters, the Member States had no desire to subject themselves to the external control of compliance with the

14  See, inter alia, A Albors-Llorens, ‘Changes in the Jurisdiction of the Court of Justice under the Treaty of Amsterdam’ (1998) 35 Common Market Law Review 1273–94; S Douglas-Scott, ‘The Rule of Law in the European Union: Putting the Security into the EU’s Area of Freedom, Security and Justice’ (2004) 29 European Law Review 219–42; A Hinarejos, Judicial Control in the European Union. Reforming Jurisdiction in the Intergovernmental Pillars (Oxford University Press 2009) 55–94. 15  See A Sikora, ‘Financial penalties for non-execution of judgments of the Court of Justice’ in A Łazowski, S Blockmans (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016) 324–52.

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EU acquis. As explained later in this chapter, this very factor arguably contributed to low levels of compliance with EU secondary legislation adopted in the Third Pillar. The same trepidation shared among the Member States also translated into creation of a special preliminary ruling regime tailored for the Third Pillar. It was a half-way-house model, which—on the one hand—opened a possibility for national courts to proceed with references for preliminary rulings but—on the other hand—left the decision on recognition of the jurisdiction of the Court of Justice to the political circles. Furthermore, the Treaty of Amsterdam created a tailor-made regime for verification of the validity of secondary legislation adopted in the Third Pillar.16 The special preliminary ruling regime developed for the Third Pillar references from national courts had several idiosyncrasies that merit attention at this stage of the analysis.17 To begin with, the jurisdiction of the Court of Justice was optional, and therefore subject to prior recognition by the Member States.18 Since quite a number of them opted out of such a possibility this, by default, translated into a relatively low number of references submitted for preliminary ruling as per Article 35 EU Treaty. It is notable that two of the biggest Member States, that is the United Kingdom and Poland, did not recognise the jurisdiction of the Court in the area in question until, under the terms of the Treaty of Lisbon, it became compulsory on 1 December 2014. In Poland, the recognition triggered a political and constitutional crisis, which led to a decision of the Polish Constitutional

16  For an academic appraisal see, inter alia, S Peers, ‘Salvation outside the Church: Judicial Protection in the Third Pillar After Pupino and Segi Judgments’ (2007) 44 Common Market Law Review 883–929. 17  It was heavily criticised for instance by Advocate General Mengozzi, who in his Opinion in Case C-354/04 P Gestoras Pro Amnistía, Juan Mari Olano Olano and Julen Zelarain Errasti v Council of the European Union [2007] ECR I-1579 argued the following at paras 127–129:

‘In fact, the à la carte regime of the power to give preliminary rulings under Article 35 EU is patently an inappropriate means of ensuring the uniform application of Union law by national courts. 128. In this regard, I would point out that various Member States of the Union, as is their right under Article 35 EU, have not so far accepted that jurisdiction; as I have noted above, their courts must therefore consider themselves authorised to make their own assessment of both the scope and the validity of framework decisions and decisions under Article 34 EU when necessary to decide cases before them. For that reason alone, the uniform application of Union law in the area under examination is not guaranteed, even leaving aside doubts whether these courts are bound by the preliminary rulings delivered by the Court at the request of the courts in Member States that have accepted that jurisdiction. 129. Moreover, the fact that Article 35 EU allows Member States to preclude references for preliminary rulings by courts other than those of last instance heightens the risk of a lack of uniformity in the application of Union law by national courts under Title VI of the EU Treaty, since some national cases are concluded without reaching the court of last instance.’ 18  Further limitations in terms of actions of police and law-enforcement authorities stem from the then applicable Article 35(5) TEU.

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Tribunal.19 In response to calls from the judiciary, including the Supreme Court, the Polish Parliament adopted a law authorising the Polish President to recognise the ­jurisdiction.20 However, the then Head of State requested ex ante control of compatibility of the adopted law with the Constitution. Despite a positive ruling of the Constitutional Tribunal, clearing the way for the signing of the law in question and, in consequence, recognition of jurisdiction, the then Head of State refused to proceed accordingly.21 Ultimately, Polish courts only gained the possibility to send references for preliminary ruling extending to pre-Lisbon EU Criminal Law instruments with the expiry of the transitional period laid down in the Treaty of Lisbon. As a matter of fact, not only the recognition of jurisdiction was optional but also the Member States had the discretion to limit the power to refer only to national courts from which there was no further remedy. In case of the latter, Article 35 TEU reduced it to a right to refer (from the obligation to do so, as per the standard preliminary ruling regime).22 This is worth noting for a number for reasons. Firstly, only Spain and Hungary proceeded accordingly, while other Member States that opted to equip national courts with jurisdiction to send references for preliminary ruling in the Third Pillar did so all the way, that is empowered all national courts with competence in this regard. At a later stage Hungary changed its position and, consequentially, extended jurisdiction to all national courts.23 Secondly, the wording of Article 35 TEU and the practice based on it differed from another specific preliminary ruling regime created under the Treaty of Amsterdam in Article 68 EC Treaty. The latter was also introduced to strengthen the Area of Freedom, Security and Justice but applied to the areas which were transferred from the Third Pillar to the First Pillar of the European Union.24 Unlike Article 35 TEU, Article 68 EC Treaty provided for compulsory jurisdiction of the Court of Justice to assist national courts as per the preliminary ruling procedure. However, the power of national courts to proceed with references was limited only to courts from which there was no further remedy.25 19  Polish Constitutional Tribunal, Case Kp 3/08, Re Conformity of the Act authorizing the P ­ resident to Recognize the Jurisdiction of ECJ pursuant to Article 35 TEU with the Constitution, judgment of 18 February 2009. 20  Ustawa z dnia 10 lipca 2008 r. o upoważnieniu Prezydenta Rzeczypospolitej Polskiej do złożenia oświadczenia o uznaniu właściwości Trybunału Sprawiedliwości Wspólnot Europejskich na podstawie art 35 ust 2 Traktatu o Unii Europejskiej, Dz U 2009, Nr 33, Item 253. 21  See further A Łazowski, ‘Half Full and Half Empty Glass: the Application of EU Law in Poland (2004–2010)’ (2011) 48 Common Market Law Review 503–53, at 520–21. 22  However, there was nothing stopping the Member States from providing an obligation in this regard. See Declaration (No 10) on Article 35 (formerly Article K.7) of the Treaty on European Union (annexed to the Amsterdam Final Act) [1992] OJ C 191/1. 23  See Jurisdiction of the Court of Justice to give preliminary rulings on police and judicial cooperation in criminal matters, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/ 2008-09/art35_2008-09-25_17-37-4_434.pdf. 24  This became known as Chapter IV of EC Treaty comprising Judicial Co-operation in Civil Matters as well as Visas, Asylum and Immigration. 25  See, inter alia, A Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’ in D O’Keeffe, P Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing 1999) 109–21.

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In contrast to Article 35 TEU, these courts had the obligation to refer, should answers from the Court of Justice be needed to adjudicate in a domestic case. Another interesting issue was the scope of references allowed per Article 35 TEU. In order to clip the wings of the Court of Justice the drafters of Treaty of ­Amsterdam limited the jurisdiction of the Court of Justice to references on interpretation as well as the validity of framework decisions and decisions, alongside interpretation of Third Pillar conventions and interpretation and validity of ­measures implementing them. As long as the early references submitted in accordance with Article 35 TEU were dealing with interpretation of these legal acts, this issue was not raising major concerns. However, with Case C-355/04P Segi, a question was raised whether common positions, which were also listed in Article 34 TEU as legal acts available to the EU in the Third Pillar, could fall under the Court’s j­urisdiction.26 Furthermore, with the arrival of the first reference requesting ­verification of the validity of EU secondary legislation, the lack of jurisdiction to interpret EU Treaty itself came to the fore. This happened in Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad.27 It has not come as a surprise that in the first case the Court of Justice opted for a functional interpretation of Article 35 TEU and ruled that common positions that produce effects vis-à-vis third parties fell within its jurisdiction.28 In the second case, in a similarly functional fashion, the Court held that in order to rule on the validity of secondary legislation it had no choice but to interpret the TEU provisions that the legislator had employed as a legal basis.29

C.  Full Jurisdiction under the Treaty of Lisbon Following the ill-fated attempt at adoption of the EU Constitution30 it was the Treaty of Lisbon that provided for a plethora of changes to the institutional system of the European Union, affecting also the area of our interest.31 Although it did not directly target the Court of Justice (unlike its predecessor, the Treaty of Nice) several reforms of the European Communities and the European Union provided therein have affected the jurisdiction of the Court. In particular, the a­ bolition 26  Case C-355/04 P Segi, Araitz Zubimendi Izaga and Aritza Galarraga v Council of the European Union, ECLI:EU:C:2007:116. 27  Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad, ECLI:EU:C:2007:261. 28  See S Peers, ‘Salvation outside the Church: Judicial Protection in the Third Pillar After Pupino and Segi Judgments’ (2007) 44 Common Market Law Review 883–929. 29  E Herlin-Karnell, ‘In the wake of Pupino: Advocaten voor der Wereld and Dell’Orto’ (2007) 8 German Law Journal 1147–60; P O’Reilly, ‘The Exit of the Elephant from the European Arrest ­Warrant Parlour’ (2007) 2 Journal of European Criminal Law 472–81. See also case notes by Ch J­ anssens (2007–2008) 14 Columbia Journal of European Law 169–87 and F Geyer (2008) 4 EuConst 149–61. 30  See Treaty establishing a Constitution for Europe [2004] OJ C 310/1. On its potential impact on EU Criminal Law see, inter alia, M Kaiafa-Gbandi, ‘The Treaty Establishing a Constitution for Europe and Challenges for Criminal Law at the Commencement of 21st Century’ (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 483–514. 31  See, inter alia, V Mitsilegas, EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe (Hart Publishing 2016).

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of the Three Pillar structure led to incorporation of the Police and Judicial Co-operation in Criminal Matters area into the mainstream of the European Integration.32 This translated into the disappearance of Article 68 EC Treaty and Article 35 EU Treaty, which as explained above, were lex specialis to the generally applicable preliminary ruling and judicial review regimes laid down in the EC Treaty. The treaty drafters decided, however, to proceed in increments. To begin with, the standard procedures (infringement proceedings, action for annulment and preliminary ruling) started to apply as of the entry into force of the Treaty of Lisbon (1 December 2009) but only in relation to EU Criminal Law legislation adopted after that date. At the same time the phasing out of the special preliminary ruling regime based on Article 35 TEU for old acts was postponed until the end of the five-year transitional period laid down in Protocol No 36 to the Treaties. This translated into the Court’s continued optional jurisdiction on preliminary rulings and no jurisdiction to deal with infringement proceedings in relation to pre-Lisbon legislation. As planned, this transitional period expired on 1 ­December 2014 and as of that date the Court holds full jurisdiction, both in relation to pre- and post-Lisbon EU Criminal Law. This, however, is subject to the exception laid down in Article 276 TFEU.33

III.  Enforcement of EU Criminal Law at the National Level A. Introduction The foundational tenets of EU law are so well known that they warrant no ­thorough rehearsal. A brief reminder is only fitting that, in accordance with the jurisprudence of the Court of Justice, EU law—when applied at the national level—benefits from the doctrines of primacy, and direct and indirect effect.34

32  See C Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon. A New Dimension for the Community Method’ (2008) 4 EuConst 20–40. 33  In accordance with this provision: ‘In exercising its powers regarding the provisions of Chapters 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.’ 34  See, inter alia, B de Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in P Craig, G de Búrca, The Evolution of EU Law (2nd edn Oxford University Press 2011) 323–62; D Leczykiewicz, ‘Effectiveness of EU Law before National Courts: Direct Effect, Effective Judicial Protection, and State Liability’ in A Arnull, D Chalmers, The Oxford Handbook of European Union Law (Oxford University Press 2015) 212–48; A Capik, ‘Five Decades since Van Gend en Loos and Costa came to town: primacy, direct and indirect effect revisited’ in A Łazowski, S Blockmans (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016) 379–420.

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Furthermore, the Member States of the European Union may be liable in tort, should sufficiently serious breaches of EU law be attributable to national authorities, including domestic courts.35 However, when the foundations for EU Criminal Law were being laid down in 1990s the Member States took steps to make sure that the principles in question were not fully extended by the Court of Justice to this newly emerging area of integration. There is no doubt that this was exactly the raison d’être behind the decision to exclude the jurisdiction of the Court of Justice, and then to provide it but to a limited degree, respectively, under the terms of the Treaty of Maastricht and the Treaty of Amsterdam. In equal measure, it was the reason why the drafters of the Treaty of Amsterdam inserted into a definition of framework decisions a clause precluding their direct effect. However, it was just a question of time before national courts from the Member States—which recognised the jurisdiction of the Court of Justice as per former Article 35 TEU— would start sending references for preliminary ruling requesting clarification on how the legal instruments governing EU criminal law were supposed to be applied domestically.36 It is important to note that Article 34 TEU, which provided for a catalogue of sources of secondary legislation available to the EU legislator, did not specify the relationship between different instruments; nor did it provide special rules governing the choices between different categories of legal acts to be made by the EU legislator. Hence the European Commission and the Council proceeded in accordance with principles developed in relation to the First Pillar of the European Union. The most often used legal instruments were framework decisions, while conventions which had dominated the previous system, were slowly being phased out. In hindsight, it is hardly surprising, bearing in mind that from the suite of legal acts at the disposal of the Council, framework decisions had potential to serve very effectively. This raised a major constitutional issue as to the room for manoeuvre available to the EU legislator when choosing the type of a legal act from the catalogue listed in Article 34 TEU. Not surprisingly this matter reached the Court of Justice not long after adoption of the Framework Decision on the European Arrest Warrant37 in Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad.38 Responding to a reference for preliminary ruling submitted by Arbitragehof from Belgium, the Court of Justice ruled that the EU law-makers had the competence to replace the existing system of extradition conventions with a 35  See, inter alia, K Gutman, ‘Liability for breach of EU law by the Union, Member States and individuals: damages, enforcement and effective judicial protection’ in A Łazowski, S Blockmans (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016) 441–74. 36  For an excellent overview of the academic debate in this respect see A Hinarejos, Judicial Control in the European Union. Reforming Jurisdiction in the Intergovernmental Pillars (Oxford University Press 2009) 16–55. 37  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. For an academic appraisal see, inter alia, R Blekxtoon, W van Ballegooij (eds), Handbook on the European Arrest Warrant (Asser Press 2005); N Keizer and E van Sliedregt (eds), The European Arrest Warrant in Practice (Asser Press 2009). 38  Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad ECLI:EU:C:2007:261.

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framework decision. The latter was, allegedly, a much stronger instrument than conventions, which always required ratification by the Member States.39 Bearing this in mind, framework decisions, in particular their legal character, merit closer attention. To begin with, the definition of framework decisions, provided in Article 34 TEU, was largely modelled on the definition of directives laid down in the then Article 249 TEU (now Article 288 TFEU).40 Framework decisions were binding on the Member States as to the aims to be achieved and always required transposition into national laws.41 At the same time, however, an important difference between framework decisions and directives remained. Unlike the latter, the former could not produce direct effect.42 This stemmed from the unequivocally drafted Article 34 TEU. It was nothing but a paradox in a number of respects. Firstly, it ran contrary to the raison d’être of the Amsterdam reform, which aimed at strengthening of the Third Pillar of the European Union. On the one hand, the addition of a new and stronger instrument to the catalogue of available sources of law was definitely achieving that aim. On the other hand, an explicit exclusion of direct effect ran in the opposite direction and undermined the effectiveness of EU law in this area. Secondly, it was the first and only time where the landmark doctrine of direct effect was explicitly mentioned in the EU Founding Treaties. The said paradox lies in the fact that neither the Treaty establishing the European Community, nor the Treaty on European Union contained a provision confirming that provisions of EU law are capable of being directly effective. Thus, the only reference to the doctrine in question was negative, emphasising that a particular type of legal act could not be directly invoked by individuals vis-à-vis state authorities. At the same time, though, Article 34 TEU precluded neither the doctrine of indirect effect nor state liability. In a similar vein, it was silent on the potential application of the doctrine of primacy to legal acts forming EU criminal law.43 By leaving this particular aspect of private enforcement of EU criminal law unregulated, the drafters of the Treaty of Amsterdam left the doors open for effet utile driven interpretation by the Court of Justice. The question was not if but when that would happen. Such an opportunity arose in 2005 when a reference for preliminary ruling was submitted in Case C-105/03 Criminal Proceedings

39 

See paras 24–43 of the judgment. a comparative analysis see A Łazowski, B Kurcz, ‘Two Sides of the Same Coin? Framework Decisions and Directives Compared’ (2006) 25 Yearbook of European Law 177–204. See also MJ Borgers, ‘Implementing framework decisions’ (2007) 44 Common Market Law Review 1361–86. 41  The abolition of the separate catalogue of secondary legislation for EU Criminal Law meant that framework decisions and other existing instruments would be gradually phased out. This, however, required a transitional regime, which provides that all these legal acts will maintain the legal effects they produce until they are amended, replaced or repealed. As things stood when this chapter went to print, quite a number of legal acts fall under this proviso, including the most often applied of them all: Framework Decision 582/2002/JHA on the European Arrest Warrant. 42  The same applied to decisions envisaged by Article 34 TEU. 43  See, inter alia, A Hinarejos, ‘On the legal effects of framework decisions and decisions: Directly applicable, directly effective, self-executing, supreme?’ (2008) 14 European Law Journal 620–34. 40 For

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against Maria Pupino.44 The legal issues at stake and the judgment of the Court are explored in the next section of this chapter.

B. Birds and Hedges or Colliding Worlds: The Application of Fundamental Tenets of EU Law to EU Criminal Law45 The judgment in Case C-105/03 Pupino was important in many ways. To ­appreciate it fully it is worth delving into more systemic issues that underpinned and, at the same time, undermined the Police and Judicial Co-operation in Criminal Matters. As is well known, that area of European integration was developed not out of the passion among the Member States for deeper integration, but out of necessity. Lifting of border controls between the countries which had signed up to the Schengen acquis, while constituting an epitome of free movement across the European Union, was also a facilitator of deeper co-ordination and integration of criminal networks and their activities. Hence, in order not to allow for free movement of criminals, the Member States were faced with no choice but to create a more effective modus operandi and a new set of legal instruments. Still, however, even in the post-Amsterdam phase, EU Criminal Law suffered from limited effectiveness. Arguably, the only legal act which was serving its purpose and was extensively used in practice was the European Arrest Warrant, based on Framework Decision 584/2002/JHA. In the case of a great majority of the EU acquis adopted in the area in question, the transposition deficit was considerable. This was a complete paradox that the Member States, sitting in the Council, were unanimously agreeing to a steady flow of framework decisions but, at the same time, were failing to guarantee a timely and complete transposition. Arguably, this state of affairs was attributable to a combination of factors. The underlying reason and, by the same token, a driving factor was the trepidation to legislate in such a sensitive area, constituting a core feature of states’ sovereignty. This, as already mentioned, was contrasted with the objective need to proceed with deeper integration. The inevitable conflict of interests and priorities had to result in painful compromises, frequently undermining the quality of adopted legislation. The second contributing factor was the relative novelty of EU Criminal Law and that its legal instruments were penetrating domestic legislation that had thus far been only exposed to external influences qua public international law, in particular numerous conventions adopted under the auspices of the Council of Europe. The introduction

44 C-105/03 Criminal proceedings against Maria Pupino, ECLI:EU:C:2005:386. For an academic appraisal see, inter alia, M Fletcher, ‘Extending “indirect effect” to the third pillar: the significance of Pupino?’ (2005) 30 European Law Review 862–77; E Spaventa, ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) 3 EuConst 5–24. 45  I borrow here from K Lenaerts, T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’ (2006) 31 European Law Review 287–315 and M Dougan, ‘When Worlds Collide: Relationship between Direct Effect and Supremacy’ (2007) 44 Common Market Law Review 931–63.

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of EU Criminal Law instruments, especially after entry into force of the Treaty of Amsterdam, brought an important qualitative change. The third important factor that contributed to the state of affairs was the limited jurisdiction of the Court of Justice already discussed, in particular the non-applicability of infraction proceedings to the then Third Pillar of the European Union.46 This simply meant that non-transposition of EU Criminal Law instruments was not sanctioned in any way. The Member States without the European Commission breathing down their necks had limited incentives to proceed with a timely transposition. All of this put together created a political legal environment that was not supporting robust enforcement of EU Criminal Law. This was the systemic backdrop when the reference for preliminary ruling in the Pupino case arrived at Kirchberg. In Pupino case, the key question was whether the referring court should apply the doctrine of indirect effect to Italian criminal law in order to ensure an interpretation that would be compliant with Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.47 In a surprise move, at least for some, the Court of Justice extended to EU Criminal Law the application of the well-established first pillar doctrine on the national judges’ duty to interpret national law in conformity with EU law. The judges acknowledged that Article 34 TEU precluded direct effect of framework decisions but, at the same time, it did not exclude the application of other tenets governing the enforcement of EU law in national courts. Rightly so, the Court of Justice emphasized limits inherent in that doctrine and the room for manoeuvre it leaves to national judges.48 Yet, in its typical way, the judges in Luxembourg gave additional thrust to this emerging area of EU law and extended its typical effet utile way of thinking to the then Third Pillar of the European Union. The Court of Justice took it further in Case C-42/11 Da Silva Jorge.49 Not only judges reiterated the fundamentals of the doctrine of indirect effect but also emphasised that: The national court is required, taking into consideration the whole body of domestic law and applying the interpretative methods recognised by it, to interpret that law, so far as possible, in the light of the wording and the purpose of Framework Decision 2002/584, with a view to ensuring that that framework decision is fully effective and to achieving an outcome consistent with the objective pursued by it.

With the question of applicability of the doctrine of indirect effect largely settled, it is interesting to explore if EU Criminal Law legislation benefits also from the 46 

Articles 258–260 TFEU. Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ L82/1. 48  See paras 44–45 of the judgment. 49  Case C-42/11 Proceedings concerning the execution of a European arrest warrant issued against João Pedro Lopes Da Silva Jorge, ECLI:EU:C:2012:517. For an academic appraisal see, inter alia, Ch Janssens, ‘Differentiation on the Basis of Nationality in Surrender Cases: The Court of Justice ­Clarifies in Case C-42/11 Lopes Da Silva Jorge the Member States’ Margin of Discretion’ (2013) 19 Columbia Journal of European Law 553–71. 47  Council

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doctrines of primacy and state liability. While the latter has not yet reached the Court of Justice, the former was implicitly addressed in Case C-399/11 ­Melloni.50 The judges extended the application of the doctrine of primacy to the EAW Framework Decision, as well as the Charter of Fundamental Rights. It is interesting, however, that the Court of Justice largely avoided using the primacy vocabulary and opted for a more neutral language.51 The application of primacy was again at stake in Case C-579/15 Popławski.52 In his Opinion Advocate General Bot argued that if interpretation of Dutch law in conformity with the EAW Framework Decision were not possible, the national court should set aside the national law.53 At the same time, the Advocate General confirmed that this conclusion is without prejudice to the exclusion of direct effect of framework decisions. The Court of Justice did not go as far; however it confirmed its earlier jurisprudence on the application of indirect effect. One should expect more jurisprudence to follow, particularly bearing in mind that now all national courts have the jurisdiction to proceed with references for preliminary ruling covering EU Criminal Law legislation. This is even more so as the EU legislator is not very keen to replace some of existing framework decisions with directives; hence some of those pertinent enforcement issues are here to stay for a while longer.

C.  Application of Post-Lisbon Secondary Legislation The Treaty of Lisbon brought a long-awaited strengthening of EU Criminal Law. Not only have the competences of the European Union been expanded but, as already discussed, also the special catalogue of sources of secondary legislation has been abolished and the jurisdiction of the Court of Justice expanded.54 While the pre-Lisbon legal acts remain in force under the conditions laid down in

50 Case C-399/11 Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107. For an academic appraisal see, inter alia, A Tinsley, Note on the Reference in Case C-399/11 Melloni, (2012) 3 New ­Journal of E ­ uropean Criminal Law 19–30; N De Boer, ‘Addressing rights divergence under the C ­ harter: ­Melloni’, (2013) 50 Common Market Law Review 1083–1103; M De Visser, ‘Dealing with Divergences in ­Fundamental Rights Standards: Case C-399/11 Stefano Melloni v. Ministerio Fiscal’ (2013) 20 M ­ aastricht Journal of European and Comparative Law 576–88; A Pliakos, G Anagnostaras, ‘Fundamental Rights and the New Battle over Legal and Judicial Supremacy: Lessons from Melloni’ (2015) 34 Yearbook of European Law 97–126; G Cavallone, ‘European arrest warrant and fundamental rights in decisions rendered in absentia: the extent of Union law in the Case C-399/11 Melloni v. Ministerio Fiscal’ (2014) 4 European Criminal Law Review 19–40; LFM Besselink, ‘The parameters of constitutional conflict after Melloni’ (2014) 39 European Law Review 531–52; J Vervaele, ‘The European Arrest Warrant and Applicable Standards of Fundamental Rights in the EU’ (2013) 6 Review of European Administrative Law 37–54. 51  See, in particular, paras 46 and 64 of the judgment. 52  Case C-579/15 Openbaar Ministerie against Daniel Adam Popławski, ECLI:EU:C:2017:116. 53  See para 90 of the Opinion of Advocate General Bot in Case C-579/15 Openbaar Ministerie against Daniel Adam Popławski (n 52 above). 54  For an academic appraisal see, inter alia, V Mitsilegas, EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe (Hart Publishing 2016).

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Article 10 of Protocol No 36, the post-Lisbon legislative output comprises, first and foremost, directives. The principles governing their transposition into national law as well as the enforcement by national courts are very well established and apply irrespective of the area of law they regulate.55 To put it differently, all key principles developed over the years by the Court of Justice apply now also to directives adopted under the chapeau of Police and Judicial Co-operation in Criminal Matters. Despite being well established, they still raise some controversies, and therefore one should not be taken by surprise if a domestic criminal court proceeds with a reference for preliminary ruling as per Article 267 TFEU. A good example is Case C-439/16 PPU Emil Milev,56 where a Bulgarian court sought interpretation of Directive 2016/343/EU on the presumption of innocence within days of its entry into force (but well ahead of expiry of the transposition period). One of the issues raised and addressed by AG Bobek and the Court of Justice was the status of directives in the period between their entry into force and the date of transposition. Not surprisingly, neither AG Bobek, nor the Court developed any tailor-made rules for EU directives on EU Criminal Law. To put it differently, the standard rules apply. Arguably, it is just a matter of time before questions about the application of well-established tenets of EU law—that is the doctrines of primacy, direct and indirect effect as well as state liability—to the post-Lisbon directives, will be raised. Arguably, they will only lead to re-confirmation that the jurisprudence developed in relation to the internal market acquis applies equally to EU Criminal Law. In this context, the application of doctrines of direct and indirect effect will be of particular importance, bearing in mind that, just like in other areas of EU law, the Member States are frequently late with transposition of EU Criminal Law instruments.

IV.  Validity and Interpretation of EU Criminal Law Instruments A. Introduction Having looked at the Court’s jurisprudence on enforcement of EU Criminal Law it is worth delving into verification of how the judges in Luxembourg have checked the validity of secondary legislation and interpreted it in the area in question. This will allow readers to appreciate the actual contribution that the Court of Justice has made to everyday application of EU Criminal Law. However, before several examples are put under the microscope, a few general observations are fitting. 55  56 

See S Prechal, Directives in EC Law (2nd edn, Oxford University Press 2005). Case C-439/16 PPU Criminal proceedings against Emil Milev, ECLI:EU:C:2016:818.

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As explained in section II of this chapter, the Court’s jurisdiction in the former Third Pillar developed over the years, although it was mainly confined to the ­tailor-made regimes for actions for annulment and the preliminary ruling laid down in Article 35 TEU. While the first was rarely employed, the latter was on many occasions used by the national courts to verify interpretation of EU ­Criminal Law instruments and, sporadically, also to review the validity of secondary legislation. It is notable that out of dozens of legal acts adopted since the entry into force of the Treaty of Maastricht only a handful have reached the Court of Justice.57 Arguably, this is for a number of reasons. Firstly, as in any area of law, be it domestic or EU, some pieces of legislation are more litigation prone than the others. This has to do with both their substance and the quality of legal drafting. Secondly, many acts comprising EU Criminal Law remain little known to domestic lawyers, frequently not complied with and largely irrelevant in everyday practice. This, naturally, translates into non-application in national courts and, consequentially, very few (if any) references for preliminary ruling. The catalogue of EU legal acts which have proven to be particularly troubling for the national courts is modest yet very representative of pertinent challenges faced in everyday application of EU Criminal law. Statistical data prove that Article 54 of the Convention Implementing the Schengen Agreement (CISA), providing for the ne bis in idem principle, as well as the Framework Decision 2002/584/JHA on the European Arrest Warrant, keep the Luxembourg judges busy on regular basis. However, they are not the only two visitors to courtrooms at Kirchberg. Over the years the Court of Justice has also provided assistance to national courts in interpretation, inter alia, of the EU acquis on rights of victims58 and, from the post-Lisbon legislative output, Directive 2010/64/EU on the right to translation and interpretation in criminal proceedings.59 Analysis of these developments is provided in turn. As a first step, the discussion will focus on the judicial review conducted by the Court of Justice (section IV.B). This will lead to evaluation of tendencies in interpretation of EU Criminal Law instruments (section IV.C).

57  For a collection of the most important legal acts comprising EU Criminal Law, see S de Biolley, H Labayle, M Poelemans, A Weyembergh, Code of Criminal Law of the European Union 2012 (2nd edn, Brussels 2012). 58 Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, [2001] OJ L82/1. See Case C-79/11 Maurizio Giovanardi and Others, ECLI:EU:C:2012:448; Case C-507/10 Criminal proceedings against X [2011] ECLI:EU:C:2011:873; Case C-205/09 Criminal proceedings against Emil Eredics and Mária Vassné Sápi, ECLI:EU:C:2010:623; Case C-404/07 Győrgy Katz v István Roland Sós, ECLI:EU:C:2008:553; Case C-467/05 Criminal proceedings against Giovanni Dell’Orto, ECLI:EU:C:2007:395; C-105/03 Criminal proceedings against Maria Pupino, ECLI:EU:C:2005:386. 59  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L 280/1. See Case C-25/15 Proceedings brought by István Balogh, ECLI:EU:C:2016:423; Case C-216/14 Criminal proceedings against Gavril Covaci, ECLI:EU:C:2015:686.

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B.  Challenges to Validity of EU Secondary Legislation Many legal acts adopted by the European Union in the area of criminal law go largely unnoticed and do not raise major controversies or constitutional challenges. Some, however, are bound to achieve both. In the early years, the­ question—at the meta constitutional level—was where exactly a line was supposed to be drawn between the First and Third Pillars of the European Union. Within Police and Judicial Co-operation in Criminal Matters, further challenges emerged as to principles governing the choice of legal instruments available to the EU legislator under Article 34 TEU, as well as the compatibility of secondary legislation with primary law. In both respects the direct and indirect challenges to the legality of EU legislation were brought to the Court of Justice. Delimitation of competences between the First and Third Pillars was never meant to be an easy task. Equally obvious was that the allocation of dossiers between the supranational European Community and the intergovernmental Police and Judicial Co-operation in Criminal Matters would lead to some pulling of ropes as well as muscle flexing between the European Commission and the Member States. The inevitable came in two environmental disputes that reached the Court of Justice as Cases C-176/03 Commission v Council60 and C-440/05 Commission v Council.61 In the first case, the key question was whether Framework Decision 2003/80/JHA on the protection of the environment through criminal law62 should have been adopted in toto under the Third Pillar of the European Union or if at least parts of it belonged to the competences of the European Community and hence the legislator should have opted for a directive instead. Not surprisingly the Council supported a restrictive interpretation of Article 47 EU Treaty, which—at the time—was delimiting the competences between the First and Third Pillars of the European Union. The European Commission, supported by the European Parliament, argued that at least some matters regulated in the challenged Framework Decision belonged to the First Pillar and hence it should be annulled. This, undoubtedly, was a constitutional clash with far-reaching ­consequences.63 To the dismay of several Member States the Court of Justice sided with the applicant and annulled the Framework Decision, claiming that the EU legislator should have split the provisions between a directive covering the First P ­ illar competence and a framework decision extending to the Third

60 Case C-176/03 Commission of the European Communities v Council of the European Union, ECLI:EU:C:2005:542. 61 Case C-440/05 Commission of the European Communities v Council of the European Union, ECLI:EU:C:2007:625. 62  Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55. 63  At the time of adoption of the Framework Decision in question the European Commission made it clear that it would challenge its legality.

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Pillar ­matters.64 A few years later in Case C-440/05 Commission v Council  65 the Court of Justice proceeded along the same lines and annulled the Framework Decision 2005/667/JHA on ship-source pollution.66 With the entry into force of the Treaty of Lisbon, and the formal disappearance of the Third Pillar, this issue has somewhat lost its relevance. Still, however, it is not entirely redundant, as disputes regarding the legal bases for secondary legislation are a standard feature on the EU agenda and will surely extend to the area of our interest. Challenges to the compliance of secondary legislation with primary law are also a permanent feature in the EU landscape. It is notable that EU Criminal Law is not an exception in this respect. This has been particularly the case with the EAW Framework Decision, which, since its entry into force, has been exposed to several challenges to its legality at the EU level and also, qua domestic implementing provisions, in national courts. To discuss them all would exceed the limits of this chapter; hence the analysis that follows focuses on two landmark judgments of the Court of Justice, in which the legality of the EAW Framework Decision was assessed.67 As is well documented in the academic literature, this particular legal act was adopted with the speed of supersonic Concorde in the wake of terrorist attacks in New York and Washington.68 It is not a secret that the contents of this Framework Decision, although developed under the umbrella of Area of Freedom, Security and Justice, do not exactly reflect all three objectives. Alas, for the EU legislator the centre of gravity had to be on security, while neither freedom nor justice received the attention they deserve. For the decision-makers, this was not a time for balancing acts but rather for a rapid reaction to external and internal security threats at the time of ‘War on Terror’. At the EU level, the first challenge to the legality of the European Arrest Warrant came in the already mentioned Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad. This was hardly surprising as, at that point in time, the European Arrest Warrant modus operandi was subject to the aforementioned constitutional challenges in several Member States.

64  For an academic appraisal see, inter alia, K Inglis, ‘Creeping Community Competences in Environmental Law? The Implications of the ECJ judgment in case C-176/03 for the Criminal Law Enforcement of European Community Law’ (2006) 1 Journal of European Criminal Law 9–25. See also case notes by KM Apps, (2006) 12 Columbia Journal of European Law 625–37 and Ch Tobler, (2006) 43 Common Market Law Review 835–54. 65 Case C-440/05 Commission of the European Communities v Council of the European Union, ECLI:EU:C:2007:625. 66 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164. 67  See, inter alia, E Guild (ed), Constitutional challenges to the European Arrest Warrant (Nijmegen, Wolf Legal Publishers 2006). See also, M Mackarel, ‘The European Arrest Warrant—the Early Years: Implementing and Using the Warrant’ (2007) 15 European Journal of Crime, Criminal Law and Criminal Justice 37–65; Z Deen-Racsmány, ‘The European Arrest Warrant and the Surrender of Nationals Revisited: The Lessons of Constitutional Challenges’ (2006) 14 European Journal of Crime, Criminal Law and Criminal Justice 271–306. 68 See R Blekxtoon, W van Ballegooij (eds), Handbook on the European Arrest Warrant (Asser Press 2005).

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The Court of Justice ruled, however, that there were no grounds to annul the EAW Framework Decision. To put it differently, not only had the European Union the competence to adopt it, but had also used this competence in a correct fashion. Both, the opinion of Advocate General Colomer as well as the judgment of the Grand Chamber touched upon a myriad of constitutional issues. As mentioned earlier in this chapter, the Court was asked to verify the flexibility enjoyed by the EU legislator in choosing a type of legal act as per Article 34 TEU. Furthermore, the Court of Justice ruled that abolition of double criminality for over 30 types of criminal offence listed in Article 2(2) of the EAW Framework Decision did not affect the validity of this legal act.69 The next challenge to the legality of EAW Framework Decision came in Case C-399/11 Melloni. This judgment was controversial at many levels.70 The Court of Justice held that a 2009 revision of the Framework Decision71 was compatible with the Charter of Fundamental Rights. Furthermore, the higher standard of protection guaranteed under the Spanish Constitution had to be rejected as potentially undermining the mutual trust underpinning the principle of mutual recognition. The latter, as is well known, is at the heart of the European Arrest Warrant modus operandi.72 Protection of this very system was also one of the reasons behind the negative Opinion 2/13 on the Draft Accession Agreement to the European Convention for Human Rights and Fundamental Freedoms (ECHR).73 The Court of

69  For a legal appraisal of this judgment see, inter alia, E Herlin-Karnell, ‘In the wake of Pupino: Advocaten voor der Wereld and Dell’Orto’ (2007) 8 German Law Journal 1147–60; P O’Reilly, ‘The Exit of the Elephant from the European Arrest Warrant Parlour’ (2007) 2 Journal of European Criminal Law 472–81. See also case notes by Ch Janssens, in (2007–2008) 14 Columbia Journal of European Law 169–87 and F Geyer in (2008) 4 EuConst 149–61. 70  For academic appraisal see, inter alia, A. Tinsley, ‘Note on the Reference in Case C-399/11 M ­ elloni’ (2012) 3 New Journal of European Criminal Law 19–30; N De Boer, ‘Addressing rights divergence under the Charter: Melloni’ (2013) 50 Common Market Law Review 1083–1103; M De Visser, ‘Dealing with Divergences in Fundamental Rights Standards’ (2013) 4 Maastricht Journal of European and Comparative Law 576–88; A Pliakos, G Anagnostaras, ‘Fundamental Rights and the New Battle over Legal and Judicial Supremacy: Lessons from Melloni’ (2015) 34 Yearbook of European Law 97–126; G Cavallone, ‘European arrest warrant and fundamental rights in decisions rendered in absentia: the extent of Union law in the case C-399/11 Melloni v. Ministerio Fiscal’ (2014) European Criminal Law Review 19–40; LFM Besselink, ‘The parameters of constitutional conflict after Melloni’ (2014) 39 European Law Review 531–52; J Vervaele, ‘The European Arrest Warrant and Applicable Standards of Fundamental Rights in the EU’ (2013) 6 (2) Review of European Administrative Law 37–54. 71 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, ­ thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, OJ L81/2009, p 24. 72  See, inter alia, A Suominen, The Principle of Mutual Recognition in Cooperation in Criminal Matters (Intersentia 2011); Ch Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press 2013); L Klimek, Mutual Recognition of Judicial Decisions in European Criminal Law (Springer 2017); W van Ballegooij, The Nature of Mutual Recognition in European Law: Re-examining the notion from an individual rights perspective with a view to its further development in criminal justice area (Intersentia 2015). 73  Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.

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Justice held that the proposed legal framework for accession to the ECHR would have undermined mutual recognition, and therefore it was not plausible by any stretch of imagination.74 These developments obviously offer a mixed bag. On the one hand, the Court of Justice stands firmly as the guardian of mutual recognition. Whether for purely legal reasons or out of sheer pragmatism, the Court of Justice has been defending the system established by the Council. On the other hand, the judges at Kirchberg had to face criticism for giving priority to mutual recognition over human rights and, in Case C-399/11 Melloni, for a rather shallow reasoning. For regular observers of the Court’s jurisprudence, this is neither new nor a surprising phenomenon. This is business as usual and one should not expect changes in this respect. What is expected, though, are more challenges to legality of EU secondary legislation adopted in the area in question.

C.  Interpretation of EU Criminal Law Legislation In almost two decades since entry into force of the Treaty of Amsterdam, the Court of Justice has had many opportunities to assist the national courts in interpretation of EU Criminal Law instruments. This was despite the already discussed ­unfavourable procedural framework in the period between the Treaties of ­Amsterdam and Lisbon. Analysis of jurisprudence of the Court of Justice confirms a number of phenomena known from the Court’s jurisprudence in other areas of law. To begin with, the judges at Kirchberg very much prefer teleological interpretation of EU law, be it the internal market acquis or EU Criminal Law. When literal interpretation of given provisions serves little purpose, or may lead to undesired (if not even nonsensical) conclusions, the door is wide open to a creative interpretation taking into account a broader aim of the given area of EU law and then, more narrowly, the raison d’être behind a particular piece of ­legislation.75

74  For an academic appraisal see, inter alia, D Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16 German Law Journal 105–46; C Krenn, ‘Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13’ (2015) 16 German Law Journal 147–68; S Øby Johansen, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/13 and its Potential Consequences’ (2015) 16 German Law Journal 169–78; A Łazowski and RA Wessel, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’ (2015) 16 German Law Journal 179–212; S Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2015) 16 German Law Journal 213–22; P Eeckhout, ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky’ (2015) 38 Fordham Int’l Law Journal 955; B de Witte and Š Imamović, ‘Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order against a Foreign Human Rights Court’ (2015) 40 ­European Law Review 683–705; BH Pirker, S Reitemeyer, ‘Between Discursive and Exclusive Autonomy— Opinion 2/13, the Protection of Fundamental Rights and the Autonomy of EU Law’ (2015) 17 ­Cambridge Yearbook of European Legal Studies 168–88. 75  See, inter alia, K Lenaerts, JA Gutiérrez-Fons, ‘To say what the law of the EU is: methods of interpretation and the European Court of Justice’ (2014) 20 Columbia Journal of European Law 3–61.

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Furthermore, whenever the law-maker leaves gaps in the legislation, for instance in the name of subsidiarity or merely compromise in the Council, the Court of Justice is the institution that has to fill them. While the present author is not a supporter of overregulation, it is puzzling to see how rather obvious matters that deserved to be regulated or, in many cases, should have been regulated in accordance with good law drafting techniques, are landing in the Court’s docket as references for preliminary ruling. A very good example is Article 4(6) of the EAW Framework Decision, which regulates one of the optional grounds for refusal to surrender. Also, the very rich case law based on Article 54 of CISA stands out in this respect. Interpretation of Article 54 CISA has raised many concerns in domestic courts.76 It is notable that the provision in question was drafted back in the 1980s when the Schengen acquis was not only outside the scope of the then EC law, but was also tailored to apply to a relatively small group of countries.77 This has changed dramatically over the last 20 years and practice has exposed the limits of the provision in question. Its vagueness, combined with considerable differences between criminal laws of the Member States, simply had to trigger the questions as to exact meaning of ‘bis’ and ‘idem’. Not surprisingly, the first references submitted to the Court of Justice under Article 35 TEU were exactly about those two crucial aspects of Article 54 CISA. It is notable that in all those cases the Court of Justice employed the teleological and contextual interpretation of the provision in question.78 The judges, rightly so, put the article against the backdrop of free movement of persons and the function it was now serving, having been incorporated into the realms of EU law by the Treaty of Amsterdam. Current trends in jurisprudence are likely to continue in the future, as the vagueness of Article 54 CISA is still a challenge for domestic courts and, at the same time, an attempt to regulate comprehensively the principle of ne bis in idem in secondary legislation has failed.79 76  See, inter alia, Case C-486/14 Criminal proceedings against Piotr Kossowski, ECLI:EU:C:2016:483; Case C-129/14 PPU Criminal proceedings against Zoran Spasic, ECLI:EU:C:2014:586; Case C-398/12 Criminal proceedings against M, ECLI:EU:C:2014:1057; Case C-491/07 Criminal Proceedings against Vladimir Turansky, ECLI:EU:C:2008:768; Case C-297/07 Staatsanwaltschaft Regensburg v Klaus Bourquain, ECLI:EU:C:2008:708; Case C-367/05 Criminal Proceedings against Norma K ­ raaijenbrink, ECLI:EU:C:2007:444; Case C-467/04 Criminal proceedings against Giuseppe Francesco Gasparini and Others, [2006] ECR I-9199; Case C-150/05 Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië, ECLI:EU:C:2006:614; Case C-288/05 Criminal Proceedings against Jürgen Kretzinger, ECLI:EU:C:2007:441; Case C-436/04 Criminal proceedings against Leopold Henri Van Esbroeck, ECLI:EU:C:2006:165; C-469/03 Criminal proceedings against Filomeno Mario Miraglia, ECLI:EU:C:2005:156; Joined cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), ECLI:EU:C:2003:87. 77  See, inter alia, B von Bockel, The Ne Bis in Idem Principle in EU Law (Kluwer Law International 2010); A Weyembergh, I Armada, ‘The principle of ne bis in idem in Europe’s Area of Freedom, ­Security and Justice’ in V Mitsilegas, M Bergström, Th Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar Publishing 2016), 189–209. 78  See, for instance, interpretation of ‘idem’ in Case C-150/05 Jean Leon Van Straaten v Staat der Nederlanden and Republiek Italië, ECLI:EU:C:2006:614. 79  Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the application of the ‘ne bis in idem’ principle [2003] OJ C100/24.

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From the suite of framework decisions and post-Lisbon directives, the EAW Framework Decision is the most frequent visitor to the Luxembourg courtrooms. This is not surprising for a number of reasons. Firstly, as already argued earlier in this chapter, the European Arrest Warrant is by nature a very controversial legal act, raising mixed emotions and variety of challenges in everyday application.80 Secondly, it is—arguably—the most often used legal act falling under the umbrella of EU Criminal Law. Thirdly, since it was created well before the entry into force of the Treaty of Lisbon, the Member States have escaped scrutiny of compliance of their domestic laws with the Framework Decision. Ergo, many domestic rules are contrary to the Framework Decision, leading to regular interpretation and application challenges at the national level. This is despite expiry of the transitional period laid down in Protocol No 36 to the Founding Treaties and full application of the infraction procedures to pre-Lisbon framework decisions. Fourthly, this framework decision, like all others, is a product of compromise, which—as compromises frequently do—has come at a price. Alas, this was not the finest hour of the EU legislator. When all those factors are taken into account, it becomes clear why national judges are keeping the Court of Justice busy when they experience practical problems with the application of domestic provisions giving effect to the EAW Framework Decision. However, as noted earlier, one should not be under an impression that it is only that particular framework decision that keeps the ­Luxembourg judges busy. Assistance in interpretation of other pieces of EU secondary legislation, both pre- and post-Lisbon Treaty, has been requested by national courts in several cases that have reached the Court of Justice in the past years. Some of the emerging trends in this jurisprudence are discussed in the analysis that follows. It is notable that, as in other areas of EU law, they offer a mixed bag of references touching upon (i) fundamental concepts laid down in ­secondary legislation, (ii) definitions of key terms employed by the EU legislator or (iii) filling in the gaps left by the EU law-makers. When it comes to the EAW Framework Decision, its Articles 3–4 dealing with the grounds for non-execution of European Arrest Warrants have caused considerable challenges in domestic practice, not to mention that several Member States have transposed them in a way that is contrary to EU Law.81 In the early jurisprudence Article 4(6) of EAW Framework Decision was of particular concern. This is hardly surprising bearing in mind, on the one hand, the poor drafting of the provision in question and, on the other hand, the lack of explicit links (and terminological coherence) with EU legislation governing movement of persons.82

80 See, for instance, the debate that preceded the exercise of the grand opt-out in the United Kingdom. 81  See, inter alia, Case C-42/11 Da Silva Jorge where the Court of Justice ruled that French provisions were in breach of EAW Framework Decision. 82 In particular Directive 2004/38 on free movement of persons (Directive 2004/38/EC of the ­European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending

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Judgments of the Court of Justice in the Kozłowski83 and Wolzenburg84 cases encapsulate rather well those weaknesses of the regulatory regime and the way the gaps were filled by the Court of Justice.85 The provision in question provides that in cases of EAWs issued for the purposes of execution of custodial sentences, the requested persons may benefit from execution in the country where they reside or stay at the material time. The raison d’être behind this solution is rather clear; if a person’s centre of life is in the requested country, the proximity to home and family may support rehabilitation and reintegration. Alas, the good intentions of legislators do not always turn into plausible rules. As has already been alluded to, the wording of Article 4(6) of the EAW Framework Decision is clumsy, to say the least. It provides that the executing authority may refuse to execute the European Arrest Warrant for execution of a custodial sentence or detention order: ‘where the requested person is staying in, or is a national or a resident of the executing Member State’. Firstly, the order in which those key notions are listed is illogical. While the terms ‘staying in’ and ‘reside’ are both applicable to non-nationals, the term ‘national’—applicable only to citizens of the requested country—is sandwiched between them. Logically, this provision should have been drafted differently. This criticism, perhaps, amounts to legal purism or paying attention to too much detail, however one should always have high expectations from the law-drafters (though disappointments are inevitable). What is more problematic, however, is the use of notion ‘staying in’, which is defined neither in the EAW Framework Decision nor in the free movement of persons acquis. Not surprisingly, a clarification was sought by national courts in the early years of application of the EAW Framework Decision. In the Kozłowski case, the main problem was that the rule in question was relied on by a person who at the material time was serving a custodial sentence in a German prison. Thus it was unclear whether that particular type of presence qualified as ‘residence’ or ‘staying in’. The Court of Justice held that a requested person is ‘resident’ in the executing Member State when he has established his actual place of residence there and he is ‘staying’ there when, following a stable period of

Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. For a commentary see E Guild, S Peers, J Tomkin, The EU Citizenship Directive. A Commentary (Oxford University Press 2014). 83  Case C-66/08 Proceedings concerning the execution of a European arrest warrant issued against Szymon Kozłowski, ECLI:EU:C:2008:437. For an academic appraisal see, inter alia, M Fichera, ‘Case C-66/08, Proceedings concerning Szymon Kozlowski, Judgment of the Court (Grand Chamber) of 17 July 2008, nyr’ (2009) 46 Common Market Law Review 241–54. 84  Case C-123/08 Dominic Wolzenburg, ECLI:EU:C:2009:616. For an academic appraisal see, inter alia, E Herlin-Karnell, ‘European Arrest Warrant Cases and the Principles of Non-discrimination and EU Citizenship’ (2010) 73 Modern Law Review 824–35; Ch Janssens, ‘Case C-123/08, Dominic ­Wolzenburg, Judgment of the Court of Justice (Grand Chamber) of 6 October 2009, nyr’ (2010) 47 Common Market Law Review 831–45. 85  On domestic implementation see also, inter alia, Case C-306/09 I.B., ECLI:EU:C:2010:626; Case C-42/11 Proceedings concerning the execution of a European arrest warrant issued against João Pedro Lopes Da Silva Jorge, ECLI:EU:C:2012:517.

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presence in that State, he has acquired connections with that State which are of a similar degree to those resulting from residence.

Both terms were given EU-wide interpretation as terms of EU law. Not surprisingly, the judges provided the national courts with a general test, which in turn has to be applied to facts of every case. For instance, domestic judges should take into account the length, nature and conditions of presence of a particular person in the territory of the host country. In the Wolzenburg case, the question was whether the Member States were at liberty to limit the application of domestic provisions giving effect to Article 4(6) of the EAW Framework Decision only to persons who benefit from the right of permanent residence.86 The Court of Justice ruled that such a limitation fell within the discretionary powers of the Member States. Further problems were caused by revised Article 4a(1) regulating the possibility to refuse surrender in cases of European Arrest Warrants issued with a view to surrender of persons sentenced in absentia. While the above-mentioned case C-399/11 Melloni discussed the legality of the revised regime and its compatibility with the Spanish Constitution, the recent judgment in Case C-108/16 PPU Dworzecki concerned a more nuanced matter.87 The key question was the exact meaning of Article 4a(1) of the EAW Framework Decision, in particular the terms ‘summoned in person’ and ‘[informed] in such a manner that it was unequivocally established that [the person in question] was aware of the scheduled trial’. Should these conditions be met, a court executing a European Arrest Warrant cannot, in principle, refuse to surrender a requested person. This was rather problematic as, in the case at hand, the summons had been presented to the grandfather of the accused person (the latter had been prosecuted and sentenced by a Polish court without being physically present in the courtroom). The Court of Justice treated both terms as autonomous concepts of EU law, and ruled that they should therefore be interpreted uniformly across the European Union. According to the judges, the conditions laid out in Article 4a(1)(a)(i) of the EAW Framework Decision were not satisfied in the case at hand. This was because it could not be ascertained from the EAW if the summons had been passed on. Another thread in the jurisprudence of the Court of Justice about the EAW Framework Decision is the interaction between the EAW and human rights. This particular issue took a prominent position in both challenges to the legality of the EAW Framework Decision discussed earlier in this chapter. However, it also came to the fore in other judgments. For instance, in Case C-396/11 Radu88 the Court of Justice ruled that national authorities of the executing state cannot refuse

86  In accordance with Article 16 of Directive 2004/38/EC EU citizens (and their family members) are entitled to permanent right to reside after five years of uninterrupted residence in accordance with the Directive in the host country. See, inter alia, E Guild, S Peers, J Tomkin, The EU Citizenship ­Directive. A Commentary (Oxford University Press 2014) 177–218. 87  Case C-108/16 PPU Openbaar Ministerie v Paweł Dworzecki [2016] ECLI:EU:C:2016:346. 88  Case C-396/11 Proceedings relating to the execution of European arrest warrants issued against ­Ciprian Vasile Radu, ECLI:EU:C:2013:39.

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to entertain a EAW sent for purposes of conducting a criminal investigation if the person in question had not had the opportunity to be heard in the issuing state. In Case C-237/15 PPU Lanigan89 the Court of Justice held that a person can be held in custody for periods exceeding the limits laid down in Articles 12 and 17 of the EAW Framework Decision and this would be permitted under Article 6 of the Charter of Fundamental Rights. Joined Cases C-404/15 and C-659/15 PPU Căldăraru and Aranyosi90 merit particular attention, as they address a fundamental question which has been subject to controversy almost since the EAW modus operandi became operational over a decade ago. Mainly, the conundrum that the national judges have been facing all this time is whether they can refuse to surrender on human rights grounds.91 In this respect the EAW Framework Decision is a particularly good example of how laws should not be drafted. Firstly, the grounds for annulment listed in Articles 3–4 do not include human rights. Secondly, recitals 12–13 of the preamble give an impression that under certain circumstances the judges should be allowed to refuse surrender in case of human rights breaches.92 Thirdly, Articles 3–4 do not reflect the fact that national courts are bound by the Charter of Fundamental Rights and the European Convention on Human Rights and Fundamental Freedoms. Thus, in the light of jurisprudence of the Strasbourg Court, in certain cases the domestic courts have the obligation to refuse ­extradition.93 In Joined Cases C-404/15 and C-659/15PPU Căldăraru and Aranyosi, the Court of Justice was explicitly asked how to proceed under such circumstances.94 Not surprisingly the judges in Luxembourg were at pains as how to deal with the two references submitted in the cases in question. On the one hand, the Court of Justice is fully aware that the EAW mechanism is based on the principle of mutual recognition, which is anchored in mutual trust between the Member States. Ruling at face value that a national court may refuse to entertain an EAW application in case of doubts as to respect for human rights standards at the receiving end could easily undermine the foundations on which

89 

Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan ECLI:EU:C:2015:474. Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, ECLI:EU:C:2016:198. For an academic commentary see, inter alia, Sz GáspárSzilágyi, ‘Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant’ (2016) 2–3 European Journal of Crime, Criminal Law and Criminal Justice 197–219; G Anagnostaras, ‘Mutual confidence is not blind trust! ­Fundamental rights protection and the execution of the European arrest warrant: Aranyosi and ­Caldararu’ (2016) 53 Common Market Law Review 1675–704. 91  M Mackarel, ‘Human Rights as a Barrier to Surrender’ in N Kejzer and E van Sliedregt (eds), The European Arrest Warrant in Practice (Asser Press 2009), 139–56. 92  As well established, preambles are inherent parts of EU legal acts and are binding. 93 In Soering v United Kingdom (1989) 11 EHRR 439 the European Court of Human Rights considered that to return the applicant to the United States on charges of capital murder, thereby subjecting him to the ‘death row’ phenomenon would be incompatible with Article 3. See also Ahmed v Austria (1996) 24 EHRR 278; Hilal v United Kingdom (2001) 33 EHRR 2. 94  The Court of Justice was asked this question, among others, in the earlier Case C-105/10 Public prosecutor v Malik Gataev, Khadizhat Gataeva. However, the reference was withdrawn before the Court of Justice ruled. 90  Joined

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the EAW Framework Decision is based. It would have also openly touched on a taboo topic; that is compliance of the Member States with fundamental rights, and—more broadly—the rule of law.95 At the same time, however, ruling to the contrary would have undermined the importance of respect for human rights on which the European Union is based. Taking this into account the Court reached a Solomonic conclusion and held that national judges should, if in doubt, proceed in small increments. Firstly, they should seek from the requesting court a clarification of their doubts as to compliance with human rights standards. As a next step, judges should proceed with suspension of execution of the European Arrest Warrant. Only if ‘risks [of breach of fundamental rights] cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.’96 Not only does this conclusion itself merit attention but also the euphemistic language employed by the Court. Of course, the raison d’être behind it is safely locked behind the closed doors of the deliberation room at Kirchberg. One can argue, however, that it was easier for the Court of Justice to talk about bringing the surrender procedure to an end than to rule plainly that a national court must refuse to surrender as per a European Arrest Warrant. Symbolism is rather clear in this case. Without engaging in the art of fortune-telling, it seems safe to argue that this theme is likely to reoccur in further references for preliminary ruling submitted to the Court of Justice by national courts. Not surprisingly, domestic judges frequently seek from the Court of Justice clarification of meaning of terms employed by the EU legislator, which—alas— are neither defined in EU Criminal Law instruments nor otherwise clear. The picture emerging from the jurisprudence of the Court is not a novelty by any stretch of imagination. Unless particular terms are explicitly given the interpretation envisaged by domestic law, the judges at Kirchberg give them an autonomous EU meaning. This, again, is business as usual; a phenomenon very well-known from other areas of EU law.97 In the area of our interest the question emerged, for instance, whether the domestic authorities met the required criteria to be a judicial ­authority.98 The Case C-60/12 Baláž99 is a good example to look at. The question was whether a particular authority could be classified as ‘a court having jurisdiction in particular in criminal matters’, as required by Framework

95  A good example are political shenanigans with breaches of rule of law in Poland and Hungary. See Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Recommendation (EU) 2016/1374, OJ L 22/2017, p 65. 96  Para 104 of the judgment. 97  A good example is case law on the EU definition of the term ‘worker’ for the purposes of free movement of workers. See, inter alia, Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg, ECLI:EU:C:1986:284. 98  Another example is the term ‘same acts’ laid down in Article 3(2) of EAW Framework Decision. See Case C-261/09 Gaetano Mantello, ECLI:EU:C:2010:683. 99  Case C-60/12 Criminal Proceedings against Marián Baláž, ECLI:EU:C:2013:733.

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Decision 2005/214/JHA on the principle of mutual recognition of financial ­penalties.100 Not surprisingly, the Court of Justice treated this term as an ­autonomous concept of EU law and gave such an interpretation as to facilitate uniform application across the European Union. In Case C-582/15 van Vemde101 the Court of Justice interpreted Article 28(2) of Framework Decision 2008/909/ JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences.102 The heart of the matter was interpretation of the term ‘final judgment’ of a national court. Again unsurprisingly, the Court of Justice held that the term in question was an autonomous term of EU law and therefore had to be given EU-wide interpretation. The question was essential for the case at hand, as depending on the answer, Framework Decision 2008/909/JHA was applicable or not. The Court held that the notion ‘final judgment’ stands for judgments which become final before the date specified by a Member State as per Article 28(2). The aforementioned Case C-42/11 Da Silva Jorge is a very good recent example demonstrating how preliminary rulings not only assist national courts in their everyday interpretation of key terms used in EU law but also how they facilitate verification of the compliance of domestic law with the EU acquis.103 It should be remembered that in this case the Court ruled that the French law was contrary to the EAW Framework Decision. This function of preliminary ruling was particularly important in the period between the Treaty of Amsterdam and the expiry of the transitional regime laid down in Protocol 36 to the Founding Treaties. The absence of infringement proceedings in the Third Pillar meant that the only procedural vehicle for judicial assessment of compliance of national law with EU Criminal Law, at the EU level, was a reference for preliminary ruling from national courts. Judging by the reports of the European Commission, lack of complete transposition of the EAW Framework Decision remains a pressing issue.104 In the most recent jurisprudence of the Court of Justice, Case C-477/16 PPU Kovalkovas stands out in this respect.105 In the case at hand, the European Arrest Warrant was issued by the Lithuanian Ministry of Justice; hence the referring court raised doubts as to whether the received EAW met the required criteria. As is well known, the European Arrest Warrants are—as per Article 1(2) of EAW

100  Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2015] OJ L76/16. 101  Case C-528/15 Criminal proceedings against Gerrit van Vemde, ECLI:EU:C:2017:37. 102  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27. 103  See n 49 above. 104  See, inter alia, European Commission, Accompanying document to the third Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, SEC(2011) 430. 105  Case C-477/16 PPU Openbaar Ministerie v Ruslanas Kovalkovas, ECLI:EU:C:2016:861.

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Framework Decision—decisions issued by ‘judicial authorities’. This is one of the idiosyncrasies of the surrender procedure that differentiates it from traditional extradition. The Court of Justice held that the issuing authority in Lithuania was not part of the judiciary; consequently, Lithuania has been in breach of the EAW Framework Decision and, in accordance with the principle of loyal co-operation, should revise its domestic system for issuing of European Arrest Warrants. It is notable that a similar issue arose in Case C-452/16 PPU Krzystof Marek Poltorak106 and here, too, the authority that issued a European Arrest Warrant could not be classified as a judicial authority. Another example of a judgment whereby the Court of Justice assisted a national court in interpretation of key terms and phrases laid down in EU Criminal Law legislation is Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź-Śródmieście.107 This time the bone of contention was interpretation of Article 26 of the EAW Framework Decision, as well as discrepancies between different language versions of this provision. It provides that the court of the requesting country should ‘deduct all periods of detention to be served in the issuing Member State as a result of a custodial sentence of detention order being passed’. In the case at hand, the person who was subject to a EAW but awaiting actual surrender was released on bail in the United Kingdom. His freedom was, however, limited as he was subject to a curfew and electronic monitoring, thus limiting major movements and precluding engagement in employment or, more broadly, any kind of economic activity. While this was not detention per se, the conditions imposed by the English court severely affected the liberty of the person in question. The difficulty was that not only does the EAW Framework Decision fail to define this term, but it is also characterised by linguistic cacophony. As a matter of fact, some language versions of Article 26 used the terms largely corresponding to ‘deprivation of liberty’ but not exactly detention. For instance, the French version of the EAW Framework Decision employed the term ‘privation de liberté’. While endeavouring to come up with a plausible solution the Court of Justice acknowledged and proved to be guided by one of the idiosyncrasies of the EU legal order; that is its multilingualism. The judges, rightly, argued that ‘[p]rovisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages’.108 This is what the Court of Justice did, also having recourse to relevant jurisprudence of the European Court of Human Rights on Article 5(1) ECHR providing for the right to liberty. The end result was that the predicament in which the surrendered person found himself did not, as a matter of principle, fall within the parameters of ‘detention’; hence the periods of bail in the United Kingdom could not be taken into account as per Article 26(1) of the EAW Framework Decision.109

106 

Case C-452/16 PPU Krzysztof Marek Poltorak, ECLI:EU:C:2016:858. Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź-Śródmieście, ECLI:EU:C:2016:610. 108  Ibid, para 38. 109  This was left, however, for the national court to verify. 107 

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The Court of Justice has also been asked to fill gaps left by the EU legislator and, by the same token, also to attend to operational issues related to the ­European Arrest Warrants. This included a handful of cases about deadlines for actions undertaken according to the EAW Framework Decision. For instance, in the aforementioned Case C-237/15 PPU Lanigan the Court of Justice clarified that even when time-limits laid down in Article 17 of the EAW Framework Decision expire, the domestic judicial authority is still required to adopt a decision on execution of the EAW. Furthermore, in Case C-640/15 Vilkas110 the Court of Justice clarified the meaning of Article 23 of the EAW Framework Decision, which deals with time-limits for surrender under the EAW. Here the Court of Justice opted for the most logical, though not necessarily literal, interpretation of Articles 15(1) and 23 of the EAW Framework Decision, as obliging the national authorities to agree on new surrender dates should early attempts fail. Furthermore, the Court of Justice assisted national courts on the cascading European Arrest Warrants111 and the principle of specialty laid down in Article 27 of the EAW Framework Decision.112

V. Conclusions As argued many times in the academic literature, the Court of Justice almost since its creation has been an active player in European Integration. Its far-reaching judgments, interpretation methods and style of judicial discourse often are put under the intellectual microscope of commentators. As noted in the Introduction, in equal measure the Court is praised and criticised. Whichever side of this discourse one takes, one cannot deny that the judges at Kirchberg have shaped the legal order of the European Union to a great degree. EU Criminal Law is no exception.113 This analysis proves that the Court of Justice has managed to do so despite years of limited jurisdiction and tailor-made rules applicable to the former Third Pillar of the European Union. The examples provided above demonstrate that the EU judges are governed by the prerequisite of securing effectiveness of EU Criminal Law and its uniform interpretation. The references from national courts quite mercilessly expose the weaknesses of adopted legislation and question the soundness of the EU decision-making process. In this respect, the European Arrest Warrant is the prime, but not the only example. It is argued that with the expiry of the transitional period laid down in Article 10 of Protocol No 36, the Court of Justice is going to receive more references for preliminary ruling and,

110 

Case C-640/15 Minister for Justice and Equality v Tomas Vilkas, ECLI:EU:C:2017:39. Case C-192/12 Melvin West, ECLI:EU:C:2012:404. 112 Case C-388/08 PPU Criminal proceedings against Artur Leymann and Aleksei Pustovarov, ECLI:EU:C:2008:669. 113  See, inter alia, K Lenaerts, ‘The contribution of the European Court of Justice to the area of freedom, security and justice’ (2010) 59 International Comparative Law Quarterly 255–301. 111 

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quite possibly, also infringement cases submitted by the European Commission. The statistical data made available annually is already showing a steady increase of cases, some of which qualify for the fast-track treatment under the Urgent ­Preliminary Ruling Procedure. This, in turn, may in the coming years force the Court of Justice and the Member States to reconsider the mechanics of PPU. The end conclusion stemming from this chapter is that the Court of Justice is no longer stepping into uncharted waters when it comes to EU Criminal Law. Au contraire, it has become—alongside other areas falling under the broad umbrella of Area of Freedom, Security and Justice—a regular feature on its dockets. If the current trends continue, EU Criminal Law will be keeping the judges in Luxembourg more busy with every passing year. For this the Court of Justice must be prepared.

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10 The Evolution of the Relationship and Balance Between the Different EU Institutions EMILIO DE CAPITANI

I. Introduction The issue of balance has always been at the core of the discussions about EU criminal law. One can, for instance, recall the debates concerning the necessary balance between the sword and the shield function of EU criminal law. ­However, when referring to balance in the context of EU inter-institutional relations, balance looks more like an aspiration than the representation of a settled legal reality. Almost 60 years have passed since the Court of Justice set, in the 1958 ­Meroni judgment,1 this principle of institutional balance as a compass for inter-­ institutional relations. Even if today the substance of this principle remains the same, as each EU institution has to act in accordance with the powers and missions conferred on it by the Treaties, the powers and missions of these institutions are no longer the same. Since the adoption of the Single European Act, and the subsequent Treaty reforms, which have for the moment ended with the entry into force of the Lisbon Treaties, the scope of the EU’s powers has been expanded. One can in particular highlight the transition of the European Union from a market-oriented organisation to a supranational political organisation, which should be accountable to its citizens and not only to its consumers.

1  Case C-10/56 Meroni and Co Industrie Metallurgiche, SpA v High Authority of the European Coal and Steel Community ECLI:EU:C:1958:8, [1957–58] ECR 157, p 173: ‘The objectives set out in article 3 are binding not only on the high authority, but on the “institutions of the community … within the limits of their respective powers, in the common interest”. From that provision there can be seen in the balance of powers which is characteristic of the institutional structure of the community a fundamental guarantee granted by the treaty in particular to the undertakings and associations of undertakings to which it applies.’

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The point is that some of those new missions conferred on the EU institutions have been ambiguously defined, and some powers have been transferred in a hectic way by reacting to situations instead of following an organised and consistent institutional design. As a consequence, the lines delimiting the respective remits of EU Member States and the EU itself are sometimes blurred. A clear example of such blurring can be found when looking at public security. The latter may simultaneously fall under the exclusive competence of the EU Member States, when it deals with national security, but it may also be a shared power, when it is an essential component of a European Area of Freedom, Security and Justice; or it could even fall within the intergovernmental framework when it is linked with defence policy. Such blurring can cause very concrete difficulties, for instance to determine who is responsible for combatting a terrorist threat that could be at the same time a national, European and international threat. The choice of the applicable legal framework will have a dramatic impact on the role, powers and reciprocal relations between the EU institutions, and notably between the European Parliament and the Council. Not surprisingly, cases dealing with the legal basis of a given EU instrument, or with the role of the EU institutions, continue to be brought before the Court of Justice, even after the entry into force of the Lisbon Treaty, which was deemed to have brought some clarification on the respective powers of the EU institutions and EU Member States. Moreover, even when, in Lisbon, EU Member States define a consistent objective, such as the establishment of an EU Area of Freedom, Security and Justice (AFSJ), they only move half way along that path by diluting aspects of the AFSJ with protocols, opt-outs and dozens of declarations. To close the circle of these inconsistencies, it could happen that the same EU Member States that were jealously protecting their sovereignty in the field of internal security when negotiating EU treaties, have thereafter agreed to transfer their power to the EU, only because a powerful ally, such as the USA, has asked for a massive transfer of intelligence-led and sensitive data. This was, for instance, the case for the agreements linked with the transfer to the United States of air travel data—Passenger Name Records— or of inter-bank data managed by the Society for Worldwide Interbank Financial Telecommunication (SWIFT).2 Objectives and powers that are poorly or vaguely defined could also have an impact on relations between the EU institutions also because their powers and prerogatives have been in the meantime dramatically reframed following several successive amendments of the Treaties.

2  See Agreement between the United States of America and the European Union on the use and transfer of passenger name records to the United States Department of Homeland Security [2012] OJ L215/5; or Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program [2010] OJ L8/11.

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II.  Complex Division of Powers within the EU Institutional Design The principle of division of powers, which is at the core of modern democracies, is still in a raw form at EU level. Even after the Lisbon Treaty preserved the substance of the so-called Constitutional Treaty, the institutional design is far from being ‘balanced’. The different institutions can simultaneously play different roles. The Council of the EU can play, at the same time, a legislative role and an executive role. The European Parliament, which is at the top of the institutional hierarchy3 being directly elected by the EU citizens, is a key player for the adoption of legislation and in budgetary matters. However, the Treaties do not provide for a strategic role for the European Parliament, even if they are a precondition for meaningful legislative and budgetary activity. Similarly, the Treaties do not afford the European Parliament direct access to the information linked with the implementation of EU law but only an indirect access through the Commission or in exceptional circumstances through enquiry committees. Finally, the European Commission plays a role at all stages as it possesses strategic, legislative and operational powers and it can even exercise quasi-judicial functions. Needless to say, in a fuzzy inter-institutional situation, every institution tries to strengthen its own position with the clear motivation of ‘restoring’ the ‘balance’. Unsurprisingly, then, the system of checks and balances inside the EU suffers because of a never-ending process of redistribution of powers between the national and the European levels, combined with an EU process between the EU institutions themselves. The so-called ‘better law-making inter-institutional agreements’4 are far from addressing these issues. The latest versions are a Prévertstyle list of the possible problems, but the solutions that they contain are vaguely defined and in some aspects (such as transparency) could even be considered as not complying with the Treaties according to articles 295 and 298 of the TFEU.5 In the end, the only institution that can find its way in this complex situation is the Court of Justice of the European Union, to whose shoulders the Member States transferred a virtually impossible task. The Court is indeed the institution called to act as the arbiter and to ensure the respect of the powers conferred by the ­Treaties to the different institutions (Article 267 TFEU). No other EU domain of competence can better illustrate this complex situation than the Area of Freedom, Security and Justice. The objective of establishing this area was endorsed 20 years ago when EU Member States signed the Amsterdam 3 

See Art 13 TEU and Title of the TFEU. Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law Making’ of 13 April 2016 in OJ L 123 of 12/05/2016 (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016Q0512%2801%29). 5  As an example, see the saga concerning the choice between delegated and implementing acts as defined by Articles 290 and 291 of the TFEU. 4 ‘Interinstitutional

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Treaty in October 1997. With the same Treaty they also integrated the Schengen cooperation in the EU ‘ordinary framework’ and created some legal bases giving ‘specific expression to EU principles’ (following the expression of the Court of Justice), as is the case for EU policies dealing with anti-discrimination, asylum, data protection, good administration and procedural rights in civil and criminal proceedings.6 Looking at it from today’s perspective, the Member States’ objective of building an Area of Freedom, Security and Justice was not merely an elegant legal formula aiming to bring together, and in a consistent way, some fragmented public initiatives that were previously managed bottom-up by some EU Member States, which were meeting in the framework of the Trevi group (1976) or cooperating together under the Schengen agreement (1985). The introduction of this new objective in the Amsterdam Treaty was a top-down approach, aiming at keeping people and not only EU citizens, at the centre of the European construction, as stated in the preamble of the Charter of Fundamental Rights. This ambitious vision of the European Area of Freedom, Security and Justice was present in the first European Council Documents, such as the Tampere Programme (1999)7. However, the ambition was progressively less visionary in the Den Haag Programme (2004)8 and in the Stockholm Programme (2009)9 and finally disappeared in the latest 2014 European Council Guidelines.10 The latest 2014 text follows a sort of a minimalist and revisionist approach which contradicts the ambitious vision accepted by the same Member States only some years before when negotiating the Constitutional Treaty, and even the Lisbon Treaty which mirrored the same ambitious objectives. That having been said the transition to the post-Lisbon era has triggered some significant changes with regard to the role of the EU institutions, especially when they act as legislator or at strategic and operational levels even if these changes are not always as expected bearing in mind the letter and the spirit of the Treaties and of the Charter.

III.  Is the New Post-Lisbon Era a Reality? Concerning the legislative function, the increasing role of the European Parliament in the Freedom Security and Justice Area can change everything. Whereas, 6  European Parliament Research Service, F Ferraro and J Carmona, Fundamental Rights in the European Union, The Role of the Charter after the Lisbon Treaty, March 2015, PE 554.168, p 8. 7 European Council of Tampere, Presidency Conclusions: http://www.europarl.europa.eu/­ summits/tam_en.htm, accessed in September 2017. 8  European Council of Brussels, Presidency Conclusions, Council doc 14292/1/04 REV 1. 9  European Council, Stockholm Programme—An open and secure Europe serving and protecting citizens [2010] OJ C115/1. 10  European Council, Conclusions of the European Council (26/27 June 2014), doc EUCO 79/14, p. 2.

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until the ’70s, this institution was only consulted and (sometimes) informed by the Commission and the Council, the subsequent Treaty reforms (Maastricht, Amsterdam and Lisbon Treaties) have made the Parliament a true co-legislator11 on an equal footing with the Council in most of the EU competences linked to the ­development of the EU as an Area of Freedom Security and Justice. After ­Lisbon the Parliament can play the role of co-legislator also in the field of EU police cooperation and criminal law.12 But the EU Member States have not yet accepted this change of paradigm. Even if legislative co-decision has become the ­‘ordinary’ procedure applicable in the sensitive area of justice and home affairs, inter-­institutional problems can arise between the EU Member States, the European Parliament and the Commission. This is notably the case when EU strategies have to be defined or operational cooperation is at stake. For instance, when adopting EU strategies in the Area of Freedom Security and Justice, inter-institutional tensions arise. The European Parliament is only informed of their adoption. The European Council, acting on the basis of article 68 TFEU, faces critics from the Commission, the l­atter considering that it should be competent given its general role in launching EU annual and pluri-annual planning (article 17 TEU). But if legislative co-decision has become the ‘ordinary’ procedure, interinstitutional problems can arise between the EU Member States and the Commission when strategies have to be adopted or operational cooperation is at stake. For instance, when adopting EU strategies in the Freedom Security and ­Justice Area the relationship between the European Council (which is in charge according to Article 68 TFEU) and the Commission remains tense; the latter invoking its general role in launching EU annual and pluriannual planning (Article 17 TEU). Similarly, when discussing operational cooperation, and executive functions, EU Member States want closer control through their ‘experts’ in case of delegated powers (Article 290 TFEU) as well as via the so-called ‘comitology’ framework, a set of procedures through which representatives of EU Member States keep a check on how the European Commission implements EU law. But the main tool by which the EU Member States have also retained their control on the Freedom Security and Justice Area policies are the old and new EU agencies, which are often turning into pre-federal structures of some kind.13 Not surprisingly, and even after the entry into force of the Lisbon Treaty, EU Member States have tried to preserve the intergovernmental method by giving, with the help of the EU High Representative for Foreign Affairs and Security 11  Since then almost 2000 legislative acts have been adopted in accordance with the co-decision ­procedure, now known as the ordinary legislative procedure. 12  And has to give its consent for the establishment of the European Public Prosecutor’s Office (Article 86 TFEU). 13 These agencies are the Fundamental Rights Agency (FRA), FRONTEX dealing with border ­policy, EASO dealing with Asylum, EUROPOL dealing with Police Cooperation, CEPOL as a training institute, EUROJUST for judicial cooperation, EU-LISA for the management of the large information systems, and EMCDDA dealing with prevention of drug abuse.

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Policy, an extensive interpretation of the policies linked with common security and defence policy. Even if in this domain there are no legislative powers, and the measures adopted are diplomatic and non-binding, EU Member States have jealously sought to protect their domaine réservé. This can be witnessed when examining the legal basis used for the adoption of counter-terrorism measures implementing United Nations Security Council Resolutions. In this still blurred Freedom Security and Justice Area scenario (made even more complex given the specific situation of some EU Member States, such as the United Kingdom, Ireland and Denmark), it is difficult for the EU to flesh out a true form of supranational governance, even when it is required by the Treaties. This lack of a true ‘European model’ is particularly evident in the process of transformation of the European Union into an Area of Freedom, Security and Justice as it is still the case for the EU economic governance, which should complement the EU’s monetary policy. The activism of the European Council since the entry into force of the ­Lisbon Treaty cannot hide the absence of an overarching strategy for the future of the European Union, and the fact that several EU Member States do not want to move into the post-Lisbon era even if this could be in historical continuity with the development of European integration. This continuity exists in the economic field, starting with the internal market phase, the phase establishing the Euro and the phase defining a form of economic governance. It also exists in the field of justice and home affairs, starting with the first forms of operational cooperation within TREVI, the development of the Schengen cooperation, and the transformation of the EU into an Area of Freedom, Security and Justice. Keeping the pace of this evolution up was behind the idea of an EU Constitutional upgrade grounded on an EU Charter of Fundamental Rights and clearly-set democratic principles according to which the person, and not only the citizen, would be at the core of EU integration. What has become of this idea is becoming increasingly clear. Instead of building the new Union, following the new model outlined in the Treaties and in the Charter, most EU Member States have reversed their progress along an EU path under pressure from some internal and external factors which have almost ­broken ­internal unity and solidarity. Among these factors, the following can be remembered: —— in 2003, the lack of a common EU position towards the Iraq war; —— in 2004, the massive enlargement bringing 10 new states, which were probably not ready to play an active part in the new project, into the EU; —— in 2005 the negative referendums in the Netherlands and in France; —— and finally, in 2008, the financial crisis which took Europe by surprise and which has triggered unprecedented levels of tension inside the EU. This perfect storm, which reached its peak at the end of 2009 when the Lisbon Treaty entered into force, has not surprisingly kept the ‘new look EU boat’ laid up in the harbour awaiting better weather conditions. Through the European Council, now an EU institution, EU Member States have taken the lead and

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relaunched the intergovernmental method at the expense of the Community method, which should have been (at least in principle) the general rule. The result has been that the EU institutions have moved at different speeds and have sometimes taken different paths. This situation has not only triggered several cases before the Court of Justice, but it has also sent confusing messages to the European citizens, who do not understand what the EU currently really is and more importantly what it wants to be. To emerge from this fuzziness the Commission has recently adopted a White Paper on the Future of Europe,14 whereby it submitted to the EU Member States several possible solutions which will be further detailed in the coming months (probably by taking in account the position of the Governments arising from the 2017 French and German elections).

IV.  A Virtual ‘Google Map’ of the EU Institutions Six Years after Lisbon If it were possible to build a google map of the EU institutions and to locate them depending on whether they have or have not entered a post-Lisbon era, they would be found in different places. In this author’s opinion, the only institution that has already entered this era is, quite logically, the Court of Justice of the European Union. Even though in some rulings dealing with the freedom of movement of EU citizens the Court has shown some nostalgia for the former situation, its ­‘location’ is in the new post-Lisbon era. This has been made clear by the CJEU Opinion 2/13 on the EU accession to the European Convention of Human Rights.15 In this Opinion, the Court developed its own vision of the European Union, which can be understood when reading the following paragraphs (emphasis added): (157). … the founding treaties of the EU, unlike ordinary international treaties, (have) established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals … (158). The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR. …

14  European Commission, ‘White Paper on the Future of Europe: Reflections and Scenatios for the EU27 by 2025’ of 1 March 2017, COM(2017) 2025: https://ec.europa.eu/commission/sites/ beta-political/files/white_paper_on_the_future_of_europe_en.pdf. 15  Opinion of the Court (Full Court) of 18 December 2014 on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.

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(167). These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’. (168). This legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected. … (170). The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU … (171). As regards the structure of the EU, it must be emphasised that not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law (see, to that effect, judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraphs 17 to 21). (172). The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute—each within its specific field and with its own particular characteristics—to the implementation of the process of integration that is the raison d’être of the EU itself.

Could one consider that this vision is also shared by EU Member States, in particular when they act within the framework of the Council or of the European Council? In the author’s opinion, this is far from being the case. EU Member States are still a long way away from moving into the post-Lisbon era, and most of them have a vision of European integration that dates back to somewhere between the Amsterdam and Maastricht Treaties or even to the Schengen intergovernmental cooperation phase. As an illustration of their positions, one could take the example of the socalled European Internal Security Strategy, which was approved by the European Council in March 2010, without any prior consultation of the European Parliament and national parliaments.16 This strategy was followed by a Commission ­Communication,17 which was partially different to the strategy, because the

16  This text, adopted by the Justice and Home Affairs Council at its meeting on 25 and 26 February 2010, was later approved by the European Council on 25 and 26 March 2010. Text available at: https:// www.consilium.europa.eu/uedocs/cms_data/librairie/PDF/QC3010313ENC.pdf. 17  Communication from the Commission to the European Parliament and the Council—The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, COM(2010) 673 final, 22 November 2010.

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­ ommission considered that the Council should have respected the CommisC sion’s right of initiative, which is also applicable for strategy documents. In reality, the real authors of this EU Internal Security Strategy were the EU Member States themselves, even if under the hat of some European agencies, notably Europol, Eurojust and Frontex, which define the nature of the ‘threat’ and the measures to be taken to prevent, limit and overcome possible emergency situations. Formally, the final decisions are taken by the EU institutions, and not by the agencies t­ hemselves. However the distinction between the strategic and the operational aspects18 is so thin that it is possible that the Council and, when needed, the Commission, rubber-stamp what has been decided by unelected national representatives in the Agencies’ Management Boards. Council and Commission officials very often also prefer the pre-Lisbon ­intergovernmental way, when they have to evaluate the implementation of the principle of mutual recognition even if after Lisbon, Article 70 TFEU clearly states that the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national parliaments shall be informed of the content and results of the evaluation.

Almost seven years have passed since the entry into force of this new legal basis for evaluations, but, instead of building on the new legal basis, the Commission and the Council have recently decided to continue with the mutual evaluation ­system,19 adopted in 1998 under the Maastricht regime, which, incidentally, does not envisage the European and national parliaments being provided with information. The fact that the EU Member States stick to the Maastricht regime is particularly worrying as, by so doing, they do not comply with the principle of solidarity between themselves which is the main improvement introduced by Article 80 TFEU as a basis for a truly supranational European security area. Even today the exchange of security-related information remains on a voluntary basis, be it when feeding the Schengen Information System or participating in joint initiatives, such as those covered in the framework of the EU Internal Security Strategy by the socalled ‘policy cycle’. The voluntary nature of exchanging this information remains unchallenged, even if the Internal Security Strategy is indirectly invoked by some

18  The most evident case of overlapping of these two dimensions is the ‘integrated border strategy’ which will be adopted by the Management Board of Frontex without any further intervention of the EU institutions even though it will be deemed to be binding for the Member States. 19  See Council Doc No 6159/17, of 9 February 2017, in which the Working Party on General Matters discussed the Maltese Presidency’s work programme: ‘The aims of the Presidency are to discuss and adopt the remaining reports of the 7th evaluation round, and to adopt the questionnaire on environmental crime for the 8th evaluation round.’

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EU legislative measures, such as the new Regulations on Eurosur,20 Europol21 and the new EU Border and Coast Guard.22 It is only very recently that some initiatives have been taken in order to ensure a more structured framework for the exchange of security-related information,23 but a legislative measure has not yet been planned. Not surprisingly the lack of trust between EU Member States’ administrations in the domain of police cooperation is also mirrored at EU level, where there is no real interaction between the police and justice actors, be it at the level of the ­Internal Security Committee (COSI), or at the level of interagency cooperation. Eurojust is indeed playing an ancillary role towards Europol, instead of the reverse.24 The elements mentioned above are only illustrations that, almost 40 years since the launch of the TREVI group, the administrations of the EU Member States are very far from engaging in true and fair cooperation. The situation has only been slightly improved recently after the terrorist attacks in Belgium, France and ­Germany, but even today there has not been an enquiry at EU level, as was the case in the United States after the 9/11 attack. Without a supranational and ­independent enquiry, how can one prevent events of a similar nature from ­happening? Would not the European citizen be shocked by the fact that after so many victims of terrorists attacks, the EU institutions do not adopt the measures which are now ­possible since the entry into force of the Lisbon Treaty, such as the recognition of a stronger role for Eurojust, also in the terrorism domain,25 if the empowerment of the European Public Prosecutor’s Office in this domain is seen as too premature … Instead of building a binding supranational operational framework, the Council has chosen to expand the collection of personal data of ordinary citizens, through the Passenger Name Record Directive,26 and to criminalise, in the new Directive

20  Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) [2013] OJ L295/11. 21  Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) [2016] OJ L135/53. 22  Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard [2016] OJ L251/1. 23  See for example the Roadmap to enhance information exchange and information management including interoperability solutions in the Justice and Home Affairs area (Council Doc No 9368/1/16 REV 1), endorsed by the Council on 10 June 2016, and the High Level Group currently in charge of this issue. 24  See Art 86 of the TFEU referring to the relation between the EPPO, which should be established from Eurojust and which ‘shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators …’. 25  The proposal has been blocked on the European Parliament table for several years. 26  Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime [2016] OJ L119/132.

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on terrorism, behaviour whose connection with terrorist activity will be very hard to prove.27 By so doing, the EU legislator will impose an impossible burden on judges who, at the end of the day, should find criminals guilty on the basis of real facts and not on the basis of presumptions that are hard to prove (especially when coming from intelligence sources). Could we consider this method of law-making compatible with the Lisbon Treaty and with recent Court of Justice jurisprudence? Some doubts can be expressed, and they can be confirmed by the Council’s Legal Service, which has recently stated in the internal guidelines on the evaluation on fundamental rights of the new legislation:28 Any limitation on the exercise of the rights and freedoms laid down in the Charter must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. How the Court approaches this assessment is set out in more detail in Annex IV[2]. The Council and the Council preparatory bodies shall carefully consider any possible interference with fundamental rights and freedoms and shall be able to demonstrate that they have explored alternative ways to attain the pursued objective which would be less restrictive of the right or freedom in question. [2] The recent case law of

the European Court of Justice (See Judgment of 8 April 2014, Cases C-293/12 and C-594/12, Digital Rights Ireland and the information note by the Council Legal Service in 9009/14) confirms that the Court will not satisfy itself with anything less than a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature. It also indicates that such measures do not stand a serious chance of passing the legality test, unless they are accompanied by adequate safeguards in order to ensure that any serious restriction of fundamental rights is circumscribed to what is strictly necessary and is decided in the framework of guarantees forming part of Union legislation instead of being left to the legislation of Member States.

If the Council and the Member States are still locked in a pre-Lisbon era or, in other words, in the legal framework applicable between the treaties of M ­ aastricht and Amsterdam, where is the European Parliament? In accordance with the map proposed earlier, it is still functioning as if it were within the legal framework applicable between the treaties of Amsterdam and Lisbon. The European

27  Proposal for a directive of the European Parliament and of the Council on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism (COM (2015) 0625), adopted by the European Parliament on 16 February 2017 and by the Council on 7 March 2017 (see http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2015/ 0281(COD)). 28  Council of the EU, Fundamental Rights Compatibility: Guidelines for Council Preparatory Bodies, (January 2015) p. 3. www.consilium.europa.eu/en/documents-publications/publications/2015/pdf/ qc0214079enn_pdf/ http://data.consilium.europa.eu/doc/document/ST-5377-2015-INIT/en/pdf.

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Parliament is indeed behaving as if police and judicial cooperation in criminal matters still belonged to the intergovernmental framework, and as if it were not falling under its own responsibility. Is the European Parliament afraid of entering the game? Does it feel unprepared? This hypothesis could be valid, and it will not be surprising, because the information that the European Parliament receives from EU Member States and the Commission is only a fraction of the available information. Moreover, the information received is probably not even the most interesting information, because EU Member States and the Commission are very reluctant to reveal national or European shortcomings in these domains. Even when the European Parliament has to act as co-legislator, it looks extremely shy, and very often this institution does not dare establish its position before knowing (in a very approximate way) what EU Member States are debating behind closed doors in the Council. Would a more structured transfer of information to the European Parliament improve the situation? The author’s view is that it would be quite likely to improve the situation if we have to judge from the best practice that has emerged from the post-Lisbon evaluation of the Schengen cooperation. So the question is: why is the European Parliament allowing itself to be sidelined in the area of police and judicial cooperation in criminal matters? This situation is no longer due to its weaknesses from a legal or institutional point of view, as was the case when these policies were under the intergovernmental regime of the Third Pillar and the Council was the only institution responsible for the measures to be adopted. The entry into force of the Lisbon Treaty has changed everything, and thanks to the application of the ordinary legislative procedure in criminal law, the European Parliament has the right to obtain all the information (even classified), which is required to play its new constitutional role. If the European Parliament does not ask for the information, it is probably because the political forces that constitute the majority in the European Parliament are also present in EU Member States’ governments. MEPs might well be thinking that it would be difficult for the European Parliament to put these ‘friend’ governments in a difficult position in front of national public opinion and their own citizens.

V. Conclusion As a European citizen, my view is that this situation is inappropriate because it leads to a weak European Parliament, and a weak European Parliament dilutes the principle of representative democracy on which the EU is now grounded. While it is perfectly understandable (even if not justifiable) that a national government only takes into account the interests of its national citizens, it would be unacceptable for a European Parliament which is supposed to represent all the EU citizens to abdicate its role in order to protect some national government or other for reasons of political opportunism. Moreover, a weak European Parliament cannot be

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a shield for citizens who feel abused by their own governments. This is a situation that is no longer theoretical but is actually happening in Poland according to the recent evaluations by the EU Commission.29 Not surprisingly, when parliaments do not play their role fully, it is up to the national judges to intervene, as has been the case in the asylum policy with the NS ruling30 and with the Aranyosi ruling31 dealing with judicial cooperation in criminal matters. The author’s view is that European citizens are best protected via clearly defined legislative rules and not by the personal assessment of a judge, whether the judge is a European or a national one. And where is the Commission in our virtual google map? The Commission appears to be increasingly lost in a sort of ‘no man’s land’ because it has the impossible task of playing at the same time the role of the guardian of the Treaties, and the role of a kind of government of the EU. Moreover, the situation is unlikely to be improved by the ‘Spitzenkandidaten’ [direct election of the European Commission President by EU citizens in the European Parliament elections] procedure, which was used to elect the current President of the Commission. The paradox here is that following this path will limit the power of the European Parliament. All of the above represent risks to the integrity of the institutions. The gradual transfer of executive functions to European agencies requires closer scrutiny. Thanks to this transfer of executive functions, EU Member States are taking back control of the EU decision-making process, as these agencies are not only independent from the Commission but also superficially overseen by the European Parliament. It is important to notice that this trend, which has been so clear in the last 10 years in the Area of Freedom, Security and Justice, has recently been boosted by the Court of Justice with the establishment of the European Securities and Markets Authority (ESMA). This is probably the most important factor changing the institutional balance in the EU. Finally, it is important to refer to the new ‘quasi-EU’ institution called the ‘Head of state and Government group’, which is part of the European Area of Freedom, Security and Justice and which has recently agreed with Turkey a so-called ‘deal’ mirrored in an EU-Turkey ‘statement’. The European Parliament and some scholars have raised questions about the real nature of this ‘deal’ and three cases have been submitted to the Court of Justice for its consideration. These doubts arose because, on the one hand, the President of the European Council has declared that this was a binding agreement but, on the other hand, it has not been negotiated 29 See: ‘Rule of Law: Commission discusses latest developments and issues complementary ­ ecommendation to Poland’: http://europa.eu/rapid/press-release_IP-16-4476_en.htm, accessed R 21 December 2016. 30  NS (C-411/10) v Secretary of State for the Home Department and ME and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Judgment of the Court of 21 December 2011, ECLI:EU:C:2011:865. 31  Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, Judgment of the Court of 5 April 2016, ECLI:EU:C:2016:198.

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and concluded as required by Article 218 of the TFEU. The General Court has recently answered that question, as it stated in its Order that the EU-Turkey statement, as published by means of Press Release No 144/16, cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union, or as revealing the existence of such a measure that corresponds to the contested measure.32

Yet this answer does not resolve the question of its legal status. The situation reminds the author of this contribution of a painting by the surrealist Magritte showing a pipe and with a clear statement: ‘This is not a pipe’.

32 General Court, Case T-192/16 NF v European Council, Order of 18 February 2017, ECLI:EU:T:2017:128, para 71.

Part III

The Quest for the Right Balance Between Diversity and Unity

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11 The Issue of Mutual Trust and the Needed Balance Between Diversity and Unity DANIEL FLORE

The issue is certainly not new. As far as we go back in time, the relations between states have been characterised by mistrust and suspicion. Even though it existed then, the necessity of a certain degree of trust was linked to the idea of common interests. In the nineteenth century, it took the form of reciprocity. In the ­twentieth century, the words of ‘mutual trust’ first appeared in the language of the Council of Europe, as for instance in the 1972 Convention on transfer of criminal proceedings.1 However, it has been developed as a concept and a guiding principle only by the European Union, in the context of the creation of an Area of Freedom, Security and Justice.

I.  The Milestones With the entry into force of the Treaty of Amsterdam in 1999, the creation of an Area of Freedom, Security and Justice became an objective of the EU. The same year, the European Council of Tampere gave an unexpected content to that objective, by building the principle of mutual recognition of judicial decisions as the cornerstone for judicial cooperation between the Member States. In 2000, the Council adopted a programme of measures for the implementation of the principle. Then the idea appeared explicitly that mutual recognition implied mutual trust. The European Court of Justice developed this idea from 2003, firstly with the judgment in the Gözütok and Brügge cases.2 In its view, it is because there 1  European Convention on the Transfer of Proceedings in Criminal Matters of 15 May 1972, ETS No 73. 2  Joined Cases C-187/01 and C-385/01, Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), EU:ECLI:C:2003:87.

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is no approximation and because we have to create an area of freedom, security and j­ustice that mutual trust is necessary (‘necessary implication’) to apply the ­principle of mutual recognition of the judicial decisions in criminal matters. In 2009, the Lisbon Treaty legally established the principle of mutual recognition and, even if it does not mention the need of mutual trust, it provides for approximation of procedural rights ‘if necessary for mutual recognition’. The idea this implies is that approximation of procedural rights can facilitate mutual recognition, because it enhances mutual trust between the competent authorities.

II.  Elements of Mutual Trust Mutual trust is a manifold concept, but it means primarily trust by the competent authorities in the criminal justice systems of the other Member States. This mutual trust is based on common values that are contained in the Treaty. Article 2 TEU states that ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. Article 6 TEU states that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at ­ ­Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties

and Article 6(3) TEU adds that ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. The whole set of provisions concerning fundamental rights is thereby covered. The system is supposed to be effective, because Article 7 TEU provides that in case of ‘serious and persistent breach’ by one of the Member States of the principles set out in Article 6(1) TEU, a decision can be taken through a European Council procedure against the Member State concerned. This decision may result after a formal warning as to the suspension of certain of the rights deriving from the application of the Treaties to the Member State in question.3 However, this provision has not been used yet.4

3 For more details, see Commission, ‘Communication on Article 7 of the Treaty on European Union’ COM(2003) 606 final, and Commission, ‘A new EU Framework to strengthen the Rule of Law’ (Communication) COM(2014) 158 final/2. 4  Commission, Press release ‘Commission Opinion on the Rule of Law in Poland and the Rule of Law Framework: Questions & Answers’ (1 June 2016): http://europa.eu/rapid/press-release_MEMO16-2017_en.htm, accessed 4 April 2016. ‘The preventive and sanctioning mechanisms of Article 7 have so far not been resorted to.’

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Is this combination of principles and procedural mechanism sufficient to build actual mutual trust? If we go deeper and turn to the project contained in the Treaty for the functioning of the EU in criminal justice matters, the question arises of the relation between mutual recognition—one of the tools and objectives in this field—on the one hand, and mutual trust—another implicit founding principle of the Area of Freedom, Security and Justice—on the other hand. If mutual recognition is possible only when there is mutual trust, does it imply that mutual trust would be a necessary prerequisite? Or, on the contrary, is mutual trust merely a postulate: something that Member States have to accept without providing evidence for it, and which is a necessary principle in an Area of ­Freedom, Security and Justice for the purpose of mutual recognition?

III.  Mutual Trust as Seen by the ECJ (First Phase) The European Court of Justice seems to have considered mutual trust as a postulate from the beginning. This position appears in a lot of judgments, starting with the first of them, Gözütok and Brügge mentioned above. In these cases, the Court takes into account the fact that, in the Treaty, ‘police and judicial cooperation is not made conditional upon harmonization’5 and that there is therefore a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.6

The European Court of Justice stays on the same line in its opinion c­ oncerning the accession of the Union to the European Convention on Human Rights.7 The judges state that the legal structure of EU law is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU.

And what follows is even more relevant, as the Court stresses that such ­‘premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected’.8

5 

Gözütok and Brügge (n 2 above) para 32. Gözütok and Brügge (n 2 above) para 33. 7  Opinion 2/13 of 18 December 2014, ECLI:EU:C:2014:2454. 8  Ibid, para 168. 6 

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IV.  Mutual Trust as Seen by the Legislator The position of the European legislative bodies is less clear and more fluctuant. At the time of the European Arrest Warrant (EAW),9 the tendency was more to consider the principle as a postulate. That was in any case the position of the Commission, which had presented a proposal aiming at creating a system that would be as automatic as possible. At the end, the system established was different: many grounds for refusal were built into the system; a real control by the authority of execution was established, but no control was provided on fundamental rights. Nevertheless, the preamble was particularly cautious on the question. Recital 10 makes a link between mutual trust and the procedure of Article 7 TEU, which remains very exceptional as we have seen before. Recital 12 refers to the necessity for the Framework Decision to respect fundamental rights, which is confirmed in Article 1(3) of the Framework Decision, even if it is referred to them in a declaratory way. Recitals 12 and 13 go even back to clauses contained in earlier extradition treaties, considering that nothing in this Framework Decision may be interpreted as prohibiting refusal to ­surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons [non-discrimination principle]

and that ‘no person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, ­torture or other inhuman or degrading treatment or punishment’. If we look now at the instruments concerning approximation of procedural rights, for which we know that approximation of procedural criminal law is expressly linked by the Treaty to mutual recognition, we can note some evolution in the position of the EU legislator. Mutual trust remains a postulate, as for instance when recital 4 of the Directive 2013/48/EU on the right of access to a lawyer provides that ‘the implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems’ (emphasis added).10 The recital continues then saying that the extent of the mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons 9  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. 10  Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1.

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and common minimum standards necessary to facilitate the application of the principle of mutual recognition.

This element indicates a quite different position on mutual trust, and the change becomes even more obvious when examining recital 6 of the same Directive. That recital considers that mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities, but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied. Strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the Charter, the ECHR and the ICCPR. It also requires, by means of this Directive and by means of other measures, further development within the Union of the minimum standards set out in the Charter and in the ECHR.

According to this reasoning, mutual trust is not any more a postulate or a presupposition, but is rather the result of the existence and effective application of procedural rights, which constitute fundamental rights of the person. The last step in this evolution of the position of the legislator can be found in the Directive on the European Investigation Order (EIO).11 Its recital 19 provides explicitly that even if ‘the creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights’, that presumption is, however, rebuttable. The text continues, saying that if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.

Consequently, in its Article 11, the Directive provides for a specific ground for refusal based on that idea. This facultative ground for non-recognition and nonexecution of an EIO may be invoked in the situation where ‘there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter’. The insertion of such ground for non-­ recognition illustrates the important change in the position of the legislator towards mutual trust: it is no longer a postulate, but it is the result of the compliance of Member States with fundamental rights, which can be assessed in any individual request.

11  Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1.

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V.  Mutual Trust as Seen by the ECJ (Second Phase) Now the European Court of Justice seems also to have changed its mind concerning that relation between mutual trust and mutual recognition, on the occasion of the Aranyosi and Caldararu cases,12 concerning the application of the Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States. Should it be seen as an evolution or a revolution? The Court points out the exceptions to mutual trust that have already been acknowledged in European law. It refers to recital 10 of the Framework Decision on the EAW, which we discussed earlier.13 The Court refers to its own Opinion 2/13, paragraph 191, where it has already recognised that ‘limitations of the principles of mutual recognition and mutual trust between Member States can be made “in exceptional circumstances”’.14 The Court then refers to Article 1(3) of the EAW Framework Decision, which expressly states that it ‘is not to have the effect of modifying the obligation to respect fundamental rights’.15 Last but not least, the Court stresses that compliance with Article 4 of the Charter, concerning the prohibition of inhuman or degrading treatment or punishment, is binding, as is stated in Article 51(1) of the ­Charter, on the Member States and, consequently, on their courts, where they are ­implementing EU law,16

and that ‘the prohibition of inhuman or degrading treatment or punishment is absolute’.17 The reasoning of the Court indicates a change in its position on mutual trust. Mutual trust cannot be merely a postulate or a presupposition, but on the contrary it has to be confronted with what the protection of fundamental rights requires. This means that mutual recognition cannot overrule the necessity to verify the respect of these rights and that mutual trust must be based on the confirmation of the compliance with these rights. On the basis of this new position, the European Court of Justice ruled that: where there is information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention,18 12  Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, ECLI:EU:C:2016:198. 13  Ibid, para 81. This recital provides that ‘the implementation of the mechanism of the European arrest warrant as such may be suspended only in the event of serious and persistent breach by one of the Member States of the principles referred to in Article 2 TEU, and in accordance with the procedure provided for in Article 7 TEU’. 14  Joined Cases C-404/15 and C-659/15 PPU (n 12 above) para 82. 15  Ibid, para 83. 16  Ibid, para 84. 17  Ibid, para 85. 18  Ibid, para 89.

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the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that because of the conditions for his detention in the issuing Member State, the individual concerned in a ­European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State.19 To carry out such exercise, the executing judicial authority must request the issuing judicial authority to provide supplementary information on the detention conditions of the concerned individual. The issuing authority may if necessary, seek the assistance of the central authority or one of the central authorities of its state, under Article 7 of the Framework Decision. The information must be sent within the time-limit specified in the request.20 In the meantime, the executing judicial authority must postpone its decision on the surrender of the individual concerned, until it obtains the supplementary information that allows it to discount the existence of such a risk.21 If the existence of that risk cannot be ­discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.22 In its judgment, the European Court of Justice thereby confirms that mutual trust cannot be absolute. There is an obligation for the executing authority to verify that the execution of the decision will not cause a violation of a fundamental right of the person concerned. It is not an abstract obligation, which is merely based on the systemic character of the violation, but rather the potential violation must concern a specific case and the solution has to adjust to the situation. However, the Court remains optimistic and proposes a procedure by which it is possible to build mutual trust beyond an initial doubt, through communication and exchange of information between the competent authorities of the concerned Member States. The rebuttal of the presumption of compliance with fundamental rights’ protection is a very careful process. And the necessity to control the conformity to fundamental rights is not construed as a ground for refusal ab initio, but it is envisaged more as a reason to enter into a dialogue between the competent authorities of both states concerned. Furthermore, the Court does not expressly enounce what the executing authority should decide when there is no satisfactory answer from the issuing authority, even if we can assume that it could be a refusal of the execution of the EAW. On the other hand, the Court does not follow the Advocate General, who proposed to add a proportionality check.23 This exercise should not only be carried

19 

Ibid, para 92. Ibid, paras 94–97. 21  Ibid, para 98. 22  Ibid, para 102. 23  Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, ECLI:EU:C:2016:140, Opinion of AG Bot. On the proportionality check, see paras 135 and 182. 20 

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out by the issuing authority when deciding to transmit a decision for execution,24 but it should also be possible to raise it before the executing authority.25 A careful examination must be made to balance the different interests at stake: the seriousness of the case, ie the need to punish, the need for security and the respect of fundamental rights.

VI.  Concluding Remarks What can we learn from these developments? The main lesson is that mutual trust may be a founding presupposition for mutual recognition, but it cannot be absolute and it can only grow on the basis of the control of the conformity of the situation with fundamental rights. This invites all the actors of the criminal justice system to engage in a constant dialogue, and it is only through their dialogue that mutual trust can be effective.

24  25 

Ibid, para 155. Ibid, para 160.

12 The Sensitive Relationship Between the Different Means of Legal Integration: Mutual Recognition and Approximation ANNIKA SUOMINEN*

I. Introduction ‘The sensitive relationship between the different means of EU legal integration: mutual recognition and approximation’ is a subject title that suggests that the relationship between mutual recognition and approximation is a sensitive one. However, as an initial approach, this is not necessarily representative of the relationship between these two main components of EU criminal law today. The focus of legal integration within the area of EU criminal law has been to combat cross-border crime on a joint EU basis and to facilitate more efficient cooperation between EU Member States. The idea is that national borders, which do not restrict the movement of citizens or criminals, should not hamper effective cooperation in combatting crime.1 The aim is to have a common area of freedom, security and justice where judicial decisions can move freely across borders and where EU Member States can work together in order to prevent and punish crime. Both mutual recognition and approximation of criminal laws are considered as being means to achieve this aim. Criminal law is, however, an area close to state *  This chapter is based on a presentation on the same topic given at the ECLAN conference and 10th anniversary conference, Brussels, 25 April 2016. An altered version of this was presented at the ‘More or less Europe’, The Future of European Law and Policy, 5th Conference on European Law and Policy in Context, University of Birmingham, 23 June 2016. The author wishes to thank all commentators on the chapter in both conferences, and especially Anze Erbeznik (LIBE Committee, European Parliament), Prof Anne Weyembergh and Chloé Brière for their valuable comments. 1  The term is used here, although it is admitted that it is not clearly defined, as has been pointed out in relation to the term ‘crime prevention’, see R Sicurella, ‘EU competence in criminal matters’ in V Mitsilegas, M Bergström and T Konstandinides (eds), Research Handbook on EU criminal law (Edward Elgar 2016) 57.

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sovereignty. This poses some challenges for EU criminal law and especially with regard to the role of EU Member States. The cross-border challenges that the EU faces today are considerable. Mutual recognition and approximation in EU criminal law presuppose that there is a cross-border element present. As such, purely national situations are not as directly influenced by these components. This chapter focuses on mutual recognition and approximation within specific parameters, ie where a given competence has been granted to the EU and a cross-border element is present.2 There are two main assumptions that are relevant in the discussion concerning the relationship between mutual recognition and approximation. The first one is that approximation is not necessary for mutual recognition. The second one is that approximation is relevant for mutual recognition to a certain extent as it facilitates cooperation. These two, to some extent contradictory assumptions are addressed in this chapter. The structure of this chapter is as follows: first approximation will be the focus (section II). Then the focus will be on mutual recognition and its components (section III). The relationship between these two approaches will subsequently be addressed (section IV). This includes the aims of these two components, which leads to an analysis of a set of principles that are relevant when legislating on both harmonisation instruments and mutual recognition instruments (section V). Finally, attention will be given to what this relationship entails for the future ­(section VI).

II.  Approximation (or Harmonisation) of Criminal Laws In EU criminal law, many instruments pursue the objective of approximating (or harmonising) national criminal laws, be it either in the field of substantive criminal law, or in the field of criminal procedure. Whereas the former mainly concerns the definition of offences and penalties, the latter deals mainly with the rights of victims and with procedural safeguards granted to suspects and accused persons. Harmonisation of substantive criminal law may aim at establishing minimum rules concerning the definition of criminal offences and sanctions.3 These rules set out which behaviour is to be criminalised by the national legislator and which type 2  This does not mean that the author is not sometimes critical of how the EU applies its legislative competences in criminal law matters, nor that she always regards the EU as having competence on such matters. 3  On the meaning of minimum rules, see eg A Klip, European criminal law, an integrative approach (3rd edn, Intersentia 2016) 181–83, and P Asp, ‘The substantive criminal law competence of the EU’ (2012) 79 Skrifter utgivna av Juridiska Fakulteten vid Stockholms Universitet 110–27.

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and minimum level of sanctions should apply to such acts. According to paragraph 1 of Article 83 of the Treaty on the Functioning of the European Union (TFEU), the EU is competent to adopt such instruments in the areas of ‘particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’, also called ‘euro crimes’.4 These crimes are listed and are as follows: terrorism, trafficking of human beings and sexual exploitation of women and children, illicit drug and arms trafficking, corruption, money laundering, organised crime, counterfeiting of means of payment and computer crime (Article 83(1) TFEU). This provision thus provides for two reasons for the approximation of EU Members States’ criminal laws and regulations: firstly, the nature of the impact of the offences and secondly, the special need to combat these offences on a common basis.5 The second paragraph of Article 83 TFEU creates an ancillary competence, which can be considered to be a codification of the previous case law of the CJEU.6 This provision regulates the harmonisation of criminal law that can be done for the effective implementation of a Union policy in an area which is subject to harmonisation measures (Article 83(2) TFEU).7 This concerns, for instance, the possibility to define criminal offences for non-respect of environmental rules, adopted within the framework of the EU’s environment policy. When it comes to the term approximation, there does not seem to be one single legal definition of harmonisation with regard to European criminal law.8 The term approximation is generally used. This was the case before the entry into force of the Lisbon Treaty and it is still the prevailing terminological choice in the TFEU.9 Harmonisation is also referred to in Article 84 TFEU, but only to exclude what may not be done to establish measures to promote and support the action of EU Member States in the field of crime prevention.

4  See eg A Klip (n 3 above), 231 ff and http://ec.europa.eu/justice/criminal/criminal-law-policy/ index_en.htm, accessed 2.11.2016. 5  Similarly A Klip (n 3 above), 180. 6 Cases C-176/03 Commission v Council, ECLI:EU:C:2005:542 and C-440/05 also Commission v Council, ECLI:EU:C:2007:625, as well as A Klip (n 3 above), 180. It can here be noted that there is a possibility to allocate criminal law competences (for harmonisation) also elsewhere in the TFEU, such as eg in art 325 TFEU. This, although a very interesting question, will not be focused on further in this chapter, see eg P Asp (n 3 above), 141–63 and COM(2012) 363: Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law: http://eur-lex.europa.eu/procedure/EN/2012_193, accessed 3.11.2016. 7  For more information on harmonisation, see P Asp (n 3 above). 8  S Melander, ‘Harmonisation of Criminal Law in the EU: A Theoretical Approach to Harmonisation Models.’ The XXII World Congress of Philosophy of Law and Social Philosophy, ‘Law and Justice in a Global Society’ (IVR-University of Granada, Granada, 2005) 41 and FM Tadić, ‘How harmonious can harmonisation be? A theoretical approach towards harmonisation of (criminal) law’ in A Klip and H van der Wilt (eds), Harmonisation and harmonising measures in criminal law (Royal Netherlands Academy of Arts and Sciences 2002) 2. 9  Former Articles 29(2) and 34(2)(b) TEU, The Conclusions of the Tampere European Council 15–16 October 1999, available at: http://www.europarl.europa.eu/summits/tam_en.htm, accessed 3.11.2016. Milestone 33 and the Vienna action plan mention the approximation of criminal law.

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This has resulted in the terms approximation and harmonisation being used interchangeably and without a coherent—or at least clearly visible—reason.10 A deeper dive into terminology will not be done here but suffice it to say that there have been discussions regarding approximation, harmonisation and unification in relation to EU criminal law.11 The terms approximation and harmonisation will be used as synonyms in this chapter. These terms refer to a similar objective of reducing the differences between national criminal justice systems and bringing existing national criminal justice systems closer together. The aim of harmonisation can therefore be considered to be achieving a more coherent criminal law within the area of freedom, security and justice (AFSJ). This leads us to analyse the principle of mutual recognition.

III.  Mutual Recognition In 1999, avoiding the harmonisation of criminal law was a key reason for choosing mutual recognition as the format for cooperation.12 Applying mutual recognition in cooperation in criminal matters enabled an efficient form of cooperation that preserved, at the same time, as much as possible of the sovereignty of EU Member States. Mutual recognition made and still makes it possible to preserve the fundamental values of EU Member States. For some EU Member States, this

10  See further FM Tadić (n 8 above) 2–3, on the importance of clarification of the term harmonisation. Although one reason could be the previous intergovernmental nature of the third pillar, this does not explain why the terminological difference is maintained in the Lisbon Treaty, see Article 83(2) TFEU, which is mentioned eg in A Suominen, ‘Om giltigheten av ett rambeslut i e­ uropeisk straffrätt samt Lissabonfördragets inverkan på området för den europeiska straffrätten’ (2008) 95­­ Nordisk Tidsskrift for Kriminalvidenskab 139. 11  For a further analysis of these different approaches, see A Suominen, The principle of mutual recognition in cooperation in criminal matters—A study of the principle in four framework decisions and in the implementation legislation in the Nordic Member States (Intersentia 2011) 51–55. See further A Weyembergh, Le rapprochement des législations, condition de l’espace pénal européen et révélateur de ses tensions (Éditions de l’Université de Bruxelles 2004) 137 ff and A Weyembergh, ‘Approximation of Criminal Law, the Constitutional Treaty and the Hague Programme’ (2005) 42 Common Market Law Review 1567–97, at pp 1578–81, where she distinguishes between the two different functions of approximation, the auxiliary and the autonomous functions. 12  A Suominen (n 11 above) 51–52, F Zimmermann, ‘Judicial assistance and equality of arms— to what extent can European cooperation in penal matters serve as a model for the reviewed Rome ­Statute?’ in C Burchard, O Triffterer and J Vogel (eds), The Review Conference and the ICC ­(Kluwer Law International 2010) 292 and S Peers, ‘Mutual Recognition and criminal law in the European Union: Has the Council got it wrong?’ (2004) 41 Common Market Law Review 5–36, 9. Although as pointed out by P Asp, ‘Ömsesidigt erkännande av europeiska domar och beslut i straff processen—erfarenheter och tillämpningsfrågor’ in Forhandlingarna ved det 37 nordiske Juristmøde (Reykjavik 2005) Bind I, 68–69, this does not today seem to justify the use of the mutual recognition as such, as the purposes of these two concepts are rather different. This is addressed in this chapter as the aims of mutual r­ ecognition and harmonisation.

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­ reservation of their values is a benefit, which enables them to avoid harmonisap tion, which is considered as a more intrusive method. Despite being less intrusive than harmonisation and not creating any common rules, mutual recognition is more efficient than prior forms of cooperation.13 Mutual recognition allows the criminal and procedural legal systems of EU Member States to function together despite their differences. The differences between EU Member States are acknowledged, accepted and not allowed to act as impediments to cooperation. Decisions are to be recognised despite the existing differences. However, it quickly became evident that, in order to function properly, the principle of mutual recognition, the new cornerstone of judicial cooperation in the EU, requires a minimum level of harmonisation in relevant areas. This was explicitly recognised in the Lisbon Treaty itself: minimum rules concerning the admissibility of evidence, the rights of individuals in criminal procedures and the rights of victims of crime can be established to the extent necessary for the realisation of mutual recognition and police and judicial cooperation in criminal matters with a cross-border dimension (Article 82(2) TFEU).14 The aim of mutual recognition is to increase cooperation and effectiveness. In this sense, it can also be considered to be aiming at general prevention. Indeed, with effective cooperation mechanisms and legislation, general prevention and combatting crime are addressed in a transnational setting.

IV.  The Relationship between Mutual Recognition and Harmonisation In EU criminal law, harmonisation and mutual recognition were previously ­considered two different approaches, regardless of and notwithstanding their ­differences or perhaps even similar aims. These two were called ‘the two tracks of the cooperation in Justice and Home Affairs’.15

13 

A Suominen (n 11 above) 59–60. For more information on mutual recognition, see eg C Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press 2013), A Suominen (n 11 above), J Ouwerkerk, Quid Pro Quo? A comparative law perspective on the mutual recognition of judicial decisions in criminal matters (Intersentia 2011) and R Kinzler, Das Prinzip gegenseitiger Anerkennung im europäisierten Strafverfahren am Beispiel von Auslieferung und Beweismitteltransfer (Verlag Dr Kovač 2010). 15 K Nuotio, ‘On the Significance of Criminal Justice for a Europe “United in Diversity”’ in K ­Nuotio (ed), Europe in Search of ‘Meaning and Purpose’ (Publications of the Faculty of Law, ­University of H ­ elsinki 2004) 172–73 and S Scheuermann, Das Prinzip der gegenseitigen Anerkennung im geltenden und kunftigen Suropäischen Strafrecht. Zugleich eine Abhandlung uber die Notwendigkeit einer ­Europäischen Staatsanwaltschaft (Verlag Dr Kovač 2009) 195 consider(ed) them as two alternatives. 14 

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A. The Relationship between Mutual Recognition and Harmonisation The principle of mutual recognition does not, in a formal sense, require ­harmonisation.16 However, some form of harmonisation is desirable and necessary in order to facilitate a common level of understanding and to establish a level of trust on which mutual recognition can be efficiently based.17 This trust is one of the key components that bind together mutual recognition and harmonisation, within an AFSJ. Harmonisation builds on similar legal cultures and common understandings and it further develops this trust. Mutual recognition also builds upon this trust. Harmonisation of substantive criminal law might sometimes be, if not necessary, then at least recommended for the functioning of mutual recognition. An example is the well-known Assange case. An arrest warrant was issued for Assange and sent to the United Kingdom, where he was at the time. One of the alleged offences for which Assange was sought is included in the so-called ‘32-offence list’ (rape). For this offence, as for the others on the list, the double criminality requirement does not apply, but the definition in the issuing state (in this case Sweden) applies. There was a discussion on how the Swedish definition should be interpreted, as it was broader than the UK’s definition. This case is somewhat exceptional, taking into account its political sensitivity and the fact that Assange took refuge in Ecuador’s embassy in London.18 Nevertheless, this shows that harmonisation of substantive criminal law can be beneficial in order to maintain the smooth functioning of mutual recognition. If an EU Member State is to recognise and execute a decision taken in another country, it is better if it understands the decision and if it has decisions in its own legal system that are to some extent comparable. It will make cooperation easier if the decision is easy to understand.19 If the relationship between these two forms of legal integration is sensitive, it means that there are differing, or perhaps contradicting, aims behind the two. When it comes to these aims, how one defines them depends on which point

16  Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad, judgment of the ECJ of 3 May 2007, ECLI:EU:C:2007:261, para 59 and M Fletcher, R Lööf and B Gilmore, EU criminal law and justice, Elgar European Law (Edward Elgar 2008) 111. 17  M Fletcher et al (n 16 above) 111, HG Nilsson, ‘Mutual Trust or Mutual Mistrust?’ in G De Kerchove and A Weyembergh (eds), La confiance mutuelle dans l’espace pénal européen/Mutual trust in the ­European Criminal Area (Éditions de l’Université de Bruxelles 2005) 32 and A ­Weyembergh (n 11 above) 1574–77. 18  This is based on the previous situation in the Assange case, as at this date (17.11.2016) he has been heard in London and the case is evolving. The case, however, demonstrates a point. Assange v Swedish Prosecution Authority [2012] UKSC 22. 19 Some have stated that recognition without harmonisation makes this impossible, see eg the Green paper on approximation and mutual recognition COM(2004) 334 final, p 10 and P Asp, ‘Basic Models of a European Penal Law Mutual Recognition, Cooperation, Harmonisation’ in 4th European Jurists’ Forum (Manzsche Verlags- und Universitätsbuchhandlung 2008) 263–65. This is commented on below in Section VI.

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of view one takes. The aims of both harmonisation and mutual recognition are ­relevant for analysing their interrelationship. It is possible, however, that the EU legislator is not always explicit in terms of identifying such aims.

B.  The Aims of Harmonisation and Mutual Recognition As Klip states (in relation to ‘euro crimes’), the lack of explanatory memoranda or statements of reason lead us to deduce the drafter’s intentions from the preamble of the legislative act itself.20 This can be applied to deducing the aim behind both the adoption of mutual recognition and harmonisation instruments in EU criminal law. Some guidance can be found in official EU documents, such as communications, roadmaps and programmes, but these are not always very clear and they might not always address the aims as such.21 The aim of mutual recognition can be considered as being to enhance and improve cooperation. The objective here is to enable the smooth execution of judicial decisions. This aim is that this will lead to judicial decisions moving freely within the AFSJ. This aim can be deduced from the fact that mutual recognition has been inserted into the field of criminal law,22 but also, for example, from the preamble of the European Arrest Warrant (EAW) Framework Decision, as well as from the preamble to the European Investigation Order (EIO) Directive.23 The aim of harmonisation differs slightly from that of mutual recognition. The aim of harmonisation in the field of substantive criminal law can be c­ onsidered to be achieving a more coherent area between EU Member States. Indeed, it will at least to some extent develop the coherence of the core criminal law system of the EU.24 20 

A Klip (n 3 above) 239. are more such communications and programmes, especially after the Lisbon Treaty. Examples are: the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, Brussels 20.3.2011, COM(2011) 573 final; the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, [2009] OJ C295/01; and The Stockholm programme—an open and secure Europe serving and protecting citizens, [2010] OJ C115/1 as well as the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘The EU Justice Agenda for 2020—Strengthening Trust, Mobility and Growth within the Union’, COM(2014) 144 final, 11.3.2014 can be mentioned. 22  The Conclusions of the Tampere European Council (n 9 above) milestones 33–37. 23  Recital 5 of the 2002/584/JHA Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States mentions ‘the introduction of a new simplified system of surrender’, removing ‘the complexity and potential for delay inherent in the present extradition procedures’ and the ‘free movement of judicial decisions in criminal matters within an area of freedom, security and justice’, and Recital 21 of the preamble of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters mentions ‘quick, effective and consistent cooperation’. 24  For criticism and on possible shortcomings in relation to this, see eg M Kaiafa-Gbandi, ‘The development towards harmonization within criminal law in the European Union—A citizen’s perspective’ (2001) 9 European Journal of Crime, Criminal Law and Criminal Justice 262–63. It should be noted 21 There

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A common fight against crime is considered best achieved in this way. This aim can be deduced from the preambles of the relevant framework decisions and directives.25 Besides, harmonisation of substantive criminal law is motivated by general prevention and crime prevention in general. In this regard, criminal law is used to obtain a certain result, prohibit or suppress a certain action or omission, which can be considered a general prevention. General prevention aims at deterring people from committing crimes. In this sense, deterrence relies on threats or fear as a method to prevent crime. This means that general deterrence is based on the fact that citizens are rational actors who can adjust their behaviour according to disincentives in law.26 As regards harmonisation of criminal procedural law, this seems to have a clearer scope of facilitating cooperation and especially mutual recognition. The areas mentioned in the TFEU, ie evidence, rights of individuals and victims, are linked to the functioning of mutual recognition. The idea of harmonising criminal procedural law is to address the imbalance that might be present in European procedures, where individuals involved in cross-border criminal proceedings face more difficulties than those involved in purely national proceedings. In this sense, the purpose of harmonisation of criminal procedure is different from the aim of harmonisation of substantive criminal law. The aim of harmonisation of criminal procedural law can be considered to be addressing the possible gaps for individuals in European cross-border proceedings. Safeguarding the procedural rights of defendants as well as victims can even be considered a main aim. There should at least be a common minimum level of procedural rights on which EU citizens should be able to rely, particularly in a cross-border situation.27 At the same time, the Charter of Fundamental Rights can

that coherence as such is not, and should not be used as an overall aim for harmonisation. This could otherwise lead to motivating most EU instruments, which is not what is sought or recommended here. Coherence is in this sense limited both by the national justice systems’ coherence as well as by other relevant legislative principles relevant especially for criminalisation. 25  For example, recital 25 of the Preamble to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2011] OJ L335/1, which states: ‘As an instrument of approximation of criminal law, this Directive provides for levels of penalties which should apply without prejudice to the specific criminal policies of the Member States concerning child offenders.’ Also recital 7 of the Preamble to Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA, European Journal of Crime [2013] OJ L218/8, which states that ‘Common definitions in this area are important in order to ensure a consistent approach in the Member States to the application of this Directive.’ 26 A Suominen, ‘Effectiveness and functionality of substantive EU criminal law’ (2014) 3 New ­Journal of European Criminal Law 403. 27  As envisaged in the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1. Examples of instruments are Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1, Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1, as well as Directive 2013/48/EU

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be considered to be contributing to this aim (especially the articles in Chapter VI under the justice heading) although they are not sufficient in themselves for the further protection of defendants’ (and victims’) rights in European, cross-border proceedings.28 One could even expand this concept of coherence so far that having c­ oherent protection for individuals in criminal proceedings would be an aim. In this regard, harmonisation of procedural law seems to pursue a common function to ­harmonisation of substantive criminal law, namely favouring the coherence of criminal legislation within the EU area of criminal justice. However, taking into consideration the different wording of the TFEU concerning substantive and ­procedural criminal law, the coherence function of approximation in criminal procedure should be linked to a supportive function of cooperation. Another aim, which is to increase effectiveness, makes the purpose of this form of harmonisation very similar to the purpose of mutual recognition. If procedural law is harmonised in order to achieve increased effectiveness (and through this also general prevention), this can have the downside of giving individuals less ­protection. This is neither favourable nor desirable. Coherence is perhaps not as such a primary purpose of mutual recognition. As stated above, mutual recognition aims at improving cooperation between EU Member States. However, it can be seen that the harmonisation instruments show a similar motivation. A conclusion that can be drawn here is that the aims of harmonisation and those of mutual recognition are perhaps not that different after all. Mutual recognition and harmonisation have a close relationship and similar aims. Harmonisation can be seen as a tool to support the development of mutual ­recognition. This is strengthened by the provisions of the TFEU, and particularly by Article 82 TFEU. Harmonisation, of both substantive and procedural criminal law, should go hand in hand with mutual recognition. This can be justified based on the aim of having a functional (coherent) system of cooperation, based on mutual recognition. Mutual recognition and harmonisation should not be seen as alternatives, but as supporting and influencing each other.29 It is further interesting to note that, although the Lisbon Treaty now provides for a clearer legal basis for the harmonisation of substantive criminal law, many

of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1. The starting point for the EU legislator here is that the EU should add something to the minimum standard that the Member States have based on the ECHR as interpreted by the ECtHR. The Charter builds upon the ECHR. 28  Charter of Fundamental Rights of the European Union [2010] OJ C83/389. The charter applies to national authorities when they are implementing EU legislation, and the charter became legally binding with the Lisbon Treaty. 29  A Suominen (n 11 above) 56–57 and P Asp (n 12 above) 69.

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of the instruments harmonising substantive criminal law were adopted before the existence of this legal basis. Although the main focus was previously on ­harmonisation of substantive criminal law, such a focus is not as visible anymore. This can perhaps be explained by the fact that most areas that were considered as being important to harmonise were already harmonised before the Lisbon Treaty and that some of the instruments now replace these instruments.30 When it comes to harmonisation of criminal procedural law, the new and clearer legal bases ­provided for by the Lisbon Treaty have deeply impacted the field, as most instruments have been adopted after 1 December 2009. As for mutual recognition, the adoption of instruments was very much in focus in the aftermath of Tampere, but newer instruments, such as the EIO Directive, have been adopted since the Lisbon Treaty’s entry into force. Focus has shifted in a way from harmonisation of substantive criminal law, and mutual recognition, to harmonisation of procedural rights of the individual. Perhaps the policy-makers could have communicated their priorities more clearly. The criminal policy of the EU is a sensitive topic. Having a criminal policy, which is to some extent coherent, and where its aims are expressed, would be a virtue. When pursuing several aims, these should function together, so that there are no obvious contradictions. This would, for the national actors, such as legislators, courts and prosecutors, contribute to making these aims as well as their interactions more visible. Both manifestos, on substantive criminal law and criminal procedural law, have addressed this issue.31 Today’s priority is not so much on creating more instruments, either on mutual recognition or harmonisation, but rather on consolidating or codifying existing instruments.32 The priorities should clearly be stated by policy-makers. Again, clear and visible aims, or clearly stated justifications for legislation in the criminal law area would be appropriate. Taking a look at the EU’s agenda on better lawmaking, we can see that having a prepared EU policy that is implemented and reviewed in an open and transparent manner is not always the case in practice in relation to EU criminal law.33 The fact that there are impact assessments and other measures in place to secure effective implementation of existing EU criminal law does not clarify the underlying criminal policy or explain the aims of the instruments. Having clear objectives, and justifying the use of criminal law instruments before their adoption, is, both

30  There are examples of harmonisation instruments after the Lisbon Treaty, such as the above ­ entioned Directive 2013/40/EU on cybercrime, Directive 2011/92/EU on child sexual abuse as well as m Directive 2011/36/EU on human trafficking. 31 See P Asp et al, ‘A Manifesto on European Criminal Policy’ Zeitschrift für Internationale ­Strafrechtsdogmatik (ZIS) 12/2009, 707–16 (www.zis-online.com) and P Asp et al, ‘A manifesto on European Criminal Procedure Law’, ZIS 11/2013, 430–66. See Section V below. 32  Also stated in The EU Justice Agenda for 2020 (n 21 above) 5. 33  Commission Staff Working Document, Better Regulation Guidelines COM(2015) 111 final of 19.5.2015 and pointed out by W van Ballegooij, ‘Measuring the added value of EU criminal law’ (2016) 2 Eucrim 90–91.

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in the harmonisation and mutual recognition fields, important for the legitimacy of criminal law and the overall achievement of an AFSJ. When it comes to the EU context, the question of ‘why criminal law should be applied’ is not often raised.34 Criminal law should not be used without clear justification for why it is considered necessary.35 This applies more to the harmonisation of substantive criminal law, as it is then a question of criminalisation. Nevertheless, the principles that should guide the EU legislator apply to all parts of EU criminal law. Taking a starting point in the European Parliament’s debates in 2011 and 2012 and both manifestos, we can identify some principles that should guide the EU legislator in criminal law.36 These are important for both harmonisation and mutual recognition and will be therefore be briefly analysed in the next section.

V.  The Principles Behind Legislation Four principles will be analysed in this section of the chapter, namely the ­principles of coherence, subsidiarity, proportionality and ultima ratio. They have been selected because of their relevance in relation to initiating EU criminal law ­legislation.37 They also clearly show how mutual recognition and harmonisation work together within the AFSJ. As a disclaimer, it is important to stress that these four principles are closely interconnected, and compliance with one of them may imply compliance with another, as they sometimes provide for overlapping requirements.

A.  The Principle of Coherence Coherence was mentioned above as one aim of harmonisation of substantive criminal law. It can also be considered to some extent as guiding the harmonisation of criminal procedural law, and thereby contributing to the functioning of mutual recognition. The principle of coherence becomes relevant for both harmonisation and mutual recognition in three different ways. Firstly, at the EU level, EU criminal law instruments themselves should be coherent, both within the instrument itself, which means that contradictions should be

34 

As rightly pointed out by A Klip (n 3 above) 241. See P Asp et al, ‘A Manifesto in European Criminal Policy’ (n 31 above). 36  Report on an EU approach on criminal law (2010/2310(INI)) and the Resolutions adopted on 24.4.2012 (A7-0144/2012) and both Manifestos (n 31 above). 37  If one were to include all principles, just the most fundamental ones would already exceed the scope of this article. For a more in-depth discussion on criminalisation principles and EU criminal law, see P Asp (n 3 above) 164–212. 35 

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avoided, and also in relation to other EU criminal law instruments, which means that the instruments should not contradict each other. This can be considered as horizontal coherence. Should coherence not be respected in this sense, the instrument might violate Article 11(3) TEU or Article 7 TFEU, which regulate coherent EU action and consistency in the EU’s policies and activities.38 This form of coherence includes the idea that criminal procedural law should be coherent with substantive criminal law. Secondly, the principle of coherence limits the EU legislator, which cannot impose upon EU Member States instruments or measures that are contradictory to the coherence of the national criminal justice system. Due to the invasive character of criminal law and the requirement of a fair trial, this vertical form of coherence based on Article 4(2) TEU is of significant importance, as it emphasises the importance of the national identities of the EU Member States.39 When imposing EU criminal law instruments, the EU legislator should take this into account and try to safeguard the national criminal justice systems’ coherence as much as possible. Exceptions or deviations should be fully justified and based on empirical research. Thirdly, this further shows that, when proposing a mutual recognition instrument, accompanying harmonisation measures might be necessary for its smooth functioning. This can apply both in regard to substantive criminal law (ie to ensure that the underlying offences and penalties are to some extent similar) and in regard to criminal procedural law (ie to compensate for the application of procedural standards different than those provided in the national system). Therefore, harmonisation and mutual recognition are more intertwined than one might have initially thought, from the point of view of the principle of coherence.

B.  The Principle of Subsidiarity The principle of subsidiarity stems from Article 5 TEU and is especially important in the area of criminal law, as this area of law constitutes a part of the national ­identities of the EU Member States (Article 4(2) TEU).40 Based on Article 5(3) TEU, instruments relevant for criminal law must observe the principle

38  Art 11(3) TEU regulates the Commission responsibilities in relation to ensure that the Union’s actions are ‘coherent and transparent’ and art 7 TFEU regulates consistency between the EU’s policies and activities. See further A Suominen, ‘Explanatory notes on the fourth demand: preservation of coherence’ in European Criminal Policy Initiative (eds), A Manifesto on European Criminal Procedure law and Criminal Policy (Skrifter utgivna av Juridiska fakulteten vid Stockholms universitet nr 82, 2014), pp 239–45. 39  Art 4(2) TEU states that the national identities of the EU Member States shall be respected as well as the states’ essential functions maintaining law and order and safeguarding national security. 40  Art 5(1) TEU states that: ‘The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.’ The principle of subsidiarity is important because it underlies the EUs actions where it does not have exclusive competence. The same applies for the principle of proportionality, see below.

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of ­subsidiarity.41 This applies both to harmonisation of substantive criminal law and procedural law and to mutual recognition.42 According to the principle of subsidiarity, the EU legislator can take action only on condition that (a) the goal pursued cannot be reached as effectively by measures taken at the national level; and (b) this goal can, due to its nature or scope, be better achieved at Union level.43 This applies in relation to every instrument of criminal law, as well as in relation to the different parts of each instrument. The principle of subsidiarity is perhaps somewhat different when it comes to harmonisation of substantive criminal law as opposed to harmonisation of criminal procedural law and mutual recognition. When it comes to substantive criminal law, harmonisation is often justified by transnational crimes or offences having an interest to be addressed at EU level. Examples are counterfeiting the euro or terrorism. At the same time, the EU legislator should indicate in what way the EU approach is necessary from an efficiency point of view, and in the light of the principle of subsidiarity, how preventing and combating a specific offence can be better achieved at the EU level. For this chapter, ‘better achieved’ is to be understood as indicating that a common EU approach leads to an overall approach, which is more difficult for the Member States to attain without the added value of the EU legislation. The same justification (ie that the EU approach is necessary from an efficiency point of view, and, in the light of the principle of subsidiarity, that the objective is ‘better achieved’ at the EU level) sometimes fits better into the reasoning behind mutual recognition instruments and the harmonisation of criminal procedural law. Firstly, the fact that better forms of cooperation are necessary in an ever-closer Union, does, in some situations, justify the adoption of mutual recognition legislation. In such cases, the conditions of effectiveness and ‘better achieved’ are usually met, when a common EU approach is necessary for the functioning of mutual recognition itself.44 When it comes to harmonisation of criminal procedural law, this often addresses gaps created by mutual recognition instruments. This fulfils the principle of subsidiarity by firstly being effective and, secondly being better achieved, as the mutual recognition instrument has created a gap which is addressed by the harmonisation instrument.

41  Art 5(3) TEU states that: ‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.’ 42  This applies also for institutional aspects of EU criminal law, such as the creation of the EPPO, but this aspect is not focused on in this article. 43 Asp et al, A Manifesto on European Criminal Policy 2009 (n 31 above) 709 and Asp et al, A Manifesto on European Criminal Procedure Law 2013 (n 31 above) 433. 44  Which the EU has stated is one of the main principles in criminal law. There are examples of the opposite, where the efficiency and better achieved might not always be true, such as the Directive 2012/29/EU establishing minimum standards on the rights of the victims of crime [2012] OJ L315/57, where the minimum victims’ rights also apply in purely national settings, as well as the EPPO-proposal, which might be questioned from a subsidiarity point of view.

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When it comes to the principle of subsidiarity, Protocol No 2 must be ­mentioned.45 This Protocol, also mentioned in Article 69 TFEU, brings the national parliaments into the legislative work. Draft legislative acts are to be justified from a subsidiarity and proportionality point of view.46 The principle of subsidiarity is closely connected to the principle of proportionality, which this protocol shows.

C.  The Principle of Proportionality The principle of proportionality stems from Article 5 TEU. This principle denotes that EU action shall not exceed what is necessary to achieve the objectives of the Treaties (Article 5(4) TEU). EU instruments must be suitable and necessary to achieve a legitimate aim.47 As already pointed out in relation to the principle of subsidiarity, these two principles are interrelated: proportionality follows the principle of subsidiarity.48 For harmonisation of substantive criminal law, proportionality can be expressed as a requirement in order to achieve a legitimate purpose or aim. This means that the EU legislator needs to justify its harmonisation instruments so that these correspond to the aim of harmonisation. As stated above, ensuring coherence and establishing an AFSJ can constitute such legitimate aims. The proportionality principle further requires that the harmonisation instrument is necessary to achieve the aim pursued. This is perhaps not always very clearly communicated by the EU legislator. Such a shortcoming is linked together with the lack of clear criminal policy as mentioned above. Another dimension of the proportionality requirement in relation to harmonisation of substantive criminal law further means that the penalties prescribed by the EU legislator must be proportionate to the gravity of the offence, and that the penalty prescribed corresponds to the guilt of the individual. This other side of the principle of proportionality stems from national criminal justice systems. Its relevance in EU criminal law is thus linked to Article 4(2) TEU. Having proportionate penalties can, in addition, be considered to be based on the principle of coherence.49 For mutual recognition instruments, and harmonisation of criminal procedural law, the principle of proportionality means that the instruments should correspond to the aim, which is enhancing and making cooperation smoother. 45  Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2010] OJ C83/206. 46  The national parliaments then have 8 weeks before the act can be placed for adoption either on the Council’s agenda or under the ordinary legislative procedure. See arts 1–4 of the Protocol (No 1) on the role of the national parliaments in the European Union [2010] OJ C83/203. 47  T-I Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16 European Law Journal 158–85; C de Búrca, ‘The Principle of Proportionality and its Application in EU Law’ (1993) 13 Yearbook of European Law 105–50 and the CJEU in various cases, see eg Case C-28/84 Commission v Germany [1985] ECR 3097 and Case C-84/94 United Kingdom v Council [1996] ECR I-5755. 48  T Takis, The General Principles of EU Law (2nd edn, Oxford University Press 2006) 176. 49  See further on the principle of coherence.

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This aim can be considered legitimate, and this shows the close connection between the principles of subsidiarity and proportionality. Indeed, if the instrument and its aim are considered to be in line with the principle of subsidiarity, then the instrument should also be proportionate in relation to this aim. For mutual recognition instruments, the possibility of a proportionality check in the instruments should be considered by the EU legislator.50 Proportionality should include a possibility for the executing state to choose a less repressive measure, which leads to an equally effective result. For harmonisation of criminal procedural law, proportionality is relevant from at least two perspectives. First of all, harmonisation of procedural law fills the possible gaps created by mutual recognition instruments. In this sense, such ­harmonisation instruments balance the system of mutual recognition and can have a restorative function with regard to proportionality in European crossborder proceedings, at least to some extent. For example, if a mutual recognition instrument creates a more effective way of cooperating, this might create a lacuna for the individual concerned by the proceedings. An instrument creating European safeguards that remedy to some extent this lacuna by creating new procedural safeguards can be considered in line with the principle of proportionality. The second way that proportionality becomes relevant for harmonisation of criminal procedural law is linked together with the aim of such harmonisation. The instrument should be both necessary and suitable to achieve the legitimate aim, which then links back to smooth and effective cooperation and to the general need to ensure a coherent criminal policy. However, this principle and in fact all the above-mentioned principles are closely related to the principle of ultima ratio, which also restricts the legislator in the field of EU criminal law.

D.  The Principle of Ultima Ratio Because of its repressive and sensitive nature, criminal law is limited by several principles, such as the ultima ratio principle. This principle balances the interests and the application of criminal law measures. It denotes that criminal law is used as the last resort and needs to be specifically motivated.51 As criminal sanctions lead to social stigmatisation, criminal law should only be used when necessary 50  The usual solution would be introducing proportionality checks for the issuing state, or perhaps even in the instrument itself, such as the Article 7(2)(h) in the Council Framework Decision 2005/214/ JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties [2005] OJ L76/16. To insert such proportionality checks in the executing state is controversial. 51 S Melander, ‘Ultima Ratio in European Criminal Law’ (2013) 3 Oñati Socio-Legal Series— Ultima Ratio, a principle at risk. European Perspectives 42, 45–58 and M Kaiafa-Gbandi, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’ (2011) 1 European Criminal Law Review 17–21 and S Melander, K ­ riminalisoinititeoria—rangaistavaksi säätämisen oikeudelliset rajoitukset (Suomalaisen ­lakimiesyhdistyksen julkaisuja 2008) 389 ff.

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and even then it should only be used in accordance with the above-mentioned proportionality principle.52 The ultima ratio principle means that acts are criminalised only if necessary for the protection of a fundamental interest and if other measures are not sufficient to ensure that such an interest is safeguarded.53 When it comes to EU criminal law, Melander has analysed the ultima ratio principle in the EU (substantive) criminal law context,54 and his hypotheses to assess the compliance of EU legislation with this principle are relevant for this field. First of all, criminal law should only be used as a last resort for the effective implementation of an EU policy. Secondly, applying criminal law should be necessary in order to ensure that the goal that has been set is achieved. Thirdly, criminal law should only be used when appropriate, even if criminal law is considered to be effective. Fourthly, the necessity of criminal law is to be assessed separately in relation to criminalisation, penalties and other possible aspects of criminal law. Fifthly, criminal law should further be evaluated in relation to necessity, subsidiarity and proportionality in all these four hypotheses. This shows that the scope of the principle of ultima ratio is closely connected with the above-mentioned principles. As a consequence, when legislating on the harmonisation of substantive criminal law, the EU legislator should use criminal law only when it is adequately justified in relation to its aim. It should be used as a last resort; only if it is considered appropriate and all its different parts have been assessed and deemed to be a necessity. This means that if it is considered justified to put in place a harmonisation instrument given the aim of coherence of the AFSJ, the instrument should only be used if other possible measures have proven insufficient. Furthermore, if these conditions are met with regard to the idea of adopting a harmonisation instrument, this does not automatically mean that there is sufficient justification to harmonise penalties or other parts of criminal law with the same instrument. It might well be that having a common criminal definition would be in line with the ultima ratio principle, but having common penalties is not necessary to achieve the same aim. The competence based on Article 83(2) TFEU can be considered especially problematic from the ultima ratio point of view.55 Ultima ratio is considered a principle that is especially relevant for substantive criminal law and criminalisation, and especially at the EU level. This principle restricts the symbolic application of criminal law.56 Such symbolic application of 52 

P Asp et al, 2009 A Manifesto on European Criminal Policy (n 31 above) 707. As stated before, all these principles are intertwined. 54  S Melander 2008 (n 51 above) 457–58. 55 This will not be more focused on here, as this could easily be the topic of an article itself. R Sicurella (n 1 above) 74–76 discusses this as does J Öberg, ‘Do we really need criminal sanctions for the enforcement of EU criminal law?’ (2014) 3 New Journal of European Criminal Law 370, 383–84 and 386. 56  On the symbolic application of EU criminal law, see eg A Suominen 2014 (n 26 above) 408–9 and T Elholm, ‘The symbolic purpose of criminal law—A Danish perspective’ in S Reindl-Krauskopf, I Zerbes, W Brandstetter, P Lewisch, A Tipold (eds), Festschrift für Helmut Fuchs (Verlag der ­ ­Österreichischen ­Akademie der Wissenschaften 2014) 137–52. 53 

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EU (substantive) criminal law can raise problems in relation to sending signals through the recourse to criminal law. This should not be a primary goal of criminal legislation. Disregarding the effects of criminal legislation is also problematic, when too much focus is put on rapidly passing legislation and the repressive side of criminal policy. Finally, the possibility of ending up with incoherent criminal laws (casuistic legislation can lead to that) is problematic. These are all serious disadvantages that should be avoided.57 When it comes to harmonisation of criminal procedural law and mutual recognition instruments, the ultima ratio principle is not necessarily very visible. For mutual recognition instruments, the ultima ratio principle does not as such have much relevance. Whether cooperation in criminal matters should be improved or not is not an interesting question here, as the matter is already within the criminal law sphere. The other principles mentioned above constitute clearer restrictions for mutual recognition. The ultima ratio principle might function better in the context of harmonisation of criminal procedural law, especially if the EU initiates legislation that goes beyond repairing possible shortcomings that are created by mutual recognition instruments. If harmonisation of criminal procedural law would go beyond the scope of legislative competence in the TFEU, this might be contrary to the principle of ultima ratio, but perhaps more logically considered to be contrary to the principles of subsidiarity and proportionality.

E. The Relevance of these Principles for the Relationship between Harmonisation and Mutual Recognition These four principles are relevant for the EU legislator, and act as restrictions on the competences of the EU institutions. The principles are therefore relevant for the functioning of both harmonisation and mutual recognition. These two means of legal integration express and exemplify the motivations of the EU legislator. The principles mentioned here—coherence, subsidiarity and proportionality as well as ultima ratio—illustrate the different sides of mutual recognition and harmonisation and demonstrate the interrelationship between these two components as well as the close relationship between the principles themselves. These principles relate in several ways to the aims of both harmonisation and mutual recognition. The way the principles are understood and applied relates to the aim of harmonising legislation (both substantive and procedural) as well as to the reason why mutual recognition is applied. The aims have already been discussed in Section IV. It is relevant to have a (somewhat) coherent AFSJ and to ensure that when suspects cross borders, this does not automatically lead to fewer possibilities to investigate and prosecute the offence. The fact that coherence is

57  These negative outcomes are based on T Elholm (n 56 above), 14–15 who discusses these in a national setting. These can at least to some extent be considered relevant for EU criminal law.

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considered part of this aim does not mean that coherence cannot also function as a limitation on the EU legislator. The aims of harmonisation and mutual recognition are therefore important from this perspective as well. This brief analysis of the principles demonstrates the relevance of the aims behind the adoption of harmonisation and mutual recognition instruments. There are sometimes differing aims behind the two means of legal integration. The four principles mentioned can be understood as leading to different outcomes for these differing aims. This does not, however, mean that there is a tension between harmonisation and mutual recognition. In fact, these means of legal integration both can and should be seen as contributing to a common area of freedom, security and justice.

VI.  What does this Entail for the Future? In conclusion, there are three different aspects that can be highlighted. Firstly, the two assumptions mentioned initially—that harmonisation is not necessary for mutual recognition and that harmonisation is to a certain extent relevant for mutual recognition—can both be considered true. As the harmonisation of substantive criminal law facilitates mutual recognition to some extent, and harmonisation of criminal procedural law especially facilitates mutual recognition, it is clear that harmonisation and mutual recognition should and can work together. They do not necessarily need to, but it is useful and practical if they do. One could argue that mutual trust binds harmonisation and mutual recognition together. Mutual trust is a key component for mutual recognition, and harmonisation tends to increase trust. At the same time, one can ask whether harmonised substantive criminal law at the legislative level in fact increases mutual trust when it comes to cooperation. This does not necessarily need to be so, but from a theoretical point of view, similarities between and understanding of each other’s legal systems and definitions of offences could increase the level of mutual trust.58 The recent case law relating to the possibility of denying surrender, based on human rights arguments, is interesting from a mutual trust point of view.59 As the European Court of Justice stated in the Aranyosi and Căldăraru case, when there is a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter, this means that the executing authority must request supplementary information. This applies where there is ‘objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing

58 For a more theoretical approach on mutual trust and the levels of law, see A Suominen (n 11 above), 2011, 353–58. 59  Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, ECLI:EU:C:2016:198.

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Member State that demonstrates that there are deficiencies’.60 When requesting such information, the surrender has to be postponed and this means that the executing authority shall decide, after receiving such information, whether the surrender issue should be brought to an end. There should therefore not be blind trust but, within the common area of justice, there should be a possibility to invoke human rights as a ground for refusal.61 To some extent, this case illustrates the close link between mutual recognition and harmonisation of criminal procedural law, as increasing safeguards for the defendants would entail less risk of seeing the executing Member State invoking non-respect of fundamental rights as a ground for refusal. What is clear today is that, for there to be a well-functioning criminal policy, both harmonisation and mutual recognition are necessary. Focusing only on one part does not make a criminal policy coherent or fully functional. The shortcomings mentioned above in relation to having a clear criminal policy affect both harmonisation and mutual recognition. Secondly, whether one chooses to call the equilibrium between these two means of legal integration ‘delicate’ depends on what one decides to consider as delicate. There is sometimes focus on finding this equilibrium, especially when criminal procedural law is harmonised in order to facilitate mutual recognition. The equilibrium achieved is not always optimal as one can see from what has been focused on in the previous sections. Some efforts towards harmonisation of substantive criminal law are not as such relevant for mutual recognition. This relates back to the question: is harmonisation or mutual recognition the main goal here? This is related to the aims of these components. Regardless of how one perceives them, harmonisation and mutual recognition should not be viewed as different approaches, but should both be considered part of a common area of justice. Both contribute to this area, and to some extent address different aspects of this area. Both are necessary for achieving an AFSJ. The principles mentioned above similarly express this. Thirdly, and this links together with what was mentioned above on a European criminal law policy, if the main objective is to have a similar level of protection within the EU, then perhaps harmonisation would be the way to go. This applies both for substantive criminal law and procedural criminal law within the given competences. If the main objective on the other hand is to have well-functioning cooperation between EU Member States, then mutual recognition should be the way to go.

60 

Ibid, para 105 (conclusion). previously some have argued that this is in fact a possibility, and a necessity for ­Member States based on the ECHR, see eg A Suominen (n 11 above), 352–53 and W de Bondt and A Suominen, ‘State Responsibility When Transferring Non-consenting Prisoners to Further their Social ­Rehabilitation—Lessons Learnt from the Asylum Case Law’ (2015) 3 European Criminal Law Review 47–370 on the issue in relation to transfer of prisoners. 61 Already

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In conclusion, the author of this chapter would argue for a common objective and aim, which is a common area of justice. To have both harmonisation and mutual recognition to help overcome the possible challenges that may arise in relation to cross-border crime is surely the best way forward in today’s European Union. There is no need to choose one or the other. The future of EU criminal law should include both.

13 Mutual Recognition in EU Criminal Law and Fundamental Rights—The Necessity for a Sensitive Approach ANŽE ERBEŽNIK1

I. Introduction The EU has around 10 years of practical experience (since the transposition of the 2002/584/JHA European Arrest Warrant (EAW) Framework Decision2) with the principle of mutual recognition in EU criminal law. This principle was introduced as a political concept in 1999 at the European Council of Tampere3 and finally found its way into Article 82 of the Treaty on the Functioning of the European Union (TFEU). However, the optimism at Tampere was ‘too much, too soon’, meaning that the complexity of national criminal laws and procedures, as well as the difference between them, has been underestimated. It is astonishing that only 15 years after the adoption of the EAW Framework Decision, for example, have we now some clarification from the Court of Justice of the European Union (CJEU) about the notion of ‘judicial authority’.4 This question remained

1 

The opinions expressed in the chapter are private opinions of the author of the text. Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. See also Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L81/24. 3  Presidency Conclusions of the Tampere European Council 15–16 October 1999 (SN 200/99). 4 See EAW Cases C-477/16 PPU Openbaar Ministerie v Ruslanas Kovalkovas [2016] ECLI: EU:C:2016:861, denying the Lithuanian ministry the status of a judicial authority, C-453/16 PPU Openbaar Ministerie v Halil Ibrahim Özçelik, ECLI:EU:C:2016:860, confirming a prosecutorial decisions and decisions he/her validated as judicial authorities, and Openbaar Ministerie v Krzysztof Marek ­Poltorak, C-452/16, ECLI:EU:C:2016:858, denying the status of a judicial authority to the S­ wedish Police. Such judgments were anticipated by the UK Supreme Court (See in that regard the Assange case 2  Council

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unexplored, as Article 6 of the EAW Framework Decision left it fully to the Member States to decide this and does not take into account the fact that even police/ administrative authorities are considered judicial ones in some Member States. The same uncertainty applies for Member States’ fundamental rights obligations as a potential ground to refuse an EAW5 (or another EU criminal law mutual recognition instrument), and the Court of Justice did not address it fully as it rendered an unsatisfactory and unclear judgment.6 Such an underestimation of the problems still exists as regards EU criminal law in general, and especially as regards the Commission and its power to initiate legislative proposals. The Commission’s proposals (and in some instances Member States’ initiatives) were criticised for a series of reasons, such as, for instance the exclusion of the dual criminality requirement for offences that are not harmonised,7 the lack of a common understanding and definition of judicial authorities, harmonisation instruments with unclear elements and criteria, harmonisation of procedural rights at a low level or the lack of impact assessments and understanding of the situation in the Member States as regards their national (constitutional) criminal law, etc. The proposed European Public Prosecutors’ Office (EPPO) Regulation8 summarises all those problems in one legislative proposal amounting to a kind of ‘legal Frankenstein’, which became a political and not legally workable project, as will be explained further below. In addition, this situation is arising at a time of political uncertainty in the EU. Its fundamentals and its democratic nature are being seriously tested, as Brexit showed. The fundamental rights’ situation in several Member States is at risk9

saga—Julian Assange v Swedish Prosecution Authority, [2012] UKSC 22) as well by the EU co-­legislatures in the EIO Directive’s definition of issuing authority (see Article 2 of Directive 2014/41/EU). 5  In that regard the EIO Directive is a good example, where at least from the European Parliament’s side one of the goals was to avoid such a clash. Consequently, the EIO Directive introduced a carefully drafted fundamental rights non-recognition clause referring to Article 6 TEU (Article 11(1)(f)) with three levels of fundamental rights protection—Charter, ECHR and common constitutional traditions. Also the majority of EU Member States introduced such a ground in their national legislation transposing the EAW. 6  See Court of Justice, Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, Judgment of 5 April 2016, as regards prison conditions and the EAW system stating, inter alia, that ‘where there is objective, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, issued for the purposes of conducting a criminal prosecution or executing a custodial sentence, will be exposed, because of the conditions for his detention in the issuing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State’. 7  See in that regard the excellent study of G Vermeulen et al, Rethinking International Cooperation in Criminal Matters in the EU (IRCP research series vol 42) (Antwerp, Maklu, 2011), pp 106–71. 8 Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office (COM/2013/0534 final). 9  See the EU Rule of Law Mechanism and EP resolutions as regards the situation in Hungary and Poland (http://ec.europa.eu/justice/effective-justice/rule-of-law/index_en.htm).

Mutual Recognition in EU Criminal Law and Fundamental Rights  187 and the democratic process does not function properly as regards a re-emergence of populistic parties. Furthermore, the general environment as regards criminal law is extremely repressive (in connection with the terrorism issue).10 In such a situation, the motto for the EU and EU criminal law should be ‘reflection and selfrestraint, evolution and not revolution’. Unfortunately, as regards mutual recognition, the Court of Justice did not understand the sensitivity of mutual recognition for a long period of time and was not sensitive enough towards it. It started with a very strict position on it,11 culminating in the 2012 Melloni12 judgment, stating basically that harmonisation at EU level prevents the invocation of higher national (constitutional) standards as a ground for refusing the mutual recognition of a decision. Only in the last two years has the Court showed more sensitivity and nuanced its strict position, although to a limited extent (as regards the issue of prison conditions13 and the above-mentioned issue of the definition of judicial authority14). However, the Court was still not able to surpass itself15 and to establish itself as a champion

10  See the agreed text on the Directive on combating terrorism (COM(2016)0625) ­criminalising travelling for terrorist purposes, the organization and facilitation of such travels, the training for terrorist purposes and the providing or collecting funds. See, for example, the opinion of Meijers Committee, Standing committee of experts on international immigration, refugee and criminal law, 16 March 2016: http://www.commissie-meijers.nl/sites/all/files/cm1603_note_on_a_proposal_for_a_ directive_on_combating_terrorism_.pdf, accessed September 2016. 11  See, for example, Joined Cases C-187/01 and C-385/01, Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), Judgment of 11 February 2003, EU:ECLI:C:2003:87, para 33: ‘In those circumstances, whether the ne bis in idem principle enshrined in Article 54 of the CISA is applied to procedures whereby further prosecution is barred (regardless of whether a court is involved) or to judicial decisions, there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied.’ 12 Court of Justice, Case C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107, paras 56–57:

‘56. The interpretation envisaged by the national court at the outset is that Article 53 of the Charter gives general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law. Such an interpretation would, in particular, allow a Member State to make the execution of a European arrest warrant issued for the purposes of executing a sentence rendered in absentia subject to conditions intended to avoid an interpretation which restricts or adversely affects fundamental rights recognised by its constitution, even though the application of such conditions is not allowed under Article 4a(1) of Framework Decision 2002/584. 57. Such an interpretation of Article 53 of the Charter cannot be accepted.’ The Spanish Constitutional Court challenged afterwards such an interpretation by referring to the Solange doctrine as regards a relative nature of the EU primacy (supremacy) principle. However, at the same time it lowered Spanish constitutional standards. Pleno. Sentencia 26/2014, 13 February 2014. 13  See (n 6 above). 14  See (n 4 above). 15  For example, limiting itself in Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru (mentioned above n 6), only to prison conditions. Or in Case C-105/14, Tarrico and Others, ECLI:EU:C:2015:555, declared a short national limitation period as having an adverse effect on fulfilment of the Member States’ obligations under Article 325(1) and (2) TFEU, calling on national courts

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of high levels of fundamental rights protection at the EU level in criminal matters. Mutual recognition can function and it has an added value if it is applied in a sensible and sensitive way, as will be shown in this text. It can function if it is understood as a ‘relative’ principle, a kind of hybrid between mutual legal assistance (MLA) on the one hand and strict mutual recognition on the other hand. D ­ irective 2014/41/EU16 on the European Investigation Order serves as a good example of this approach, whereby, mostly at the insistence of the E ­ uropean ­Parliament, mutual recognition transformed its nature into a realistically applicable concept in a non-fully harmonised common legal area, taking into account respect for a high level of fundamental rights’ protection. In that regard, the explicit fundamental rights clause17 is an added value, paving the way for its introduction in other future mutual recognition instruments. The other side of the coin of mutual recognition is for it to be accompanied by harmonisation measures as foreseen in Article 82 TFEU (procedural criminal law) as well as Article 83 TFEU (substantive criminal law). However, in that regard the above-mentioned Melloni judgment raised the issue of the level of EU harmonisation, since according to the Court of Justice, higher national procedural standards should not apply as a barrier to mutual recognition if an EU harmonisation instrument exists (although at

to disapply the provisions of national (constitutional) law to that effect. The Italian Constitutional Court referred another question in that regard to the Court of Justice (order no 24/2017, CJEU procedure pending) asking the CJEU to clarify whether the decision taken on September 2015 in Taricco does leave national courts the power to disregard such a decision if the effects of that decisions would be in contrast with a fundamental principle of the Italian Constitution (namely, the principle of legality). See more in detail M Bassini and Pollicino, ‘The Tarrico decision, Last Attempt to Avoid a Clash between EU Law and the Italian Constitution’: http://verfassungsblog.de/the-taricco-decision-a-lastattempt-to-avoid-a-clash-between-eu-law-and-the-italian-constitution/ accessed September 2017. See also on the role of the Court of Justice in general W Van Ballegooij and P Bárd, ‘Mutual recognition and individual rights, Did the Court get it Right?’ (2016) 7 New Journal of European Criminal Law 439–64. 16  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. 17  See Article 11(1)(f) of Directive 2014/41/EU introducing a non-recognition ground if ‘there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter’. The text is further clarified in Recitals 18 and 19:

‘(18) As in other mutual recognition instruments, this Directive does not have the effect of modifying the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union (TEU) and the Charter. In order to make this clear, a specific provision is inserted in the text. (19) The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.’

Mutual Recognition in EU Criminal Law and Fundamental Rights  189 a lower level than national constitutional standards). In that regard, an overview and evaluation of some existing harmonisation measures will be given below. This chapter aims to demonstrate the importance of having a balanced approach, allowing for the implementation of the principle of mutual recognition in the EU area of criminal justice whilst ensuring respect for fundamental rights, as enshrined in EU and national laws. Following an overview of the existing mutual recognition instruments (section II.), the European Investigation Order, one of the most recent mutual recognition instruments, will be carefully analysed, as it can be considered an example of such a balanced approach (section III). The importance of harmonisation as a flanking measure will then be addressed ­(section IV), and finally the example of the United States will be presented ­(section V).

II.  Overview of Existing Mutual Recognition Instruments The first EU mutual recognition instrument in criminal law is the above-­ mentioned EAW Framework Decision. At that time, mutual recognition was not unknown in other areas of EU law. It was introduced and based on the logic of the ‘country of origin principle’ in the framework of the free movement of goods.18 In the sphere of EU criminal law, it was tried in a much more absolute way, overlooking the lack of harmonisation of national systems as regards certain basic questions (right to remain silent, access to a lawyer, different confiscation systems, etc). Under the Amsterdam Treaty, the adoption of mutual recognition instruments was initially based on pure intergovernmental decision-making, thereby suffering from a serious democratic deficit.19 Nevertheless, a whole variety of instruments was adopted: Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,20 Council Framework Decision 2003/577/JHA on the execution in the EU

18  Case C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649, the ‘Cassis de Dijon’ case. It was based on two rules: (a) presumption of mutual recognition of products being placed legally on the market; (b) ‘rule of reason’ allowing certain limited grounds for refusal (‘mandatory requirements’), such as fairness of commercial transactions, public health, protection of consumers, etc. An extension followed from the free movement of goods to the other freedoms (persons—CJEU, 15.12.1995, Case C-415/93 Union royale belge des sociétés de football association ASBL and Others v Jean-Marc Bosman [1995] ECR I-4921, and CJEU, 30.11.1995, Case C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, [1995] ECR I-4165; services— CJEU, 25.7.1991, Case C-76/90, Manfred Säger v Dennemeyer & Co Ltd, [1991] ECR I-4221; and capital—CJEU, 13.5.2003, Case C-98/01, Commission v United Kingdom, [2003] ECR I-4641) etc. 19  Articles 34 and 39 of the former TEU limited the role of the European Parliament to the issuing of an opinion, and the 1997 Protocol on the role of national parliaments in the European Union provided only for an obligation to inform them on legislative proposals. 20  See n 2 above.

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of orders freezing property or evidence,21 Council Framework Decision 2005/214/ JHA on the application of the principle of mutual recognition for financial penalties,22 Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition for confiscation orders,23 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition for judgments imposing deprivation of liberty,24 Council Framework Decision 2008/947/JHA of 27 November 2008 on probation decisions and alternative sanctions,25 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters,26 and Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.27 These instruments constitute the ‘old’ generation of mutual recognition instruments, adopted under the former third pillar. They covered a variety of situations, from pre-trial measures, transfer of evidence, and transfer of suspects or convicted persons, to recognition of decisions based on a final court decision. Some of the main problems they faced can be best illustrated by the case of the EAW, as several serious legal questions were raised concerning its application, such as the issue of proportionality,28 prison conditions and the issue of a ground for non-recognition based on fundamental rights,29 the question of a

21  Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence [2003] OJ L196/45. 22 Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the ­principle of mutual recognition to financial penalties [2005] OJ L76/16. 23 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders [2006] OJ L328/59. 24  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [2008] OJ L327/27. 25  Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [2008] OJ L337/102. 26  Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L350/72. 27  Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20. 28  See, for example, Council conclusions on follow up to the recommendations in the final report on the fourth round of mutual evaluations concerning the European arrest warrant and surrender procedures among the Member States of the EU, 3 June 2010: http://www.consilium.europa.eu/uedocs/ cms_Data/docs/pressdata/en/jha/114859.pdf, accessed November 2016. See also OLG Stuttgart, 1 Ausl. (24) 1246/2009, Judgment of 25 February 2010, using Article 49(3) of the Charter to read a proportionality requirement into national legislation on the EAW. 29  See, for example, the decision of the Irish Supreme Court in Minister for Justice Equality and Law Reform v Rettinger, [2010] IESC 45, Judgment of 23 July 2010, clarifying that national judges are

Mutual Recognition in EU Criminal Law and Fundamental Rights  191 dual criminality requirement30 and the definition of judicial authorities.31 Those issues were addressed in the latest generation of mutual recognition instruments, which were adopted after the entry into force of the Lisbon Treaty, namely the European Protection Order32 and the European Investigation Order33 (the ­latter will be presented below). In addition, a new regulation (not a directive!) on the mutual recognition of confiscations and freezing orders was proposed in December 2016.34

III.  The European Investigation Order (EIO) as an Example of a ‘Good’/Balanced Mutual Recognition Instrument The EIO was proposed as a Member State initiative under the Belgian presidency.35 However, as an initiative, it was deficient, as it stated that no significant fundamental rights issues are at stake.36 However, during a three-year negotiation and adoption period, that deficient initial proposal was transformed into a realistic mutual recognition instrument, that incorporated solutions to all the lacunae and problems encountered with previous instruments and especially with the EAW.

bound by the ECtHR when applying national legislation transposing EU legal instruments (EAW); the recent Court of Justice judgment in Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru (see n 6 above), and the decision of the ECtHR in Orchowski v Poland, Application no 17885/04, Judgment of 22 October 2009, and Torreggiani and Others v Italy—43517/09, 46882/09, 55400/09 et al, Judgment of 8 January 2013 on systematic overcrowding in prisons. 30  See the Assange v Swedish Prosecution Authority [2011] EWHC 2849, paras 55–127. See also under (n 7 above). 31  For example, the recent Court of Justice judgments in cases Kovalkovas, C-477/16 PPU, Özçelik, C-453/16 PPU, and Poltorak, C-452/16 PPU (see n 4 above). See also, inter alia, the Assange case, n 30 above, paras 20–54. 32  Directive 2011/99/EU of 13 December 2011 on the European protection order—EPO ([2011] OJ L338/2). The Directive had to be supplemented with a civil measure—see Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4. Interestingly, the EPO Directive did not include explicitly a fundamental rights non-recognition ground (see Article 10). The mentioned Regulation, on the other hand, included a broad public policy ground (see Article 13). 33  See n 16 above. 34  Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition of freezing and confiscation orders (COM(2016) 819 final). However, the proposed instrument is significantly deficient as regards its form, its limited non-recognition grounds (no explicit fundamental rights non-recognition ground) and its unclear scope. 35  Council EU, doc 9145/10. 36  Council EU, doc 9288/10, stating (p 27): ‘Finally, the impact on fundamental rights is negative. Due to the numerous difficulties explained above, the lack of action to improve the current situation will jeopardize the right of the citizen to good administration and to security and freedom, since the disorganization of the competent authorities will affect the efficiency of the fight against crime and, as a consequence, the right of the citizens to live in a society with a high standard of safety.’

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The initial proposal was to introduce an almost absolute implementation of the principle of mutual recognition,37 and to force Member States to recognise measures that might not even exist within their domestic procedures. The Council’s general approach already refrained from such a position,38 and the final version of the EIO Directive substantially changed this. It introduced a series of changes that will be discussed in detail but can be listed here: (1) the introduction of a validation procedure (by a judge or a prosecutor) in the issuing state if the issuing authority is another investigating authority, and an additional validation in the executing state by a court if required by national procedure; (2) a broader scope of application (not only criminal procedure stricto sensu); (3) the Directive’s application to all types of investigative measure except joint investigation teams; (4) the execution of measures limited to those existing in the executing Member State; (5) a strong proportionality principle; (6) strict deadlines (maximum 30 days for the recognition and 90 for the execution); (7) a closed list of non-recognition grounds, including for the first time a fundamental rights non-recognition ground; and (8) an admissible rule as regards legal remedies in statu nescendi.

A.  The EIO as a Judicial Decision and the Validation Procedure Article 1(1) of Directive 2014/41/EU defines the EIO as a judicial decision that was either issued or validated by a judicial authority of the issuing Member State. The definition of judicial authority is left to the Member States, and the Directive only speaks about issuing and executing authorities (see Article 2). However, in view of the legal basis of Article 82 TFEU referring to judicial cooperation in criminal matters, and to prevent clashes between the different national systems as regards the definition of judicial authority, a validation procedure has been introduced. The EIO has to be either issued—or at least validated—by a ‘classical’ judicial authority (judge, prosecutor) before being sent to the executing Member State.39 Such a validation procedure was partially already applied in the European

37 

Basically only four non-recognition grounds were initially listed: (a) if there is an immunity or a privilege under the law of the executing state which makes it impossible to execute the EIO; (b) if, in a specific case, its execution would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; (c) if, in the cases mentioned in Article 9(1)(a) and (b), there is no other investigative measure available which will make it possible to achieve a similar result; or (d) if the EIO has been issued in proceedings referred to in Article 4(b) and (c) (not only criminal procedures stricto sensu) and the measure would not be authorised in a similar national case.

38  Council EU, doc 18918/11. Diversifying the layers for different measures, and reintroducing, inter alia, ne bis in idem, as well as catalogue offences and dual criminality (outside the 32 EAW offences). 39  See Articles 1 and 2 of Directive 2014/41/EU.

Mutual Recognition in EU Criminal Law and Fundamental Rights  193 Evidence Warrant (EEW)40 and it is intended to prevent legal controversies about the nature of judicial authorities, as those which arose for example in the framework of the EAW.41 However, the validation procedure in the issuing state still leaves open the question of the role of the public prosecutor, as in some Member States the prosecutor is only a party to the procedure, and in others, the prosecutor has the position of a quasi-judicial authority, which possesses for example, the power to authorise a house search. Therefore, concerning the execution of the EIO, the executing authority is defined as an authority having competence to recognise an EIO and to ensure its execution in accordance with this Directive and the procedures applicable in a similar domestic case. Consequently, to prevent a clash between the different national criminal justice systems, it was clearly specified that where the national procedure in the executing Member State requires a court authorisation for a certain measure, such as a house search, the executing authorities have to seek such an authorisation before executing the request.

B.  Scope and Types of Procedure In the initial proposal of the group of Member States, the EIO was supposed to include all possible investigative measures except for joint investigation teams and certain types of direct interceptions.42 Finally, it was agreed that all measures, existing or any future ones, are included, except joint investigation teams.43 Consequently, the EIO is an open-ended instrument prepared for future technical developments. However, it should be clarified that the EIO does not directly address the issue of mutual admissibility of evidence, as the matter remains a national competence. The scope of the EIO does not cover only criminal proceedings stricto sensu. It is broader and covers two additional sets/types of proceedings, namely:44 (i) ‘proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters’; (ii) ‘proceedings brought by judicial authorities in respect of acts which are ­punishable under the national law of the issuing State by virtue of being

40 

See Article 11(4) and (5) EEW. See n 4 above. 42  Council EU doc 11842/10. The Council justified the exclusion of the two measures by the special agreements needed for the JITs and rules applying to them, and the complex rules on interception of satellite telecommunications as well as interception of telecommunications with immediate transmission to the requesting State. 43  See Article 3 of Directive 2014/41/EU. 44  See Article 4 of Directive 2014/41/EU. 41 

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infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters’, (iii) proceedings ‘in connection with the proceedings … above which relate to offences or infringements for which a legal person may be held liable or punished in the issuing State’. The expansion of the EIO’s scope to two additional types of proceedings is not a novelty. It was already the case in the Schengen Convention,45 the 2000 EU MLA Convention,46 the Second Additional Protocol to the Council of Europe 1959 MLA Convention47 as well as in the EEW.48 Consequently, the EIO covers any procedure that concerns a ‘criminal law charge’ as an autonomous concept under Article 6 ECHR and the ECtHR Engel criteria.49 It is not important to differentiate between the phases of the proceedings, for example between the administrative and judicial phases of traffic offences. The EIO can thus be used in any proceedings concerning a criminal charge, a charge which is defined based on its classification in national law, the nature of the offence and the severity of the sanctions that the person may receive. Such an understanding is in line with the legal basis of the EIO Directive, namely Article 82 TFEU.50

45  Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJ L 239/19. See Article 49. 46  Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union [2000] OJ C197/1, Article 3. 47 Second Additional Protocol to the European Convention on Mutual Assistance in Criminal ­Matters, No 182, Article 1. 48  Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [2008] OJ L 350/72. See Article 5. 49 ECtHR, Engel and Others v Netherlands, Application nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgment of 8 June 1976, [1976] 1 EHRR 647. 50  A further clarification as regards the additional set of proceedings and the meaning ‘where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters’ can be seen in the Court of Justice case law as regards Article 1 of Framework Decision 2005/214/ JHA of 24 February 2005 on the application of the principle of mutual recognition to financial ­penalties. See Court of Justice EU, Marian Baláž, C-60/12, ECLI:EU:C:2013:733, stating ‘that term requires, since it is decisive for determining the scope of the Framework Decision, an autonomous and uniform interpretation throughout the Union, having regard to the context of the provision of which it forms part and the objective pursued by that framework decision’ (para 26). Further, it stated ‘it is appropriate to rely on the criteria identified by the Court of Justice for determining whether a referring body is a “court or tribunal” for the purposes of Article 267 TFEU. To that end, according to settled case-law, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, by analogy, Case C-196/09 Miles and Others v Écoles européennes [2011] ECR I-5105, paragraph 37 and the case-law cited)’ (para 32), and ‘the court having jurisdiction … must apply a procedure which satisfies the ­essential characteristics of criminal procedure, without, however, it being necessary for that court to have jurisdiction in criminal matters alone.’

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C.  Application of Only Existing Measures in the Executing State The main principle of the EIO is that the executing Member State should help the issuing one as much as possible, including for procedural requests (requesting certain formalistic requirements, for example, the participation of two witnesses in a house search). However, an executing Member State can help only for the execution of measures that are available within its own national system. This refers first to the question of existence of certain measures. An executing Member State can only execute measures that exist under its own national system, and that are regulated in its own procedural law. It does not need to introduce new measures, or to invent measures in order to execute the request of an issuing Member State.51 However, the EIO Directive provides that certain measures are always considered to be available under the national system of each Member State. In other words, those measures are supposed to be available in all Member States. Those measures are the following:52 (a) the obtaining of information or evidence, which is already in the possession of the executing authority. The information or evidence could have been obtained, in accordance with the law of the executing state, in the framework of criminal proceedings or for the purposes of the EIO, for example DNA samples, existing testimonies, collected evidence from criminal proceedings, etc. (b) the obtaining of information contained in databases held by police or judicial authorities and directly accessible by the executing authority in the framework of criminal proceedings; (c) the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the executing state; (d) any non-coercive investigative measure as defined under the law of the executing state. However, it had to be clarified that, upon the insistence of the ­European Parliament, the term ‘coercive’ has been defined in the broader sense, which means that it covers all invasive measures that infringe upon personal liberties in an invasive way, such as those interfering with the right to privacy. This is an important distinction. Some coercive investigative techniques (for example, Trojans,53 silent/stealth SMS,54 etc) are not coercive in the classical sense, since no physical coercion or force is being used. However, they are extremely invasive as regards the rights of the person, especially his/her

51 

See Articles 9 and 10 of Directive 2014/41/EU. See Article 10(2) of Directive 2014/41/EU. 53  A Trojan is a malicious computer program used to hack into a computer by misleading users of its true intent. 54  A silent/stealth SMS is an SMS not appearing on the device of the user and which is being used by law enforcement to get his/her location and establish movement profiles. As regards their extensive use, for example, in Germany see the answer to a parliamentary question—203.995 in the second half of 2015 (Bundestag, No 18/7285, 15.1.2016). 52 

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right to privacy. Should a restrictive definition of the term ‘coercive’ apply, such measures would be considered as non-coercive. In the transposition of the EIO Directive, the most elegant way in the majority of Member States would be to define as coercive measures the measures that usually need a prosecutorial or court authorisation. This solution would allow them to respect the broad definition of coercive measures agreed upon in the Directive;55 (e) the identification of persons holding a subscription of a specified phone number or IP address. One should nevertheless note that, for all the points mentioned above, the execution is not automatic and some non-recognition grounds can be invoked, with the exception of two: a dual criminality requirement for any offence outside the list of the 32 offences and a list or category of offences or to offences punishable by a certain threshold (catalogue offences).56 The rest of the non-recognition grounds apply, especially the fundamental rights non-recognition ground. As regards the modalities of the execution, the Directive follows the trend, moving from the principle of locus regit actum (the rules of the place of execution) to the principle of forum regit actum (the rules of the issuing state). This trend had already started with the 2000 EU MLA Convention57 and is reflected in the Second Additional Protocol to the 1959 Council of Europe Convention.58 In that regard, it has to be remembered that the EIO does not deal with the admissibility of evidence. There was no harmonisation of investigative measures and admissibility rules. It is the national admissibility rules that fully apply. However, to prevent the problem of admissibility of evidence in the issuing state, the forum regit actum principle has been introduced as long as it is ‘not contrary to the fundamental principles of the law of the executing state’.59

D.  Proportionality Principle Based on experience and problems with the EAW as regards proportionality, in particular the issuing of EAWs for minor offences,60 the EIO Directive specifically addressed the issue.61 There must be a proportionality test in the issuing state (not the executing state) as regards the requested measure. Consequently, there is no extra proportionality test foreseen in the executing state, and no explicit ground

55  The two legislators did not give an explanation of the term ‘coercive’ in the operative part but provided instead an explanation of ‘non-coercive’ measures with some examples. See Recital 18 of Directive 2014/41/EU stating: ‘Non-coercive measures could be, for example, such measures that do not infringe the right to privacy or the right to property, depending on national law.’ 56  See Article 11(2) of Directive 2014/41/EU. 57  See Article 4 of the 2000 EU MLA Convention. 58  See Article 8 of the Second Additional Protocol to the CoE MLA Convention (ETS No 182). 59  See Article 9(2) of Directive 2014/41/EU. 60  As regards the EAW the issue has been addressed only in the EAW Manual. 61  See Article 6 of Directive 2014/41/EU.

Mutual Recognition in EU Criminal Law and Fundamental Rights  197 for refusal on that basis. In the case of disagreement, a consultation procedure is foreseen, which might result in the withdrawal of the EIO by the issuing state. Consequently, if the issuing state does not want to withdraw an EIO and it persists in requesting the execution of the measure, the executing state has to decide about its recognition and execution by using only non-recognition grounds listed in the Directive. However, an obviously disproportionate request could amount to the invocation of a fundamental rights non-recognition ground, as foreseen in Article 11(f). Alternatively, the ground for refusal foreseen in Article 11(1)(h)— ie restriction of a measure to certain catalogue offences in the executing state— could be used. In addition, proportionality is also addressed in Article 10(3) on the recourse to another less intrusive measure with the same result.

E. Non-recognition Grounds, Including the Fundamental Rights Non-Recognition Ground It should be highlighted that not all grounds for non-recognition are listed in ­Article 11. Some exist in other articles. Additional non-recognition grounds in the text are the lack of issuance or validation by a judge or a prosecutor (Article 9(3)), the non-existence and non-availability of the measure­ (Article 10(5)) and specific grounds for measures regulated in detail in the special part, the public order ground. The non-recognition grounds listed in ­Article 11 (the main article on non-recognition grounds) from points (a) to (h) can be divided into three categories as regards their intention. The first group contains the ones in the interest of the state: points (b), (c) and (e). The second group includes the ones that are in the interest of the suspect: points (a), (d), and (f). The third group is a mixed one serving both interests, points (g) and (h). The grounds for non-recognition of an EIO are the following:62 (a) There is an immunity or a privilege under the law of the executing state which makes it impossible to execute the EIO, or there are rules on determination and limitation of criminal liability relating to freedom of the press and freedom of expression in other media, which make it impossible to execute the EIO. Such a privilege could be political immunity or a professional privilege like a lawyer’s or doctor’s privilege. At the same time, a specific i­nterest has been highlighted due to the insistence of some Nordic States in the ­negotiation—freedom of the press. (b) In a specific case, the execution of the EIO would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities; (c) The EIO has been issued in proceedings that are not criminal proceedings stricto sensu referred to in Article 4(b) and (c) of Directive 2014/421/EU 62 

See Article 11 of Directive 2014/41/EU.

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(see above) and the investigative measure would not be authorised under the law of the executing state in a similar domestic case. (d) The execution of the EIO would be contrary to the principle of ne bis in idem; Directive 2014/41/EU defined the ne bis in idem principle in a more open way following the EU Charter definition. Consequently, it abolished the addition ‘where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State’ as regards EAW procedures based on Article 54 CISA (Convention on Implementation of the Schengen Agreement) demanding an execution of the sentence.63 (e) The EIO relates to a criminal offence which is alleged to have been committed outside the territory of the issuing state and wholly or partially on the territory of the executing state, and the conduct in connection with which the EIO is issued is not an offence in the executing state. This is a typical nonrecognition ground present in all mutual recognition instruments. However, it has been narrowed in the EIO in comparison, for example, with the EAW. (f) There are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing state’s obligations in accordance with Article 6 TEU and the Charter. This ground was introduced due to the strong insistence of the European Parliament based on the EAW experience. Indeed, several Member States introduced such a ground in their internal EAW legislation, and national courts referred rightly in their case law to obligations stemming from Article 3 ECHR64 and the UN Convention against torture. Academic and practical criticisms targeted some EAW anomalies, and there were signs indicating a move towards recognition of such a ground by the ECJ, ie the opinion of Advocate General Sharpston in Radu,65 as well as the Court of Justice case law on immigration (see Joined cases NS and ME).66 Recently, the correctness of this insistence was confirmed by the Court of Justice.67 Consequently, the two legislators explicitly inserted into the text something that was already implicitly part of

63  According to the Court of Justice (see CJEU Case C-129/14 PPU Criminal proceedings against Zoran Spasic, ECLI:EU:C:2014:586, ne bis in idem is an autonomous concept by Article 50 CFREU and is not necessarily limited to the narrow meaning of Article 54 CISA. However, such a limitation can be considered as proportionate as the enforcement condition does not call into question the essence of ne bis in idem as such as it is laid down in Article 50 Charter (§ 58); the condition pursues an ­objective of general interest which is innate in the Area of Freedom Security and Justice (AFSJ), namely preventing the impunity of persons definitively convicted and sentenced, and finally, the condition is ­necessary, since none of the less restrictive alternatives provided by the instruments of mutual recognition could be ‘equally effective’ in ensuring the aim of preventing impunity. 64  See, for example, Rettinger, n 29 above, Judgment of 23 July 2010, IESC 45), or Bundesverfassungsgericht, BVerfGE 113, 273, Judgment of 18 July 2015, etc. 65  Court of Justice EU, Case C-396/11 Ciprian Vasile Radu, ECLI:EU:C:2013:39. 66  Court of Justice EU, Joined Cases C-411/10 and C-493/10, NS v Secretary of State for the Home Department and ME and Others (C-493/10) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Judgment of 21 December 2011. 67  See Case C-404/15 Aranyosi, ECLI:EU:C:2016:198.

Mutual Recognition in EU Criminal Law and Fundamental Rights  199 the EAW system and more generally part of the application of mutual recognition in criminal law. This connection is specifically highlighted in Recitals 18 and 19.68 In that regard, Article 6 TEU is mentioned, defining three levels of instruments on fundamental rights: the ECHR minimum standards, the EU Charter as the common EU minimum standards, which have, according to its Article 52, to be at least interpreted in accordance with the minimum level of the ECHR but which can be also higher, and common national constitutional traditions.69 (g) The conduct for which the EIO has been issued does not constitute an offence under the law of the executing state, unless it concerns one of the 32 EAW offences,70 if it is punishable in the issuing state by a custodial sentence or a detention order for a maximum period of at least three years; or (h) The use of the investigative measure indicated in the EIO is restricted under the law of the executing state to a list or category of offences or to offences punishable by a certain threshold, which does not include the offence covered by the EIO. Consequently, the list for grounds of non-recognition is a limited one due to the nature of mutual recognition. However, some of the grounds leave a certain leverage to the Member states as regards flexible interpretation and use.

F.  Legal Remedies As regards available legal remedies for the person affected, they must be equivalent to those available in a similar domestic case.71 This means that either the same

68 

See n 17 above. Those three levels of fundamental rights are additionally clarified in Recital 39 stating, inter alia: ‘This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application.’ 70  See Annex D of Directive 2014/41/EU: participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions and explosives, corruption, fraud, including that affecting the financial interests of the European Union within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer-related crime, environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage-taking, racism and xenophobia, organised or armed robbery, illicit trafficking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafficking therein, forgery of means of payment, illicit trafficking in hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials, trafficking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft/ships, sabotage. 71  See Article 14 of Directive 2014/41/EU. 69 

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legal remedy must be available, or that one equal in its effectiveness and result must be available. The substantive reasons for issuing the EIO can be challenged only in the issuing state. Any other solution would go against mutual recognition and would force the executing state into a full-blown content-based assessment, which can also be designated as a mirror procedure. However, such an absence of the evaluation of substantive reasons in the executing state cannot be to the detriment of the obligations of the executing state as regards fundamental rights’ protection (‘without prejudice to the guarantees of fundamental rights in the executing State’).72 Any misuse of such an obligation by the defendant, in the sense of an unsubstantiated claim of a fundamental rights violation in the issuing state, can be prevented through the shift of the burden of proof. Consequently, a defendant would have to prove prima facie that a real violation of his/her fundamental rights or the real danger of one exists. This would consequently shift the burden of proof to the detriment of the issuing state, which would have to provide information and documents to contradict this claim. In that regard, a certain content-based evaluation, with certain substantive reasons, is possible in the executing state. Like in the Directive on access to a lawyer, the EIO Directive contains a general reference that ‘rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO’ (without prejudice to national procedural rules). However, such a reference implies respect for ECHR minimum standards, especially as regards the clear ECtHR case law on Article 3 ECHR.73 It represents an EU admissibility rule in statu nascendi.74

IV.  Harmonisation—A Question of Level In the last seven years, after the entry into force of the Lisbon Treaty, there was an extensive expansion of EU prerogatives in the field of criminal law, going into the core of national sovereignty and national constitutions/constitutional traditions, and the level of protection of fundamental rights. Those actions were based on Title V TFEU (Articles 82–86 TFEU) as regards judicial cooperation in criminal matters. Criminal law is a very sensitive area that should be based on evolution, rather than revolution, and criminal law changes should be strictly based on objective data (impact assessments) and necessity, as this is inherently connected

72  See ECtHR, Stojkovic v France and Belgium—Application no 25303/08, Judgment of 27 October 2011. 73  ECtHR, See Gäfgen v Germany, Application no 22978/05, Judgment of 1 June 2010, Othman (Abu Qatada) v United Kingdom, Application no 8139/09, Judgment of 17 January 2012, and El Haski v Belgium, Application no 648/08, Judgment of 25 September 2012. 74  It was further developed in Directive (EU) 2016/343 on the presumption of innocence. See n 96 below.

Mutual Recognition in EU Criminal Law and Fundamental Rights  201 with the issue of legitimacy75 of criminal law and the principle of proportionality (criminal law as ultima ratio) and subsidiarity of EU law.76 However, it is claimed that some EU criminal law instruments did not always fully take these sensitivities on board.77 In that regard a short overview will be provided of some directives adopted after Lisbon on substantive criminal law and harmonisation of procedural rights. In the field of substantive criminal law, an exercise of re-­legislating (­amending/updating) and expanding the old Framework Decisions from the former third pillar took place, such as those on combating sexual abuse against ­children,78 trafficking of human beings,79 attacks against information systems80 and on combating terrorism.81 In addition, new instruments were adopted, such as the Directive against market abuse,82 and the Directive on protecting financial interests of the EU.83 Such directives in principle raised the penalty levels and introduced new offences. In that regard, for example, Directive 2011/92/EU on combating sexual abuse against children introduced a new offence of online grooming,84 Directive 2013/40/EU specifically criminalised double-use tools and botnets,85 and the Directive on combating terrorism specifically criminalised training and travel for the purpose of terrorism.86 In addition a Directive on countering money laundering by criminal law has been proposed.87 However, often the definitions of the offences are not very precise in view of legal certainty.

75  See N Peršak (ed), Legitimacy and trust in criminal law, policy and justice: norms, procedures, ­outcomes (Ashgate, 2014). 76  As a bad example to deal with subsidiarity the Commission approach after the yellow card procedure by national parliaments on the EPPO Regulation should be highlighted. There, the Commission maintained its proposal. See the Commission Annual Report 2013 on subsidiarity and proportionality (COM(2014) 506). See also D Fromage, ‘The Second Yellow Card on the EPPO Proposal: An Encouraging Development for Member State Parliaments?’ (2015) 35 Yearbook of European Law pp 5–27. 77  See for example ‘The Manifesto on European Criminal Policy’, ZIS 2009, pp 697–747, updated in (2011) 1 European Criminal Law Review pp 86–103, and ‘The Manifesto on European Criminal Procedure Law’, ZIS 2013, pp 430–46. 78  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, replacing Council Framework Decision 2004/68/JHA [2011] OJ L335/1. 79  Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, replacing Council ­Framework Decision 2002/629/JHA [2011] OJ L101/1. 80  Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems replaced Council Framework Decision 2005/222/JHA [2013] OJ L218/8. 81  Directive on combating terrorism (COM(2015) 0625. Agreed text of 30 November 2016. 82 Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on ­criminal sanctions for market abuse [2014] OJ L173/179. 83  Proposal for a Directive of the European Parliament and of the Council on the fight against fraud against the financial interests of the EU, COM(2013) 0363. 84  See Article 6 of Directive 2011/92/EU. 85  Articles 7 and 9 of Directive 2013/40/EU. 86  Article 9. 87  COM(2016) 0826 final.

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At the same time, six directives on harmonising criminal procedural rights of suspects88 were adopted, namely: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings,89 Directive 2012/13/EU on the right to information in criminal proceedings,90 Directive 2013/48/EU on the right of access to a lawyer, Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings,91 Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings,92 and Directive (EU) 2016/1919 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings.93 The first two directives raised the common level of procedural rights in the EU: Directive 2010/64/EU demands as a principle the translation of certain documents, which imposes a stricter standard in comparison with ECtHR case law,94 and Directive 2012/13/EU introduced a letter of rights standard as regards warnings given to a suspect.95 However, the latter did not solve the issues of admissibility of evidence and the exclusionary rules in case of violation of such warnings. As regards the raising of common standards, the same applies to the Directive on presumption of innocence that introduced the right to remain silent as an absolute right in the whole of the EU. The Directive also established a further development of an EU exclusionary rule with a specific reference to ECtHR case law on Article 3 and the UN Convention against Torture, but the legislator did not agree to a possible reversal of the burden of proof (as in the Commission proposal).96 Directive 2013/48/ EU on the right of access to a lawyer is much more problematic, as it introduced a broad derogation, denying access to a lawyer at the preliminary/police stage.97 88 In addition also a harmonisation directive for victims’ rights has been adopted—Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, [2012] OJ L315/57. 89  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1. 90  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. 91  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1. 92  Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1. 93  Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L 297/1. 94  Article 3 of Directive 2010/64/EU. Compare with ECtHR case law; for example, Brozicek v Italy, Kamasinski v Austria, Hermi v Italy, Husain v Italy, X v Austria, Luedicke, Belkacem and Koç v Germany, etc. 95  Article 3 of Directive 2012/13/EU. This is a kind of EU ‘Miranda’ rights warning system for the suspect (see fn 139), including, inter alia, to be informed about the right to remain silent and the right to a lawyer. 96  See Articles 6 and 7, as well as Recital 45. 97  See Article 3(6) of Directive 2013/48/EU:

‘6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified

Mutual Recognition in EU Criminal Law and Fundamental Rights  203 Such derogations become even more problematic in view of the Court of Justice Melloni judgment,98 dealing with the relationship between national constitutional standards and EU law as regards the question of primacy of EU law. The Court of Justice basically stated that EU harmonisation rules preclude the use of higher national constitutional rules as regards protection of fundamental rights in cases of mutual recognition.99 In that regard the Court of Justice opened a possible dispute with national constitutional courts on the question of primacy of EU law.100 The directive on children’s safeguards in criminal proceedings provides enhanced rules, especially as regards the assistance of a lawyer101 and the directive on legal aid, especially as regards the criteria for the means test and a merits test, as well as regards EAW proceedings.102 It was shown that mutual recognition and harmonisation have to go hand in hand. However, not all harmonisation instruments bring an added value and not all mutual recognition instruments are applied in a sensitive way, taking into account that the EU is common legal area under construction. As a bad example of harmonisation and mutual recognition in the same instrument the EPPO proposal will be analysed bellow.

V.  About the EPPO—A Lesson not Learned103 The EPPO idea has a long history, from the 1997104 and 2000105 Corpus Juris studies via the 2001 Green Paper of the Commission106 and integration into Article 86 TFEU, to the 2013 Commission proposal for a Regulation on the establishment of

in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.’ 98 

Court of Justice, Case C-399/11 Melloni ECLI:EU:C:2013:107. See paras 35–46. 100  See the latest decision of the Spanish Constitutional Court adopting the Solange doctrine— http://www.tribunalconstitucional.es/es/jurisprudencia/restrad/Paginas/JCCJCC262014en.aspx. 101  See Article 6 of Directive (EU) 2016/800. 102  See Articles 4 and 5 Directive (EU) 2016/1919. 103  A summary of the article A Erbežnik, ‘European Public Prosecutor’s Office (EPPO): too much, too soon, and without legitimacy? (2015) 5 European Criminal Law Review pp 209–221. See also For a more extensive analysis of the proposal see P Asp (ed), The European Public Prosecutor’s Office, Legal and Criminal Policy Perspectives (Jure, 2015). 104  M Delmas-Marty (ed), Corpus juris portent dispositions pénales pour la protection des intéréts financiers de l’Union européenne (Economica, 1997). 105  M Delmas-Marty and JAE Vervaele (eds), The implementation of the Corpus Juris in the Member States (Antwerp Intersentia, 2000). 106  Green Paper on criminal law protection on the financial interests of the Community and the establishment of a European Prosecutor, COM(2001) 0715, 11.12.2001. 99 

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the European Public Prosecutor’s Office.107 These policy papers and studies varied in their ideas as regard the combination of supranational harmonisation and mutual recognition.108 The initial proposal was divided into 10 chapters, the more interesting ones being Chapter II on the structure, Chapter III on rules of procedure on investigations, prosecutions and trial proceedings, Chapter IV on procedural safeguards, and Chapter V on judicial review. In that regard, the Commission envisaged the existence of a non-collegial structure with a Prosecutor and his/her four Deputies, as well as Delegated Prosecutors in the Member States with a possible ‘double-hat’ function.109 In addition to criminal offences affecting the financial interests of the Union defined in the PIF Directive,110 the EPPO should have also competence over ancillary offences.111 Prosecution was in principle mandatory and was in most cases conducted by Delegated Prosecutors.112 As regards the applicable law, there was a combination of national law and specific provisions of the Regulation. In that regard, the initial proposal envisaged certain investigative measures that must be available in EPPO cases, where it was not fully clear if national restrictions did apply and to what extent.113 Further, there were specific rules on admissibility of evidence introducing an obligation to accept evidence that did not violate the fairness of the proceedings as regards Articles 47 and 48 of the Charter.114 As regards defence rights, existing EU directives were listed and applied in addition to national rules, which meant the application of a double layer of protection.115 As regards judicial review, the Court of Justice’s competence was excluded.116 After negotiations, the Council finalised its position on the text in December 2016.117 It introduced, inter alia, a collegial structure and chambers, a cross-border investigation provision, further clarification of inextricably linked offences, an evocation procedure (decision to take the case), an admissibility rule based on free assessment of the national judge according to national law, certain 107 

COM(2013) 0534, 17.7.2013. more detailed K Ligeti, ‘The European Public Prosecutor’s Office: How Should the Rules Applicable to its Procedure be Determined?’ (2011) 2 European Criminal Law Review pp 123–48. 109  Article 6 of the EPPO proposal. 110  Proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law, COM(2012) 0363, 11.7.2012 (PIF Directive). As regards the scope of the proposed PIF Directive, the Commission and Parliament wanted an inclusion of VAT offences despite the fact that only a small percentage of VAT goes to the EU budget and in that regard VAT is mostly a national tax in its nature. In the final text it was agreed that cross-border cases with a damage of at least EUR 10 million are included (see Council doc 14902/2016). 111 Article 13 of the EPPO proposal. Such ancillary competence should exist in cases of other offences ‘inextricably linked’ to the PIF offences where ‘their joint investigation and prosecution are in the interest of good administration of justice’, under the condition that the PIF offences are ‘preponderant and the other criminal offences are based on identical facts’. 112  Articles 16–18 of the EPPO proposal. 113  Articles 26 of the EPPO proposal. 114  Article 30 of the EPPO proposal. 115  Article 32 of the EPPO proposal. 116  Article 36 of the EPPO proposal. 117  See Council doc 15760/16. 108  See

Mutual Recognition in EU Criminal Law and Fundamental Rights  205 prerogatives for the Court of Justice, specific data protection provisions, etc. The Parliament issued two intermediate reports on the EPPO, both highlighting the issue of judicial control and a reference to Article 6 TEU as regards admissibility of evidence as well as to the EIO non-recognition grounds.118 It also passed a resolution referring, inter alia, to the necessity to include VAT offences in the PIF Directive, stronger judicial review, cross-border measures based on EIO principles and a clear delimitation between EPPO and Eurojust competences.119 The current situation, in which only enhanced cooperation can be applied due to the opposition of a number of Member States, raises the issue of the added value of the proposed instrument.120 In addition, two other legal issues of the proposal need to be highlighted: 1. lack of judicial oversight, and 2. admissibility of evidence.

A.  Lack of Judicial (Court) Oversight One of the issues as regards the EPPO is the question of judicial control and remedies. The Commission proposed a new EU body that was not subject to the jurisdiction of the Court of Justice—an argumentum ad absurdum (Article 36 and Recitals 36–39 of the EPPO proposal). It only foresaw national judicial control as regards individual measures. Member States have changed this providing a role for the Court of Justice as regards preliminary rulings on the validity of the EPPO’s procedural acts as regards Union law, interpretation or the validity of provisions of EU law and on conflicts of competence between EPPO and national authorities, dismissal of cases, compensations, staff matters, etc.121 However, a clear common judicial control of the introduction of the investigation as such is missing. The main problem is not the assessment of the individual measures, but the assessment of the initial decision to investigate as such. An internal control, for example, by chambers in a collegial structure, does not resolve the issue, as such control is not a judicial one. Prosecution by its nature is a creation of the French inquisitorial procedure,122 and a prosecutor, even if he/she should be independent,123 is not impartial but only a party to the procedure.124 Not providing for judicial (court)

118 

EP resolutions T7-0141/2014 and T8-0173/2015. EP resolution P8_TA(2016)0376. 120  See Towards a European Public Prosecutor’s office (EPPO), European Parliament, Study, LIBE, 2016. Sweden explicitly stated on 19 January 2017 that it will not participate in the instrument. 121  See Article 36—Council document 15760/16. 122  R Mowery Andrews, Law, Magistracy, and Crime in Old Regime Paris, 1735–1789: Volume 1, The System of Criminal Justice (Cambridge University Press 1994) 422–24. 123  See in that regard the position of some Member States in the Council as regards independency of the prosecution as a constitutional requirement, especially Portugal. 124  This can be also clearly seen from the ECtHR case law on interpreting Article 5(3) ECHR as regards the definition ‘or other officer authorised by law to exercise judicial power’ whereby the court clearly refused to consider a prosecutor as a judicial (court-like) authority in view of the legitimacy of assessment of a deprivation of liberty. See, for example, ECtHR, Moulin v France, Application no 37104/06, Judgment of 23 November 2010. 119 

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oversight of the EPPO investigation as such could create a potential clash between national (constitutional) requirements in at least some Member States, such as the ones having an investigating magistrate, as well as the ones with police/­ prosecutorial investigation with a special court remedy as regards the decision to introduce an investigation as such.125 Consequently, an adverse EPPO regulation could cause a clash between primacy126 of EU law and national constitutional law.

B.  Availability of Measures and Admissibility of Evidence Admissibility of evidence and the exclusionary rule are not purely technical issues but refer to basic fundamental constitutional rights, such as the right to privacy, the right to remain silent, etc. They are a substantive part of national constitutional laws envisaged as an effective tool in case of violation of fundamental rights. Consequently, any imposition of less strict EU rules in front of national courts in comparison with their own national (constitutional) requirements could create a clash between national constitutional laws and EU secondary law. The original Commission EPPO proposal, if adopted, could lead to such a potential clash, as explained below. Secondly, it is not practical or feasible to apply, before the same court, two different sets of admissibility rules. Not only would this go against the initial idea of a single legal area for circulation of evidence, but it would also lead to two regimes, ie one for domestic procedures and another one for EPPO procedures, which might be problematic in view of the principle of equality before the law. Thirdly, the European Parliament proposed in its non-binding reports a much more sensitive and clear approach referring to Article 6 TEU and based on the EIO model.127 The Commission proposal in that regard was not an ambitious one and referred only to the ‘fairness of the proceedings’ and the ECHR minimum standards. However, the exclusionary rules in the EU vary substantially from one Member State to another, going from the extreme of no rules at all, through the weighting of fairness of the procedure, to a full and absolute exclusionary rule.128 The initial EPPO proposal would have forced on Member States a new type of exclusionary rule solely for EPPO proceedings. Such a proposal was not legally workable in view of the principle of equality before the law and not acceptable in

125 For example, the Croatian Constitutional Court annulled substantial parts of the Croatian Criminal Procedure law, inter alia, as it did not provide for a special judicial (court) remedy against the introduction of an investigation. Decision of the Croatian Constitutional in case U-I-448-2009, 19.7.2012, stating that court control is an inherent part of the Croatian constitution as in that regard the Croatian standards are higher than in other states or as required by the minimum ECHR standards. The same applies to the Austrian criminal procedure. 126  Primacy of EU law is not explicitly written in the Treaties but is only case law based and mentioned only in a Declaration to the Treaties ECJ, Case 6/64 Costa v ENEL, 15 July 1964, and Declaration No 17 to the Treaties. 127  See EP resolutions T7-0141/2014 and T8-0173/2015. This approach was followed by the Council. 128  See, for example, JD Jackson and SJ Summers, The Internationalisation of Criminal Evidence Beyond the Common Law and Civil Law Traditions (Cambridge University Press 2012).

Mutual Recognition in EU Criminal Law and Fundamental Rights  207 view of the role of exclusionary rules as an effective tool to protect fundamental constitutional rights of the defendant when ‘the constable has blundered’.129 In its latest text, the Council followed an approach referring back to national rules stating that evidence ‘shall not be denied on the mere ground that the evidence was gathered in another Member State’.130 The same issues as those confronting the EU are also present in another federal state—the Unites States of America. The solutions that were selected in this federal state could serve as an example, as will be shown below.

VI.  The United States’ Experience as an Example of Cross-Border Cooperation The United States can serve as a good example of cooperation between different states and as regards the prerogatives of the federal level and the State level. In that regard, the EU follows, to a large extent, the United States’ example, and lessons can be drawn from the US experience. As regards offences, there are specific federal crimes.131 However, most offences are proscribed at State level. There is also a distinction between federal and State authorities and federal and State ­jurisdictions.132 Within this contribution, only some aspects concerning the US federal constitutionalisation of criminal procedure and inter-State cooperation will be addressed, namely inter-State admissibility of evidence and rendition. Firstly, in the US, a strong supremacy clause is written directly into the constitution (Article VI, 2).133 Consequently, the supremacy clause is absolute and immune to any ‘Solange challenges’134 meaning that federal law has priority over the law of the individual federal States. Secondly, the catalogue of fundamental rights is enshrined in the Bill of Rights, as the first 10 Amendments to the US Constitution, and it was further expanded by the 13th (abolition of slavery), the

129 

Quote of Justice Cardozo from People v Defore, 242 NY 13 (1926). Article 31(1). See also Recital 70 on evidence referring to Article 6 TEU and Article 67(1) TFEU respecting different legal traditions. Council document 15760/16. 131 See, 18 US Code (http://uscode.house.gov/browse/prelim@title18/part1&edition=prelim). ­Federal criminal proceedings are governed by the Federal Rules of Criminal Procedure (https://www.federalrulesofcriminalprocedure.org/) and Federal Rules of Evidence (https://www.rulesofevidence.org/). 132  The line is often blurred due to the increased number of federal crimes—problems of overlapping jurisdictions solved on an ad hoc basis. See also Y Kamisar et al, Basic Criminal Procedure: Cases Comments and Questions (West Academic Publishing 2015) 19–24. See also J Ouwerkerk, Quid Pro Quo? (Intersentia 2011), n 144 below, 182–90. 133  ‘This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’ 134  See n 126 above. 130 

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14th (privileges and immunities and due process) and the 15th Amendment (right to vote).135 In the field of criminal law, the 14th Amendment (due process) played a significant role to extend the majority of the rights from the Bill of Rights to the individual US federal States by the decisions of the US Supreme Court.136 An interesting comparison between the Bill of rights and the EU Charter can be made, although its application is limited to the application of EU law (see ­Article 51(1) of the EU Charter).137 However, such a limitation of the Charter is artificial and it is questionable whether it can survive in the future due to problems of reverse discrimination and equality before the law as regards purely internal situations in the EU Member States.138 The meaning of the Bill of Rights was substantially raised and framed through the US Supreme Court’s case law. First, such case law defined the level of individual rights in criminal law, notably on the 4th Amendment on protection against unreasonable searches and seizures (thereby covering an important part of privacy), on the 5th Amendment on the privilege against self-incrimination and the connected Miranda warning system, and on the 6th Amendment on the right to a lawyer. In addition, such interpretations were extended to the individual US federal States by applying the due process clause of the 14th Amendment as stated above. The US federal level standards on the aforementioned criminal law rights are very high and comprehensive. As an example, the Miranda139 warning system and the privilege against self-­incrimination can be used. Such a warning system was originally developed by the US Supreme Court as a prophylactic rule for the protection of the 5th Amendment’s privilege against self-incrimination, whereby a mistake in the warning triggers in ­principle the exclusion of statements and evidence.140 However, in the original US 135  The 13th, 14th and 15th Amendment are the so-called Reconstruction Amendments adopted after the Civil War. 136  The following parts are not incorporated: 3rd Amendment (restrictions on the quartering of soldiers in private homes without the owner’s consent in peacetime), 5th Amendment (the right to indictment by a grand jury), 6th Amendment (the right to a jury selected from residents of crime location), 7th Amendment (the right to a jury trial in civil cases), and 8th Amendment (prohibition against excessive fines). The rest is incorporated—see, for example Mapp v. Ohio, 367 US 643 (1961), as regards the 4th Amendment’s prohibition of unreasonable searches and seizures, Griffin v California, 380 US 609 (1965), as regards the 5th Amendment’s privilege against self-incrimination, or Gideon v Wainwright, 372 US 335 (1963), as regards the 6th Amendment’s right to a counsel for all felony cases, etc. See also Y Kamisar et al, Basic Criminal Procedure: Cases Comments and Questions (14th edn, West Academic Publishing 2015) pp 25–38. 137  ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’ Such was also the historical position of the US Supreme Court in the beginning of the Unites States—see US Supreme Court, Barron v Baltimore, 32 US (7 Pet) 243 (1833), stating that the United States Bill of Rights could not be applied to state governments. 138  The Court of Justice already started to expand the term of implementing EU law—see Case C-617/10, Åkerberg Fransson, judgment of 26 February 2013, using a very extensive interpretation as regards implementation of EU law that includes national tax evasion procedures due to their connection with the VAT Directive (para 27). 139  Informing the suspect of his/her rights, notably the right to remain silent and the right to a lawyer. See US Supreme Court, Miranda v Arizona, 384 US 436 (1966). 140  See above.

Mutual Recognition in EU Criminal Law and Fundamental Rights  209 system, several exemptions were developed to such a general rule, such as the public security exception,141 a renewed warning,142 as regard real evidence,143 etc. In that regard the US Court followed something that I call the ‘pendulum doctrine’, meaning that a fundamental right, such as the privilege against self-incrimination, has a basic core layer, which would, in this example, be the privilege against selfincrimination and voluntariness of statements. Around such core, additional layers are being put. These are concentric circles potentially expanding the sphere of a particular fundamental right. Such concentric circles can be added over time, like the above-mentioned Miranda warning system, or taken again away, such as the exemptions from the Miranda system. The system stays legitimate as long as the core of the right is not touched. In EU Member States, the main problem is that such a core layer of rights is still being established. This is for example the case with the above-mentioned Directive on the presumption of innocence defining the right to remain silent as an absolute right. However, problems do not stop here, as the additional layers on the exclusionary rule at EU level do not exist at the moment. Furthermore, US federal States can also have a higher level of fundamental rights protection based on their own constitutions. Consequently, in order to be declared admissible, evidence has to reach at least the common federal standards, but federal States can also have stricter rules.144 This raises the same issues on cross-border use of evidence and their admissibility, as the ones we encounter in the EU. This diversification of rules between the different federal States was even further triggered on the basis of the so-called new federalism that started at the end of the ’70s.145 At the same time, there is no constitutional system of mutual recognition of final criminal law judgments between the different US federal States. The Full Faith and Credit Clause (Article IV, 1 of US Constitution)146 does not apply to criminal law judgments. Instead, the system is based on returning on demand fugitives from justice. Extradition requests between the individual US federal States (interState rendition) are based on an explicit provision of the US ­Constitution, the

141 

US Supreme Court, New York v Quarles, 467 US 649 (1984). US Supreme Court, Oregon v Elstad, 470 US 298 (1985). 143  US Supreme Court, US v Patane, 542 US 630 (2004). 144  See J Ouwerkerk, Quid Pro Quo?, A Comparative law perspective on the mutual recognition of judicial decisions in criminal matters (Intersentia 2011), pp 206–11. In that regard California is unique with a special amendment to its constitution (Proposition 8 or The Victims’ Bill of Rights from 1982) stating basically that higher Californian standards should not be taken into account—federal standards have precedent over Californian standards (a kind of ‘Californian Melloni rule’). See D Friedman, ‘27 Years of Truth-in-Evidence: The Expectations and Consequences of Proposition 8’s Most ­Controversial Provision’ (2009) 14 Berkeley Journal of Criminal Law 1–36. 145 See, for example, W Brennan, ‘State Constitutions and the Protection of Individual Rights’ (1977) 90 Harvard Law Review 489, or W Brennan, ‘The Bill of Rights and the States: The Revival of State Constitutions as Guardians of individual Rights’ (1986) 61 New York University Law Review 535. 146  See US Supreme Court, The Antelope, 23 US 66 (1825), introducing a penal law exception to the Full Faith and Credit Clause. However, offences from another federal State can be taken into account in recidivist cases. See WL Reynolds and WM Richman, The Full Faith and Credit Clause (Praeger, 2005). 142 

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­ xtradition Clause (Article IV, 2).147 However, such a clause is not self-executing E and it was further clarified by the Federal Extradition Act.148 Its interpretation over time significantly changed as regards gubernatorial discretion (for example, as regards a fair trial) to refuse an interstate rendition.149 In habeas corpus proceedings as regards the extradition, only the following can be tested: the proper form of the documents, the identity of the person, the existence of a charge in the demanding State and whether the person is a fugitive from justice. No dual criminality or speciality rules apply. In addition, federal States can, on a voluntary basis, agree to join additional legislation (model law adopted by the National Conference of Commissioners on Uniform State Laws) rendering inter-State extradition even easier based on the Uniform Criminal Extradition Act (UCEA).150 The US is a good example showing that a single (federal) legal area does not necessarily demand a full uniformity of offences and procedural rights. Individual federal States have a lot of leverage as regards offences and procedural protection. However, in the United States the federal level of fundamental rights protection based on the federal Bill of Rights is a very high one and developing primarily through case law of the US Supreme Court and lower federal courts. At the same time the system avoids the questions of mutual recognition of final judgments but is instead rendition prone. However, the interstate rendition system is a mixture of federal law and soft ‘voluntary’ agreements between the individual States who want to go further (a kind of enhanced cooperation system). In that regard such a system shows valuable lessons for the EU and its Area of Freedom, Security and Justice.

147  ‘A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.’ 148  18 US Code § 3182—Fugitives from State or Territory to State, District, or Territory:

‘Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.’ 149 In Kentucky v Dennison, 65 US 66 (1860), the Supreme Court concluded that a Governor could not be compelled to do so. It reversed such a precedent only in Puerto Rico v Branstad, 483 US 219 (1987). 150  UCEA (adopted by 48 federal States) in comparison with the federal Act gives more ­flexibility. For example, the person does not need to be a fugitive from justice, detention before rendition ­warrants, etc. See, for example, Maryland Extradition Manual (2016), p 3.

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VII. Conclusions Mutual recognition is built on common trust. Such trust is the consequence of adherence to common legal principles and standards, especially as regards the rule of law and fundamental rights. An overview of the past legislative developments in EU criminal law has shown that the optimism of full mutual recognition from the 1999 Tampere Council conclusions was premature. Although adhering to the ECHR minimum standards, Member States’ basic understanding of procedural (constitutional) rights in a criminal procedure varied substantially. Only after the Lisbon Treaty did the EU start to address the issue by adopting instruments harmonising procedural rights. However, the success of harmonisation depends on its level of protection: added value comes only when it provides for higher standards than the ECHR minimum standards. In that regard the current ‘federal’ harmonisation directives on procedural rights are a mixed bag: there is improvement as regards the presumption of innocence and the right to information, but there are questionable results as regards the access to a lawyer. The EAW also provided lessons on mutual recognition concerning fundamental rights problems (due process, prison conditions), the definition of judicial authorities, the assessment of proportionality, etc. Based on such empirical data, the EIO Directive introduced a new generation of carefully drafted mutual recognition instruments, introducing, inter alia, as a standard a fundamental rights ground for non-recognition based on Article 6 TEU, a proportionality test, as well as a validation procedure in case of non-standard judicial authorities. Consequently, the common Area of Freedom, Security and Justice including mutual recognition, can work if this principle is applied in a much more sensitive way and based on two principles: (a) ­flanking procedural criminal law harmonisation instruments at a high fundamental rights level (higher than the ECHR minimum), dispersing the ‘Melloni issue’;151 and (b) a fundamental rights non-recognition clause based on Article 6 to dispel t­ ensions between EU law and higher national constitutional standards.152 Or as Justice Cardozo stated: ‘Justice is not to be taken by storm. She is to be wooed by slow advances.’

151 In Melloni, as explained above, the Court of Justice basically stated that EU procedural criminal law harmonisation instruments prevent the use of higher national (constitutional) procedural rules as non-recognition grounds as regards mutual recognition in criminal law. 152  Unfortunately, the Commission did not follow this trend in the recent proposal on mutual recognition on confiscations and freezing orders, as it should have proposed a directive as the area is not harmonised, and as it did not include a fundamental rights non-recognition ground. Hopefully the two legislatures, especially the European parliament, will remedy the situation once again.

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The Quest for the Right Balance Between Liberty and Security

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14 The External Dimension of Mutual Trust: The Coming of Age of Transatlantic Counter-terrorism Cooperation VALSAMIS MITSILEGAS

I. Introduction 9/11 has acted as a catalyst for the adoption of a plethora of security measures in the United States and beyond. For the European Union, one of the key challenges has been to adapt to the new security landscape and to respond to US security demands. Securitisation post-9/11 accelerated and facilitated the adoption of internal EU law in the field of criminal justice, with landmark third pillar legislation, including the Framework Decision on the European Arrest Warrant and the Decision establishing Eurojust (but also the first pillar second money laundering Directive), adopted months after 9/11, being repackaged as counter-terrorism measures.1 A similar boost was given to the EU external action in the field, with the need for enhanced transatlantic counter-terrorism cooperation justifying the emergence of the European Union as a global security actor. At the heart of EU external action has been the conclusion of a series of international agreements with the United States, addressing a number of different components of a new transatlantic counter-terrorism consensus. The legal framework on transatlantic counter-terrorism cooperation has been evolving over time, with a number of agreements being repealed and replaced by new texts to address internal EU ­constitutional developments and concerns. Central to the discussions on the evolution of transatlantic counter-terrorism cooperation has been the issue of the impact of EU external action in the field on the preservation of European values, and in particular the protection of fundamental rights and the rule of law. The need for the European Union to uphold 1 

For an analysis see V Mitsilegas, EU Criminal Law (Hart 2009).

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these values in its external action is emphasised in the Lisbon Treaty. A key feature of the Treaty is its emphasis on the values upon which the Union is deemed to be founded. References to European values and their constituent elements can be found throughout the general part of the Treaty on the European Union, as well as in parts of the Treaty on the Functioning of the European Union. These values are central not only in defining European identity internally, but also in guiding the external action of the Union. Not surprisingly, respect for fundamental rights, democracy and the rule of law are expressly included in the list of EU values found in Article 2 TEU. This enumeration of the values upon which the Union is founded is not merely declaratory. According to Article 3(1) TEU, the promotion of these values is a key aim of the Union. The role of the Union in promoting its values is further highlighted with regard to EU external action, with Article 3(5) TEU stating that ‘in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens’. The centrality of the values of the Union when the Union acts at the global level is further confirmed by the specific Treaty provisions on external action. According to Article 21(1) TEU ‘the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world’, which include: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms and respect for human dignity. According to Article 21(2) TEU, the Union will define and pursue common policies and actions, and will work for a high degree of cooperation in all fields of international relations, in order to, inter alia, safeguard its values, and consolidate and support democracy, the rule of law, human rights and the principles of international law. Article 205 TFEU reiterates that these provisions will guide the Union’s action on the international scene. It is thus clear that the respect of fundamental rights and the rule of law constitute key values which the European Union must uphold and promote in its external action. This chapter will evaluate critically the evolution of transatlantic counter-terrorism cooperation and its impact on European values, by focusing in particular on the extent to which mutual trust can operate in this field without a level playing-field with regard to the protection of fundamental rights.

II.  Transatlantic Counter-Terrorism Cooperation: A Typology of EU–US Agreements and their Impact on European Values Transatlantic counter-terrorism cooperation has evolved by the conclusion of a series of agreements between the European Union and the United States covering a wide range of issues and triggered primarily by the events of 9/11. The conclusion of these agreements has created a multi-layered and extensive framework

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of transatlantic legal relationships in the field of security, which poses significant challenges to the EU legal order.2 The transatlantic counter-terrorism agreements fall into three main categories. The first category consists of ‘traditional’ agreements between the EU and the US in criminal justice matters creating obligations for the two Parties and for EU Member States. Such instruments are the EU–US Agreements on extradition and mutual legal assistance.3 Their signature formed an important constitutional precedent for the European Union, these agreements being the first major international agreements concluded under the third pillar.4 The second category includes agreements concluded between the US and EU criminal justice bodies with legal personality. The US has signed international agreements with Europol5 and Eurojust6 on the exchange of personal data. The third category of agreements can be characterised as ‘executive’ or ‘operational’ agreements. These are agreements which have been concluded as a response to US unilateral emergency security measures adopted post-9/11. Two sets of agreements have been evolving over time in this context: EU–US Agreements on the transfer of Passenger Name Record (PNR) data, and EU–US Agreements on the Terrorist Finance Tracking Programme (TFTP). Rather than imposing obligations solely on the Parties, these Agreements serve to impose obligations on private sector entities to cooperate with the United States on counter-terrorism, entailing thus a privatisation of security governance. Executive transatlantic cooperation agreements have had quite a turbulent history. As regards PNR, following the acceptance by the Commission of the adequacy of US data protection standards, transatlantic cooperation in this context began as a first pillar international agreement (between the Community and the US) in 2004.7 Following an ECJ ruling against the legality of the first pillar legal basis used,8 the EC–US agreement was

2  See V Mitsilegas, ‘Transatlantic Counter-terrorism Cooperation and European Values. The Elusive Quest for Coherence’ in D Curtin and E Fahey (eds), A Transatlantic Community of Law (Cambridge University Press 2014) 289–315, upon which this and the following section is based. 3  Agreement on extradition between the European Union and the United States of America [2003] OJ L181/27; Agreement on mutual legal assistance between the European Union and the United States of America [2003] OJ L181/34. See also the Council Decision, on the basis of Articles 24 and 38 TEU, concerning the signature of these agreements [2003] OJ L181/25. 4  See V Mitsilegas, ‘The New EU–US Co-operation on Extradition, Mutual Legal Assistance and the Exchange of Police Data’ (2003) 8 European Foreign Affairs Review 515–36. 5  Doc 13689/02 Europol 82, 4 November 2002—see Mitsilegas (n 2 above). 6  See V Mitsilegas, ‘Judicial Co-operation in Criminal Matters between the EU and Third States: International agreements’ in M Leaf (ed), Cross-Border Crime (London, JUSTICE 2006) 79–92. 7  Commission Decision on the adequate protection of personal data contained in the P ­ assenger Name Record of air passengers transferred to the United States’ Bureau of Customs and Border ­Protection, [2004] OJ L235/11 (including an Annex with the relevant US Undertakings); and ­Council Decision on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the US Department of Homeland Security, Bureau of Customs and Border Protection [2004] OJ L183/83 (the Agreement is annexed to the Decision). 8  Joined Cases C-317/04 and C-318/04, European Parliament v Council [2006] ECR I-4721.

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replaced by third pillar agreements between the EU and the US.9 After the refusal of the European Parliament to grant consent to the 2007 EU–US PNR Agreement, a new EU–US PNR Agreement has now been concluded after the entry into force of the Lisbon Treaty.10 As regards TFTP, the revelation by the press of the secret US programme of access to European SWIFT data11 led as a first step to the issuance of Representations to the European Union, explaining the legal basis for the collection of SWIFT data under US law.12 Pressure by the European Parliament and a change in the SWIFT system architecture resulted in the conclusion of an EU–US TFTP Agreement, signed one day before the entry into force of the Lisbon Treaty.13 Notwithstanding the exertion of considerable political pressure by the US administration, the European Parliament rejected the agreement.14 This rejection led to a new round of transatlantic negotiations, this time fully post-Lisbon, resulting in the conclusion in the summer of 2012 of the second EU–US TFTP Agreement, which is currently in force.15 The conclusion of these agreements by the European Union has been met by strong objections and concerns on political, democratic and human rights/rule

9  An interim agreement to address the legal vacuum resulting from the Court’s ruling in 2006 was followed by another agreement in 2007: Council Decision 2006/729/CFSP/JHA on the signing, on behalf of the European Union, of an Agreement between the European Union and the USA on the processing and transfer of PNR data by air carriers to the US Department of Homeland Security (L298, 27 October 2006, p 27—the text of the Agreement is annexed to this Decision); and Agreement between the European Union and the United States of America on the processing and transfer of P ­ assenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement) [2007] OJ L204/18. See also Council Decision approving the signing of the Agreement on the basis of Articles 24 and 38 TEU, at p 16. 10  Council Decision of 13 December 2011 on the signing, on behalf of the European Union, of the Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records to the United States Department of Homeland Security [2012] OJ L215/1; Council Decision of 26 April 2012 on the conclusion of the Agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records to the United States Department of Homeland Security [2012] OJ L215/4. 11  Eric Lichtblau and James Risen, ‘Bank Data Is Sifted by U.S. in Secret to Block Terror’, The New York Times, 23 June 2006: www.nytimes.com/2006/23/washington/23intel.html?_r=0&pagewanted= print> accessed 23 October 2016. 12  Terrorist Finance Tracking Program—Representations of the United States Department of the Treasury [2007] OJ C166/18. 13  Council Decision 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program [2010] OJ L8/9 (and p 11 for the text of the Agreement). For the background see A Amicelle, The EU’s Paradoxical Efforts at Tracking the ­Financing of Terrorism. From Criticism to Imitation of Dataveillance (CEPS Paper in Liberty and ­Security in Europe, No 56, August 2013). 14  For further details see J Monar, ‘Editorial Comment. The Rejection of the EU–US SWIFT Interim Agreement by the European Parliament: A Historic Vote and Its Implications’ (2010) 15 European Foreign Affairs Review 143–51. 15  Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the ­European Union to the United States for the purposes of the Terrorist Finance Tracking Program [2010] OJ L195/3.

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of law grounds. Concerns with regard to the uncritical adoption of US standards by the EU have been compounded by the marked lack of democratic scrutiny and transparency in the negotiation and conclusion of the agreements. From a constitutional point of view, the fact that the agreements were ultimately negotiated under the third pillar meant that negotiations were led formally by the ­Presidency of the European Union and that the European Parliament did not have any role in the process of negotiation and signature. These constitutional constraints were combined with the negotiating practice of Member States (and at times the Commission) which effectively shielded the agreements from any kind of meaningful debate and scrutiny. The EU–US agreements on extradition and mutual legal assistance remained classified until the very last weeks before signature, notwithstanding repeated requests for their publication for the purposes of ­scrutiny.16 The Europol–US and Eurojust–US Agreements have not even been published in the Official Journal. The first version of the PNR Agreement (between the Community and the US) was transmitted to the European Parliament for examination under deadlines which, according to Parliament did not enable it to conduct meaningful scrutiny—with the handling of scrutiny leading to Parliament challenging the agreement in the ECJ.17 Similar scrutiny concerns have arisen with regard to the choice to deal with the Decision confirming the adequacy of the US data protection framework for the purposes of the PNR agreement via comitology.18 The first TFTP Agreement on the other hand was, as seen above, signed a day before the entry into force of the Lisbon Treaty—in an attempt to conclude this under the intergovernmental process of the ‘old’ third pillar and thus pre-empt the Community elements brought about by Lisbon and effectively sideline the European Parliament. Moreover, significant limits have been placed by the Council on transparency and scrutiny of documents related to the negotiations by members of the European Parliament.19 The conclusion of these agreements, negotiated with minimal transparency in the face of sustained and growing fundamental rights concerns expressed by national parliaments, EU expert bodies and civil society,20 was presented as a fait accompli, with signature dates set out in 16  See House of Lords European Union Committee, EU–US Agreements on Extradition and Mutual Legal Assistance, 38th Report, session 2002–03, HL Paper 135. 17  V Mitsilegas, ‘Border Security in the European Union. Towards Centralised Controls and Maximum Surveillance’ in E Guild, H Toner and A Baldaccini (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart Publishing 2007) 359–94. The Court’s ruling resulted in the agreements being negotiated under the third pillar with the Parliament having a much more limited scrutiny role. 18  V Mitsilegas, ‘Contrôle des étrangers, des passagers, des citoyens: Surveillance et anti-terrorisme’ (2005) 58 Cultures et Conflits 155–82. 19  D Curtin, ‘Official Secrets and the Negotiation of International Agreements: Is the EU Executive Unbound?’ (2013) 50 Common Market Law Review 423–58. 20 On the extradition/mutual legal assistance agreements and the Europol/US agreement, see Mitsilegas (n 4 above) 2003; on the PNR Agreements, see V Mitsilegas ‘The External Dimension of EU Action in Criminal Matters’ (2007) 12 European Foreign Affairs Review 457–97; on SWIFT see the Opinion of the European Data Protection Supervisor of 25 January 2010, n 32 below, and the Opinion of the Article 29 Working Party of 22 January 2010.

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advance and leaving limited time for debate and scrutiny.21 As will be seen in the section on coherence below, secrecy remains a feature as regards the implementation of some of these Agreements and their scrutiny. The democratic and rule of law challenges posed by transatlantic counterterrorism cooperation are combined with serious challenges to the protection of fundamental rights. These fundamental rights challenges are the result of two separate, but interrelated, factors: the highly invasive content of the EU–US agreements, which increases substantially the power of the executive (in particular as regards the US) at the expense of individual rights; and the significant differences in the legal systems of EU Member States and the EU on the one hand, and the United States on the other, as regards the protection of fundamental rights. The key area of concern is the impact of these agreements on the rights to the ­protection of private life and personal data.22 The EU–US Mutual Legal Assistance Agreement and the Agreements between the US and Europol and Eurojust respectively allow for the transfer of a wide range of personal data to the US. Even so, recent years have seen attempts by the United States authorities to bypass the cooperation arrangements envisaged by the EU–US Mutual Legal Assistance Agreement by requiring direct access to personal data located in the territory of the European Union.23 In addition to the largely reactive model of data transfer provided for the EU–US mutual legal assistance framework, the executive transatlantic agreements have introduced significant quantitative and qualitative changes to the collection and transfer of personal data. As with the pre-existing anti-money laundering legal framework, the PNR and TFTP Agreements signify the privatisation of financial surveillance and are yet another example of the ‘responsibilisation strategy’ whereby the private sector is co-opted by the state in the fight against crime.24 While, however, in the anti-money laundering framework the private ­sector is called to transfer proactively private financial data to the state on the basis of specific suspicions,25 under the PNR and TFTP systems private entities are obliged to transfer private financial data to the US authorities en masse and by bulk, without any prior internal risk assessment. Massive quantities of every-day personal data are thus collected by the US government, for the primary purpose of risk

21  A number of the Agreements envisaged an ex post scrutiny at the national level, with their conclusion being subject to Member States’ internal constitutional procedures. While the EU-US agreements on extradition and mutual legal assistance were signed in 2003, their conclusion on behalf of the EU took place only on 2009—see Council Decision 2009/820/CFSP, [2009] OJ L291/40, 40. 22  The EU–US Agreements on Extradition and Mutual Legal Assistance also raise concerns in relation to the right to life, related to the possibility of the imposition of the death penalty following extradition or the provision of information under mutual legal assistance—for an analysis see Mitsilegas (n 4 above) (European Foreign Affairs Review 2003). 23  For an analysis, see S Carrera, G Gonzalez-Fuster, E Guild and V Mitsilegas, Access to Electronic Data by Third-Country Law Enforcement Authorities. Challenges to EU Rule of Law and Fundamental Rights, Centre for European Policy Studies, July 2015. 24  On the responsibilisation strategy, see D Garland, ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 British Journal of Criminology 445–71. 25  V Mitsilegas, Money Laundering Counter-measures in the EU (Kluwer Law International 2003).

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assessment of future threats—constituting what de Goede has termed speculative security practices.26 This move towards speculative security, under a system of pre-emptive surveillance, poses fundamental challenges to the rights to private life and data protection (in particular regarding the questionable legality of the very collection of such personal data in bulk by the executive), but also more broadly to the presumption of innocence and concepts of citizenship and trust within the framework of the relationship between the individual and the state.27

III.  The Quest for Mutual Trust in Transatlantic Counter-Terrorism Cooperation In addition to the inclusion of specific safeguards—in particular on data ­protection—in the text of the various EU–US agreements, transatlantic negotiations have resulted in attempts to ensure coherence between EU external security action and European values, most notably related to the protection of the rights to private life and the protection of personal data. These mechanisms of achieving coherence—in order to achieve mutual trust and thus enable transatlantic cooperation in the field—are particularly visible in the two executive transatlantic agreements (on TFTP and PNR), as these agreements have evolved over time in the face of sustained and considerable criticism by the European Parliament (which has an enhanced scrutiny role on international agreements after the entry into force of the Lisbon Treaty), by expert EU data protection bodies and civil society. In addition to these mechanisms, the EU and the US have attempted to develop a human rights level playing-field by concluding agreements establishing a common understanding of data protection. These mechanisms of promoting trust will be categorised and analysed below, by focusing primarily on the provisions in the EU–US TFTP Agreement and complementing the analysis with provisions from other Agreements where relevant. As will be demonstrated from the analysis, efforts to achieve coherence have had mixed, if not limited, success, with fundamental concerns as to the challenges that the agreements pose to European values still remaining.

A.  Mutual Trust via Operational Oversight To address concerns regarding the extensive scope of transfer of financial data to US authorities, a key innovation in the EU–US TFTP Agreement has been to

26 

M de Goede, Speculative Security (University of Minnesota Press, 2012). V Mitsilegas, ‘The Value of Privacy in an Era of Security’ (2014) 8 International Political Sociology 104–8. 27 

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embed a series of mechanisms of oversight into the operational aspects of the transfer of SWIFT data to the US. Going beyond the EU–US PNR Agreement, which focused on US oversight,28 the EU–US TFTP Agreement establishes mechanisms of oversight by the European Union. The Agreement does provide for operational oversight; however not by a judicial authority, but by Europol. According to Article 4(1) of the Agreement, upon receipt of a Request for data transfer, Europol will verify as a matter of urgency whether the Request complies with the requirements of Article 4(2), which requires in particular requests by US authorities: to identify as clearly as possible the data that are necessary for counter-terrorism purposes; to substantiate clearly the necessity of the data; and to be tailored as narrowly as possible in order to minimise the amount of data requested. According to Article 4(5), once Europol has confirmed that the Request complies with the requirements of 4(2), the Request will have binding legal effect as provided under US law, within the EU as well as in the US and the Designated Provider (SWIFT as indicated in the annex to the Agreement) is thereby authorised and required to provide the data to the US Treasury Department. Europol thus acts as a gatekeeper, whose approval is essential in order to authorise the transfer of SWIFT data to the US. This represents a significant move from private oversight of the transfer of private personal data to the state, to public oversight by a European body.29 Conferring these oversight powers upon Europol constitutes a change to its traditional role and represents an extension of Europol’s powers which was not envisaged in the 2009 Europol Decision30 and is not provided for in the recent draft Regulation on Europol.31 It appears thus that Europol’s powers have been extended via an international agreement. In addition to these legal basis concerns, there are a number of effectiveness and human rights concerns associated with the scrutiny role of Europol under the Agreement. These concerns stem from the nature and powers of Europol and its position in the European security landscape. Europol is a law enforcement body with a clear security mandate. The TFTP Agreement has thus entrusted the scrutiny of US security services to another piece of the security apparatus, this time in Europe. Rather than legislating for judicial or privacy/data protection scrutiny of the operation of the TFTP Agreement, the European legislator has thus entrusted the scrutiny of the activities of parts of the US security services to their EU security/law enforcement counterparts. This choice casts doubts on the effectiveness of Europol’s oversight role and has led to allegations that Europol is unduly uncritical as regards requests from the US authorities and that this has led to inadequate and ineffective oversight. It should be noted in this context that Europol is in the position under the Agreement of

28 

See Article 14 of the EU–US PNR Agreement. Amicelle, ‘The Great (Data) Bank Robbery: Terrorist Finance Tracking Program and the “SWIFT Affair”’ (May 2011) Research Questions No 36, Centre d’etudes et de recherches internationales Sciences Po, 20. 30  Council Decision establishing the European Police Office (Europol) [2009] OJ L121/37, Article 5. 31  COM(2013) 173 final. 29 A

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both scrutinising US requests for data transfers under Article 4 and having the option of requesting a search for relevant information obtained through the TFTP under Article 10. As the European Data Protection Supervisor has eloquently noted, it is hard to reconcile this power of Europol, which may be important for the fulfilment of Europol’s task and which requires good relations with the US Treasury, with the task of Europol to ensure independent oversight.32 These concerns seem to be confirmed by the recent joint review of the controls set out in the Agreement, according to which in no case did the verification by Europol lead to a rejection of a US request.33 These concerns become exacerbated when one reads Europol’s report to the European Parliament on its role under Article 4.34 In its report, Europol appears to adopt a rather flexible approach with regard to the purpose limitation and specificity requirements of the Agreement: according to Europol, surprisingly, identifying a nexus to terrorism in specific cases is a requirement under other provisions in the Agreement ‘and forms no part of the request as submitted by the US Department of the Treasury to the Designated provider under Article 4.’ (emphasis added).35 Moreover, it is noted that Due to the specific construction of the TFTP Agreement the US authorities must demon­ strate a concrete nexus to terrorism in individual cases only in the context of the individual searches under 5(5) of the TFTP Agreement, once the received data are used for concrete search and/or analysis activities etc. Consequently Article 4(2) of the TFTP Agreement does not prohibit that the requests received by Europol exhibit a certain level of abstraction.36

These assertions by Europol are contrary to the very architecture of the Agreement, to the purpose of the safeguards inserted therein, and to the very wording of Article 4(2), compliance with which Europol is entrusted to scrutinise. In particular, Article 4(2) requires US requests to identify as clearly as possible the data that are necessary for the purpose of the prevention, investigation, detection, or prosecution of terrorism or terrorist financing.37 Requests must also be tailored as narrowly as possible in order to minimise the amount of data requested.38

32  Opinion of the European Data Protection Supervisor on the proposal for a Council Decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (TFTP II) [2010] OJ C355/10 (‘EDPS’), para 25. 33  Commission Staff Working Document, Report on the second joint review of the implementation of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program. October 2012, SWD(2012) 454 final, Brussels, 14.12.2012 (‘Second Joint Review’), p 6. 34 Europol Activities in Relation to the TFTP Agreement Information note to the European ­Parliament, File No 2566-566, 8.4.11. 35  Ibid, p 4. 36  Ibid, p 7. 37  Article 4(2)(a). 38  Article 4(2)(c).

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The willingness of Europol to accommodate relatively uncritically the requests from US security services confirms Bigo’s theory of the socialisation of transnational security professionals. According to Bigo, the transnationalisation of bureaucracies has created a socialisation and a set of differentiated professional interests that take priority over national solidarities.39 This reasoning can apply by analogy to EU solidarities: Europol demonstrates greater solidarity with its US security counter-parts rather than with the interests of EU citizens, parliamentarians and data protection/privacy professionals. The limits of privacy oversight by a security agency are thus vividly demonstrated. In addition to the operational oversight entrusted to Europol in Europe when US requests are received, the EU–US TFTP Agreement provides for a second level of post-transfer operational oversight in the US. Following the model established by the appointment of an Eminent Person located in the US, the Agreement provides in Article 12, entitled ‘monitoring of safeguards and controls’, for oversight of the data protection and purpose limitation safeguards set out in the Agreement by independent overseers, including by a person appointed by the European Union, with the agreement of and subject to appropriate security clearances by the US.40 According to Article 12(1), such oversight will include the authority to review in real time and retrospectively all searches made of the Provided Data, the authority to query such searches and, as appropriate, to request additional justification of the terrorism nexus. In particular, independent overseers shall have the authority to block any or all searches that appear to be in breach of Article 5 of the Agreement (which establishes a series of safeguards for the processing of data). Article 12(2) of the Agreement further provides for the monitoring of the independence of oversight in the framework of the review of the Agreement established under Article 13 and states that the Inspector General of the US Treasury will ensure that the independent oversight described in Article 12(1) is undertaken ‘pursuant to applicable audit standards.’ This provision can be seen as an attempt to address EU calls for the establishment of a system of independent data protection supervision in the US which would reflect the system established under EU law.41 It is questionable whether the Treasury audit mentioned in Article 12 is equivalent to independent data protection supervision. However, it constitutes an attempt—together with the innovative mechanism of locating an EU-appointed official in the US with specific powers of operational oversight—to enhance oversight and meet EU requirements to some extent.

39  D Bigo, ‘Globalized (in)Security: the Field and the Ban-opticon’ in D Bigo and A Tsoukala (eds), Terror, Insecurity and Liberty. Illiberal practices of liberal regimes after 9/11 (Abingdon, Routledge 2008). 40  Article 12(1). According to the Commission’s report on the second joint review of the Agreement, the Parties have agreed on the appointment of a deputy EU overseer (p 8). The legal basis for this appointment is unclear. 41  See EDPS, n 32 above, para 36.

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B.  Mutual Trust via Regular Monitoring and Review In a similar fashion to the safeguards established in the EU–US PNR Agreement,42 another mechanism to ensure coherence and that the safeguards set out in the TFTP Agreement are met is the joint review of the Agreement on a regular basis. This mechanism is established by Article 13 of the Agreement and it involves both parties, the EU and the US, in monitoring the effectiveness of the safeguards, controls and reciprocity provisions set out in the Agreement. Article 13(2) sets out in greater detail areas to be covered by the review, which include the number of financial payment messages accessed; the number of occasions in which leads have been shared with Member States, third countries, and Europol and Eurojust; the implementation and effectiveness of the Agreement, including the suitability of the mechanism for the transfer of information, cases in which the information has been used for the prevention, investigation, detection or prosecution of terrorism and its financing; and compliance with the data protection obligations specified in the Agreement. The review will include a representative and random sample of searches and a proportionality assessment. For the purposes of the review, the European Union will be represented by the Commission and the US by the Treasury, and each party may include in its delegation security, data protection and judicial experts—however, only the EU delegation is obliged to include in the delegation representatives of two data protection authorities, at least one of which must be from a Member State where a Designated Provider (thus far SWIFT) is based.43 Following the review, the Commission must present a Report to the European Parliament and the Council on the functioning of the TFTP Agreement.44 The joint review envisaged by the TFTP Agreement is an important transparency tool and brings into the public domain a variety of information on the detailed functioning of the Agreement. The Commission Report on the first joint review made a number of recommendations for improvement, including the need to further substantiate the added value of the TFTP programme—in particular via the collection and analysis of more feedback in order to provide more verifiable insights into the actual added value of the TFTP—the collection of more statistical information which should be made public, and the provision of as much information as possible substantiating the requests, provided to Europol in a written format in order to support it in its tasks under Article 4 and to allow for more effective independent review.45 The second joint review has proven to be 42  Article 23 of the EU–US PNR Agreement. The mechanism of joint review of the transatlantic PNR Agreements by the US and the EU has been well established and present in all Agreements since the conclusion of the first one in 2004—see Preamble, recital 17. 43  Article 13(3). 44  Article 13(2) final indent. 45 Commission report on the joint review of the implementation of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program 17–18 February 2011, Brussels, 16.3.2011.

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more controversial, in particular as regards the intensification of the scrutiny of the Agreement beyond the strict confines set out by the review itself. In its report on the second joint review of the EU–US TFTP Agreement,46 the Commission felt obliged to report on parallel scrutiny efforts conducted by the Europol’s Joint Supervisory Body on data protection (JSB). The JSB has produced a number of critical reports, highlighting gaps in data protection and Europol’s scrutiny role (ie that the written requests Europol received were not specific enough to allow it to decide whether to approve or deny them but that despite this, Europol had approved every request it received) as well as gaps in transparency and scrutiny resulting from the persistent informality in the practices of Europol (noting that Europol advised that orally-provided information plays a role in its verification of each request; information which is provided to certain Europol officials with the stipulation that no record is made).47 The JSB has highlighted further the secrecy surrounding aspects of the scrutiny of the TFTP Agreement, noting that due to Europol’s classification of most TFTP-related information as EU SECRET, the JSB’s final report is classified as EU SECRET, a fact which has led the JSB to prepare a public statement in lieu of a second inspection report, where it reiterated the limits inherent in Europol’s oversight and that the current classification level applied to much of the information related to the Agreement prevents the release of a large proportion of relevant information.48 In its third report, the JSB noted that with a view to ensuring transparency, its assessment of the outcome of that year’s inspection had been drafted in such a way as to allow full publication and, therefore, the widest possible audience. It welcomed progress made after its two prior inspections but sustained its focus on the practices of Europol and highlighted the continuation of the transfer of personal data in bulk.49 The Commission Report on the second joint review criticised, instead of applauding, the additional layer of data protection scrutiny provided by the Europol JSB, noting that ‘parallel or uncoordinated initiatives or inquiries should be avoided because they undermine the Article 13 review process and have caused a considerable workload of the Treasury in particular.’50 This comment can be seen as a response to the US Government’s concerns over the perceived interference and increased transparency that scrutiny by the Europol JSB might entail.51 Highlighting data protection and secrecy concerns to the European Parliament is viewed as a breach of mutual trust, but raises the question of between whom mutual trust is important from an EU constitutional perspective. The text of the Commission’s report

46 

Second Joint Review, n 33 above. on the Inspection of Europol’s Implementation of the TFTP Agreement, Conducted in November 2010 by the Europol Joint Supervisory Body (Brussels 2 March 2011). 48  Europol JSB Inspects for the Second Year the Implementation of the TFTP Agreement—Public Statement (‘Second inspection’) November 2011. 49  Implementation of the TFTP Agreement: assessment of the follow up of the JSB recommendations (Third JSB Report) November 2012. 50  Second Joint Review, n 33 above, 15–16. 51 Ibid. 47  Report

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on the joint review reveals an alignment of the Commission’s interests not with other EU bodies and actors, but with the US Government, in a striking example of security socialisation. The Commission’s willingness to uphold security interests and to justify the securitised function of Europol as an overseer of the Agreement under Article 4 can also be found in the second joint review. According to the review, ‘Europol staff has established an intensive dialogue with their Treasury counterparts. This has turned out to be a very important monitoring element, in addition to the formal regular reviews under Article 13’.52 It is striking that Europol’s perceived data protection role is here applauded, at the same time when the work of the data protection scrutineer par excellence, the Europol JSB, is being criticised. The security focus of the Commission as regards the review of the EU–US TFTP Agreement is also visible vis-a-vis the evaluation of the performance of Europol under Article 4. While the review accepts that in no case did verification by Europol lead to a rejection of a US request,53 the Commission’s report has gone to great lengths to stress and justify the operational considerations underpinning Europol’s role under the Agreement. According to the Commission, Europol explained that it carries out its verification task under Article 4 based on an operational assessment of the validity of the US request … The fact that the verification task under Article 4 has been given to Europol, i.e. to a law enforcement and not to a data protection body, shows that, ultimately, the verification criteria set out in Article 4 have to be assessed in the light of operational considerations and security needs. This is particularly true for the difficult question whether the US requests are ‘as narrowly tailored as possible’ (Article 4 (2) lit. c)) (emphasis added).54

The above comments by the Commission cause concern with regard to the extent to which scrutiny by Europol under Article 4 can operate as an effective safeguard and meaningful control of US requests for financial data under the TFTP Agreement. The second joint review remains essentially uncritical as regards the oversight approach adopted by Europol. According to the Commission, ‘the review teams felt that it is not for them (nor for any other monitoring body) to replace Europol’s final decision by their own less informed judgement.’55 Here the emphasis is placed again on security, with the reviewers exhibiting undue deference to Europol’s operational considerations placed within a securitised framework and demonstrating a confluence between EU and US law enforcement interests. Securitisation is here linked with de-politicisation, with the review team in essence negating the review task entrusted to it by the TFTP Agreement. This de-­ politicisation is accepted explicitly in the Commission’s report, noting that ‘the second review was based on the understanding that it was not its task to provide a

52 

Ibid, p 16. Ibid, p 6. 54  Ibid, p 7. 55 Ibid. 53 

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political judgement on the Agreement, this being considered outside the scope and mandate under Article 13’ (emphasis added).56 At the same time, the review of the Agreement was accompanied by great efforts to accommodate US concerns with regard to maintaining secrecy,57 limiting the amount of information provided during the review,58 but also with producing a version of the report which would be acceptable by the Treasury.59

C.  Mutual Trust via the Presumption of Adequacy A key and tested technique in attempting to address concerns over the limitations of the US data protection framework has been for the EU to declare that US standards on privacy and data protection are adequate. Declarations of adequacy have been central to the conclusion of transatlantic PNR Agreements.60 Following a similar pattern, Article 8 of the EU–US TFTP Agreement states that ‘subject to ongoing compliance with the commitments on privacy and protection of personal data set out in this Agreement, the US Treasury Department is deemed to ensure an adequate level of data protection … for the purposes of this Agreement’. This declaration is a demonstration of trust towards US authorities and must be read together with the Preambular provision stressing the Parties’ ‘common values governing privacy.’61 It serves to legitimise the transfer of personal data to the US, but the question of whether the US system provides an adequate level of data protection and privacy standards compared with EU standards remains open. The assessment of adequacy is a positive declaration of trust in the US system of data protection and constitutes a step further to the negative framing of trust formulated in the EU–USA Mutual Legal Assistance Agreement.62 However,

56 

Ibid, p 4. second Commission report on the joint review of the Agreement highlighted persistent ­limitations on the provision of some documents during the review (p 3). 58  Ibid, pp 5–6. 59 Ibid. 60  For a background, see Mitsilegas (n 17 above). See Article 19 of the latest EU–US PNR Agreement: Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the p ­ urposes of the Terrorist Finance Tracking Program, [2010] OJ L195/5. 61  Preamble, recitals 8 and 10. 62  According to Article 9(2)(b) of the EU–US MLA Agreement, ‘generic restrictions with respect to the legal standards of the requesting State for processing personal data may not be imposed by the requested State as a condition … to providing evidence or information’. The Explanatory Note to the Agreement states that ‘Article 9(2)(b) is meant to ensure that refusal of assistance on data protection grounds may be invoked only in exceptional cases … A broad, categorical, or systematic application of data protection principles by the requested State to refuse cooperation is therefore precluded. Thus, the fact the requesting and requested States have different systems of protecting the privacy of data (such as that the requesting State does not have the equivalent of a specialised data protection authority) or have different means of protecting personal data (such as that the requesting State uses means other than the process of deletion to protect the privacy or the accuracy of the personal data received by law enforcement authorities), may as such not be imposed as additional conditions …’ 57  The

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EU data protection and privacy standards form part of the fundamental rights whose protection is a key value that the Union must safeguard and promote in its external action.63 To back up the assertion of adequacy, the EU–US TFTP Agreement includes a number of data protection safeguards. In addition to the safeguards included in relation to US requests, the Agreement provides safeguards applicable to the processing of provided data, which include purpose limitation, the prohibition of data mining, the prohibition of interconnection of provided data with other databases, the requirement to respect necessity and proportionality in data processing and the requirement for all searches of provided data to be based upon pre-existing information or evidence which demonstrates a reason to believe that the subject of the search has a nexus to terrorism or its financing.64 The Agreement also includes specific provisions on data retention and deletion65 with Article 6(4) stating that ‘all non-extracted data received on or after 20 July 2007 shall be deleted not later than five (5) years from receipt’. However, as has been noted in the Commission’s report on the second joint review to the Agreement, the US Treasury informed the EU review team that the deletion of data could not be implemented as an on-going process on a rolling basis but that their intention would be to carry out this exercise only after longer time intervals.66 The Agreement also includes a series of provisions on specific data protection rights, including transparency,67 the right of access,68 the right to rectification, erasure or blocking,69 the maintenance of the accuracy of the information,70 and a provision of redress.71 However, these safeguards do not negate the fact that the EU–US TFTP Agreement has legitimised and allows for what the Europol Joint Supervisory Body has called a ‘massive, regular, data transfer from the EU to the US.’72 The limits to uncritical assertions of the existence of adequacy in the way in which privacy and data protection are safeguarded in the United States have been demonstrated in the recent case of Schrems.73 In Schrems, the Court of Justice annulled the Commission adequacy Decision finding that the level of the protection of personal data provided by the United States was adequate for the purposes of the EU–US safe harbour agreement. In assessing the validity of the adequacy Decision, the Court of Justice began by providing a definition of the meaning of adequacy in EU law and by identifying the means of its assessment. The first step

63 

EU–US TFTP Agreement, Preamble, recital 4. Article 5. 65  Article 6. 66  Second Joint Review, n 33 above, p 10. 67  Article 14. 68  Article 15. 69  Article 16. 70  Article 17. 71  Article 18. 72  JSB Third Report, n 49 above. 73  Case C-362/14 Maximillian Schrems v Data Protection Commissioner, ECLI:EU:C:2015:650. 64 

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for the Court was to look at the wording of Article 25(6) of Directive 95/46 on data protection, which provides the legal basis for the adoption by the E ­ uropean Commission of adequacy decisions concerning the transfer of personal data to third countries. The Court stressed that Article 25(6) ‘requires that a third country “ensures” an adequate level of protection by reason of its domestic law or its international commitments’ (emphasis added), adding that ‘according to the same provision, the adequacy of the protection ensured by the third country is assessed “for the protection of the private lives and basic freedoms and rights of individuals”’.74 The Court thus linked expressly Article 25(6) with obligations stemming from the EU Charter of Fundamental Rights: Article 25(6) of Directive 95/46 implements the express obligation laid down in Article 8(1) of the Charter to protect personal data and … is intended to ensure that the high level of that protection continues where personal data is transferred to a third country (emphasis added).75

The Court thus affirmed a continuum of data protection when EU law authorises the transfer of personal data to third countries and places emphasis on the positive obligation of ensuring a high level of data protection when such transfer takes place. The Court recognised that the word ‘adequate’ does not require a third country to ensure a level of protection identical to that guaranteed in the EU legal order. However, … the term ‘adequate level of protection’ must be understood as requiring the third country in fact to ensure, by reason of its domestic law or its international commitments, a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union by virtue of Directive 95/46 read in the light of the Charter (emphasis added).76

The Court explained that if there were no such requirement, the objective of ensuring a high level of data protection would be disregarded, and this high level of data protection ‘could easily be circumvented by transfers of personal data from the European Union to third countries for the purpose of being processed in those countries’.77 The Court has thus introduced a high threshold of protection of fundamental rights in third countries: not only must third countries ensure a high level of data protection when they receive personal data from the EU, but they must provide a level of protection which, while not identical, is essentially equivalent to the level of data protection which is guaranteed by EU law. But how will equivalence be assessed in this context? The Court of Justice emphasised that [i]t is clear from the express wording of Article 25(6) of Directive 95/46 that it is the legal order of the third country covered by the Commission decision that must ensure an adequate 74 

Ibid, para 70. Ibid, para 72. 76  Ibid, para 73. 77 Ibid. 75 

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level of protection. Even though the means to which that third country has recourse, in this connection, for the purpose of ensuring such a level of protection may differ from those employed within the European Union in order to ensure that the requirements stemming from Directive 95/46 read in the light of the Charter are complied with, those means must nevertheless prove, in practice, effective in order to ensure protection essentially equivalent to that guaranteed within the European Union (emphasis added).78

This finding is extremely important not only because it confirms the responsibilities of third countries to ensure a high level of protection but also in requiring data protection to be effective in practice. The emphasis on ascertaining the effectiveness of the protection of fundamental rights in practice reflects strongly the approach of the European Court of Human Rights on the subject. While differences in the means of protection between the EU and third countries may not, as such, negate such protection, third countries are still under an obligation to ensure the provision of a high level of data protection, essentially equivalent to that of the EU, in practice. This approach places a number of duties on the European Commission when assessing adequacy. The Commission ‘is obliged to assess [both] the content of the applicable rules in the third country resulting from its domestic law or international commitments and the practice designed to ensure compliance with those rules’ (emphasis added).79 Moreover, and in the light of the fact that the level of protection ensured by a third country is liable to change, it is incumbent upon the Commission, after it has adopted an [adequacy] decision pursuant to Article 25(6) of Directive 95/46, to check periodically whether the finding relating to the adequacy of the level of protection ensured by the third country in question is still factually and legally justified. Such a check is required, in any event, when evidence gives rise to a doubt in that regard.80

In this context, account must also be taken of the circumstances that have arisen after that decision’s adoption.81 The important role played by the protection of personal data in the light of the fundamental right to respect for private life, and the large number of persons whose fundamental rights are liable to be infringed where personal data is transferred to a third country not ensuring an adequate level of protection reduce the Commission’s discretion as to the adequacy of the level of protection ensured by a third country and require a strict review of the requirements stemming from Article 25 of Directive 95/46, read in the light of the Charter.82 The Court’s conceptualisation of adequacy has thus led to the requirement of the introduction of a rigorous and periodical adequacy

78 

Ibid, para 74. Ibid, para 75. Ibid, para 76. 81  Ibid, para 77. 82  Ibid, para 78. 79  80 

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assessment by the European Commission, an assessment which must focus on whether a level of data protection essentially equivalent to the one provided by the European Union is ensured by third countries. On the basis of these general principles, the Court went on to assess the validity of the specific adequacy decision by the European Commission. The Court annulled the decision, finding that it constituted interference with the fundamental rights of the persons whose personal data is or could be transferred from the European Union to the United States,83 and that the decision did not meet the necessity test. The Court was based in this context largely on its ruling in the case of Digital Rights Ireland 84 and reiterated that [l]egislation is not limited to what is strictly necessary where it authorises, on a generalised basis, storage of all the personal data of all the persons whose data has been transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down by which to determine the limits of the access of the public authorities to the data, and of its subsequent use, for purposes which are specific, strictly restricted and capable of justifying the interference which both access to that data and its use entail (emphasis added).85

Legislation ‘permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter’.86 In this manner, the Court of Justice stresses that generalised, mass and unlimited surveillance is contrary to privacy and data protection. The Court’s findings are thus also applicable to other instances of generalised surveillance sanctioned by EU law, including surveillance currently permitted under systems of transatlantic counter-terrorism cooperation under the EU-US PNR and TFTP Agreements, both of which involve generalised, indiscriminate surveillance.

D.  Mutual Trust via Reciprocity and Internalisation As with the EU–US PNR Agreement, another key element in the EU–US TFTP Agreement is the emphasis on reciprocity. Reciprocity operates at two levels: the first level involves the operational gain that the transfer of personal data under the agreements may entail for EU law enforcement; the second level of r­ eciprocity

83 

Ibid, paras 87–91. and C-594/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and others, EU:C:2014:238. 85  Schrems v Data Protection Commissioner, n 73 above, para 93. C-293/12 and C-594/12, Digital Rights Ireland and Others, EU:C:2014:238, paras 57 to 61. 86  Schrems v Data Protection Commissioner, para 94. 84  C-293/12

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relates to the future reconfiguration of the Agreements in the event that the ­European Union establishes its own PNR and TFTP systems. As regards the TFTP Agreement, the first level of reciprocity is reflected in Articles 9 and 10 of the Agreement which call respectively for the proactive (spontaneous) and reactive provision of information obtained through the TFTP system by the US authorities to law enforcement, public security or counter-terrorism authorities of EU Member States as well as Europol and Eurojust. This is an effort to demonstrate an added value of this Agreement for the EU by attempting to ensure security benefits for the EU and Member States.87 The second level of reciprocity involves the potential future establishment of an EU TFTP system. The establishment of a European TFTP system has been proposed by the European Parliament as a step to ensure a move from personal data being transferred in bulk to the US to the extraction of the relevant personal data in the EU under a European system.88 It may also be seen as an effort to minimise European reliance on US intelligence.89 Article 11 of the Agreement states that during its course the Commission will carry out a study into the possible introduction of an equivalent EU system allowing for a more targeted transfer of data,90 adding that if the EU decides to establish an EU system, the US will cooperate and provide assistance and advice to contribute to the effective establishment of such a system.91 If the EU decides to establish such a system, the Parties should consult to determine whether this Agreement would need to be adjusted accordingly.92 According to the Decision on the conclusion of the Agreement, if, five years after the entry into force of the Agreement, the equivalent EU system has not been set up, the Union shall consider whether to renew the Agreement in accordance with Article 21(2) thereof.93 The Commission’s report on the second joint review of the Agreement indicates that there will continue to be close cooperation and consultation with the US on this issue94 and states explicitly that the functioning of reciprocity under the Agreement is an essential factor in assessing the necessity of a possible establishment of an equivalent EU system.95 In this manner, the two levels of reciprocity are linked together by the Commission, essentially presenting an EU TFTP system as an alternative if the US authorities do not cooperate sufficiently with the EU under the EU–US TFTP Agreement. This is a departure from the European Parliament’s rationale for the establishment of an EU system, the security focus of which is confirmed by

87 

Second Joint Review, n 33 above, pp 12–13: ‘reciprocity- the EU benefiting from TFTP data’. European Parliament Resolution of 5 May 2010 P7_TA-PROV(2010)0143. 89 A Ripoll Servent and A MacKenzie, ‘The European Parliament as a “Norm Taker”? EU–US Relations after the SWIFT Agreement’ (2012) 17 European Foreign Affairs Review 83. 90  Article 11(1). 91  Article 11(2). 92  Article 11(3). 93  Article 2 third indent. 94  See also Article 11(3) of the Agreement. 95  Second Joint Review, n 33 above, p 14. 88 

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the view of the ­Commission that the further information provided by the Treasury and Europol in the course of the second joint review constitutes useful and important input for the completion of the Commission’s impact assessment and the subsequent decision on the possible establishment of an EU system. The Commission published a Communication setting out options for a European TFTP system.96 The aims of such system would be to contribute to the fight against terrorism and its financing and to limiting the amount of personal data transferred to third countries. The system should provide for the processing of the data required to run it on EU territory, subject to EU data protection principles and legislation.97 While the establishment of an EU TFTP system along these lines may be seen as an attempt to establish coherence by addressing data protection concerns ensuing from the transfer of financial data in bulk to the US, in reality, as is the case with similar proposals in the field of the transfer of PNR data, the effect of establishing an EU TFTP system will be to import into the EU and legitimise internally a highly invasive programme of executive action and to thus normalise an emergency security response without questioning the necessity of the mass transfer of everyday financial data to the state authorities in the first place. As with the TFTP Agreement, the EU–US PNR Agreement focuses on reciprocity at two levels: at the level of seeking the provision of intelligence data from US authorities (the Department of Homeland Security—DHS) to Member States’ law enforcement authorities and EU criminal justice bodies; and at the level of seeking to develop a European PNR system. Article 18 of the Agreement places the DHS under the duty to provide information obtained by PNR to Member States’ law enforcement authorities, Europol and Eurojust.98 This represents a stronger commitment than the text of the US letter to the EU within the framework of the 2007 Agreement, whereby the DHS would merely ‘encourage’ the transfer of such data.99 Such transfer of information must be consistent with existing agreements between the US and EU Member States, Europol and Eurojust.100 European authorities may also request access to PNR data or relevant analytical information obtained from PNR and the DHS must, subject to existing Agreements, provide such information.101 In this manner, EU and Member State authorities are allowed to obtain information following transfers of personal data which pose challenges to EU privacy and data protection law. At the same time, the Agreement envisages the establishment of an EU PNR system and states that if and when an EU PNR system is adopted, the Parties will consult to determine whether

96  Commission Communication: A European Terrorist Finance Tracking System: Available Options COM(2011) final, Brussels, 13.7.2011. 97  Ibid, at p 2. 98  EU–US PNR Agreement, Article 18(1). 99  Point IX, second paragraph. 100 Ibid. 101 EU–US PNR Agreement, Article 18(2). See also the Commission Report on the 2010 Joint Review where the EU urged the DHS to respect its commitment to proactively share analytical information flowing from PNR data with EU Member States—p 12.

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this Agreement would need to be adjusted accordingly to ensure full reciprocity. Such consultations will in particular examine whether any future EU PNR system would apply less stringent data protection safeguards than those ­provided for in this Agreement and whether, therefore, this Agreement should be amended.102 This is a striking provision,103 which seems to disregard the current challenges that the Agreement poses on EU fundamental rights standards and the requirement that any internal EU legislation in the field must comply fully with fundamental rights, and in particular privacy and data protection as enshrined in the ECHR and the Charter. The necessity and compatibility of the EU PNR system with EU law remain questionable. The European Commission tabled a proposal for a Framework Decision on an EU PNR system as early as 2007.104 The Commission explained that the proposal was a result of the ‘policy learning’ from, inter alia, the existing EU PNR Agreements with the United States and Canada.105 Agreement on the proposal was not reached before the entry into force of the Lisbon Treaty, a fact which led the Commission to table new legislation post-Lisbon, this time in the form of a Directive.106 The Commission justified the establishment of a European system of PNR transfer as necessary for law enforcement purposes due to its potential for risk assessment of air passengers and proposed a system which is very similar to the US PNR system, at least as regards the categories of transferred data107 and the emphasis on risk assessment.108 As with the US system, the potential for the proposed PNR system to lead to the profiling of individuals is considerable.109 Moreover, the necessity of an internal EU PNR system for law enforcement purposes is questionable, in particular in the light of the major data protection and privacy challenges posed by its establishment. The adoption of the PNR Directive is facing a rocky road, it having been rejected by the Civil Liberties Committee

102 

EU–US PNR Agreement, Article 20(2). See also the wording of the US Letter to the EU within the framework of the 2007 Agreement according to which the DHS expected not to be asked to undertake data protection measures in its PNR system that are more stringent than those applied by the US for its PNR system—point IX, paragraph 1—see also Preamble of the Agreement, recital 5. 104  Commission Proposal for a Council Framework Decision on the Use of Passenger Name Record (PNR) data for Law Enforcement Purposes, COM(2007) 654 final (6 November 2007). 105  Ibid at 2. 106  Commission Proposal for a Directive of the European Parliament and of the Council on the Use of Passenger Name Record Data for the Prevention, Detection, Investigation, and Prosecution of Terrorist Offences and Serious Crimes, COM(2011) 32 final (2 February 2011). 107  Requested data includes all forms of payment information, including billing address, travel status of air passenger (including confirmations), check-in status, no show or go show information, seat number and other seat information, number and other names of travellers on PNR, and ‘general remarks.’ 108  V Mitsilegas, ‘Immigration Control in an Era of Globalisation: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 Indiana Journal of Global Legal Studies 3–60. 109 See Opinion of the European Data Protection Supervisor on the Proposal for a Directive of the European Parliament and of the Council on the Use of Passenger Name Record Data for the Prevention, Detection, Investigation and Prosecution of Terrorist Offences and Serious Crime (25 March 2011) pp 4–5. 103 

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of the European Parliament in spring 2013.110 However, the draft Directive (as with its predecessor draft Framework Decision) constitutes a prime example of the internalisation of the US security model by the European Union, leading to the lowering of internal EU privacy and data protection standards.111 The terrorist events in Paris in November 2015 have strengthened calls for the establishment of an internal EU PNR system to address the issue of so-called ‘foreign fighters’, and resulted in the adoption of an EU PNR Directive.112 While this internalisation may be seen as justified by the need to ensure coherence between internal and external action on security—by establishing internal EU standards from scratch which can act as benchmarks for EU external action—in reality the necessity for the adoption of such internal measures has not been justified and their adoption would in fact undermine coherence between EU external security action and EU values by challenging significantly the fundamental rights to privacy and data protection.

E. Mutual Trust via the Development of Global Security Standards Another way of attempting to ensure coherence is the externalisation of transatlantic counter-terrorism cooperation via the promotion of global standards. This approach has been central as regards the transfer of PNR data. Calls for approaching PNR negotiations from a global perspective have been made by the European Parliament following the adoption of the 2007 EU–US PNR Agreement. The rationale for these calls has been the perceived need for the European Union to adopt common principles underpinning the negotiating position of the EU not only with the United States, but also with other third countries, bearing in mind that the EU has also negotiated PNR Agreements with Australia and Canada. The European Commission responded by issuing a Communication on a Global Approach to Transfers of PNR Data to Third Countries.113 In its Communication, the Commission went a step further and argued for the adoption of global standards in the field. The Commission called upon the European Union to consider initiating discussions with international partners that use PNR data and those that are considering using such data, in order to explore whether there is common

110 European Parliament Press Release, ‘Civil Liberties Committee rejects EU Passenger Name Record proposal’, 24.4.2013. 111  On the internalisation point, see further J Argomaniz, ‘When the EU is the “Norm-Taker”: The Passenger Name Records Agreement and the EU’s Internalization of US Border Security Norms’ (2009) 31 Journal of European Integration 119–36. 112  Directive (EU) 2016/681 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime [2016] OJ L119/132. 113  European Commission, Communication on the global approach to Transfers of Passenger Name Record (PNR) data to third countries, COM(2010) 492 final, 21.9.2010.

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ground between them for dealing with PNR transfers on a multilateral level. The move towards multilateralism is justified as follows: As more and more countries in the world use PNR data, the issues arising from such use affect the international community. Even though the bilateral approach which has been adopted by the EU was the most appropriate one under the circumstances and seems to be the most appropriate one for the near future, it risks ceasing to be appropriate if many more countries become involved with PNR. The EU should therefore examine the possibility of setting standards for the transmission and use of PNR data on an international level. The Guidelines on PNR access that have been developed by ICAO in 2004 offer a solid basis for the harmonisation of the modalities of transmissions of PNR data. However, these guidelines are not binding and they deal insufficiently with data protection issues. They are therefore not sufficient in themselves, but should rather be used for guidance, especially on matters affecting the carriers.114

In this manner, the specific issues arising in the negotiations of EU Agreements with third countries, including the US, are exported to the global level. The ­European Union is emerging as a global actor aiming to shape global, multilateral standards on PNR transfers. However, in doing so, it legitimises and accepts the far from globally accepted US approach focusing on the generalised surveillance of mobility which forms a central part of the US security response post-9/11. This signifies a move from US unilateral emergency action to the normalisation and generalisation of such action first via its internalisation in EU law (a European PNR Directive) and then via the development of global standards regulating the transfer of PNR data. Global standards in this context have the potential to result in an obligation for members of the international community to adopt systems of PNR data transfers even though currently these systems are used by only a minority of states. The very logic and purpose of PNR systems is thus not questioned and the model of the generalised surveillance of mobility it entails becomes globalised.

F. Mutual Trust via the Development of a Transatlantic Privacy Framework Another way to ensure coherence between EU–US counter-terrorism cooperation and European values has been to attempt to bridge the Parties’ differences with regard to data protection and privacy by developing a framework enabling a level playing-field on privacy. The first step towards the establishment of such level playing-field has been the Parties’ agreement on a series of common data protection principles reached in 2009.115 Along with reference to a series of ­specific

114 

Global Approach, p 10. Mission to the European Union, ‘U.S.–EU reach agreement on common data protection principles’, joint statement adopted at the 28 October 2009, US–EU JHA Ministerial. 115  US

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data protection standards, the Parties aimed at reaching a broad understanding of equivalence of data protection taken ‘as a whole’, and not an ­understanding which is based upon the scrutiny of specific (singular) examples.116 This approach is reminiscent of the equivalence provisions in the EU–US Mutual Legal Assistance Agreement117 and in the Europol–USA Agreement,118 where it is stated that generic differences in data protection should not constitute an obstacle to the exchange of personal data. It is, however, questionable whether such a broad approach to equivalence will suffice in all cases to ensure compliance with EU data protection and privacy standards. What is key to this approach, however, is the focus essentially on mutual recognition of the data protection systems of the EU and the US taken as a whole, based upon the presumption that the systems do in fact offer in principle an acceptable level of protection. The emphasis on mutual recognition based on the development of common data protection standards is evident in the next step in the transatlantic privacy dialogue, which consists of efforts to conclude a transatlantic agreement on privacy. The European Commission adopted in 2009 a mandate for the negotiation of an EU–US Agreement on privacy, which would aim to provide for a number of data protection safeguards that would be applicable in transatlantic Agreements authorising the transfer of personal data.119 Negotiations towards a transatlantic privacy Agreement in the field started in 2010 and are ongoing.120 According to a Joint Statement on the negotiation of the agreement by European Commission Vice-President Viviane Reding and US Attorney General Eric Holder, such an agreement will allow for even closer transatlantic cooperation in the fight against crime and terrorism, through the mutual recognition of a high level of protection afforded equally to citizens of both the United States and the European Union, and will thus facilitate any subsequent agreements concerning the sharing of a specific set of personal data.121 Achieving mutual recognition in the light of the deep differences in privacy and data protection law between the two Parties may be easier said than done. The experience with the application of the principle of mutual

116  ‘On equivalent and reciprocal application of data privacy law, the European union and the United States should use best efforts to ensure respect for the requirements, taken as a whole as opposed to singular examples, that each asks the other to observe’. 117  Article 9(2)(a) of the EU–US Agreement on Mutual Legal Assistance. 118  Article 5(4) of the Europol–US Agreement states that the grounds for refusing or postponing assistance should be limited to the greatest extent possible. In the Exchange of Letters accompanying the Agreement (doc 13996/02 Europol 95, 11 November 2002) it is stated that Articled 5(4) is to be understood not to permit the imposition of generic restrictions with respect to the sharing of personal data. 119 IP/10/609, Brussels, 26 May 2010, European Commission seeks high privacy standards in EU–US data protection agreement. 120 K Archick, US–EU Cooperation Against Terrorism, Congressional Research Service Report or Congress 7-5700 RS22030, 4 September 2013 provides an overview of the contested issues in negotiations. 121 Joint Statement on the negotiation of a EU–US data privacy and protection agreement, European Commission, Brussels, 21.6.2012, MEMO/12/474.

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r­ecognition internally in the European Union in the Area of Freedom, Security and Justice has demonstrated that even in a Union whose members are all signatories to the ECHR, there are in practice limits to mutual recognition caused by differing implementation of human rights provisions.122 On the basis of the internal EU lessons on mutual recognition, negotiations towards the transatlantic privacy Agreement seem to go in the right direction in focusing on the establishment of common standards on privacy and data protection, but it is the implementation of these standards on the ground and the de jure and de facto compliance of state action with fundamental rights as enshrined in the ECHR and the Charter of Fundamental Rights which will be key for the success of the Agreement from a European perspective. A text of the transatlantic privacy agreement—otherwise known as the ‘Umbrella’ agreement—has been finalised.123 The Council has adopted a Decision on the signing of the Agreement124 and negotiations on its conclusion are pending at the time of writing. The agreement sets out data protection standards for the transatlantic exchange of personal information in relation to the prevention, detection or prosecution of criminal offences, including terrorism, with a view to ensuring ‘a high level of protection of personal information’ while enhancing cooperation between the US and the EU and its Member States.125 The Agreement establishes the framework for the protection of personal information when transferred between the United States, on the one hand, and the European Union or its Member States, on the other.126 The Agreement applies to both existing and future transatlantic agreements falling within its scope.127 The Agreement contains a number of data protection safeguards including: the prohibition of the transfer of data to third parties without the consent of the competent EU body;128 limiting the retention period of the transferred data, by excluding unnecessarily long retention periods and providing that the retention period should be periodically reviewed and by requiring

122  See V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice. From Automatic Inter-state Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319–72. And more recently, V Mitsilegas, ‘The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe’s Area of Criminal Justice’ (2015) 6 New Journal of European Criminal Law 460–85. 123  Council doc 8557/16, Brussels, 18 May 2016. 124  Council Decision (EU) 2016/920 on the signing, on behalf of the European Union, of the Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences, [2016] OJ L154/1. 125  Article 2 of the Agreement. Compare with the Commission documents on the stated purpose of the negotiations. According to the Commission, the purpose of ensuring a high level of protection of personal information appears as ‘a first and “self-standing” purpose of the agreement’. See Council Document 8761/14, p 3. 126  Article 1(2). 127  Preamble, recital 3: ‘intending to provide standards of protection for exchanges of personal information on the basis of both existing and future agreements between the US and the EU and its Member States’. 128  Article 7 of the Agreement.

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specific agreement in cases of bulk data transfers;129 and references to the respect of the principles of proportionality, necessity, data quality and purpose limitation. As with the transatlantic data transfer agreements, it includes a provision on joint review.130 Perhaps one of the most important safeguards introduced by the Agreement is the fact that all EU citizens will be entitled to seek the enforcement of their privacy rights before the US Courts.131 This has been an ongoing issue for years, with the US denying to grant judicial redress and insisting on administrative redress only, which could not be accepted by the EU side, since it would depend on the goodwill of the US administration.132 In this context, the Agreement was subject to an essential prerequisite; the adoption of the Judicial Redress Act by the Congress133 that would provide for the necessary amendments to the 1974 Privacy Act so that EU citizens would be allowed to seek redress in the US. This is because under the Act an ‘individual’ is defined as ‘a citizen of the US or an alien lawfully admitted for permanent residence’.134 Indeed, the Bill successfully passed on 20 October 2015. In addition to the Umbrella Agreement, and following the ruling of the Court of Justice in Schrems, an agreement under the name of the ‘Privacy Shield’ between the EU and the US has been finalised in early 2016 and its adequacy has been declared by the Commission in an Implementing Decision to the 1995 data protection Directive.135 However, it remains to be seen whether this attempted level playing-field will be sufficient to bridge the considerable substantive, procedural and institutional differences in safeguarding privacy and data protection on the two sides of the Atlantic.

IV. Conclusion The negotiation and conclusion of the EU–US counter-terrorism agreements presented the European Union institutions with the significant challenge of responding to perceived global security needs but also unilateral emergency security requirements imposed by the US executive, in a manner which would be compliant with fundamental rights and the rule of law and would not u ­ ndermine

129  Article 12 of the Agreement. The Commission claims that these provisions go beyond what is found in most existing agreements. See Council Document 8761/14, p 6. 130  Article 23. 131  Article 19 of the Agreement. 132  Peter Schaar, ‘Leaky Umbrella’ (European Academy for Freedom of Information and Data Protection, 18 September 2015) available at: http://www.eaid-berlin.de/?p=779, accessed on 11 November 2016. 133  The Judicial Redress Bill is available at: https://www.congress.gov/bill/114th-congress/housebill/1428, accessed on 3 September 2016. 134  5 U.S.C. para 552a(a)(2). 135  Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU–U.S. Privacy Shield [2017] OJ L207/1.

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European values. The result has been a series of complex agreements, which include—in particular in the case of the executive transatlantic agreements on the transfer of PNR and SWIFT data—a number of innovative provisions on transatlantic security governance. The evaluation of the impact of these provisions on the content of the transatlantic agreements depends on the perspective adopted. From the perspective of furthering trust in transatlantic relations, the PNR and TFTP agreements can be seen as accepting and legitimising US executive choices and their logic, but also insert a number of layers of scrutiny and transparency with regard to US practices. From the perspective of safeguarding and promoting European values, however, the result is less satisfactory. Notwithstanding the safeguards included in the agreements, both their text and implementation confirm their focus on security. Notwithstanding multiple avenues of scrutiny, efforts to maintain secrecy remain. The recent debate on the National Security Agency surveillance scandal, demonstrates that the existence of trust in the US system of privacy and data protection should by no means be taken for granted. Calls to address this lack of trust via the conclusion of a transatlantic privacy agreement may not be sufficient to counter effectively the paradigm of surveillance that transatlantic counter-terrorism cooperation entails. Following up from the already broad provisions of data transfer included in the EU–US Mutual Legal Assistance agreement and in the Europol–US and Eurojust–US agreements, the PNR and TFTP agreements not only legitimise the bulk transfer to the US government of everyday personal data, but also open the door to the internalisation of this paradigm of surveillance in the European Union, via the establishment of a European PNR and potentially a TFTP system. This example of mimesis serves to highlight a third, and perhaps not as visible, institutional/competence perspective. By attempting to provide safeguards to address the challenges posed by US demands, the PNR and TFTP agreements have developed a number of institutional innovations, including an increase in the powers of Europol, the appointment of an EU scrutiny authority in the territory of a third country, and the potential development of specific EU legislation on surveillance. The institutional aspect becomes also prevalent in the light of the calls to globalise the transatlantic security standards with respect to the transfer of PNR data, which would have the effect of both externalising the issue and normalising what started as emergency unilateral emergency action, at a global level. While such externalisation and globalisation may represent a step forward for the emergence of the EU as a global security actor, its negative impact on the protection of fundamental rights at the global level may be considerable. The Court of Justice in Schrems has reminded us of the importance of upholding European values—in particular the protection of fundamental rights—in the European Union’s external action and of placing uncritically accepted concepts of mutual trust under rigorous scrutiny.136 The impact of the Court’s ruling 136 See also V Mitsilegas, ‘Judicial Concepts of Trust in Europe’s Multi-Level Security Governance. From Melloni to Schrems via Opinion 2/13’ (2015) 3 EuCrim—The European Criminal Law Associations’ Forum, Max Planck Institute for Foreign and International Law, 90–95.

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in Schrems on other aspects of EU external action, as evidenced by the recent Opinion of Advocate General Mengozzi on the legality of the EU–Canada PNR Agreement,137 may be considerable. Following the activism of the European ­Parliament in relation to the early versions of the PNR and TFTP Agreements, it is now the Court of Justice which has emerged as the institutional actor contributing towards the coming of age of the European Union as a global security actor. In the field of transatlantic counter-terrorism cooperation, it is the Court which reminds us that EU external action in the field must respect and promote the very values upon which the Union claims to be founded.

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Opinion 1/15, delivered on 8 September 2016.

15 The Role of the Data Protection Authorities in Supervising Police and Criminal Justice Authorities Processing Personal Data PAUL DE HERT1 AND JURAJ SAJFERT2

I. Introduction The independent supervisory authorities are at the heart of the European data protection law from its early days. Already the explanatory report attached to the Council of Europe Convention on Personal Data Protection from 1981 (known as Convention 108) recognised the principle of control, ie that ‘public supervisory authorities as well as the individuals directly concerned by the information can require that the rights and interests of those individuals are respected by the data users’.3 Obviously, at the time supervisory authorities existed in national laws of the Council of Europe’s Member States. In 1995, the EU took one step further from the Council of Europe and adopted Directive 95/46/EC,4 which laid down in its Article 28 an obligation for the Member States to create completely independent data protection supervisory authorities. Five years later, in 2000, the Charter of Fundamental Rights of the European Union was proclaimed. It not only laid down a specific right to the protection of personal data, but it also ensured that

1  This chapter is published within the framework of the PHAEDRA project devoted to improving practical cooperation and coordination between Data Protection Agencies (DPAs), Privacy Commissioners (PCs) and Privacy Enforcement Authorities (PEAs) around the world, especially in regard to the enforcement of privacy and data protection laws. 2  The views expressed in this chapter are purely those of the writers and may not in any circumstances be regarded as stating an official position of the European Commission. 3  Council of Europe, Explanatory Report to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) European Treaty Series No 108. 4  European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31.

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the compliance with data protection rules must be controlled by an independent authority (Article 8(3)). In 2009, the Treaty of Lisbon gave the Charter of Fundamental Rights the same legal value as to the EU Treaties. In 2016, the role of supervisory authorities was further strengthened through the adoption of the EU data protection legislative reform.5 In this chapter, we will focus on the role of supervisory authorities monitoring police and criminal justice authorities. This issue raises delicate questions, as the EU legislator was called upon to strike the right balance between diverse interests. In today’s context, no one can deny the importance of access and storage of data, as well as of cross-border data exchanges by police and judicial authorities for the prevention of and the fight against crime. However, no one can deny either the importance of respecting fundamental rights and data protection rules, when collecting, storing, and exchanging personal data. The role of these supervisory authorities constitutes an essential tool to ensure that an appropriate balance is taken and implemented by national police and criminal justice authorities; hence the sensitivity and interest of addressing this issue. After providing a birds-eye view of the EU data protection law in section II, we will briefly explain the basic role of supervisory authorities in section III. Section IV will focus on the requirements for independence of supervisory authorities. In section V, we will look at the competence of such authorities in the supervision of judges and prosecutors. Section VI analyses the powers of supervisory authorities in the criminal justice sector. Section VII provides some practical details on handling complaints and modes of cooperation of supervisory authorities. Our concluding remarks are presented in section VIII.

II.  Three-Pillar Structure of the EU Data Protection Legal Framework The new Data Protection Directive (EU) 2016/680 for Police and Criminal ­Justice Authorities (the ‘Directive’) entered into force on 5 May 2016,6 leaving the

5  Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) [2016] OJ L119/1 and of the European Parliament and Council Directive (EU) 2016/680 of the of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA [1995] OJ L119/60, 89–131. 6  The political agreement of the co-legislators on the Directive was, together with the General Data Protection Regulation (GDPR), reached just before Christmas 2015. Subsequently, the Directive and the GDPR were formally adopted on 14 April 2016, officially signed on 27 April 2016 and published in the Official Journal of the European Union on 4 May 2016.

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Member States of the European Union two years to transpose its provisions into their national law. The Directive has two main objectives: to increase the level of fundamental rights protection in the area of police and criminal justice, and to make data-sharing between Member States easier, as they can fully trust each ­other’s data protection rules. The area of police cooperation and judicial cooperation in criminal matters was previously governed by data protection rules of the Council Framework Decision 2008/977/JHA, which applied only to crossborder data processing.7 With the Directive, competent authorities will no longer have to apply different sets of data protection rules according to the origin of the personal data, as the new rules will apply to both domestic and cross-border processing. During the four-year-long legislative process of EU data protection reform, all eyes were on the Directive’s ‘beautiful sister’, Regulation (EU) 2016/679— General Data Protection Regulation (GDPR), including in the academic world.8 Admittedly, in many areas the Directive benefited from the solutions found for the GDPR. A number of obligations of controllers and processors in ­Chapter IV, adequacy decisions in Chapter V (international transfers) and a number of provisions of Chapters VI (independent supervisory authorities), VII (co-operation­) and VIII (remedies, liability and sanctions) were copy-pasted from the GDPR. However, the two instruments do not complete the body of EU data protection legislation. They do not cover data protection in Union institutions and bodies, which are governed by Regulation (EC) No 45/2001.9,10 So, why could the GDPR not become a single set of comprehensive rules for all personal data processing within the EU? Why could GDPR not, in addition to replacing the ex-first pillar general data protection act—ie Directive 95/46/EC— also ‘swallow’ the ex-third pillar data protection act—ie Framework Decision 2008/977/JHA? After all, the Treaty of Lisbon got rid of the pillar structure back in

7  On the shortcomings of the Framework Decision 2008/977/JHA, see P De Hert and V Papakonstantinou, ‘The data protection framework decision of 27 November 2008 regarding police and judicial cooperation in criminal matters—A modest achievement however not the improvement some have hoped for’ (2009) 25 Computer Law & Security Review 403. 8  See P De Hert and V Papakonstantinou, ‘The new Police and Criminal Justice Data Protection Directive—A first analysis’ (2016) 7 New Journal of European Criminal Law 7. 9  European Parliament and Council Regulation (EC) No 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [1995] OJ L8/1. 10  On 10 January 2017, European Commission proposed a new data protection regulation for Union institutions, bodies, offices and agencies (COM(2017) 8 final), in order to align it with the GDPR, with a goal that the revised Regulation (EC) No 45/2001 enters into application at the same time as the GDPR, ie on 25 May 2018. Furthermore, Regulation (EC) No 45/2001 does not cover the processing of operational personal data in Union agencies created under the former third pillar (Europol and Eurojust). For more details on the latter issue, see the study of the author, P de Hert carried out for the LIBE committee of the European Parliament called The data protection regime applying to the inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area, available at: http:// www.europarl.europa.eu/RegData/etudes/STUD/2014/510001/IPOL_STU(2014)510001_EN.pdf.

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2009 and data protection rules for commercial and security processing could have been laid down in the same way. Moreover, how come the Union institutions and bodies are now covered by a separate, fully-fledged data protection act? Despite the interrogations raised above on the possibility and opportunity to have a unified data protection legal framework, the EU legislator made the choice to keep a fragmented structure, which can be summarised as follows: Table 1:  Three pillars of the EU data protection legal framework Regulation (EU) 2016/679

Directive (EU) 2016/680

—— commercial sector in the —— Member States —— public sector in the Member States, with the exemption of the police and criminal justice authorities

Regulation (EC) No 45/2001— awaiting revision

police and —— criminal justice authorities in the Member States

European Union institutions, bodies, offices and agencies, except operational personal data stored in Europol’s and Eurojust’s databases

We detected at least four reasons for keeping things separate. Firstly, Directive 95/46/EC aimed to ensure an equivalent level of protection of the rights and freedoms of individuals with regard to the processing of personal data in all Member States. It therefore required a complete harmonisation of national data protection laws for commercial data processing.11 On the other hand, Framework Decision 2008/977/JHA laid down minimum data protection safeguards for cross-border data shared by the police and criminal justice authorities (Article 1(5)). The co-legislators decided to keep the same distinction in the new data protection legal framework. GDPR takes harmonisation one step further compared to Directive 95/46/EC, by the mere choice of the instrument. The Directive, while being an enormous improvement compared to Framework Decision 2008/977/JHA, keeps the same minimum harmonisation provision in Article 1(3). Secondly, further harmonisation of data protection rules for police and criminal justice authorities would be difficult without harmonising national criminal procedural law, given that a number of Member States (most notably Germany and Austria) have data protection rules for such authorities built in their codes of criminal procedure. If GDPR were made applicable to police and criminal justice authorities, a number of Member States would have to significantly repeal or amend their criminal procedural law. Thirdly, the specificities of data processing by police and criminal justice authorities where recognised in Declaration 21 attached to the Treaty of Lisbon. Those specificities are particularly visible in Chapters II (­principles) and III (rights of the data subject) of the Directive. They also required a ­significant departure from the rules of the GDPR in some aspects of the administrative supervision, and not always for obvious reasons. This will be 11  See Case C-101/01 Criminal proceedings against Bodil Lindquist, judgment of 6 November 2003, ECLI:EU:C:2003:596, para 96.

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illustrated later in this chapter. And fourthly, each of the three pillars described in the table above has a different scope and different addressees. It might be preferable to keep the three horizontal instruments instead of a single, overly general instrument, requiring further specification in a plethora of sectorial legislation, rendering the body of EU data protection legislation unreadable.

III.  Role of the Supervisory Authorities Some praise the data protection supervisory authorities as the fundamental rights defenders in the information society. These unique organisations played a pivotal role and their presence has become indispensable also in the area of criminal justice. They have for example helped individuals whose data is being kept in a large database such as Schengen Information System to exercise their right to protection of personal data.12 Their powers towards criminal justice authorities will be discussed in more detail in section VI below. For now, the exercise of indirect access shows us that the supervisory authorities can act as a proxy for the data subject, which is a fundamental shift away from the traditional legal system, in which the activities of public authorities should be scrutinised only by judges. For example, where a police authority refuses to allow a data subject access to his or her personal data, the supervisory authority can access his or her data stored in police databases and ensure that personal data is correct and processed lawfully. In that regard, it is interesting to have a brief look at Article 13 of the European Convention of Human Rights and the right to an effective remedy. This right complements other rights of the Convention and its primary aim is to increase judicial protection offered to individuals who wish to complain before a national authority about an alleged violation of their human rights.13 In comparison, the abovementioned Article 8(3) of the Charter of Fundamental Rights and the system of supervisory authorities create a more sophisticated system, whereby the existing complementary right to an effective remedy is further complemented (and not replaced) by watchdogs of administrative nature.

IV.  Independence of the Supervisory Authorities The European Union insists on the complete independence of supervisory ­authorities. This is a legacy of Directive 95/46/EC, further developed by the establishment of the independent European Data Protection Supervisor in ­ 12  This is visible in the indirect exercise of the data subject’s right to access in accordance with ­Article 58(2) of the SIS II Decision or Article 41(2) of the SIS II Regulation. 13  See Martin Kuijer, ‘Effective remedies as a fundamental right’, Seminar on human rights and access to justice (Barcelona, 28–29 April 2014).

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­ egulation (EC) No 45/2001 and the comparisons between the independence of R the latter and of the national supervisory authorities made by the Court of ­Justice of the European Union.14 In this context, the requirement of the Directive imposed on the Member States to set up independent supervisory authorities monitoring the Directive’s application does not come as a surprise. Such authorities should act in complete independence, and the provisions on how their complete independence is ensured (including the independence of their members, staff, sufficient budget etc) are the same as in the GDPR. The requirement of complete independence must allow the supervisory authorities to perform their duties free from any directions or any other external influence in whatever form which may have an effect on their decisions as a guardian of a particular fundamental right. The Directive allows Member States to set up one supervisory authority, ­competent for both the GDPR and the Directive. Another option is to set up ‘­special’ supervisory authorities for the purposes of the Directive. In practice, ‘­special’ supervisory authorities might have a specific expertise required for the supervision of the criminal justice sector, but, on the other hand, they might be too close to the data controllers, thereby adversely affecting the legitimacy and neutrality of the data protection administrative supervision. Our view is that the existence of supervisory authorities created under the Directive 95/46/EC and in the future GDPR, which are already in charge of supervision of the public sector, renders the creation of ‘special’ supervisory authorities unnecessary. In fact, the existing, ‘­general’ supervisory authorities are already overseeing processing of personal data for criminal justice purposes, and not only within the limits of their own Member States. For example, in the system of evaluation of national implementation of the Schengen acquis, supervisory authorities appoint national experts, who then perform an on-site inspection of a given national police, looking at the way they implement data protection rules on the Schengen Information System and Visa Information System.15

V.  Can the Supervisory Authorities Supervise Judges and Prosecutors? (Article 45 of the Directive) The provisions on the competence of supervisory authorities in the ­Directive leave room for two possible types of tensions in the Directive’s transposition.

14 In particular in Case C-518/07 Commission v Germany, ECLI:EU:C:2010:125, Case C-614/10 Commission v Austria, ECLI:EU:C:2012:631 and Case C-288/12 Commission v Hungary, ECLI:EU:C:2014:237. 15 For more details on this evaluation system, see Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen [2013] OJ L295/27.

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The Directive gives competence to the supervisory authorities to supervise police and criminal justice authorities, processing personal data for the purposes of the Directive, on the territory of their respective Member State. However, the supervisory authorities are not allowed to supervise all the activities of the aforementioned authorities. When courts are acting in their judicial capacity, the supervisory authorities will not be allowed to supervise them. This solution is not a novelty in EU law. For example, Regulation (EC) No 45/2001 has a similar exemption for the Court of Justice of the European Union in its Article 46(c). In addition, the Directive allows Member States to exempt other independent judicial authorities when acting in their judicial capacity. This option should be interpreted restrictively, as not many ‘other judicial authorities’ will qualify as independent. Due to the differences in Member States’ traditions and in the organisation of their criminal law systems, this optional exemption accommodates the needs of national authorities which have the same independent status as judges (eg public prosecutors in Italy). At this juncture, we have to return to Article 8(3) of the Charter, and its requirement of the independent supervision of compliance with the right to protection of personal data. Even if the Directive exempts courts acting in their judicial capacity from the administrative supervision of a supervisory authority, the obligation to ensure independent supervision is laid down in primary law (the Charter) and will apply regardless of provisions of secondary law. How can the courts ensure independent data protection supervision for their judicial ­activities? For example, this can be done by setting up internal independent judicial panels, which would look at the complaints of the data subjects when supervisory authorities are not competent.16 The described exemption for judges and a possible exemption for independent prosecutors recognise the integrity and independence of the role of judiciary. The requirement of the independence of judiciary is at least equally strong as that of the independence of supervisory authorities. The two independent positions are difficult to reconcile and a sort of hierarchy of independencies seems inevitable. Obviously, the administrative decisions of supervisory authorities are subject to judicial control and in a way subordinate to judges’ decisions. We can therefore recognise the need to allow the creation of internal judicial data protection supervision panels, but we cannot but question their effectiveness. As regards the need to allow carving-out of other independent judicial authorities, we think it would have been better to create a list of such authorities in Member States and name them in the Directive. Instead, the final text may open a battlefield between the European Commission, in charge of proper transposition of the Directive, and Member States, trying to argue that they have a number of other judicial authorities, as independent as their judges.

16  For these purposes, it would be worthwhile to carry out further research and look at how the independent supervision is ensured in the Court of Justice of the European Union.

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To conclude, the exact delimitation between the supervision by the supervisory authority and other independent supervision is difficult. In essence, the question is what does it mean to ‘act in the judicial capacity’?17 If a court publishes judgments on its website which contain personal data, is the court acting in its judicial capacity or not? Another question is how restrictively the notion of ‘other independent judicial authority’ will be interpreted, ie how many of those other bodies, acting in their judicial capacity, will Member States exempt in their national laws from the supervision of their supervisory authorities. It would be important to interpret this optional carve-out restrictively and use it only when prosecutors are truly equal in their independence to judges.

VI.  The Powers of the Supervisory Authorities (Article 47 of the Directive) There is a world of difference in the powers of supervisory authorities that they can exercise under the GDPR and those exercisable under the Directive. Under the GDPR, supervisory authorities must have all of the investigative, corrective, authorisation and advisory powers listed in Article 58.18 The list is quite long and can even be expanded, if a Member State wishes to do so. The GDPR equips 17  This tension is already visible in the relationship between the European Data Protection Supervisor and the Court of Justice of the European Union. 18  ‘1. Each supervisory authority shall have all of the following investigative powers:

(a) to order the controller and the processor, and, where applicable, the controller’s or the processor’s representative to provide any information it requires for the performance of its tasks; (b) to carry out investigations in the form of data protection audits; (c) to carry out a review on certifications issued pursuant to Article 42(7); (d) to notify the controller or the processor of an alleged infringement of this Regulation; (e) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks; (f) to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union or Member State ­procedural law. 2. Each supervisory authority shall have all of the following corrective powers: (a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation; (b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation; (c) to order the controller or the processor to comply with the data subject’s requests to exercise his or her rights pursuant to this Regulation; (d) to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period; (e) to order the controller to communicate a personal data breach to the data subject; (f) to impose a temporary or definitive limitation including a ban on processing;

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a­ dvisory authorities with six investigative, 10 corrective and 10 advisory powers and, as we said, these powers can be even expanded further. On the other hand, the co-legislators in the Directive left it mostly up to the Member States to decide on the appropriate powers the supervisory authorities can exercise against the respective police and criminal justice authorities. More specifically, the Directive provides for a minimum harmonisation of investigative powers, as all supervisory authorities must have the power to access all personal data that are being processed and to obtain all information necessary for the performance of their tasks (Article 47(1)). The advisory powers boil down to the prior consultation procedure (in Article 28) and policy advice to the executive and the legislative branch of the government.

(g) to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19; (h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met; (i) to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case; (j) to order the suspension of data flows to a recipient in a third country or to an international organisation. 3. Each supervisory authority shall have all of the following authorisation and advisory powers: (a) to advise the controller in accordance with the prior consultation procedure referred to in Article 36; (b) to issue, on its own initiative or on request, opinions to the national parliament, the Member State government or, in accordance with Member State law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data; (c) to authorise processing referred to in Article 36(5), if the law of the Member State requires such prior authorisation; (d) to issue an opinion and approve draft codes of conduct pursuant to Article 40(5); (e) to accredit certification bodies pursuant to Article 43; (f) to issue certifications and approve criteria of certification in accordance with Article 42(5); (g) to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2); (h) to authorise contractual clauses referred to in point (a) of Article 46(3); (i) to authorise administrative arrangements referred to in point (b) of Article 46(3); (j) to approve binding corporate rules pursuant to Article 47. 4. The exercise of the powers conferred on the supervisory authority pursuant to this Article shall be subject to appropriate safeguards, including effective judicial remedy and due process, set out in Union and Member State law in accordance with the Charter. 5. Each Member State shall provide by law that its supervisory authority shall have the power to bring infringements of this Regulation to the attention of the judicial authorities and where appropriate, to commence or engage otherwise in legal proceedings, in order to enforce the provisions of this Regulation. 6. Each Member State may provide by law that its supervisory authority shall have additional powers to those referred to in paragraphs 1, 2 and 3. The exercise of those powers shall not impair the effective operation of Chapter VII.’

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On the corrective powers, the Directive contains only three examples (­Article 47(2)): Each Member State shall provide by law for each supervisory authority to have effective corrective powers such as, for example: (a) to issue warnings to a controller or processor that intended processing operations are likely to infringe the provisions adopted pursuant to this Directive; (b) to order the controller or processor to bring processing operations into compliance with the provisions adopted pursuant to this Directive, where appropriate, in a specified manner and within a specified period, in particular by ordering the ­rectification or erasure of personal data or restriction of processing pursuant to Article 16; (c) to impose a temporary or definitive limitation, including a ban, on processing.

Compared to the text of the GDPR, the most notable omissions of corrective ­powers are those related to the exercise of data subject rights, data breach notifications, the suspension of data flows to third countries or international organisations and the imposition of administrative fines.19 For the co-legislators, such ­powers were simply too much in the Directive, even if given by way of example. This demonstrates a great reluctance towards the idea of supervisory authorities severely sanctioning police and criminal justice authorities. The striking d ­ ifference between corrective powers in GDPR and in the Directive might suggest that ­supervisory authorities should exercise greater lenience towards law enforcement, which would be an undesirable result. Nevertheless, it has to be emphasised that the investigative, corrective and advisory powers of the supervisory authorities have to be effective. The addition of the word ‘effective’, found before each power of the supervisory authority in Article 47 of the Directive20 might prove to be a crucial hook for adding more ‘teeth’ to the supervision in this area. As the Court of Justice of the European Union recently found, the existence of an independent supervisory authority is ‘intended to ensure the effectiveness and reliability of the monitoring of compliance with the provisions concerning protection of individuals with regard to the processing of personal data and must be interpreted in the light of that aim’.21 The Court also detected the need for effective detection and supervision mechanisms enabling any infringements of the rules ensuring the protection of fundamental rights, in particular the right to respect for private life and the right to protection of personal data, to be identified and punished in practice.22

19  Admittedly, under the GDPR Member States can decide, under some conditions, not to impose administrative fines on their public sector. See Article 83(7) GDPR. 20  NB, this word does not appear in Article 58 of the GDPR. 21 Case C-362/14 Maximilian Schrems v Data Protection Commissioner, ECLI:EU:C:2015:650, para 41. 22  Ibid, para 81.

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The analysis of the effectiveness of powers of supervisory authorities cannot be complete without another look at Article 13 of the European Convention of Human Rights. As the Strasbourg Court noted in Leander,23 if no single remedy satisfies the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so. The required reach of powers of supervisory authorities will therefore depend on what the other competent national authorities, such as police ombudsman and ultimately the courts, may or may not do, while enforcing the substance of the right to privacy and data protection and granting appropriate relief to data subjects whose data are being processed by police and criminal justice authorities. In the end, this might mean that, in order to make supervisory authorities truly effective, the national law transposing the Directive will have to provide the same set of powers to supervisory authorities as the one given to them by the GDPR. Finally, supervisory authorities still do not have to have the power to initiate court proceedings against the controller or the processor who infringed some ­provisions of the Directive. In this respect, the situation has not changed ­compared to the Framework Decision 2008/977/JHA, mostly because the administrative law of some Member States does not allow litigation between two public authorities.

VII.  Complaint Handling (Articles 52–55 of the Directive) At the outset, handling of complaints under the Directive is governed by the ­traditional territoriality approach, whereby each supervisory authority is responsible for its own backyard and does not peek across the neighbours’ fence. ­However, data subjects will be allowed to choose with which supervisory authority they want to lodge their complaint. For example, if a resident of Luxembourg wants to complain against the Belgian police, he/she would be able to lodge his/ her complaint with the Luxembourg Data Protection Authority (DPA). But, the analogy with the GDPR stops here. The role of the Luxembourg DPA will be limited to a ‘post-box’. It will have to forward the complaint to the Belgian DPA and will not deal with the case.24 This is because the co-legislators were keen to keep any supervision actions against police and criminal justice authorities within the remit of their respective supervisory authority. Consequently, many cooperation tools of the GDPR are nowhere to be found in the Directive: eg one-stop-shop,25 ­consistency ­mechanism, dispute resolution by the European Data P ­ rotection 23 

Leander v Sweden, Series A 116 (1987) 9 EHRR 433, para 81. the data subject asks the Luxembourg DPA for further assistance (Article 52(3)). Even so, the Luxembourg DPA will only act as a hub for communication between the Belgian DPA and the data subject. 25  However, in the GDPR a one-stop-shop is also not envisaged for the public sector. 24  Unless

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Board and joint operations of the supervisory authorities. As a result, in our example the data subject will have a judicial remedy (be it against the Belgian police or against the Belgian DPA) available only before the Belgian courts. The obvious reason for such a difference is the fact that the GDPR had to remedy the problems arising from commercial processing by multinational companies, which had had to deal with 28 national laws and 28 (or even more) supervisory authorities. Unlike companies, criminal justice authorities are grounded within their own national borders and it is logical that they are supervised by their national supervisory authorities only. However, the supervisory authorities will have to provide each other with mutual assistance even under the Directive. More and more processing operations of European criminal justice authorities are cross-border. Hence, a certain level of cooperation between supervisory authorities must be ensured, free of charge and in the good spirit of cooperation. Supervisory authorities will sometimes have to carry out investigations and inspections upon request of their counterparts from other Member States. Refusing to act upon a collegial request will be very difficult. Such refusal will be possible only if the requested supervisory authority is not competent to execute the request or if it would infringe the law by carrying out the request (Article 50(4) of the Directive). Moreover, the ­European Data Protection Board, as the new centre of gravity of data protection within the Union, will be in charge of the authoritative interpretation of the ­Directive and of issuing guidelines, recommendations and best practices for the application of the Directive, including for the supervisory authorities (Article 51 of the Directive). We recall that the Board is composed of national supervisory authorities and the European Data Protection Supervisor. The Board will therefore inevitably become a forum for exchange and development of cooperation between supervisory authorities, not only with regard to the GDPR but also in respect of the Directive. Turning back to data subjects and the exercise of their rights, we noted that they do not have to use the remedies available in the Directive personally. They can also mandate NGOs that act in the public interest and are active in the field of personal data protection to represent them. This is a welcomed novelty of the Directive, allowing for strategic data protection litigation against the police and criminal justice authorities. However, unlike in the GDPR, there is no possibility for a non-mandated representation of the data subject. The co-legislators feared that in the area of prevention and prosecution of crime, such possibility could be abused by mala fide NGOs, on the look out to obtain sensitive information about pending criminal investigations and proceedings. Overall, the Directive sets up a clear and comprehensive system of handling complaints of data subjects across the EU. In our above-mentioned example, if the Belgian police unjustifiably deny the right of access to a Luxembourg resident, she will be able to complain to the Luxembourg DPA, which will forward the complaint to the Belgian DPA. In turn, the Belgian DPA will have to carry out the necessary verifications of the Belgian police and inform the data subject

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about the outcome of her complaint, including about her right to further complain before the Belgian courts. The data subject will also be able to ask the ­Luxembourg DPA for assistance in the proceedings (for example, if she only speaks L ­ uxembourgish and does not understand the information received from the ­Belgian DPA).

VIII.  Conclusion: Emphasised Importance of Data Protection in the Area of Criminal Law The Directive ensures the complete independence of the supervisory ­authorities in charge of supervision of the police and criminal justice authorities in the Member States, processing data both cross-border and purely nationally. ­ ­However, an important caveat excludes courts (and possibly other independent judicial authorities) from such supervision, when acting in their judicial capacity. The powers of the supervisory authorities have to be effective and respect the Charter of Fundamental Rights of the European Union, in particular Article 8(3). The supervisory authority will be in charge of police and criminal justice authorities in the territory of its Member State, and will not be able to exercise any of its powers (not even investigative) against the criminal justice authorities of another Member State. The transposition and implementation of the Directive by the Member States would thus require close attention. Should they grant very limited powers to the national supervisory authorities over police and criminal justice authorities, these authorities may face difficulties in ensuring the appropriate ­balance between operational necessities and protection of personal data. While it seems reasonable that, in the area of crime prevention and prosecution, the supervision and judicial protection remain within the borders of a ­Member State, cooperation between supervisory authorities on cross-border cases seems inevitable, in particular in times when police and criminal justice authorities strive to exchange more personal data and engage more in cross-border processing. This might lead to tensions between the European law enforcement community and the European data protection community, as the former is traditionally sceptical toward any sort of control coming from beyond its national border. And on the national level, some battles between the criminal justice and the supervisory authorities may already be foreseen, during the work on delimitation of independent supervision of courts and other independent judicial authorities from other administrative supervision. Finally, national legislators are facing an uphill battle when drawing up the exhaustive list of powers of the supervisory authorities. National parliaments will have to simultaneously meet the scepticism of their criminal justice authorities towards administrative supervision, and the requirements of effective supervision, as required by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.

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16 ‘Foreign Terrorist Fighters’—De-Radicalisation and Inclusion vs Law Enforcement and Corrections in Denmark JØRN VESTERGAARD

I.  The Dual Challenge with Responding to the Phenomenon of Foreign Fighters By the end of 2012, it had become clear to decision-makers in many countries and international organisations that the flow of outgoing travellers sympathising with insurgent groups in Syria called for prompt and resolute countermeasures. The phenomenon gave rise to grave worries that some returning individuals represent a perilous risk of terrorist activities in their home countries due to radicalisation, direct dealings with militant circles, and maybe even personal experience of battlefield participation. The rise of ISIL and the movement’s ability to recruit supporters willing to engage actively in the armed fight for the proclaimed ‘Caliphate’ accentuated the security concern further.1 In the first place, the phenomenon mainly called for measures more or less well suited for preventing individuals from travelling to conflict zones with the intention of joining militant or terrorist groups or organisations as associates, supporters or actual foreign fighters.2 Due to the increasing military pressure on ISIL in Syria 1  ISIL is also known as The Islamic State, ISIS, IS, and Da’esh. For an account of the origin and development of the organisation, see for example Loretta Napoleoni, Islamic Phoenix: The Islamic State and the redrafting of the Middle East (Seven Stories Press 2014). 2  No common definition of the concept ‘foreign fighters’ or ‘foreign terrorist fighters’ exists. From a prevention and criminal justice point of view, this chapter mainly deals with societal responses to activities in connection with an individual’s voluntary affiliation with an insurgent group during an armed conflict in a country other than the person’s habitual place of residence. In several widely disseminated works, Norwegian researchers Thomas Hegghammer and Peter Nesser have analysed various aspects of Islamic terrorism and the threat from different types of foreign fighters, see publications lists at www.ffi.no. See also publications from The International Centre for Counter-Terrorism at www.icct.nl.

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and Iraq, a substantial number of such individuals are now expected to gradually return from conflict zones to Europe, which accentuates the need to develop adequate and differentiated policies and practices for receiving and dealing with them. As will be demonstrated in this chapter, there is an inherent ambiguity in an overall policy, which at the same time promotes a harsh criminal justice response at the international and national levels and a multi-faceted social welfare reintegration approach at the local level. First, an account of the so-called Aarhus de-radicalisation and rehabilitation model will be presented. In addition, legislation recently introduced in Denmark will be discussed. Along the way, an overview and a critical analysis of legal instruments recently introduced by the UN Security Council, the Council of Europe and the EU will be offered, too. The analysis in the following is devoted to the schism caused by the ever more expansive criminalisation of preparatory acts and ancillary offences with no manifest or immediate proximity to actual terrorism. The efforts vested in deradicalisation and exit programmes in a municipal context can be eroded by the perpetual legislative adoption of repressive net-widening initiatives. On a positive note, it deserves mentioning that a comprehensive approach to rehabilitation and reintegration strategies for returning foreign terrorist fighters seems to have gained substantial support among practitioners and experts. Various agencies are actively advocating such schemes, see for example the elaborate manual presented by the Radicalisation Awareness Network, RAN, Responses to returning foreign terrorist fighters and their families.3

II.  Denmark as an Actor in the Theatre of International Terrorism Supplying nearly 20 departing jihadist supporters per one million inhabitants, Denmark has more so-called foreign fighters than most other EU Member States, only slightly outscored by Belgium. At least 125–135 individuals have travelled from Denmark to Syria/Iraq, according to the latest assessment from the ­Danish ­Security and Intelligence Service. Approximately half of the travellers have returned. More than one in every five has been killed in the conflict zone.4 ­However, it seems that the flow of travellers has been declining since the middle of 2014. 3  Ran Manual: Responses to returning foreign terrorist fighters and their families (Radicalisation Awareness Network, July 2017). 4  See for example the Danish Security and Intelligence Service, Centre for Terror Analysis (CTA): The Threat to Denmark from Foreign Fighters in Syria (December 2013); Assessment of the Terror Threat to Denmark (April 2016). More reports in Danish and English are accessible at www.pet.dk.

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The backdrop of the Danish foreign fighters phenomenon is a rather mixed composition of interrelated factors, but certain contributing components can easily be identified, such as the Jyllands-Posten Cartoon crisis, Denmark’s activist foreign policy including military engagement in the Middle East, and the generally rather harsh and polarised political debate regarding the integration of Muslim citizens into Danish society. A substantial number of criminal convictions of home-grown jihadists indicate the comprehensive scope of the aggregate problem.5

III.  The Aarhus De-Radicalisation and Rehabilitation Model Strikingly, Denmark has been recognised globally for tackling de-radicalisation in a systematised fashion founded on a principle of inclusion. This particular mode of reintegration has become known as the Aarhus Model, a label referring to the programme implemented by the town of Aarhus, the country’s second largest city with approximately 350,000 inhabitants.6 The Aarhus Model is definitely paradigmatic and may very well serve as an inspiring example of best practice.7 A similar multi-agency approach is applied by several other Danish and European municipalities.8 The philosophy behind the mentioned approach is induced from the notion that many radicalised youth are essentially bothered with existential misgivings.9 Their extremist motivation is basically perceived as a kind of existentialistic pursuit for the opportunity to live a good and decent life on par with others. Consequently, the better response to their rebellion is not to be found in further stigmatisation and exclusion, but in targeted individual assistance for the purpose of developing adequate life skills in order to become part of or re-enter ordinary society in a

5  For a comprehensive account of Danish law, see Jørn Vestergaard, ‘Criminal law as an anchorage point for proactive antiterrorism legislation: Denmark’ in Francesca Galli and Anne Weyembergh (eds), EU counter terrorism offences. What impact on national legislation and case law? (Institut d’Etudes Européennes, Éditions de l’Université de Bruxelles, 2012) 169–94. 6  Information regarding the programme has kindly been provided by Detective Inspector Thorleif Link. For a general introduction to the Danish approach to countering and prevention Extremism and radicalisation, see Ann-Sophie Hemmingsen, DIIS Report 2015:15 (Dansk Institut for Internationale Studier 2015), at www.diis.dk. 7  Various materials on the Aarhus Model may be accessed from the internet. For an informative recent text and audio: www.npr.org/sections/health-shots/2016/07/15/485900076/how-a-danishtown-helped-young-muslims-turn-away-from-isis. 8  The development of comprehensive rehabilitation and reintegration strategies for returning foreign terrorist fighters has been urged, inter alia, by the Global Counterterrorism Forum in the so-called Hague-Marrakech Memorandum, in which various aspects of good practices to that effect are outlined. 9  On the Danish preventive measures and de-radicalisation strategies as applied under the Aarhus Model, see Professor of Psychology Preben Bertelsen, Panorama Insights into Asian and European Affairs (2015) vol 1, 241–53.

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non-violent manner and to exercise meaningful citizenship. All along, any citizen’s fundamental rights regarding personal political conviction and religious faith should be recognised and respected. In the Danish setting, the Aarhus programme is mostly an extension of a general, early intervention crime prevention scheme that has been applied for more than 30 years, including inter-agency information sharing and coordinated action involving the school system, the social welfare system and the local police.10 The Aarhus police have set up a clearinghouse, a hotspot called the Info House that handles information regarding signs of radicalisation from worried family members, teachers, social workers and ordinary citizens. In addition, the D ­ anish Security and Intelligence Service11 is an important driver in the reintegration scheme by supplying the local police with dossiers of individuals considered at risk. The person concerned is summoned for a talk, screening, visitation, risk assessment, etc. Depending on the individual circumstances, a tailored and preferably proportionate intervention will be offered, such as counselling, healthcare, assistance with education, employment, accommodation, a programme to exit from extremist circles, and linking up with a trained mentor. If no further action is needed, the intelligence service will just continue to keep a watchful eye on the individual concerned. It has actually been reported that some returnees have come back fundamentally disillusioned with the cause of ISIL, or other insurgent groups, after having witnessed mismanagement or even repulsive atrocities. Such individuals are obvious targets for rehabilitation programmes such as the one implemented by the Aarhus authorities. Not anybody at risk of radicalisation is considered eligible for admission to the programme. According to official sources, an individual will only get help to find a way back to society if he or she has not committed any serious offences. If there is reason to believe that the person has done something criminal, the matter will be investigated and eventually prosecuted, depending on sufficient evidence to build a case on. Other things being equal, the prospect for such legal action naturally improves in light of the many current initiatives in order to strengthen intelligence and investigation tools, eg due to the focus on collection and exchange of digital evidence. In particular, it might bring added value that surveillance and interception of Danish citizens abroad by the Danish Intelligence Service12 has recently been authorised.13

10 

The so-called SSP-network (school, social welfare, police). PET, ie Politiets Efterretningstjeneste. 12  FE, ie Forsvarets Efterretningstjeneste. 13  Parliament’s Act No 1571, 2015. After the Copenhagen killings at the venue ‘Krudttønden’ (The Powder Barrel) and the Synagogue in February 2015, the Government presented an action plan concerning prevention of radicalisation and extremism, including prevention of radicalisation related to participation in armed conflict abroad. The plan involved a controversial proposal to authorise the military intelligence service to monitor Danish citizens outside of Denmark without a court warrant. Due to substantial criticism by academics and others, judicial oversight was granted, but the legislative requirements for intervention remained weak. 11 

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Obviously, it makes a lot of sense that a returnee who has been apprehended while deliberately preparing a terrorist attack should not be granted impunity in exchange for enrolment in a programme for rehabilitation and reintegration. The following case can serve as illustration: Glasvej case: In 2008, two young males were convicted of attempt to commit a terrorist act. The principal perpetrator had returned from an al-Qaeda training camp in Waziristan bringing with him an elaborate bomb manual. Together they then produced and tested a small amount of TATP (triacetone triperoxide), an explosive intended as a component in a so far unspecified terror attack. They were not included in the reintegration programme but sentenced to 12 and 7 years’ imprisonment, respectively.14 Still, it must give cause for concern if a law enforcement approach is rigidly applied in minor cases involving only preparatory offences with only a remote nexus to actual terrorism, at least if the perpetrator is prepared to abandon violent extremism and reach out for reintegration. This concern should be taken into account even more as some recent initiatives imply further criminalisation of activities not manifestly representing a genuinely substantiated risk of facilitating terrorism.

IV.  Outline of Danish Criminal Law Concerning Terrorism and Foreign Fighters While the Aarhus rehabilitation model has attracted widespread appraisal, and as more or less similar schemes have been adapted in other municipalities, the attention by a majority of politicians in the Danish Parliament has simultaneously been determinedly focused on the application of punitive measures. Under Danish criminal law, there is no general ban on participating in armed conflict abroad. However, such activities might very well be covered by various criminal provisions, naturally depending on the specific circumstances. Thus, a number of the antiterrorism provisions could be highly relevant in certain instances.15 Evidentially, violence, killings, hostage-taking, sexual assaults, and other serious offences are punishable in accordance with the common provisions

14  See TfK 2009.762 Ø (Tidsskrift for Kriminalret, a regular court reporter, Ø = Østre Landsret, ie The Eastern High Court). 15  Penal Code (PC) Sections 114 ff. The enactment in 2002 of amended criminal provisions by the first antiterrorism package reflected a transposition of the obligations due to Security Council Resolution 1373, the UN 1999 Convention on the Prevention of Terrorism, and the EU Framework Decision on Combatting Terrorism 2002/475/JHA. The 2006 adoption of the second antiterrorism package basically implemented obligations stipulated by the Council of Europe’s 2005 Convention on the Prevention of Terrorism, later to be followed up by the 2008 amendment of the 2002 Framework Decision. See Jørn Vestergaard (n 5 above).

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to that effect, granted that such acts are covered by jurisdictional rules and are not defined as lawful due to a combatant’s privilege under International Humanitarian Law (IHL). Obviously, the overriding concern regarding bringing foreign fighters to justice would be to ensure that they do not get away with impunity if they have participated in any kind of atrocities, including acts of terrorism. However, in such instances, the burden of proof is an onerous one for the prosecutor, as sufficient evidence concerning criminal activities would typically be lacking, partly due to the difficulties in obtaining relevant information regarding an insurgent group’s activities in remote and chaotic conflict zones, and partly due to the need to protect sources and collaborators and to the secrecy regarding intelligence technicalities and modalities. In 2002, the Penal Code (PC) was amended to include provisions concerning actual terrorist acts, financing or otherwise facilitating terrorism. In 2006, the ­Parliament criminalised recruiting and training for terrorism purposes in order to pave the ground for ratifying the 2005 European Convention on the Prevention of Terrorism. Concurrently, being recruited or receiving training for terrorism ­purposes was criminalised, too.16 The article regarding reception of training has been applied in the following case: Al-Shabaab training camp: In 2014, two brothers of Somalian origin and residents of Aarhus were convicted of attempt to receive training for terrorism and both sentenced to two years’ imprisonment. The elder brother had spent a couple of weeks in an al-Shabaab camp with the intention of receive training, but it was uncertain whether he had succeeded. The other had supported him financially and otherwise.17 No information is publicly available with regard to the risk assessment concerning the two defendants. Nevertheless, the outcome of the case represents a significant contrast to the alternative reintegration scheme, in particular considering the fact that the conviction related to an only attempted perpetration, and that the offender had actually made an effort to return home expediently. Under Danish criminal law, the antiterrorism provisions in the Penal Code are applicable even in instances where members of a rebel group or organisation commit acts of terrorism in the context of an armed conflict. This has been established by several judgments.18 Except for legislation specifically covering 16  Cf PC Section 114 c (3), and PC Section 114 d (3). The first mentioned articles also covers recruiting somebody to finance or to facilitate the financing of terrorism. These provisions were amended due to a more comprehensive legislative initiative aiming at complying with the then anticipated requirements of the Council of Europe Convention on the Prevention of Terrorism (2005) ETS No 196. ­However, said Convention does not call for ‘passive recruitment’ to be criminalised, a matter which is now dealt with by the Additional 2015 Protocol to the Convention, which transposes the obligations under Security Council Resolution 2178, S/RES/2178 adopted the 24.09.2014 under Chapter VII of the Charter of the United Nations, see later. 17  Both defendants were convicted of attempted violation of PC Section 114 d (3), cf U 2014.3017 V (weekly court reports published in Ugeskrift for Retsvæsen). 18  See the landmark judgment UfR 2009.1453 H, ie the so-called ‘Fighters+Lovers’ case. (Ugeskrift for Retsvæsen, a weekly court reporter, H = Højesteret, ie the Supreme Court). Recently, the Eastern

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terrorism offences and a separate statute concerning genocide, there are no ­particular provisions targeting international crimes. Moreover, there is no legal reservation preventing courts from adjudicating on war crimes and crimes against humanity under antiterrorism provisions. By the end of 2015, an article regarding treacherous participation in armed conflict in alliance with an enemy of Denmark was introduced. In the Spring of 2016, prohibitions regarding travelling to or staying in certain areas where armed conflict is taking place, as well as regarding facilitating such travelling, were inserted in the Penal Code, as will be explained in more detail below.

V.  Updating the Treason Provisions For quite some time after the beginning of the flow of foreign fighters to Syria, the legal status of Danish citizens and foreign residents of Denmark travelling to the conflict zone was inconclusive. In October 2014, Denmark once again engaged in armed conflict in the ­Middle East. Parliament decided to join the alliance including Iraq and the US in the armed conflict with ISIL by deploying seven F-16 fighter planes and supplementary military manpower in order to join the alliance with the Iraqi State by participating in offensive air strikes against ISIL targets in Iraq. At least as from that moment, Denmark had become part of the non-international armed conflict between ISIL and a number of states. Despite the availability of a vast set of antiterrorism provisions in the Penal Code, a majority in Parliament regarded it as compelling to ensure that affiliation with an armed group of adversaries in an armed conflict involving Denmark shall be punishable as treason. For decades, the Penal Code has featured an article criminalising ‘recruiting for or being in the service of belligerent or occupying enemy or armed forces or being in connection with such entities operating in military or police corps or similar corps or organisations’.19 In everyday speech, this article was referred to as ‘the treason article’. Representatives for the parliamentary parties in opposition to the then Social Democratic-led Government called for indictments under this article

High Court upheld a municipal court judgment finding the Penal Code’s antiterrorism provisions applicable by rejecting the argument that since the al-Nusra Front is responsible for killings of civilians in Syria, the organisation’s participation in armed conflict is not to be considered legitimate according to International Humanitarian Law, Frederiksberg Municipal Court, case no 7156/2014, Eastern High Court, Section 15, case no S-3475-14. Regarding the rating of the PKK as a terrorist organisation in various cases concerning the financing of terrorism, see U 2014.1540 H (ROJ TV) and Eastern High Court judgment of 08.06.2016, case nos S-3006-14 and S-616-15. 19  Cf PC Section 102 (1) and (2)(1). Further, PC Section 101 criminalises preparation for assistance to the enemy for the purpose of ‘war, occupation or other hostilities’, so-called fifth column activities.

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of foreign fighters affiliated with Islamic groups in Syria. When politicians challenged the administration in power by raising questions in Parliament regarding this matter, the response on the part of the Ministry of Justice was hesitant and offered only vague indications with regard to the possible application of the law.20 After having entered the theatre of armed conflict in the Middle East, it became evident that there was a pressing demand for a thorough examination of the scope of existing legislation and the possible need for amendments. Therefore, after quite a lot of political commotion, initiatives were taken to introduce a new offence to this effect. It became the responsibility for the Permanent Penal Committee under the Ministry of Justice to produce an analysis and to present suitable recommendations pertaining to bringing enemy foreign fighters to justice. The Committee’s report to that effect was published in June 2015.21 The Permanent Penal Committee’s point of departure for its considerations concerning the aim of criminalising participation in and recruitment for armed conflicts abroad was primarily the need to counter the risk posed by returning foreign fighters, but also a desire to curtail the extent and seriousness of armed conflicts. However, with regard to conflicts directly involving Denmark, the main argument for criminalisation is that a particular bond of loyalty binds (1) ­Danish citizens, regardless of residence or possible double citizenship, (2) stateless individuals, and (3) foreign citizens residing in Denmark. Such persons enjoy Danish jurisdiction and protection, which—in accordance with international law—­corresponds with an obligation not to fight for the enemy in an armed conflict. Thus, the Committee recommended a specific criminalisation of affiliating with enemy forces. In the summer of 2015, the Centre-Left lost a general election and a new ­Cabinet was formed by one of the former opposition parties.22 After taking office, the new Minister of Justice, Mr Søren Pind, endorsed the recommendation from the Committee and presented a Bill to that effect to Parliament. Without much public attention, the proposed legislation was adopted in December 2015.23 The new article in the Penal Code has the following wording: PC Section 101 a. Anyone who has Danish citizenship or residence in the State of ­Denmark and who during an armed conflict involving as a party the State of ­Denmark, is affiliated with an armed force belonging to a party fighting against the State of ­Denmark, is ­punishable by imprisonment of up to 10 years. Under especially aggravating circumstances, the punishment is imprisonment of up to life. In particular, instances

20 A detailed account of the debate can be read in Danish in the author’s contribution to the ­publication Peter Vedel Kessing and Andreas Laursen (eds), Robust mandat (DJØF 2016) 371–418. 21 The Permanent Penal Committee’s report 1556, 2015 ‘opinion on certain matters regarding ­participation in and recruitment for armed conflicts abroad that the State of Denmark is a party to’ (‘Straffelovrådets udtalelse om visse spørgsmål vedrørende deltagelse i og hvervning til væbnede ­konflikter i udlandet, som den danske stat er part i’). 22  Venstre—The Liberal Party of Denmark, ‘liberal’ as in ‘liberalism’. 23 Parliament’s Act No 1880, 29.12.2015 amending the Penal Code (‘Tilslutning til fjendtlig ­styrke’—Affiliation with an enemy force), adopted by Parliament 15.12.2015.

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where someone has participated in armed combat shall be considered aggravating circumstances. Subsection 2. Anyone who under circumstances as stipulated in Subsection 1 recruits somebody who has Danish citizenship or residence in the State of Denmark for an armed force, or who publicly incites such a person to affiliate with enemy forces in such conflicts shall be punished by imprisonment up to 10 years. Under especially aggravating circumstances, the punishment is imprisonment of up to 16 years. In particular, instances where violations of a systematic or organised character are in question shall be considered aggravating circumstances.

No formalised procedure exists for determining whether Denmark is participating in an ‘armed conflict’ or how the particular character of such a conflict should be assessed in accordance with International Humanitarian Law. In a specific instance, the issue might, or might not, have been clarified by Parliament when consenting to the use of armed force. In the travaux préparatoires to the newly introduced treason article, it is emphasised that its application in a specific case depends on a solid basis for presupposing that Denmark is taking part in an armed conflict.24 Liability under said article requires a criminal intent with regard to the factual circumstances justifying the legal assessment of the situation as an armed conflict. Hereafter, the mere affiliation with the forces of an adversary will be sufficient basis for criminal liability. It is not a legal requirement that the person has participated in actual combat or, as a member of enemy forces, has aided these in other ways. Any type of armed conflict involving Danish military units is covered, no matter whether it takes place near or far from Danish territory. It does not matter whether the adversary party is fighting directly against Danish combat forces or against a state to which Denmark is an ally. Neither is it relevant whether the unit with which the person is affiliated is specifically fighting Danish forces. The amended article includes any function in a hostile armed force. It is not a condition for criminal liability that the person’s purpose for joining the enemy was an intention to participate in active combat, or that he/she actually does so. Affiliation by serving in supportive operations is also prohibited, even if these merely involve medical or religious services. It also does not matter whether the person has status as a combatant and thus is a legitimate target according to International Humanitarian Law. The offence is completed when an individual has joined an enemy unit or has made an agreement to that effect with a representative for the enemy, and it does not matter whether the person has been located in a conflict area at all. Employment in an enemy state’s civil administration or other affiliation with entities not included in its armed forces is not considered a criminal offence. Likewise, affiliation with an insurgent group’s branches responsible for social welfare, health or education issues is not an offence if such units are structurally segregated from the group’s armed forces. 24  With regard to non-international armed conflicts, the ‘point of departure’ is taken in Common Article 3, which has a wider scope of application than Additional Protocol II.

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At sentencing, a substantial risk of execution or other serious consequences of attempted deserting or escaping from the group may be considered a mitigating or exonerating factor. Depending on the concrete circumstances of the individual case, criminal liability under the amended treason article can be incurred concurrently with liability under antiterrorism provisions, eg regarding facilitation of or training for terrorism purposes. Adoption of the new treason article was not really required in order to bring foreign fighters to justice, as already existing provisions were absolutely sufficient to serve that purpose, given that incriminating evidence was solid enough. However, it should not be underestimated that introducing the amended article might have been appropriate in order to satisfy a fundamental public and political desire for denouncing the kind of treacherous activities it covers. As a symbolic expression of societal dissociation from such behaviour, the article is fairly well suited to serve a symbolic function by sending a rather clear and adequate message. It is a quite different question whether such specific kind of criminalisation can be expected to provide any added value to the prevention of travel to conflict zones to join ISIL or other insurgent groups or organisations. For individuals who are inspired or aroused by a desire to do so, such legislative initiatives hardly have a persuasive influence, not to speak of a deterrent impact. Still, it cannot be completely denied that there might be some marginal positive preventive effect of the legislative step. Thus, the treason article could serve as a kind of bottom plug in relation to the overall and more comprehensive undertaking to prevent radicalisation and travel to specific conflict zones. At least, the introduction of the new article has resulted in a heightened degree of clarity as to of the state of the law. On the other hand, criminalisation in order to enforce the loyalty obligation might be counterproductive in relation to the aim of the part of International Humanitarian Law that is intended to provide an incentive for members of armed forces to comply with the laws of war, including in relation to protection of civilians. If there is a risk of serious repercussions from the very affiliation with enemy forces, it might not be of essential importance that there is also a prospect of liability for assaulting civilians or butchering prisoners hors de combat.25 Under humanitarian law, there is a presumption that the territorial state after cessation of a non-international armed conflict in the widest possible manner offers amnesty to members of non-state groups who have not committed war crimes or other international crimes.26 The aim of this recommendation is precisely to strengthen the impulse to respect standards of behaviour equivalent to those prescribed for combatants. Under a similar rationale, it could be argued that 25  The analysis in the present contribution draws extensively on the work of Sandra Kraehenmann, Foreign Fighters under International Law (Briefing No 7, Geneva Academy of International Humanitarian Law and Human Rights, October 2014) 20, where comprehensive reference to the literature is provided. 26  Additional Protocol II, Art 6(5) only has binding effect in relation to the territorial state. Neither Iraq, Syria nor the USA have ratified AP II. However, the International Red Cross regards this rule as an expression of international customary law.

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­ articular criminalisation should be avoided in relation to individuals travelling p abroad to participate in armed conflict, even if such activities involve betraying your home country.27 However, it would probably be naïve to overstate expectations regarding the rationality of calculations made by an individual who is already part of enemy forces. Moreover, it cannot be denied that it could be perceived as grossly provocative if that type of turning against your own country were to be endorsed.28 In any case, it amounts to an erosion of the principles underlying IHL, if a government categorically treats insurgents as common criminals or terrorists. Such a policy poses the risk of depriving civilians and captured individuals of the protection established under Common Article 3 of the Geneva Conventions. It should further be remembered, that international human rights are applicable during armed conflict, too, although with certain modifications.29 For returning foreign fighters without a history of participation in active combat, it would no doubt be the rational option to offer enrolment in a reintegration programme like the one practised under the Aarhus model, assuming that the individual in the specific instance demonstrates sincere intentions to renounce militant activities. It would be counterproductive to insist on criminal liability and imposition of an unconditional imprisonment sentence for violation of a very wide-reaching treason article.

VI.  Amending the Passport Code and the Foreigners Act After the Paris attacks and the Copenhagen shootings in early 2015, the Danish Passport Code was amended in order to authorise the police to deny issuing and to revoke previously issued passports, and to order a travel ban if there is ‘reason 27  For discussions of criteria and procedures concerning the treatment of insurgents who have respected the principles of IHL, including the possibility of amnesty, annulment of criminal liability, or leniency in sentencing with regard to the actual participation in armed conflict, see for example Francois Bugnion (2003) Yearbook of International Humanitarian Law 167–98; Marco Sassòli, Essays in Honour of Yoram Dienstein (Martinus Nijhoff 2007) 256; Jonathan Somer, ‘Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict’ 89 International Review of the Red Cross No 867 (September 2007) 655–90; Ezequiel Heffes and Marcos D Kotlik, ‘Special agreements as a means of enhancing compliance with IHL in non-international conflicts: An inquiry into the governing legal regime’, 96 International Review of the Red Cross (December 2014) 1195–224. 28  For a sophisticated analysis of this problem, see Michael Scharf, ‘Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects’ (2004) Faculty Publications, Paper 229, Case Western Reserve University. 29 This has been established inter alia in ECtHR, 16.09.2014, Hassan v UK (Application no 29750/09). See also Helen Duffy, The War on Terror and the Framework of International Law (Cambridge University Press 2005) ch 7; Alex Conte, ‘An Old Question in a New Context: Do States Have to Comply with Human Rights When Countering the Phenomenon of Foreign Fighters?’ (EJIL: Talk!, 19.03.2015): www.ejiltalk.org/an-old-question-in-a-new-context-do-states-have-to-complywith-human-rights-when-countering-the-phenomenon-of-foreign-fighters/, accessed 20.11.2016; Council of Europe, Guidelines on human rights and the fight against terrorism (adopted by the ­Committee of Ministers at its 804th meeting, 11.07.2002).

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to assume’ that an individual ‘has an intention to participate abroad in activities that could imply or enhance a danger for the security of the Danish State or the security of other States, or a substantial threat against the public order’, ie a security risk of engaging in violence upon return.30 A decision to this effect may be accompanied by a time-limited prohibition on leaving the country. A violation of such an injunction is punishable by fine or imprisonment up to two years.31 Concurrently with the introduction of the new passport rules, the Foreigners Act was amended in order to authorise the revocation of a residence permit under criteria basically equivalent to those in the Passport Code.32 The threshold regarding suspicion under these newly introduced articles is significantly lower than those associated with criminal provisions under the Penal Code. The manifest intention behind this approach is to facilitate the application of the rules in instances where it would be difficult to satisfy the burden of proof in a criminal case regarding violation of the prohibition on being recruited for the purpose of terrorism. The scheme raises a number of so far unresolved questions regarding substantive criteria and evidentiary requirements. According to the travaux préparatoires, information that an individual is staying in a conflict zone without a creditable objective will ordinarily be sufficient to meet the stipulated standard of proof. A number of decisions have now been made, and the course is apparently somewhat meandering. Particular attention has been attracted by a case regarding revocation of a passport belonging to a Danish-Kurdish woman who had travelled to Iraq several times, allegedly in order to join Peshmerga forces that are known to be operating side by side with allied forces in the fight against ISIL.

VII.  The UN Security Council—Adopting Resolutions 2170 and 2178 (2014) In 2014, the UN Security Council adopted Resolutions 2170 and 2178 directed at what were labelled foreign terrorist fighters.33 The two instruments enhance the sweeping obligations imposed on all states by Resolution 1373 (2001), whereby the Council promptly followed up on the 9/11 attacks by placing itself in the position as international law-maker. Basically, Resolution 1373 stated a mandatory requirement concerning criminalising the financing, planning, preparation, perpetration or supporting of terrorist acts, etc.34 It also established an obligation 30 

Passport Code Section 2 (1)(4), implemented by Parliament’s Act No 176, 2015. Passport Code Section 5 (1), cf Section 2 b (1). 32  Foreigners Act Section 21 b (1). 33 Security Council Resolution 2170 S/RES/2014 adopted the 15.08.2014 and Security Council Resolution 2178 (n 16 above). 34  Security Council Resolution 1373 S/RES/2001 adopted 28.09.2001 under Chapter VII of the Charter. The resolution also obligated all states to freeze funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the 31 

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to refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including an obligation to suppress recruitment of members of terrorist groups. Furthermore, by adopting Resolution 1373 the Security Council decided that all states shall prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents. Still, Resolution 1373 did not include a specific obligation to criminalise travelling to areas where terrorist groups are involved in armed conflict. When adopting Resolution 2170 (2014), the Security Council called upon all Member States to take national measures to suppress the flow of foreign terrorist fighters to—and bring to justice foreign terrorist fighters of—ISIL, ANF and all other individuals, groups, undertakings and entities associated with al-Qaeda. The Council further reiterated the obligations to prevent the movement of terrorists or terrorist groups by effective border controls, to expeditiously exchange information, and to improve cooperation among competent authorities to prevent the movement of terrorists and terrorist groups to and from their territories, etc. Member States were encouraged to engage with those within their territories at risk of recruitment and violent radicalisation to discourage travel to Syria and Iraq for the purposes of supporting or fighting for terrorists. The Member States’ obligations were then further broadened by the adoption of Resolution 2178 (2014). This instrument instructs Member States to criminalise outward travelling aimed at activities related to terrorism, ‘including in connection with armed conflict’. Resolution 2178 rounds up the primary target group in quite broad terms, and it is not solely addressing the situation in Syria and Iraq. The basic obligation in Resolution 2178 is stipulated in Article 6, according to which the Security Council: decides that all States shall ensure that their domestic laws and regulations establish ­serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense: (a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training, including in connection with armed conflict.35 commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities. It furthermore called upon all states to intensify and accelerate the exchange of information and to cooperate on administrative and judicial matters to prevent the commission of terrorist acts and take action against perpetrators of such acts, etc. The resolution provided no definition of terrorist acts. There is a vast amount of academic analysis of Resolution 1373. 35  Pursuant to Article 6(b) and (c), the Member States’ obligation to criminalise and bring to justice also covers financing and facilitating activities mentioned under (a).

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Further, Member States are urged to employ evidence-based traveller risk assessment and screening procedures including collection and analysis of travel data, and they are called upon to cooperate, including by preventing the radicalisation to terrorism and recruitment of foreign terrorist fighters, preventing foreign terrorist fighters from crossing their borders, disrupting and preventing financial support to foreign terrorist fighters, and developing and implementing prosecution, rehabilitation and reintegration strategies for returning foreign terrorist fighters. Many legal experts have criticised Resolution 2178 for contributing to blur the distinction between war crimes and terrorism beyond the sphere of armed conflict, as Member States are now under an obligation to criminalise certain activities as participation in terrorist acts or terrorist training despite the fact that the aim is to prevent conduct exercised in relation to armed conflict. This blending is unfortunate, because the purpose of and the content of International Humanitarian Law regarding the use of force and rules under public international law regarding preventing and combatting terrorism in peacetime, respectively, are basically different.36 Under International Humanitarian Law, certain forms of resorting to use of force are approved in the course of an armed conflict, while others are prohibited, in an effort to reduce loss of human lives and human suffering caused by wanton display of violence and other excesses, including acts of terror directed against civilians.37 The rules to this effect are binding upon all parties in international as well as non-international armed conflicts. International agreements concerning the prevention and combat of terrorism in peacetime do not rely on a distinction between lawful and illegal use of force. Their aim is to obligate states to engage in international cooperation with regard to certain modes of qualified violence during peacetime by means of rules regarding criminalisation, universal jurisdiction, prosecution, mutual legal aid, etc. In accordance with such international agreements, contracting parties must criminalise activity that is, in some instances, lawful under IHL, including attacks against a government’s or an adversary rebel group’s armed forces during a noninternational armed conflict. Normally, such instruments have a caveat stipulating that they are not applicable with regard to the activities of armed forces during an armed conflict.38 The prevailing opinion in academic literature is that this reservation covers both international and non-international armed conflicts. Besides, the global ‘sectorial’ antiterrorism conventions do not encompass any obligation to criminalise recruitment or training for terrorism.

36 For a thorough account, see Sandra Kraehenmann, Foreign Fighters under International Law (n 25 above), p 19 f and p 61 ff. 37  Under IHL, the concept of terrorism is tied to the prohibition on ‘measures of intimidation or terrorism’ directed at civilians or other protected persons. The concept is intimately connected to the principle of distinction, according to which the protection of civilians against the impact of belligerent activities depends on the ability to distinguish them from combatants. See Geneva Convention IV Art 33, Protocol I Art 51(2), Protocol II Art 4(2)(d), and Art 13(2). 38 See for example conventions regarding hostage taking Art 26(5), terror-bombing Art 19(2), terror-financing Art 2, nuclear terrorism Art 4(2).

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In a series of resolutions adopted in the wake of 9/11, the Security Council has blended the international regulation concerning the prevention of terrorism in peacetime and the governing of armed conflicts. Thus, the sanctions regime concerning al-Qaeda and affiliated entities and individuals includes operators both engaged in armed conflict and directly or indirectly involved in terrorism.39 In the wide-reaching Resolution 1373, there is no caveat regarding armed conflicts. Consequently, neither Denmark nor a number of other states have made exceptions when implementing this resolution into domestic criminal law.40 Resolution 2178 regarding foreign terrorist fighters is tailored to the same pattern and is explicitly directed towards ‘terrorist acts and participation in armed conflicts’. Admittedly, the resolution obliges states to implement their duties under the instrument in accordance with IHL, but this does not imply any limitation with regard to its application in situations including war crimes, eg hostage taking, torturing captives, recruiting child soldiers, grave assaulting of non-combatants, direct attacks on civilians, or actual terrorist acts. Furthermore, Resolution 2178 does not offer any definition of terrorism, but solely refers to previously adopted ‘sectorial’ conventions regarding hijacking, hostage taking, terror-bombing, financing of terrorism, etc. In accordance with the above-mentioned tradition, most of these instruments do not cover acts committed during armed conflict.41 Consequently, the reference to International Humanitarian Law contributes to substantial uncertainty as to the reach of the resolution’s obligations and their compatibility with the principle of legality and otherwise established requirements regarding legal certainty and predictability. In addition, the EU Framework Decision on Combatting Terrorism42 and the Council of Europe 2005 Convention on the Prevention of Terrorism43 exclude

39  The global sanctions regime against al-Qaeda et al was established by Security Council Resolution 1390 of 16.01.2002 that built on Security Council Resolution 1267 of 15.10.1999 and most recently has been maintained by Resolution 2161 of 17.06.2014. In Resolutions 2170 and 2178, it is observed that foreign terrorist fighters and persons who finance or otherwise facilitates such individuals’ travel or subsequent activities can be included in the sanctions list, which actually has happened for individuals affiliated with al-Nusra or ISIL. To follow up on Resolution 1373, the EU has established an autonomous sanctions regime. The academic literature on blacklisting and terrorist lists is abundant. For a contribution by this author, see ‘Terror Financing—Asset Freezing, Human Rights and the ­European Legal Order’ (2011) 2 New Journal of European Criminal Law 175–200. 40  An example regarding a reservation in national criminal law modifying the application of antiterrorism legislation on activities of armed forces during an armed conflict can be found in the Belgian Criminal Code Section 141bis (‘ne s’applique pas aux activités des forces armées en période de conflit armé, tels que définis et régis par le droit international humanitaire’). For an account of Belgian law, see Anne Weyembergh and Celine Cocq ‘Belgium’ in K Roach (eds), Comparative Counter-Terrorism Law (Cambridge University Press 2015) 234–68. 41 An exception is found in the 1973 Convention on crimes against internationally protected persons. 42  See the Council Framework Decision of 13.06.2002 on Combating Terrorism [2002] OJ L164/3, Recital 11. 43  See Council of Europe, Convention on the Prevention of Terrorism (2005) CETS 196, Art 26(5). The Convention has been ratified by 37 Member States; however not by Belgium, the Czech Republic, Georgia, Greece, Iceland, Ireland, Italy, San Marino, Switzerland, or the UK. It was signed by the EU on 22.10.2015.

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the actions of armed forces during periods of armed conflict from the obligations imposed on Member States. By adopting resolutions drafted on the kind of template utilised for the issuing of Resolution 1373 and Resolution 2178, all members and affiliates of certain rebel groups are designated as participants in terrorism. This mode of legislating is rather excessive in comparison with the regulation under International Humanitarian Law. One consequence is that states have become under an obligation to criminalise attacks on military targets, despite such belligerent actions being legitimate under IHL. Furthermore, it leads to an extensive criminalisation of acts related to participation in armed conflict, since the mere acquisition of knowledge and skills concerning handling of weapons and explosives when in the company of a rebel group participating in armed conflict might be interpreted as receiving training for terrorism. Most international antiterrorism agreements do not apply during armed conflict. Neither do they entail obstacles under national criminal law to defining various acts committed in such situations as terrorism or crimes related to terrorism. Thus, in many jurisdictions, international obligations regarding the prevention and combat of terrorism committed in connection with an armed conflict have been implemented by amending common antiterrorism provisions without any distinction between the activities that are prohibited under IHL and those that are not. The immediate impact of such indiscriminate legal action is to establish a protruded legal shield criminalising a broad range of ancillary activities such as financing of, recruiting for, training for terrorism, etc. Under domestic criminal law, there are no legal barriers to criminalising the act of joining an insurgent group or organisation, even though such doings are not as such prohibited under the laws of armed conflict, either for nationals or for foreigners. Prosecuting members and supporters of rebel groups under antiterrorism legislation even blurs the fact that actual terrorist acts affecting civilians during a non-international armed conflict constitute a violation of IHL. Such acts might be covered by the rules regarding war crimes or crimes against humanity under international and possibly under domestic criminal law.44 As a result, the rhetoric of Resolution 2178 is suited to send a misguided signal and to give rise to fallacious notions that might contribute to the glorification of individuals and movements, which consider terrorism to be a legitimate or plainly admirable means to be deployed in an ideologically or politically tainted struggle. 44  Regarding assaults on individuals, who do not participate in hostilities, see the enumeration in Common Article 3, which is assumed to be an expression of customary international law. See also Additional Protocol II Art 4. See further the more extensive codifications in the Rome Statute Art 8(2)(c) and the explanatory Elements of Crimes; the ICTR Statute Art 4; the SCLS Statute Art 3. The leading precedent regarding jurisdiction ratione materiae with respect to international crimes committed in the course of non-international armed conflicts is ICTY Prosecutor v Dusko Tadić, IT-94-1-A, Interlocutory Appeal on Jurisdiction, 02.10.1995. See also icrc.org/customary-ihl: Rule 156, Definition of War Crimes.

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Certain regimes utilise excessive antiterrorism legislation in the fight against local dissident groups and organisations, claiming that the conflict is one between a legitimate government and lawless criminals and terrorists with no rights under International Humanitarian law. The broad and unspecific denunciation of ‘terrorism in all forms and manifestations’ might contribute to legitimising the repression of political opponents and opposition groups, eg Kurds, Chinese Uighurs, Chechens, Palestinians or units under the Free Syrian Army.45 The wide-reaching criminalisation of activities suited to directly or indirectly facilitating terrorist activities during armed conflict might hamper operations by humanitarian organisations to the detriment of civilians and others who do not take an active part in the hostilities. The designation of an insurgent movement as a terrorist organisation can be used by a government to legitimise the refusal to permit aid workers to perform their humanitarian activities in a conflict area. The Syrian government’s position can in this regard serve as an illustration. In the extreme, it could be regarded as a criminal offence under domestic law to offer health or social welfare services to members of a unit belonging to an organisation encompassing a branch responsible for terrorist acts. The International Red Cross has urged that the use of the concept terrorist act in connection with armed conflict should be reserved for activities covered by the prohibition under IHL, and that the concept otherwise should only be tied to acts committed outside of armed conflict: In sum, it is believed that the term ‘terrorist act’ should be used, in the context of armed conflict, only in relation to the few acts specifically designated as such under the treaties of International Humanitarian Law. It should not be used to describe acts that are lawful or not prohibited by IHL. While there is clearly an overlap in terms of the prohibition of attacks against civilians and civilian objects under both IHL and domestic law, it is believed that, overall, there are more disadvantages than advantages to additionally designating such acts as ‘terrorist’ when committed in situations of armed conflict (whether under the relevant international legal framework or under domestic law). Thus, with the exception of the few specific acts of terrorism that may take place in armed conflict, it is submitted that the term ‘act of terrorism’ should be reserved for acts of violence committed outside of armed conflict.46

Other things being equal, it might obstruct peace negotiations and reconciliation processes, if someone’s affiliation with a militant rebel group is simply regarded and treated as complicity in terrorism, and consequently implies the prospect of prosecution under domestic law. The fundamental presumption ought to be that activities that are not considered unlawful under International Humanitarian Law should not be criminalised under domestic antiterrorism legislation, including

45 See likewise former Special Rapporteur on human rights and counter-terrorism, Professor ­Martin Scheinin at www.justsecurity.org. See also Bibi van Ginkel and others at www.icct.nl. 46  See further ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (Chap VI, 2011) 51.

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the mere joining of a rebel group.47 The matter might be more complicated where an insurgent group is involved in a non-international armed conflict and also bears the responsibility for terrorist acts outside the territory of the conflict.48 It is well known that ISIL is responsible for terrorist acts involving returning foreign ­fighters, eg as established with regard to the attacks in Paris on 13 November 2015 and in relation to several subsequent incidents.

VIII.  The Council of Europe—Adopting an Additional Protocol On 19 May 2015, an Additional Protocol to the Council of Europe’s 2005 ­Convention on the Prevention of Terrorism was adopted.49 The principal aim of this instrument is to convey a common European implementation of the obligations stipulated in Security Council Resolution 2178.50 The Protocol supplements the Convention by, inter alia, committing states to criminalising: participation in a terrorist organisation, receiving training for terrorism, travelling abroad or attempting doing so with the aim of participating in terrorism, and financing, organising or otherwise facilitating such travelling.51 The working group that ­prepared the draft Protocol regarded it as inadvisable to criminalise the mere circumstance of ‘being recruited for terrorism’ (‘passive recruitment’). Instead, the Protocol obligates contracting parties to criminalise active participation in a ­terrorist organisation or terrorist group. No such provision exists under Danish law, but as previously mentioned, the Penal Code was amended in 2006 to include articles regarding ‘submitting to being recruited’ and ‘submitting to being trained, instructed or in another manner educated’ for the purpose of terrorism. Contrary to Resolution 2178, the European Convention—and c­ orrespondingly the Additional Protocol—is not applicable in case of armed forces’ activities

47  A number of informative Policy Briefs concerning Resolution 2178 (n 16 above), and initiatives prompted by various countries at www.globalcenter.org. 48  See Sandra Kraehenmann, Foreign Fighters under International Law (n 25 above) 64. 49  (2015) CETS 217. See also the Explanatory Report to the Additional Protocol. The Protocol became open for signatures 21.10.2015. It has been signed by 31 Member States, and was signed by the EU on 22.10.2015. The Protocol’s entry into force requires 6 ratifications, including 4 Member States. It was ratified by Denmark on 03.11.2016 and had previously been ratified by Albania and Monaco. It has since been ratified by Bosnia and Herzegovina, Italy, Latvia, and the Republic of Moldova. 50  See the Explanatory Report at www.coe.int/t/dlapil/codexter. For summaries of the Protocol, see Nicola Piacente, ‘The Contribution of the Council of Europe to the Fight against Foreign Terrorist Fighters: The Draft Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism 2005’ eucrim 1/2015, 12–15, and Kristian Bartholin, ‘The Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism’ eucrim, 3/2015, 124–28. On the 2005 Convention and Danish law, see Jørn Vestergaard (n 5 above). 51  The 2005 Convention obligates participating parties to criminalise incitement, recruitment and training in terrorism.

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during armed conflict. This is paradoxical, since it is the conflict in Syria and Iraq which is the immediate cause for composing the Protocol.52

IX.  The European Union—Proposing a New Directive After 9/11, the Framework Decision on Combatting Terrorism was adopted.53 The Member States agreed to criminalise acts of terrorism and certain preparatory offences, including financing and other forms of facilitating terrorism. Prompted by the adoption of the Council of Europe 2005 Convention, the Framework ­Decision was amended in 2008 to also cover recruiting, training and public provocation for terrorism.54 In view of Security Council Resolution 2178, the Council of Ministers decided to explore the need for expanding the Member States’ obligations to cover even earlier stages of preparatory activities. The Paris attacks on 7 January 2015 gave further cause for reinforcing the available measures in the prevention of extremism and radicalisation, etc.55 In light of incidents culminating in the Paris attacks on 13 November 2015, the Commission presented a proposal for a new directive to replace the existing Framework Decision.56 The proposal specifically targeted the problem concerning foreign terrorist fighters. Its eventual adoption will pave the way for ratification of the Additional Protocol to the European 2005 Convention on the Prevention of Terrorism, which the EU signed in October 2015.

52 Cf the Convention Art 26 (5). See critical comments issued in common statements dated 06.03.2015 and 7.04.2015 by Amnesty International and The International Commission of Jurists. The critical statements by the two organisations lead to the insertion of statements regarding respect for fundamental rights in the Protocol’s Recitals and operative Article 8. See also United Nations, General Assembly, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, United Nations, General Assembly, A/70/371 (2015). 53 Framework Decision on Combating Terrorism 2002/475/JHA, as amended by Framework ­Decision 2008/919/JHA. 54  For a comprehensive account, see Francesca Galli and Anne Weyembergh, EU counter terrorism offences. What impact on national legislation and case law? (Éditions de l’Université de Bruxelles, 2012). 55  An excellent status on the efforts regarding ‘Foreign fighters’ was prepared by Piotr Bakowski and Laura Puccio for the EU Parliament, February 2015. A useful entry by Commissioner for Justice, Consumers and Gender Equality, Véra Jourová, has been published by eucrim 1/2015: www.eucrim. mpicc.de. A comprehensive evaluation of the EU’s antiterrorism initiatives has been conducted by the consortium SECILE, see www.cordis.europa.eu/result/rcn/164039_en.html; see also the summation at www.statswatch.org. 56  Proposal for a Directive of the European Parliament and of the Council on combating terrorism and replacing Council framework Decision 2002/475/JHA on combating terrorism 2015/0281, COM(2015) 625 final, 02.12.2015. After nearly one and a half year’s negotiating, Directive (EU) 2017/541 entered into force on 20.04.2017, see [2017] OJ L88, pp 6–21.

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The Directive proposal inter alia included offences regarding receiving training for terrorism and also dealt with travelling and facilitation, including cross-border travelling within the EU. In addition, the Commission proposed widening of the rules concerning criminal attempt and participation as well as of the rules regarding jurisdiction. Various actors criticised the proposal for imposing extraordinarily wide-reaching obligations without offering the necessary guarantees regarding fundamental rights.57 With regard to the Commission’s quest to criminalise travelling abroad for terrorist purposes, it appeared adequate to agree with at least a number of the LIBE Committee’s suggestions. Thus, the Committee advocated that such activities should only be criminalised when the terrorist purpose of the travel is proven by inferring from ‘objective, factual circumstances’.58 Likewise, the Committee’s suggestion that public provocation by, inter alia, glorification or justification, should be criminalised only when it causes a danger ‘in a concrete case’ that a terrorist offence may be committed, seemed sensible.59 The LIBE Committee also pointed to the importance of providing effective ­de-radicalisation and exit programmes.60 Originally, the proposal did not repeat the caveat included in the Framework Decision Recital 11, modifying its scope of application by excluding armed forces activities during armed conflict. Subsequently, this shortcoming has been ­remedied.61 Member States will keep a certain margin of appreciation, under which they may exclude certain activities conducted during an armed conflict and not violating IHL. Proposed new antiterrorism legislation under Swedish law includes a caveat exempting its application with regard to situations during which an organisation participating in armed conflict does not violate International Humanitarian Law.62

57 See for example an opinion from the Parliament’s Economic and Social Committee, EUT C177/51. See also Meijers Committee, Note on a Proposal for a Directive on combating terrorism (2016). On 09.03.2016, a majority decision was taken by the British Parliament not to opt-in on the proposed directive. 58  See suggested amendment to Recital 8 and operative Articles 3(2)(i) and 9 of the draft Directive, Report of 12.07.2016, Committee on Civil Liberties, Home and Justice Affairs, A8-0228/2016. Such a requirement has been inserted in Recitals 8 and 17 of the Directive. 59  See suggested amendments to Recital 7 and operative Article 5 of the draft Directive, ibid. Such a requirement has been stipulated in Recital 10 of the Directive. 60  See the suggested amendment of a new Recital 17c to the draft Directive, ibid. A dedication to a comprehensive prevention approach has been stated in Recital 31 to the Directive with a reference to inter alia the EU Strategy for Combating Radicalisation and Recruitment to Terrorism of 2014. 61  Regarding the addition of a proposed Recital 19a, see the Council’s documents ‘Examination of the Revised text’ of 12.02.2016 and 23.02.2016, ‘General approach’ of 03.03.2016, and ‘[E]xchange of views on the LIBE orientation vote’ of 15.07.2016. The caveat has been established in Recital 37 of the Directive. 62  SOU 2016:40 on criminal law measures against participation in an armed conflict for the support of a terrorist organisation (‘Straffrättsliga åtgärder mot deltagande i en väpnad konflikt till stöd för en terroristorganisation’). It is observed in the report that the application for this kind of excuse will be rather limited.

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Due to the Danish reservation regarding JHA matters, the adoption of the Proposal will not be binding upon Denmark as a Member State. The Framework Decision will remain in force with respect to Denmark. Largely, it can be assumed that Danish law is already compatible with the obligations enumerated in the proposed directive.

X.  Introducing a Ban on Travelling to and Remaining in Conflict Zones In late 2014, Centre-Right politicians in Denmark called for initiatives to criminalise travelling to and staying in certain conflict zones. The demand for such legislation was driven by right-wing opposition parties, but the Government, which was at that time headed by Social Democrats, responded reluctantly. Inspiration came from new legislation recently enacted in Australia with the aim of targeting foreign fighters before departure and after return by setting up special provisions allowing overseas conflict zones to be declared as no-go zones.63 Under Australian law, a new offence criminalises travel to any area designated as a no-go zone by the Minister for Foreign Affairs on the grounds that a terrorist organisation operates within this area. The broad designation power allows the prescription of entire countries, or regions spanning two or more countries. The offence carries a maximum penalty of 10 years’ imprisonment. An exhaustive list of specific defences is included in the legislation, and covers situations where a person’s reason for visiting the designated area can be considered as a ‘legitimate purpose’ such as bona fide visits to family members, performing humanitarian aid work, or undertaking official or journalistic duties. The discretion of the judiciary to consider an accused person’s legitimate purposes for travel is limited, and the onus to satisfy the evidential burden that travel was for a legitimate purpose rests with the suspect. Individuals who return to Australia accused on reasonable grounds of engaging in ‘hostile activities’ overseas can be subjected to control orders, if a court is satisfied that the controls are ‘reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act’. These control orders can foresee measures such as overnight curfews, reporting requirements and substantial phone and internet restrictions. Until recently, Australia was the sole country where such legislation had been adopted.64 So far, Raqqa in Syria and Mosul in Iraq have been designated as declared areas.

63  The Additional Protocol 2015 to the European Convention 2005 (n 16 above) does not require states to introduce such schemes. In a statement of 17.10.2014, the Norwegian Attorney General suggested introducing legislation authorising the Government to designate certain armed conflicts in order to forbid Norwegian citizens and foreigners living in Norway to join a party in the conflict. 64  Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Sections 119.2 and 119.3.

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The Danish Permanent Penal Committee was requested to analyse if further criminalisation under Danish law was needed, especially whether some sort of prohibition on travel to conflict zones should be enacted. In early 2016, the Committee delivered a report regarding criminalising participation in an armed conflict abroad, irrespective of whether Denmark is involved in the particular situation.65 As a general understanding, the Committee stated that Danish law fully complies with the requirements of Security Resolution 2178 and the Additional Protocol to the 2005 Council of Europe Convention on the Prevention of Terrorism, implying that none of these documents motivates amendments to the Penal Code. Furthermore, the Committee found no cause for introducing a separate article in order to criminalise travelling abroad for the purpose of being involved in terrorism, since such preparatory activities would already be punishable as inchoate or preparatory offences under the Penal Code’s general and very broad rules regarding criminal attempt and participation. Basically, the Committee considered criminalising the mere entry into or remaining in a conflict zone to be an excessive measure, irrespective of the particular modality of such a possible regulation and its corresponding exemptions. The Committee considered that such a ban means that a person will be punishable for activities that do not necessarily imply any substantiated risk of violence or any proven adverse impact. The fundamental dilemma is that such a regulation would either be so strict that it curtails some objectively legitimate travelling to and residing in certain areas or it would allow for such broad exceptions that no added value to existing prohibitions is achieved. There is a risk that a ban in some cases will afflict ordinary law-abiding citizens instead of individuals aiming to join an armed group. Basically, the Committee questioned whether the benefits of such an injunction are reasonably proportional to the inconveniences affecting individuals’ freedom of movement and the increase in red tape. Furthermore, the Committee found it unlikely that a ban on travelling and remaining in conflict zones is suited to preventing participation in armed conflict abroad. Courts can be expected to assess the seriousness of an unqualified violation of a travel ban by entering or remaining in a no-go zone without a proper permit from the Danish authorities as relatively light. Even with a statutory sentencing maximum of six years’ imprisonment, the penalty in specific instances will be much more lenient than in cases regarding terrorism or treason, typically a fine or a short prison term. Individuals with a strong commitment to the cause they want to fight for are not likely to be deterred by the risk of punishment, in particular as the sanction inevitably must be more lenient than the penalty for actually unlawfully joining an armed force. In many instances, it will even be difficult to prove violations, no matter how the regulation is constructed.

65  The Permanent Penal Committee’s report 1559, 2016 on armed conflicts abroad (‘Straffelovrådets betænkning om væbnede konflikter i udlandet’).

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Dutifully, the Penal Committee indicated various possible schemes, but basically did not find any such kind of prohibition recommendable. In the light of the Committee’s fundamental disclaimers, it chose to abstain from advocating one particular mode of possible prohibition, and instead it drew up a number of varying modalities supplemented by a description of their distinct advantages and disadvantages. Despite the Committee’s reservations, the Minister of Justice, Mr Søren Pind, decided to present a draft Bill containing a proposal to insert an article in the Penal Code by which the Minister would be authorised to designate a particular geographical area as a no-go zone. During the very busy closing session immediately before Parliament’s summer recess, the Minister’s Bill to that effect was passed without much attention or debate.66 The meek reservations voiced by a minority of politicians concerned with civil liberties resulted only in a superfluous amendment allowing Parliament to revoke a specific decision by the Minister of Justice regarding the designation of a certain area as affected by a travel ban. The Minister’s draft proposal was presented on the very same day that the Committee’s 256-page report was published. Because of the timing, there was scant opportunity for other politicians and the public to familiarise themselves with the Committee’s analysis and reservations, let alone time for sober reflection. In addition, it was not very tempting for any politician to object, considering the fact that just the previous day vast media attention had been devoted to the swift arrest of a number of individuals accused of having travelled to Syria as foreign fighters at one or other point in time. The draft proposal immediately gained univocal political support. The mentioned police action resulted in the arrest of a total of nine persons, five of these in absentia, the others incarcerated in pre-trial detention. The preliminary hearings were held in camera, so public information regarding the charges was minimal. However, it might be considered a paradox that a proposal for extended restrictions was promoted at the exact same time that provisions already in existence were demonstrated to obviously serve their purpose rather effectively. The outcome of one of the cases will be dealt with later in this chapter. According to the new rules, travelling to and residing in a designated area where a terrorist group is a party in an armed conflict requires prior permission.67 Upon application, a permit may be issued provided that the purpose of the journey or stay is considered sufficiently proper.68 A licence can be issued not only to certain 66  The introduction of a new provision in PC Section 114 j was enacted by Parliament’s Act 642, 2016. Violation is punishable by imprisonment up to 6 years. In addition, the maximum penalty for recruitment to or facilitation of terrorism was increased from 6 years’ to 10 years’ imprisonment and increased to 16 years’ imprisonment if the person has participated in armed combat. Under newly enacted Swedish law, the ordinary maximum for such an offence is imprisonment up to 2 years; if the crime is serious, a sentence of imprisonment for at least 6 months and at most 6 years may be imposed. 67  On the basis of consultations with the Foreign Minister and the Minister of Defence, the Minister of Justice can designate a particular area where a terrorist group is involved in armed conflict. 68  Travel and stay in a designated area by Danish, foreign or international public servants may take place without prior authorisation.

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individuals but also to collectives of persons due to their affiliation to a particular business or organisation, eg a media enterprise. Criminal liability requires merely that the concerned individual has travelled to or stayed in a prescribed no-go zone without relevant permission. It is not necessary to prove that the person in question has violated any other prohibition, eg antiterrorism provisions or the treason article. The application procedure is going to be cumbersome, and errors can hardly be avoided in the administrative assessment of the legitimacy of the travel purpose.69 The potential for innocent people to be affected is imminent, and as no particular procedural relief regarding access to judicial review has been granted, the likelihood that objectively wrong estimates will be corrected by court review is slim. The article is likely to have the chilling effect of discouraging people from travelling to designated areas, even when they wish to do so for innocuous reasons and have no intention of participating in foreign conflicts. Fundamentally, a general requirement for preapproval of travelling to or staying in a particular area abroad raises concerns regarding certain human rights. Article 2 of Protocol No 4 to the ECHR as well as Article 12 of the International Covenant on Civil and Political Rights allow only for narrow exceptions with regard to the right to travel. In the explanatory memorandum to the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, it is emphasised that said article is only concerned with criminalisation of travelling ‘under very particular conditions’. The memo goes on by adding the following accentuation: That these conditions are met in a concrete case must be proven … through evidence submitted to an independent court for scrutiny … In order for a Party to criminalise behaviour under Article 4 of the Protocol … the real purpose of the travel must be for the perpetrator to commit or participate in terrorist offences, or to receive or provide training for terrorism …70

Thus, it is questionable whether the courts in Denmark or the Strasbourg court would consider the application of a general travel ban to be compatible with ECHR requirements. The author of this chapter pointed this potential problem out to the Ministry of Justice during the hearing process before the final adoption of the proposed Bill. The Ministry’s reply was a blank and not very meaningful reference to a general statement that the measure is motivated by important societal interests, ie national

69  The Government expects to be issuing an administrative Regulation in the course of September 2016 regarding the implementation of the travel restrictions. When media coverage appeared in the summer of 2016 regarding an apparent increase in the frequency of young women travelling to Syria, it was criticised that the law was not expediently implemented already when the new article was enacted in early June. 70  Explanatory Report to the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (Riga October 2015), paras 47–48. Art 4 of the Protocol provides the legal framework for facilitating the implementation of a ban on travelling abroad for the purpose of terrorism as required by Security Council Resolution 2178 (n 16 above), Para 6(a).

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security, public safety and prevention of crime, and that the legislation is therefore not disproportionate with regard to its stated purpose.71

XI.  The First Conviction by Danish Courts of a Syrian-Traveller Due to a perceived lack of sufficient evidence against suspected foreign fighters returning from Syria, the Danish prosecution service did not until very recently become able to produce an indictment concerning violation of antiterrorism ­legislation, etc. Formally, the Danish Minister of Justice is in charge of public prosecution. In principle, this implies that the Minister is vested with the power to issue instructions to the Director of Public Prosecutions (Rigsadvokaten), even regarding the specific handling of concrete cases. Traditionally, this authority is exercised with considerable restraint, meaning that the Minister in office does not normally interfere in decisions as to whether or not someone should be indicted in a particular instance. Thus, despite continuous public pressure from the political right, previous Social Democratic justice ministers persistently maintained as a matter of principle that such decisions ought to be left to the professional discretion practised by the prosecutorial system. In the summer of 2015, the previously mentioned change in Government generated a new approach to the issue of enforcing provisions regarding terrorism, etc, and the situation was then altered significantly. Now, the newly appointed Minister of Justice, Mr Søren Pind, set a revised agenda for implementing criminal justice measures in the fight against terrorism. In his former opposition days, he had been one of the very outspoken and impatient advocates for a more rigorous mode of suppressing activities related to terrorism. As previously mentioned, he had vigorously acted as one of the leading partisans for the firm position that affiliation with an adversary armed force during an armed conflict involving D ­ enmark must be severely punishable as an act of treason, and after taking office, he promoted the new legislation to that effect and concerning no-go zones. Now, a special task force was established under the Director of Public Prosecutions. The purpose of this initiative was to pinpoint cases suited for indictment for perpetration of offences related to terrorism. This effort entailed a significant momentum to a determined push in the investigation and screening of potential court cases and the judicial enforcement of the criminal law. Consequently, several individuals were charged under various criminal provisions, including facilitation of terrorism by affiliation with ISIL, public glorification of terrorism, etc. Additional fuel to further prosecutorial initiatives materialised when data files containing systematic membership information registered by ISIL were published. 71 

Ministry of Justice brief 04.05.2016.

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Jørn Vestergaard

The materials emerged in March 2016 when a renegade affiliate of ISIL delivered a USB-device storing confidential records to Sky-News. The documents held forms completed with personal details regarding more than 1,700 individuals from a large number of countries, including at least 12 jihadists from Denmark, according to media accounts. Consequently, a more solid foundation had materialised for building cases against persons suspected of having submitted themselves to being recruited by ISIL. As already mentioned, recruiting as well as the act of being recruited for terrorism became criminal offences under Danish law as early as 2006. However, no part of the provision to that effect had until recently been in use in a criminal case. The relevant parts of the leaked ISIL materials were to be incorporated into the evidence against a 23-year old Turkish-Danish male, who back in December 2015 had been charged with violations of antiterrorism provisions, including by letting himself be recruited by ISIL.72 According to the indictment, he had at one time been to Syria, where he joined ISIL, and he was furthermore suspected of planning another similar trip, which was averted when he was arrested in March 2015. His passport was then confiscated. In addition, the police seized 20,000 DKK, which he allegedly intended to bring along to Syria and donate to ISIL, and for this, he was also indicted for attempted financing of terrorism. According to the court record, the defendant had made a first flight trip to Istanbul in July 2013.73 From there he went to Kilis and took a taxi to the Syrian border where he met a contact person who smuggled the defendant and others into Syria. They were then picked up in cars by someone from ISIL. After a couple of days, the defendant started working, but a short time afterwards he decided to leave, and he then travelled back to Turkey. In August 2013, he once again went on a similar journey to Syria. He was accepted by ISIL and took up work, for which he was paid $300–400 per month. He testified in court that he had been employed in a bakery and that he delivered food to people and cooked for those that he lived with. He maintained that he did not receive training in arms usage. On arrival the second time he took part in the completion of a formula designed for registering personal data. An exhibit presented in court revealed that he had been indexed as ‘fighter’, and that an equal capacity had been attributed to him in a box regarding the person’s speciality. Concerning this information, the defendant explained that there had simply not been a more adequate option, as the selection of answering choices only covered ‘martyr’, ‘bomb belt-bearer’ and ‘fighter’. Among the defendant’s belongings, the police had recovered a photo of him in front of an ISIL banner where he was posing with AK47-rifles and the text ‘Abu Aya Al-Kurdi’ and ‘No honour without Jihad’. He insisted that he had solely wanted to brag. 72  Mid-2016, an additional six individuals were still under pre-trial custody under suspicion of having been recruited for terrorism. 73  Judgment by Glostrup Municipal Court, 24.06.2016, case no 15-570/2016.

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The Municipal court rejected the defendant’s allegations regarding his work activities as incoherent, muddled and illogical. Consequently, the court found him guilty of joining ISIL and of receiving weapons training. Further, the defendant was found guilty as charged with regard to the financing of terrorism.74 In addition, the defendant was convicted of glorifying terrorism.75 In a ­Facebook-group entitled ‘Allah knows best’ including 17,000 followers, he had posted edited video footage showing a hearse bearing the coffin at the funeral service for Omar El-Hussein, the young Muslim responsible for the Copenhagen shootings in February 2015. The defendant was deemed responsible for the text: ‘Wallah this man has shaken Denmark MashAllah. And support your brother. May we in shaa Allah have more brothers like Omar. Who sacrificed his life for Allah and his prophet’. The judges and jurors in the Municipal court unanimously voted for sentencing the defendant to seven years’ imprisonment, which was actually one year more than called for by the prosecutor. Due to the defendant’s lack of relations with Turkish society, the court decided not to deprive him of his Danish citizenship. On appellate review, the Eastern High Court upheld the conviction and complied with the prosecutor’s plea for revocation of citizenship and for banishment, but lowered the sentence to six years’ imprisonment.76 The defendant has since been granted leave for partial appellate review of the sanctions issues, and the case is currently pending before the Supreme Court.77 Another six individuals are currently held in pre-trial custody on suspicion of associating with ISIL as foreign fighters. Other suspects have been arrested in absentia.

XII.  Looking Back—Looking Forward The trouble with restraining the flow of more or less radicalised individuals ­travelling abroad to join terrorist groups and organisations and with bringing foreign fighters to justice has not been rooted in a lack of adequate penal provisions. Largely, criminal legislation to that effect has been plentiful all along, at least 74  Regarding the first trip to Syria, one of the six jurors did not find sufficient evidence that the defendant had received weapons training, but this juror concurred as far as the main indictment regarding training for terrorism was concerned. One juror voted for acquittal with regard to financing of terrorism. 75  In early 2016, a young man was sentenced to 6 months’ imprisonment for violation of PC Section 136 (1) by posting a link on Facebook to a video-recording of a speech by a representative for ISIL who prompted attacks and killings on citizens from the coalition fighting ISIL. Furthermore, the defendant was convicted for violation of PC Section 136 (2) by glorifying he attack on Charlie Hebdo. The judgment is recorded in U 2016.1743 Ø. 76  Judgment by the Eastern High Court, 31.03.2017, case no S-1922-2016. 77  Permission regarding third instance appellate review granted by the Appeals Permissions Board (Procesbevillingsnævnet), 08.06.2017, case no 2017-25-0100.

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under Danish law. Moreover, the Passport Code and the Foreigners Act have been amended in order to require authorisation for outward passage by individuals under suspicion of being potential foreign fighters. The recently introduced provisions regarding no-go conflict zones have completed the criminal law response. Furthermore, both national rules and EU rules on security agencies’ access to PNR information regarding passengers have been enacted. In addition, the Danish Military Intelligence Service has been authorised to conduct surveillance and interception of Danish citizens abroad outside the country. Ceteris paribus, the challenge of detecting, investigating and prosecuting perpetrators violating antiterrorism provisions or committing other more or less serious crimes while associated with militant or terrorist groups is met by rather comprehensive legislation. Obviously, however, the application of criminal justice measures and other forms of restraining or repressive tools offers no efficient deterrent or guarantee for an adequate justice response and thus cannot be the only or definitive answer to the challenges presented by foreign fighters. All accessible information clearly indicates that radicalised individuals who are aroused and committed to their cause do not respond to threats of punishment but are in fact willing and ready to burn bridges to ordinary everyday life and even risk their lives in dauntless pursue of excitement, affirmation of individual identity, commitment to a cause, etc. Neither legislation nor other measures can close all loopholes for the most persistent and energetic individuals, who relatively easily may find travel routes and be able to keep under the radar. Furthermore, a rigid law enforcement scheme is counterproductive, since it contributes to undermining the opportunity to address lost souls who only temporarily have gone astray and to bring them back to ordinary society. In less serious instances and in cases where prosecution is not an option, diversion alternatives aiming at reintegration should be available as an alternative to imprisonment, especially considering the risk of further radicalisation when serving a prison term. In addition, an individual stigmatised as a foreign fighter facing criminal trial after returning will have less incentive to come back at all and less motivation to comply with the law of armed conflict. It is of the utmost importance to strike a just and adequate balance between an ever-more expanding criminal justice response to the threat of terrorism and a social welfare reintegration approach to the prevention of various activities by foreign fighters. The value and importance of developing and ­prioritising de-­ radicalisation and exit programmes deserves further consideration and exploration. From a civil rights perspective, the categorical drive by national politicians to apply criminal justice measures and other repressive remedies indiscriminately in order to cope with returning foreign terrorist fighters as understood in a very broad sense is worrying. At least in instances where there is no compelling evidence that the individual in question has personally been directly involved in terrorism or other types of international crimes, the wiser approach is the one represented by the Aarhus rehabilitation model and like schemes.

17 A New Hope? The Court of Justice Restores the Balance Between Fundamental Rights Protection and Enforcement Demands in the European Arrest Warrant System LEANDRO MANCANO*

I. Introduction The European Arrest Warrant Framework Decision (EAW FD)1 is the first and most prominent instrument of mutual recognition in criminal matters adopted by the European Union (EU). As is known, such a principle was firstly elaborated and applied in different contexts (the internal market and civil justice). In criminal justice, mutual recognition applies to judicial cooperation, and implies that a judicial order issued by one Member State to another Member State is recognised by the latter without further burdens or formalities, unless grounds for refusal apply. This principle is based in turn on the principle of mutual trust, according to which Member States are presumed to respect fundamental rights. The EAW FD, aiming to replace the previous system of extradition with a smoother mechanism of surrender as between Member States, has had an interesting life, to say the least. Prioritised in the EU agenda after the 9/11 attack on the World Trade Center, it has given rise to a heated debate among scholars, practitioners and institutions. Its implementation at national level has been highly controversial. On the one hand, the Framework Decision—mostly, national laws of transposition—has been challenged before several Constitutional Courts. On the other hand, Member States have tried to limit the ground-breaking impact of the FD, for example by introducing grounds for refusal in the implementing

* 

1 

The author may be contacted at [email protected]. Council Framework Decision (JHA) No 584/2002 [2002] OJ L190/1.

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laws other than those provided for in the FD. The practice of the EAW over the years has resulted in serious concerns with regard to fundamental rights’ protection. Preoccupations and criticisms were fed by the interpretation provided by the Court of Justice of the EU (‘CJEU’ or the ‘Court’), which has often favoured an approach much focused on enforcement demands, at the expense of individual rights. The legally-binding character taken on by the EU Charter of Fundamental Rights (‘the Charter’ or ‘CFREU’), on the basis of Article 6 Treaty EU (TEU), offered further arguments to those hoping for a more balanced approach on the part of the Court. In this chapter, it is argued that that hope is not vain, as the CJEU’s understanding of the EAW FD is restoring the balance between effectiveness of judicial cooperation and fundamental rights protection. In particular, two eras in the Court’s case law on the EAW FD can be distinguished. In a first phase, beginning with Advocaten voor de Wereld2 (the first preliminary ruling issued on the EAW FD), the CJEU mainly focused on the effectiveness objective pursued by the FD. This line of case law has been strongly criticised for paying little attention to individual guarantees. The apex, and last episode, of this first saga is constituted by the Radu3 and Melloni4 judgments. As explained in detail above, these are the cases where the sacrifice of individual rights on the altar of primacy, unity and effectiveness of EU law was most evident. However, these rulings also represent a turning point, in the sense that since then the Court has progressively refined its approach to the EAW FD, and increasingly balanced enforcement demands with rights protection. The main focus of this chapter is on the second phase of the Court’s case law. In order to verify that the hope of a more balanced approach is being satisfied by the CJEU, the chapter is structured as follows. In the first section, the principles of mutual trust and mutual recognition are discussed, as well as their relation with the system of fundamental rights protection in EU law. In the second section, the main features of the EAW FD are outlined, with a specific focus on the provisions relevant to the judgments analysed in this chapter. In the third section, the two eras of the CJEU’s case law are dealt with. As the centre of gravity of the chapter is the second phase, the first phase will be briefly outlined, in order to give an idea of how the CJEU’s approach is shifting to a more balanced interpretation of the FD. In particular, the Radu and Melloni judgments will be presented. In fact, they perfectly embody the CJEU’s stance in the first saga. Then, the second era is extensively discussed, where the CJEU was confronted with crucial aspects of the EAW mechanism: time-limits for the execution and right to be released (Jeremy5 and Lanigan6); detention conditions and possibility to refuse

2 

Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad, EU:C:2007:261. C-396/11 Proceedings relating to the execution of European arrest warrants issued against ­Ciprian Vasile Radu, EU:C:2013:39. 4  Case C-399/11 Stefano Melloni v Ministerio Fiscal, EU:C:2013:107. 5  Case C-168/13 PPU Jeremy F v Premier ministre, EU:C:2013:358. 6  Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan, EU:C:2015:474. 3 Case

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the EAW execution (Aranyosi and Căldăraru7); the concept of deprivation of liberty (JZ8); summons and trial in absentia (Dworzecki9); the relationship between national arrest warrant and EAW (Bob-Dogi10); the issue of EAWs and non-­judicial authority (Poltorak,11 Kovalkovas12 and Özçelik13). Two main ‘strategies’ are outlined, whereby the Court is giving individual rights increased weigh in the context of EAW procedures. Firstly, the Luxembourg judges are redefining the role of mutual trust. In the ‘first-phase’ judgments, mutual trust, as a presumption that Member States respect fundamental rights, was used to set aside limitations to the operation of the EAW grounded on individual rights ­violations. In the second phase, mutual trust is not merely presumed, but is to be supported by and built through the daily practice of the EAW system. Secondly, the CJEU is achieving this new balance by means of a flexible approach between EU and national laws and practices. Three scenarios can be identified in this respect. In the first scenario, the Court sees the term whose interpretation is requested by the national court as an autonomous concept of EU law. By doing so, the ­Luxembourg judges limit national autonomy for the purposes of guaranteeing a higher level of individual rights protection. In the second scenario, national practices are seen as incompatible with the EAW FD, as they are not capable of guaranteeing an adequate level of individual rights protection. In the third scenario, the Court interprets the term subject to interpretation as an autonomous concept of EU law, but leave the door open to the application of a higher standard of protection at national level. The conclusions reveal that the Court is actually reconsidering its approach to the EAW FD, and rights protection is increasingly balancing the need for effective implementation of judicial cooperation in criminal matters.

II.  Mutual Trust and Mutual Recognition As is known, mutual recognition in criminal matters is a principle borrowed from the law of the internal market, where it was introduced by the Cassis de Dijon judgment of the ECJ.14 It requires that a product lawfully produced and marketed in one Member State should be capable of being marketed in another Member State, 7  Case C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen, EU:C:2016:198. 8  Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź-Śródmieście, EU:C:2016:610. 9  Case C-108/16 PPU Openbaar Ministerie v Paweł Dworzecki, EU:C:2016:346. 10  Case C-241/15 Niculaie Aurel Bob-Dogi, EU:C:2016:385. 11  Case C-452/16 PPU Openbaar Ministerie v Krzysztof Marek Poltorak, EU:C:2016:858. 12  Case C-477/16 PPU Openbaar Ministerie v Ruslanas Kovalkovas, EU:C:2016:861. 13  Case C-453/16 PPU Openbaar Ministerie v Halil Ibrahim Özçelik, EU:C:2016:860. 14  Case C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) EU:C:1979:42. K Armstrong, ‘Mutual Recognition’ in C Barnard and J Scott (eds), The Law of the Single European Market. Unpacking the Premises (Hart Publishing, 2002) 225–68; J Snell, ‘The Internal ­Market and the Philosophies of Market Integration’ in C Barnard and S Peers (eds), European Union Law (Oxford University Press, 2004) 300–23.

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unless grounds for refusal apply.15 The 1999 Tampere Council adopted the principle of mutual recognition as the cornerstone of judicial cooperation in criminal matters. In criminal law, mutual recognition is used to step up judicial cooperation between Member States within the EU: according to this principle, a judicial order issued by one Member State is to be recognised and executed by another Member State, save where grounds for refusal apply. However, the principle of mutual recognition had already been applied to judicial cooperation in civil justice, where a number of international law instruments had been adopted over the previous decades.16 Examples in this respect are the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, and the 1988 Lugano Convention, which extended the application of the Brussels Convention to certain States members of the European Free Trade Association.17 The principle of mutual recognition streamlines the previous system of extradition, by introducing a higher level of automaticity in inter-state cooperation in criminal matters.18 It does so by means of three main novelties: firstly, it abolishes the principle of dual criminality (although not in all cases); secondly, it allocates the responsibility for the surrender to judicial rather than political authorities; thirdly, it (almost completely) drops the prohibition for a state to extradite its own nationals (also referred to as ‘nationality exception’ or ‘nationality ban’).19 The cooperation on a given order (arrest warrant, probation measure, custodial sentence and the like) is regulated by specific legislative instruments adopted at EU law level. The application of mutual recognition to criminal law has drawn criticism over the years, with major concerns being voiced about the inadequate level of individual safeguards.20 15 A Rosas, ‘Life after Dassonville and Cassis: Evolution but No Revolution’ in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing, 2010) 433–46; C Barnard, The Substantive Law of the EU: The Four Freedoms, 4th edn (Oxford University Press, 2013) 171–77; C Janssen, The Principle of Mutual ­Recognition in EU Law (Oxford University Press, 2013) 31 onwards. 16  Council Draft Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters [2001] OJ C12/1, p 2 onwards. 17  Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1968] OJ L299/32. 18 For a diachronic analysis, see S Miettinen, ‘Onward Transfer under the European Arrest Warrant: Is the EU Moving Towards the Free Movement of Prisoners?’ (2013) 5 New Journal of ­European Criminal Law 99. 19  M Fichera, ‘The European Arrest Warrant and the Sovereign State: A Marriage of ­Convenience?’ (2009) 15 European Law Journal 79; M Platcha, ‘Non-Extradition of Nationals: A Never-Ending Story?’ (1999) 13 Emory International Law Review 77; Z Deen-Racsmány and R Blekxtoon, ‘The Decline of the Nationality Exception in European Extradition? The Impact of the ­Regulation of (Non-) Surrender of Nationals and Dual Criminality under the European Arrest ­Warrant’ (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 317. 20  G Vernimmen-Van Tiggelen et al (eds), The Future of Mutual Recognition in Criminal Matters in the European Union (Editions de l’Université de Bruxelles, 2009); V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 Common Market Law Review 1277; S Peers, ‘Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong?’ (2004) 41 Common Market Law Review 5; S Lavenex, ‘Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy’ (2007) 14 Journal of European Public Policy 762.

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Indeed, mutual recognition in criminal matters (and not only) implies the extraterritoriality of Member States’ rules and standards, as well as a higher level of automaticity in judicial cooperation.21 This may happen only in the context of a general feeling of mutual trust among Member States.22 Broadly speaking, mutual trust refers to a sociological perspective, which sees trust as a tool to deal with social complexity, when there are certain values shared within a community, so as to create expectation of regular and honest behaviour.23 In EU criminal law, mutual trust rests on the presumption that Member States act in compliance with fundamental rights.24 To this end, Article 6 Treaty on European Union (TEU) stipulates that the Charter has the same value as the Treaty, on the one hand; on the other, fundamental rights, as guaranteed by the European Convention of Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union law.25 In the context of this threefold system of fundamental rights protection (CFREU, ECHR, national traditions), the importance of mutual recognition materialises at three levels: a vertical perspective, which raises the issue as to which kind of fundamental rights standard should be applied (that of the Union or that of the Member State); a horizontal dimension, posing the question as to whether a presumption of compliance with fundamental rights by the Member State may be maintained; and the EU level, where a Union norm is reviewed against the yardstick of fundamental rights. In the vertical dimension, the most problematic issue has so far concerned the definition of the scope of application of the Charter: whether it binds Member States when they implement EU law (as stated in Article 51(1) CFREU), or when they act in the scope of Union law (according to the wording of the ­Explanations).26 A heated debate flourished, fuelled by highly 21  On mutual recognition and extraterritoriality, see K Nicolaidis and G Shaffer, ­ ‘Transnational Mutual Recognition Regimes: Governance without Global Government’ (2005) 68 Law and ­Contemporary Problems 263. 22  Case C-47/76 WJG Bauhuis v The Netherlands State,] EU:C:1977:6; Case C-25/88 Criminal proceedings against Esther Renée Bouchara, née Wurmser, and Norlaine SA, EU:C:1989:187; Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland), EU:C:1996:205. 23  Niklas Luhmann, La Fiducia (il Mulino, 2002); Francis Fukuyama, Trust: The Social Virtues and The Creation of Prosperity (Penguin, 1995); Giandomenico Majone (ed), Regulating Europe (Routledge, 1996). 24 D Flore, ‘La Notion de Confiance Mutuelle: L’ “alpha” ou l’ “oméga” d’une Justice Pénale ­Européenne?’ in G De Kerchove and A Weyembergh (eds), La Confiance Mutuelle Dans L’espace Pénal Européen—Mutual Trust in the European Criminal Area (Éditions de l’Université de Bruxelles, 2005) 17–28; V Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319. 25  S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645; F Fabbrini, Fundamental Rights in Europe (Oxford University Press, 2014). 26  See, among many, A Knook, ‘The Court, the Charter and the Vertical Division of Powers in the European Union’ (2005) 42 Common Market Law Review 367; K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375; J HH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403; P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 Common Market Law Review 945.

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contested judgments of the Court of Justice.27 The horizontal dimension takes the shape of the duty, for the executing Member State, to recognise the standard of fundamental rights protection of the issuing Member State as equivalent to its own standard.28 However, the CJEU has found that this presumption is a refutable one, and that a conclusive presumption would be incompatible with EU law.29 As shown below, the Court has recently confirmed this approach in the Căldăraru judgment.30 In this case, the Luxembourg judge acknowledged the possibility to postpone and bring to an end the implementation of the EAW where there is a serious risk that the person concerned will be subject to inhumane treatment in the issuing Member State. The third scenario concerns the possible review of EU law against the benchmark of fundamental rights. Here, the compliance of EU norms with fundamental rights is at stake. For the purposes of this chapter, the Advocaten voor de Wereld case is worth referring to.31 The Court upheld the compatibility of the EAW FD with Article 6(2) TEU, and in particular with the principle of legality. The CJEU argued that the aim of the FD is to provide Member States with a procedural instrument, and not to harmonise national regimes of substantive criminal law. Indeed, it is still for Member States to define criminal offences and related penalties.32 27  Melloni v Ministerio Fiscal (n 4 above) EU:C:2013:107; Case C-617/10 Åklagaren v Hans Åkerberg Fransson, EU:C:2013:105; Case C-206/13 Cruciano Siragusa v Regione Sicilia—­Soprintendenza Beni Culturali e Ambientali di Palermo, EU:C:2014:126. F Fontanelli, ‘Implementation of EU Law through Domestic Measures after Fransson: the Court of Justice Buys Time and “Non-preclusion” Troubles Loom Large’ (2014) 39 European Law Review 782; L Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 European Law Review 531; A Torres Pérez, ­‘Melloni in Three Acts: From Dialogue to Monologue’ (2014) 10 European Constitutional Law Review 308; G Cavallone, ‘European Arrest Warrant and Fundamental Rights in Decisions Rendered in Absentia: The Extent of Union Law in the Case C-399/11 Melloni v Ministerio Fiscal’ (2014) 4 European Criminal Law Review 19; N de Boer, ‘Addressing Rights Divergences under the Charter: Melloni’ (2013) 50 Common Market Law Review 1083. 28 See in particular Joined cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin ­Gözütok and Klaus Brügge, EU:C:2003:87, para 33. 29  See Joined cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Judgment of the Court of 21 December 2011, EU:C:2011:865, para 190. 30  Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen (n 7 above) ECLI:EU: C:2016:198. 31  G de Burca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20 Maastricht Journal of European and Comparative Law 13; F Fontanelli, ‘National Measures and the Application of the EU Charter of Fundamental Rights—Does Curia. eu Know Iura.eu?’ (2014) 14 Human Rights Law Review 231; F Fontanelli, ‘The Implementation of ­European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights’ (2014) 20 Columbia Journal of European Law 194. 32  Advocaten voor de Wereld VZW v Leden van de Ministerraad (n 2 above) EU:C:2007:261, paras 53 and 59. F Geyer, ‘European Arrest Warrant: Advocaten Voor de Wereld VZW v. Leden van de ­Ministerraad’ (2008) 4 European Constitutional Law Review 149; D Leczykiewicz, ‘Constitutional Conflicts and the Third Pillar’ (2008) 33 European Law Review 230; E Cloots, ‘Germs of Pluralist Judicial Adjudication: Advocaten Voor de Wereld and Other References from the Belgian ­Constitutional Court’ (2010) 47 Common Market Law Review 645; D Sarmiento, ‘European Union: The ­European Arrest Warrant and the Quest for Constitutional Coherence’ (2008) 6 Inter­national Journal of ­Constitutional Law 171.

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Having set the broader ground on the legal framework concerning fundamental rights protection (with specific regard to mutual recognition in criminal matters), the next section will present the content of the EAW FD.

III.  The European Arrest Warrant Framework Decision The EAW is the first and most prominent instrument of mutual recognition in EU criminal law,33 aiming to replace extradition procedures with a smoother and swifter system of surrender between judicial authorities. Though the EAW was preceded by previous attempts to streamline inter-state judicial cooperation in criminal matters,34 the terrorist attack on the World Trade Center on 11 September 2001 urged the Union to put into effect actual EU instruments to fight crime. This is confirmed by the circumstance that, before 9/11, the EAW was not the highest priority on the EU agenda on mutual recognition in criminal matters.35 The Commission, in its EAW FD Proposal, explicitly established a link between the FD and EU citizenship, with the latter status eroding the importance of nationality links even with regard to surrender for detention purposes.36 The implementation of the EAW FD at the national level has known a difficult path,37 and Constitutional Courts across the EU have had to rule on the compatibility of the EAW FD with their constitutional systems.38

33  However, other instances of this kind can also be found outside the judicial cooperation within the EU. See in this respect the Nordic Arrest Warrant. G Mathisen, ‘Nordic Cooperation and the European Arrest Warrant: Intra-Nordic Extradition, the Nordic Arrest Warrant and Beyond’ (2010) 79 Nordic Journal of International Law 1. 34 Article 66 of the 1990 Convention implementing the Schengen Agreement refers to the ­possibility for Member States to extradite their nationals without extradition formalities (as long as the s­ urrendered person has agreed before a court and s/he has been informed of his/her right to invoke the extradition procedure). Also the 1996 EU Convention on Extradition between Member States was aimed at limiting the possibility of application of the nationality ban. 35 Concerning the factors leading to the prioritisation of the EAW, scholars also mention the ­adoption of the Rome Statute of the International Criminal Court (ICC), which distinguishes state-to-state extradition from surrender to the ICC, with the latter excluding the possibility of a nationality exception. 36  However, this view has been strongly criticised. See in this respect F Impalà, ‘The European Arrest Warrant in the Italian Legal System. Between Mutual Recognition and Mutual Fear within the European Area of Freedom, Security and Justice’ (2005) 1 (2) Utrecht Law Review 56. 37  For a comparison between the English and France system, see J R Spencer, ‘Implementing the European Arrest Warrant: A Tale of How Not to Do It’ (2009) 30 Statute Law Review 184. For a specific analysis of the Italian case, see L Marin, ‘The European Arrest Warrant in the Italian Republic’ (2008) 4 European Constitutional Law Review 251. 38  J Komárek, ‘European Constitutionalism and the European Arrest Warrant: In Search of the Limits of Contrapunctual Principles’ (2007) 44 Common Market Law Review 9; Z Deen-­Racsmány, ‘The European Arrest Warrant and the Surrender of Nationals Revisited: The ­Lessons of Constitutional Challenges’ (2006) 14 European Journal of Crime, Criminal Law and Criminal Justice 271.

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According to the wording of the FD, the EAW is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. While Member States must execute any EAW on the basis of the principle of mutual recognition, the FD does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU.39 Article 6 EAW FD states that the issuing and executing judicial authorities shall be the judicial authorities competent to issue and execute an EAW by virtue of the law of those states. The final decision on the execution should be taken within 60 days after the arrest, which term can be postponed by a further 30 days. The surrender must be carried out no later than 10 days after the final decision.40 The executing judge must decide whether the person arrested must be kept in detention pending the decision on the recognition. Release may be ordered, provided that measures are taken so as to ensure that the person will not abscond.41 The issuing state must deduct the period of detention already served by the person from the total period of detention to be served therein.42 Article 8 lists the information that must be contained in an EAW. Of particular relevance for the purposes of this chapter is Article 8(1)(c), which requires that the EAW include evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect. With regard to the rights of the individual in the context of the procedures of recognition and execution, the FD provides the following. The person concerned has the right to be heard by the executing judge in accordance with the law of the executing Member State. In case of an EAW issued for prosecution, the executing judge must either agree that the requested person should be heard, or temporarily transfer him/her to the issuing state. In the first case, the requested person must be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. The requested person shall be heard in accordance with the law of the executing Member State and under the conditions determined by mutual agreement between the issuing and executing judicial authorities.43 In the latter situation, the conditions and duration of the transfer are determined by the states involved, and the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure. The FD provides that the recognition and execution of the EAW can be refused on the basis of mandatory and optional grounds. Within the first category, are included grounds such as the ne bis in idem rule, or the fact that the offence on

39 

See n 1 above, Article 1(3) and (2). Ibid, Articles 17, 23 and 24. Ibid, Article 12. 42  Ibid, Article 26. 43  Ibid, Article 18. 40  41 

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which the EAW is based is covered by amnesty in the executing Member State.44 Article 4 establishes optional grounds for refusal. Among these, Article 4(a) establishes that recognition of an EAW issued following a trial in absentia can be refused, unless that EAW states, inter alia, that the person in due time either: (i) was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or (ii) actually received by other means official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial.45 Another, particularly relevant, optional ground for refusal is Article 4(6) EAW FD, according to which there is the possibility not to execute the EAW where ‘the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law’.46 Article 26 provides that The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.

In case of possible prosecution for offences other than that at the basis of the surrender, the EAW FD states that the executing judge has to decide on the issue taken no later than 30 days after s/he received the request for consent.47 Having presented the main features of the EAW FD, now the analysis will move on to the interpretation given by the Court. As stated in the introduction, this chapter focuses on the recent development of the CJEU case law on the EAW FD. In order to better understand the evolution in the Court’s approach to the EAW, it can be useful to distinguish two phases. In the first phase, that reached its highest and most critical point with the Radu and Melloni cases, the Court mostly made use of the aim of the FD (introducing a smooth mechanism for surrender of suspects or convicted people within the EU) to give an interpretation where the enforcement of the EAWs outweighed individual rights protection. Radu and Melloni drew fierce criticism, and the Court was accused of having gone too far in its enforcement-oriented approach. Such a dramatic point has not been without consequences though. After these two judgments, the Court seems to have progressively and steadily moved to a more balanced understanding of the EAW FD. 44 

Ibid, Article 3. Ibid, Article 4a(1)(a). 46  This provision has given rise to a number of highly discussed preliminary rulings, on the part of the CJEU. See C-66/08 Proceedings concerning the execution of a European arrest warrant issued against Szymon Kozłowski, EU:C:2008:437; C-123/08 Dominic Wolzenburg, EU:C:2009:616; C-42/11 Proceedings concerning the execution of a European arrest warrant issued against João Pedro Lopes Da Silva Jorge, EU:C:2012:517. For comments, see E Herlin-Karnell, ‘European Arrest Warrant Cases and the Principles of Non-Discrimination and EU Citizenship’ (2010) 73 The Modern Law Review 824; T Marguery, ‘EU Citizenship and European Arrest Warrant: The Same Rights for All?’ (2011) 27 M ­ erkourios 84; C Janssen, see n 15 above, pp 207 onwards. 47  See n 1 above, Article 27(4). 45 

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In the following pages, the two phases of the CJEU’s approach to the EAW FD will be presented.

IV.  The Court of Justice and the EAW Framework Decision. Two Eras towards a Restored Balance A.  The First Era Before going into a detailed analysis of the recent development of the Court’s case law on the EAW FD, it is important to refer to the two most criticised decisions of the CJEU on the subject: Radu and Melloni. Dealing with these two judgments allows us to mark the difference between the first (enforcement-oriented) and second (more fundamental-rights-friendly) phase of the CJEU’s approach to the EAW FD. Radu concerned the issue of EAWs against a Romanian national who claimed that his defence rights had been violated. Mr Radu’s counsel stated that his client had ‘not been notified in respect of the charges against him, not been subpoenaed in respect of them and found himself in a situation where it was completely impossible to defend himself ’. The national court asked whether the deprivation of liberty and forcible surrender of the requested person under the EAW constituted an interference with that person’s right to liberty and whether it must satisfy the requirements of necessity and proportionality. Furthermore, the national court asked whether the execution of a EAW can be refused where this could constitute, or could lead to, violations of Articles 5 and 6 ECHR or Articles 6, 48 and 52 CFREU (namely, the provisions regarding the right to liberty and the right to fair trial). The Advocate General recalled the European Court of Human Rights (‘ECtHR’ or ‘the Strasbourg Court’ approach),48 according to which the surrender may be refused only in case of a flagrant denial of the right to fair trial in the requested country, or where a potential breach is established ‘beyond reasonable doubt’.49 However, the Advocate General found the concept of ‘flagrant’ rather vague. She suggested that the execution of a EAW may be refused on fundamental rights grounds (in particular Articles 5 and 6 ECHR and/or Articles 6, 47 and 48 CFREU), but that this could occur where ‘the deficiency or deficiencies in the trial process [are] such as fundamentally to destroy its fairness’.50 Furthermore, breaches that are remediable would not justify the refusal to transfer the requested person to the Member State where those rights are at risk.

48  ECtHR, 7 July 1989, Soering v United Kingdom, Application no 14038/88, Series A no 161, [1989] ECHR 14, para 113. 49  ECtHR, 7 June 2007, Garabayev v Russia Application no 38411/02, para 76. 50  Ciprian Vasile Radu (n 3 above) EU:C:2012:648, para 83.

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The Court, unlike the Advocate General, paid very little attention to the f­undamental rights argument. Though acknowledging that the right to be heard is enshrined in Articles 47 and 48 CFREU, it placed much more of an emphasis on the ‘enforcement’ objectives of the EAW FD. In this respect, the Court found that an obligation for the issuing judicial authorities to hear the requested person before [the EAW] is issued would inevitably lead to the failure of the very system of surrender ­provided for by [the FD] … in so far as such an arrest warrant must have a certain ­element of surprise, in particular in order to stop the person concerned from taking flight.51

Furthermore, the Court pointed out that the FD features a number of procedural guarantees for the person concerned, such as those in Articles 8 to 19. In light of the foregoing, the Court found that the executing judicial authorities cannot refuse to execute an EAW for the purposes of conducting a criminal prosecution on the ground that the requested person was not heard in the issuing Member State before that arrest warrant was issued. As we know, Melloni concerned a Spanish national who had been tried and convicted in absentia in Italy. The latter country issued an EAW for execution purposes to Spain. With the first question, the referring court asked whether Article 4a(1)(a) and (b) precluded the executing judicial authority from making the surrender subject to the possibility for the person concerned to apply for a retrial in the issuing Member State. In this regard, the Advocate General found that those provisions of the EAW FD actually allow the judge to refuse the execution, in case of a judgment delivered in absentia. However, those same rules also provide for exceptions, according to which refusal cannot be opposed. Mr Melloni fell under the scope of precisely those exceptions, namely Article 4a(1)(b).52 Secondly, the CJEU was asked as to whether Article 4a(1) is compatible with Articles 47 and Article 48 CFREU. The Advocate General referred to the ECtHR’s case law on the compatibility of convictions in absentia with the right to a fair trial, by pointing out that: the right to be present at the trial is a fundamental requirement of a fair trial; there is a denial of justice when the absence is not clearly a decision of the person concerned to waive his right; the person must be aware of the consequences of his/her choice. According to the Advocate General, Article 4a(1) is fully consistent with that case law, and struck a balance between fundamental rights protection and facilitation of legal cooperation in criminal matters. In order to corroborate his argument, the Advocate General found that ‘the consensus between the Member States [on the text of the EAW FD] leaves no room for the application of divergent national levels of protection’.53 51 

Ibid, para 40. particular, the provision prohibits refusing the EAW on the basis of a conviction delivered in absentia, when the person concerned was aware of the scheduled trial and had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the state, to defend him or her at the trial, and he or she was indeed defended by that counsellor at the trial. 53  Stefano Melloni v Ministerio Fiscal (n 4 above) EU:C:2012:600, para 126. 52  In

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The third issue regarded the interpretation of Article 53 CFREU. In ­particular, doubt arose as to whether the Constitutional Court, when implementing the FD, could retain its interpretation of Article 24(2) of the Spanish Constitution, according to which the surrender of a person convicted in absentia must be subject to the condition that the conviction be open to review in the issuing Member State. By relying, inter alia, on Article 53 CFREU, the Advocate General found that the standard to apply was that established in the Charter.54 Otherwise, the ­primacy, effectiveness and certainty of EU law would be undermined. The Advocate ­General also showed awareness of the respect for national identity of the Member States required by Article 4(2) TEU. However, even in this case The adoption by the European Union legislature of Article 4a of the Framework Decision shows that the Member States wished to take a joint approach to the execution of European arrest warrants issued for the purposes of executing judgments rendered in absentia and that that joint approach was compatible with the diversity of the legal traditions and systems of the Member States.55

The CJEU agreed with the Opinion. Firstly, it stated that Article 4a(1)(a) and (b) provide for an exhaustive list of cases in which the execution of an EAW based on a decision rendered in absentia may be refused by the executing judge. Secondly, the CJEU recalled its own case law, according to which the right to be present at the trial—though essential to the right of fair trial as established in Articles 47 and 48 CFREU—is not absolute. The person concerned is free to waive his/her right, as long as s/he does so unequivocally, and certain conditions are met; for instance, the person has been informed about the date and place of the trial, or s/he has appointed a legal counsellor. Such an interpretation, as well as the wording of Article 4a(1), would be consistent with that of the ECtHR. In the Court’s view, this circumstance would further contribute to rejecting any objection in terms of possible fundamental rights violation. As for Article 53, the Court brushed aside the interpretation of the Spanish Constitutional Court as well, which would undermine the principles of primacy and efficacy of EU law, as well as mutual trust and mutual recognition. Even though Article 53 leaves, in principle, some discretion to Member States as to the standard of protection to apply, Article 4a(1) is a ‘closed’ provision, and allows no leeway for higher standard at the national law level. These two judgments are generally considered as the summa of the Court’s approach to the EAW FD heavily relying on enforcement purposes, with little attention being paid to the balance between the need for surrender and fundamental rights protection. Admittedly, Mr Radu argued that his rights had been 54  Article stipulates as follows: ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions’ (emphasis added). In the AG’s Opinion, the clause in their respective fields of application was a decisive criterion to decide which standard should have been applied. 55  Ibid, para 145.

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violated because he had not been summoned by the issuing judge before the EAW was issued. On the other hand, the question posed by the referring court had to do, more broadly, with the possibility to refuse the execution of an EAW on the basis of a fundamental rights breach. References for preliminary rulings always arise from a concrete case, and the violation of fundamental rights in the case of Mr Radu could be questioned. Unlike the Advocate General, the Court seemed to completely close the door, at least at that moment, to considering breaches of fundamental rights as a basis for refusing the execution of an EAW. Admittedly, Radu and Melloni are important not only because they represent the apex of a crescendo in the Court’s approach to the EAW FD, where law enforcement plainly outweighed individual rights. These rulings also constituted a sort of turning point, after which the CJEU has progressively shifted the barycentre of its stance towards individual guarantees.

B.  The Second Era (i)  Time-Limits for the Execution and Right to Be Released Shortly after its judgment in Melloni the Court had to rule on the possibility, for a Member State, to provide for an appeal against (1) the decision to execute an EAW, and (2) the possible consequences ensuing from non-compliance with the ­time-limits for recognition of the EAW set by the FD. In Jeremy F,56 the French Constitutional Court asked whether Articles 27(4) and 28(3)(c) prevent Member States from allowing an appeal with suspensive effect against: a decision to execute a EAW; or a decision that gives consent to an extension of the warrant or to an onward surrender to a Member State different from the one which issued the EAW. The Court firstly noted that the FD makes no express reference to the possibility of appeal. However, it admitted that such a silence did not necessarily amount to a prohibition. The Court firstly considered that Article 17, the general provision on timelimits and procedures for the decision on the execution of the EAW, refers to the ‘final decision’ to be taken by the executing judge. Therefore, this provision would implicitly admit the possibility of an appeal against a first decision. In the absence of explicit contrary provisions, the Member States have the discretion to introduce an appeal with suspensive effect against decisions related to an EAW. On the other hand, Article 17 sets specific time-limits for the decision on and the e­ xecution of the EAW, which can be derogated from only in exceptional circumstances. Consequently, any appeals with suspensive effect against a decision executing an EAW may not disregard those limits. Articles 27(4) and 28(3)(c) deal with possible prosecution for other offences and onward surrender, and set specific time-limits for a decision to be taken by the 56 

Jeremy F v Premier ministre (n 5 above) EU:C:2013:358.

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executing judge. Unlike Article 17, these provisions operate in situations where: the person has been already surrendered; the executing judge (the one who must give the consent to the extension of the warrant or an onward surrender) already has a certain amount of information on the basis of which s/he can take an informed decision. The Court acknowledged that Articles 27(4) and 28(3)(c) made no reference to a ‘final decision’, but found at the same time that nothing in the FD would prevent the executing judge from allowing an appeal in this regard. Furthermore, the CJEU stated that such an interpretation would be consistent with Article 1(3) EAW FD, according to which Member States’ obligation to respect fundamental rights remain unaltered in the context of EAW procedures.57 However, the Court pointed out that the aim of the FD is streamlining judicial cooperation in criminal matters within the EU. Providing Articles 27(4) and 28(3)(c) with a time-limit longer than that of Article 17 would be inconsistent with that aim. Therefore, any appeals introduced at national level against decisions taken under Articles 27(4) and 28(3)(c) of the FD must comply with the time-limits laid down in Article 17 of the FD. Lanigan58 concerned an EAW issued for prosecution purposes. The questions referred concerned the interpretation of the time-limits provided for in Article 17, read in conjunction with Article 15. According to those provisions, the final decision on the execution of the EAW must be taken within the time-limits established therein. The doubts raised by the national court had to do with: the effects deriving from the executing Member State’s failure to comply with those limits; whether a right was envisaged for the person to be released after the expiry of that time-limit. The Court rejected an interpretation of the provisions in question as m ­ eaning that the expiry of the terms provided would make the execution of the EAW no longer possible. Article 17(7) contemplates repeated delays in the execution, so alluding to the postponement—rather than the abandonment—of the latter. The Court found that deciding otherwise would sit at odds with the objective of the FD, as well as with the same logic of mutual recognition. The same approach was taken with regard to the possibility to infer a general and unconditional obligation to release the person, upon the expiring of the time-limits. The Court noted that Article 12 allows—without requiring—the executing judge to provisionally release the person concerned, provided that measures are taken to prevent the person from absconding. According to Article 26(1), the issuing Member State is to deduct all periods of detention arising from the execution of a EAW from the total period of detention to be served in that state, thereby ensuring that all periods of detention—even those resulting from being held in custody after the time-limits stipulated in Article 17 have expired—will duly be taken into account if a custodial sentence is executed in the issuing Member State. Therefore, the Court found

57  58 

Ibid, para 40. Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan (n 6 above) EU:C:2015:474.

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that nothing in the FD prevented the executing judge from holding the person in custody even after the time-limits set in Article 17 have expired. However, the CJEU found that, according to Article 1(3), the FD must be interpreted and applied in compliance with the Charter, and in particular ­Articles 6 (protecting the right to liberty) and 52 (stating that Charter rights shall be restricted consistently with the proportionality principle) thereof. As limitations of the right to liberty should be carried out in compliance with the principle of proportionality, the executing judge should decide to hold the person concerned in detention only as long as execution procedures are carried out with due ­diligence and their duration is not excessive. The judge is required to carry out a concrete review of the situation at issue, taking into account all the relevant factors, such as: the ­possible failure to act on the part of the authorities of the Member States concerned; the seriousness of the offence underlying the EAW or the sentence that could be delivered in the issuing Member States; the risk of absconding by the person concerned. Should the court opt for the release, it has nonetheless to take any measures ensuring that the execution of the EAW is not jeopardised.

(ii)  Detention Conditions and Non-Execution of the EAW A further step forward towards a more balanced interpretation of the EAW FD has been taken by the Court in the Căldăraru judgment, where the CJEU had to deal with the possibility to refuse the execution of a EAW on the basis of the risk of inhumane treatment in the issuing Member States (Romania and Hungary), due to poor detention conditions.59 The Court heavily relied on Article 1(3), according to which the FD does not have the effect of modifying Member States’ obligation to respect fundamental rights. One of the consequences of this provision is that Member States have to respect the prohibition of inhumane and degrading treatment, as stated in Article 4 CFREU. This implies that, where the executing judge has ‘objective, reliable, specific and properly updated’ evidence showing that there are deficiencies, which may be ‘systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention’ (emphasis added),60 with respect to detention conditions in the issuing Member State, that judge must, pursuant to Article 15(2) EAW FD, request that the issuing judge provide supplementary information. The evidence at the basis of the request under Article 15(2) may be obtained from, inter alia, ‘judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN’.61 The decision on the surrender must be postponed until supplementary information is obtained, allowing it to exclude the 59 

Pál Aranyosi and Robert Căldăraru (n 7 above) EU:C:2016:198. Ibid, para 89. 61  Ibid, para 89. 60 

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risk of inhumane treatment. If that risk cannot be discounted within a reasonable time, the executing judge is to decide whether the surrender procedure should be brought to an end. Meanwhile, the person concerned should be held in custody only in so far as the duration of the detention is not excessive, on the basis of the requirement of proportionality laid down in Article 52(1) of the Charter.62

(iii)  The Concept of ‘Deprivation of Liberty’ In the JZ judgment, the Court had to deal with the interpretation of the concept of ‘deprivation of liberty’. As deprivation of liberty is the centre of gravity of the EAW FD, it goes without saying that this case will have a great impact on the implementation of the EAW mechanism. More precisely, JZ concerned the interpretation of the concept of ‘detention’ under Article 26 EAW FD, according to which the issuing Member State must deduct all periods of detention arising from the execution of a EAW from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. In particular, the referring court asked whether the concept of detention under Article 26 EAW FD, interpreted jointly with Articles 6 and 49 CFREU, covers measures applied by the executing Member State consisting in the electronic monitoring of the place of residence of the person to whom the arrest warrant applies, in conjunction with a curfew. Articles 6 and 49 CFREU state the right to liberty and the principle of proportionality of penalties, respectively. An EAW was issued for execution purposes by Poland to the UK against JZ. After being released on bail, JZ was required to stay at the address he had given, between the hours of 22.00 and 7.00, and his compliance with that requirement was subject to electronic monitoring. JZ was also obliged to report to a police station between the hours of 10.00 and 12.00, initially daily, then, after three months, three times a week; he was prohibited from applying for foreign travel documents and was required to keep his mobile telephone switched on and charged at all times. Those measures were applied until he was surrendered to the Polish authorities. Before the referring court, JZ had requested that the period during which he was subject to a curfew in the UK and to electronic monitoring be credited towards his custodial sentence. He submitted that, under Article 26(1) EAW FD, the decision on giving credit for the detention order, in the sentence passed must be taken on the basis of the provisions in force in the UK. To this end, the UK judge stated that it is possible, under UK law, to deduct curfew periods in conjunction with electronic monitoring of the place of residence, from the sentence passed, only where the curfew is applied for not less than nine hours a day, and that, as a general rule, half of the period during which the measure is applied can be credited. The referring court also noted that he had lost his job due to the requirement to remain at home at night. Indeed, that was a temporary job and his employer was not obliged to adjust his working hours to suit his availability. 62 

Ibid, para 101.

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Against that factual and legal background, the Court answered as follows. Firstly, it pointed out that the national judge has to interpret national law, as far as possible, in the light of the wording and the purpose of the FD.63 Article 26(1) makes no express reference to the law of the Member States, which means that its meaning and scope must normally be given an autonomous and uniform interpretation throughout the EU.64 However, provisions of EU law must be interpreted and applied uniformly in light of the versions existing in all EU languages. In this regard, the terms ‘detention’ and ‘deprivation of liberty’ are used interchangeably in the various language versions of Article 26(1), with these concepts implying a situation of confinement or imprisonment, and not merely a restriction of the freedom of movement. As regards the context of Article 26(1), Article 12 envisages the possibility for the executing judge to order the provisional release of the person concerned, in conjunction with measures to prevent him/her from absconding. Thus the EAW FD provides for alternatives to detention to be used in the context of EAW procedures. Concerning the objective of Article 26(1), the Court argued that the deduction obligation under that article aims to meet the general objective of respecting fundamental rights, as referred to in recital 12, and recalled in Article 1(3) EAW FD; in particular, preserving the right to liberty and the principle of proportionality of penalties, protected by Articles 6 and 49 CFREU.65 That said, the Court found that deprivation of liberty need not take place necessarily in the form of detention. Instead, criteria must be taken into account such as the type, duration, effects, manner of implementation and severity of the measure, to understand how the latter can be comparable to imprisonment.66 This is confirmed by the ECtHR case law on Article 5 ECHR, which is not concerned with mere restrictions of liberty of movement.67 The ECtHR as well found that measures requiring the person concerned to report once a month to the monitoring police authority, to live in a specified place, not to leave the district in which he was residing, and to stay at home between the hours of 10 pm and 7 am, did not constitute deprivation of liberty within the meaning of Article 5(1) of the ECHR.68 It thus follows from the wording, the context and the objective of Article 26(1) that the concept of ‘detention’, within the meaning of that provision, refers to a measure that deprives a person of liberty, and which does not necessarily have to be in the form of imprisonment. In light of the foregoing, the Court found that the measures to which Mr JZ was subject, while surely restricting his liberty, could not be regarded as deprivation of liberty. However, the Court ­clarified that Article 26(1) EAW FD merely imposes a minimum level of fundamental rights protection (emphasis added). On the basis of its national law, the issuing 63 

João Pedro Lopes Da Silva Jorge (n 46 above) paras 53 and 54. Szymon Kozłowski (n 46 above) para 42; Paweł Dworzecki (n 9 above) para 28. 65  JZ (n 8 above) para 43. 66  Ibid, para 47. 67  ECtHR, 6 November 1980, Guzzardi v Italy, Application no 7367/76, Series A no 39 [1980] ECHR 5, para 92; and ECtHR, 5 July 2016, Buzadji v Republic of Moldova, Application no 23755/07, para 103. 68  ECtHR, 20 April 2010, Villa v Italy, Application no 42559/08. 64 

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judge is allowed to deduct, from the total period of detention which the person concerned would have to serve therein, the period during which that ­person was subject, in the executing state, to measures involving not a deprivation of ­liberty but a restriction of it.69 Furthermore, the issuing Member State may, under Article 26(2), ask the competent authority of the executing Member State to ­transmit any information it considers necessary.

(iv)  Indirect Summons In Dworzecki, the CJEU had another opportunity to provide uniform interpretation of a key concept of the EAW FD, namely the ‘indirect summons’. The case concerned an EAW issued for execution purposes by the Regional Court of Zielona Góra to the District Court of Amsterdam against Mr Dworzecki, a Polish national residing in The Hague. The preliminary ruling revolved around the interpretation of Article 4a(1)(a)(i), added to the EAW FD by Framework Decision 2009/299. The provision features the cases where the execution of an EAW issued following a trial in absentia cannot be refused. That is so when, inter alia, the person in due time, and in accordance with further procedural requirements defined in the law of the issuing state: was summoned in person and thereby informed of the scheduled date and place of the trial; or, by other means, actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that s/he was aware of the trial. As for Mr Dworzecki, the summons was not served directly on the person concerned. It was handed over, at his address, to an adult from that household, who undertook to pass it on to Mr Dworzecki, although it cannot be determined from the EAW whether—and, if so, when—that adult actually passed that summons on to the person concerned. The Court was firstly asked as to whether the expressions ‘summoned in person’ and ‘by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial’ constitute autonomous concepts of EU law, that must be interpreted uniformly throughout the EU. After finding that this was exactly the case,70 the Court went on to analyse whether the conditions set by Article 4a(1)(a)(i) (summoned in person or unequivocal awareness of the person concerned) were satisfied by the situation of the indirectly served summons just described. The Court observed that the objective of the provision is to ensure a high level of individual protection, by balancing the need for executing the EAW, on the one hand, and the respect of rights of the defence of the person concerned, on the other. The Court clarified once again that the right for the person to appear to the trial is not absolute, but can be waived where the waiver: is established in an unequivocal manner; is attended by minimum safeguards commensurate to the gravity of the 69  70 

JZ (n 8 above) paras 55–57. Paweł Dworzecki (n 9 above) para 32.

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criminal offence at stake; does not run counter to any important public ­interest.71 In any case, the person has to be able to prepare his/her defence effectively. The Court, while acknowledging that FD 2009/299 is not meant to h ­ armonise national legislation on the subject-matter, found that the conditions provided for in Article 4a(1)(a)(i) were not satisfied in the situation of Mr. Dworzecki. Indeed, the method of service at issue does not allow one to establish unequivocally either that the person concerned ‘actually’ received the information relating to the date and place of his trial, or the precise time when that information was received. Granted, an indirect summons does not always exclude compliance with the FD. However, the person has to receive the information unequivocally, which is a matter for the issuing judge to indicate in the EAW. Moreover, Article 4a(1)(a)(i) constitutes an exception to an optional ground for refusal of execution, so that the executing judge has to carefully ascertain whether the rights of defence of the person concerned have been respected. To this end, the executing judge should: make use of Article 15(2) EAW FD, in order to request supplementary information from the issuing judge; take into account the conduct of the person concerned, to verify whether manifest lack of diligence on his part occurred; bear in mind that, as referred to by the Polish Government, the law of the issuing Member State in any event affords the person concerned the right to request a retrial, in a situation such as that of the main proceedings.72

(v)  Relationship between National Arrest Warrant and EAW The EAW FD does not state unequivocally that the EAW has to be based on a prior, national arrest warrant. The Court had the opportunity to clarify this aspect in Bob-Dogi, which case revolved around the interpretation of Article 8(1)(c). According to this provision, the EAW must contain information relating to evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect. Hungary issued an EAW to Romania against Mr Bob-Dogi. In accordance with a ‘simplified’ procedure applied in Hungary, the EAW was based on itself and not on a prior, separate national warrant. The Court then was asked by the Romanian authorities as to whether the ‘arrest warrant’ under Article 8(1)(c) must be understood as referring to a national arrest warrant. The Court pointed out that the term ‘European Arrest Warrant’ is used throughout the FD with the exception of Article 8(1)(c). Such a circumstance would suggest that the latter provision refers to an arrest warrant other than the EAW.73 It should also be noted that Article 8(1)(c) envisages neither exceptions to the need for such a distinct judicial decision, nor the possibility for a ‘simplified procedure’. Requiring a prior judicial decision, the Court argued, would be

71 

Ibid, para 42. Ibid, paras 49–53. 73  Niculaie Aurel Bob-Dogi (n 10 above) para 43. 72 

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more consistent with fundamental rights protection, as the person concerned— especially in case of an EAW issued for prosecution purposes—would be already endowed, at the first stage of the proceedings, with procedural safeguards at national level. The protection afforded at the second level, when an EAW has been issued, adds to this first stage of guarantees.74 Clearly, the absence of a national arrest warrant underlying the EAW is not a ground for non-execution listed in Articles 3, 4 and 4a FD. However, the Court found that those grounds are based on the circumstance that the EAW has been lawfully issued consistently with ­Article 8(1). Non-compliance with this provision—which can materialise in a case such as that of Mr Bob-Dogi—would hamper the validity of the EAW. Therefore, where an EAW does not state whether there is a national arrest warrant, the executing judge must, pursuant to Article 15(2) FD, request the issuing judge to furnish all necessary supplementary information. If the executing judge concludes that the EAW has been issued in the absence of a national warrant, that judge must consider the warrant not valid and refuse to give effect to it.75

(vi)  The Issue of EAWs and Non-Judicial Authority A thorny issue emerging over in the years in the implementation of the EAW FD has been the role, in the issue of the EAWs, of authorities that are not usually understood as ‘judicial authority’ stricto sensu. In three recent judgments, the Court has marked the boundaries of the concept of ‘judicial authority’, and its relation with other types of constitutional powers. Broadly, these three cases concerned the interpretation of the terms ‘judicial decision’ and ‘judicial authority’, under Articles 1(1), 6(1) and 8(1)(c) EAW FD. Article 1(1) FD defines the EAW as a judicial decision, Article 6(1) states that ‘The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State’. Article 8(1)(c) requires that the EAW contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect. The referring courts asked (1) whether the concept of judicial authority is an autonomous concept of EU law, and (2) which situations are covered by this concept. In the judgments, the Court observed that, according to the FD, the EAW is a ‘judicial decision’, which requires that it be issued by a ‘judicial authority’. These are autonomous concepts of EU law, and must be interpreted uniformly throughout the Union according to their scope and objective. As a starting point, in all of these three decisions, the Court found that the EAW system, introduced to substitute extradition procedures with a smoother mechanism of judicial cooperation in criminal matters, is based on the principle of mutual recognition. This principle, on its part, is based on the principle of mutual trust, according to which Member States are presumed to respect fundamental rights. Secondly, the CJEU stated that, 74  75 

Ibid, para 53. Ibid, para 63–67.

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according to the principle of separation of powers, the judiciary must be distinguished from administrative authorities or police authorities, which are within the province of the executive. Thirdly, though Article 7 EAW FD authorises Member States to have recourse to a central, non-judicial authority, for transmission and reception of EAWs, the tasks of this authority concern practical and administrative assistance. Fourthly, the high level of confidence between the Member States underlying the EAW system can be justified only where both the decisions on the execution and the issue of the EAW are taken by a judicial authority, and the entire procedure is carried out under judicial supervision.76 Fifthly, although Article 6(1) refers, in accordance with the principle of the procedural autonomy of the Member States, to the law of those states, that reference is limited to designating the judicial authority with the competence to issue the EAW. Accordingly, that reference does not concern the definition of the term ‘judicial authority’ in itself. The Court based the answer to the three cases on these premises. In Poltorak, the Court was asked as to whether the term ‘judicial authority’ covers also police service, meaning that the EAW issued by that police service with a view to executing a judgment imposing a custodial sentence can be regarded as a ‘judicial decision’. The term ‘judicial authority’ under Article 6(1) cannot be interpreted as also covering the police services of a Member State. To this end, the materials provided by the Swedish Government made it clear that the EAW for execution was issued by the police service at the request of the prison service, without any legal requirement of judicial approval.77 The Netherlands Government and the European Commission requested the Court to limit the temporal effects of the judgment, should the CJEU have found a police service not to be included in the concept of judicial authority. The Court answered that, under Article 267 TFEU, it interprets EU law as it should have been understood from its coming into force, so covering also situations arising before the preliminary ruling.78 Restrictions in this sense, and in line with the principle of legal certainty, can be envisaged only where those concerned have acted in good faith and there is a risk of serious difficulties.79 Among other documents, the 2008 Council evaluation report concerning national practices relating to the EAW had already found the issue of EAWs warrants by the police service to be incompatible with the requirement of designating a ‘judicial authority’. Since this practice by Swedish authorities—contrary to EU law—was not caused by objective and compelling reasons, the Court dismissed the request of limiting the effects of the judgment.80 Following the same line of reasoning as in Poltorak, the Court found in Kovalkovas that the term ‘judicial authority’ could not include an organ of the executive (in that case, the Lithuanian Ministry of Justice).81 76 

Jeremy F (n 5 above) paras 39, 45 and 46. Krzysztof Marek Poltorak (n 11 above) paras 46–52. 78 Case C-562/12, Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013 Seirekomitee, EU:C:2014:2229, para 80. 79  Case C-82/12 Transportes Jordi Besora SL v Generalitat de Catalunya, EU:C:2014:108, para 41. 80  Krzysztof Marek Poltorak (n 11 above) paras 54–57. 81  Ruslanas Kovalkovas (n 12 above) para 48. 77 

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The Court transposed this reasoning to the interpretation of Article 8(1)(c). In Özçelik, the referring court asked whether the term ‘judicial decision’ under Article 8(1)(c) covers the confirmation, by the public prosecutor’s office, of a national arrest warrant issued previously by a police service. As stated in the Court’s case law, the ‘arrest warrant’ under Article 8(1)(c) refers only to a j­udicial decision ­distinct from the EAW.82 In Özçelik, the EAW in the main proceedings had been issued by the District Court of Veszprém, referring to a national arrest warrant issued by Hungarian police and confirmed by the public prosecutor’s office. The public prosecutor’s office constitutes a Member State authority responsible for administering criminal justice, so that a decision of that authority must be regarded as a judicial decision, within the meaning of Article 8(1)(c) of the ­Framework ­Decision.83 According to the Court, the confirmation of the national arrest warrant by the public prosecutor’s office ensures the judicial approval required by the EAW system, with that decision then being covered by the term ‘judicial decision’ under Article 8(1)(c) EAW FD.84 With increased attention being paid to individual guarantees and the respect of the rule of law, these three judgments confirm the broader trend marked by previous judgments issued in the second era of the EAW case law. The next section elaborates on the two main routes whereby the Court is restoring the balance between enforcement and fundamental rights protection: the use of autonomous concepts of EU law, on the one hand, and the revision of the approach to mutual trust, on the other.

C. Moving to the Bright Side? A Renovated Role for Mutual Trust and Fundamental Rights in the EAW System (i)  Mutual Trust in the EAW: From Sword to Shield? In the CJEU’s approach to the EAW FD, one can distinguish two phases. In the first phase, running from Advocaten to Melloni, the Court adopted an interpretative perspective decidedly leaning toward law-enforcement demands, often at the expense of individual rights protection. This is somehow understandable. The introduction of the EAW FD was controversial for more than one reason. The application of the term ‘automaticity’ in judicial cooperation, to the EAW system can be open to debate. However, the EAW FD significantly streamlined the system of surrender between Member States. Furthermore, this groundbreaking innovation took place under the law of the former ‘third pillar’, namely through intergovernmental procedures. This undoubtedly affected the democratic legitimacy of the

82 

Niculaie Aurel Bob-Dogi (n 10 above) paras 46 and 58. Case C-486/14 Criminal proceedings against Piotr Kossowski, EU:C:2016:483, para 39. 84  Halil Ibrahim Özçelik (n 13 above) paras 36–38. 83 

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FD since its introduction,85 offering further arguments to those concerned with the impact of the FD on individual rights. In this sense, the controversial approach followed by the CJEU in the first years of the EAW implementation might be seen as a way to ‘secure’ the effective operation of the FD. This may explain why the Court, through the effectiveness argument, decided to build a shield around the EAW FD against any criticisms that might have imperiled its proper functioning. Once this phase of ‘settling in’ was deemed completed, the CJEU started refining its approach, trying to find a better balance between enforcement and fundamental rights. The shift in the Court’s approach clearly emerges from a recurring argumentative pattern used in the second phase of rulings on the EAW. On the one hand, the Court keeps claiming that the aim of the FD is to introduce a smoother system of surrender as between Member States, in substitution for the previous system of extradition. The execution of the EAW can be refused/made conditional only on the basis of Articles 3, 4, and 5 of the FD. Therefore, Member States are in principle obliged to give effect to the EAW by virtue of Article 1(2) FD. This line of reasoning was strongly adhered to in the first phase, without being coupled with any sort of ‘balance’ concerning fundamental rights protection. On the other hand, the Court is now reconsidering the weight to be attached to enforcement purposes. While repeating that mutual recognition is the cornerstone of judicial cooperation in criminal matters, the Court is also pointing out that that principle is based on mutual trust. The operation of the EAW mechanism— consisting of Member States’ practices and the Court’s interpretation—has to live up to that high level of confidence, and comply with fundamental rights and the rule of law. This applies to eg the right to fair trial—possibly endangered by an indirect summons and the absence of national arrest warrants—as well as more systemic issues, such as the distance to be maintained between the judiciary, on the one hand, and the executive power, on the other.86 The new, more balanced relationship between effectiveness and mutual trust gives rise to two further considerations. Firstly, the case law shows that there is great potential in the FD for individual rights protection, and that that instrument is not necessarily a tool in the hands of law-enforcement agencies. The twist given by the Court makes even clearer how crucial its interpretative task is in this respect. To this end, the question may be raised as to whether the FD should be revised in order to limit uncertainty and the role of the judicial interpretation. Secondly, the Court seems to be reshaping the role of mutual trust in mutual recognition, and, in particular, as far as the EAW is concerned. As is known, mutual trust expresses the presumption that fundamental rights are respected throughout the Union. The mechanism inherent in mutual trust is that the presumption is

85 D Piquani, ‘Arguments for a Holistic Approach in European Constitutionalism: What Role for National Institutions in Avoiding Constitutional Conflicts between National Constitutions and EU law’ (2012) 8 European Constitutional Law Review 493. 86  Halil Ibrahim Özçelik (n 13 above) paras 35–36; Ruslanas Kovalkovas (n 12 above) para 44; Krzysztof Marek Poltorak (n 11 above) para 45; Paweł Dworzecki (n 9 above) paras 43–50.

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maintained until circumstances cast doubts on fundamental rights protection in one or more Member States. This broad and controversial approach to mutual trust was further upheld in Opinion 2/13,87 where the Court set aside the accession of the EU to the ECHR. With specific regard to criminal law, the CJEU stated that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (emphasis added).88

In Căldăraru, the Court took some distance from such a strong presumption, and admitted the possibility to postpone or even abandon execution of an EAW, where deficiencies impacting on fundamental rights protection are systemic or generalised, or affect certain groups of people, or affect certain places of detention.89 That way, the CJEU is acknowledging that deficiencies need not be systemic, for mutual trust be jeopardised. By way of the following judgments, the Court has been reshaping its understanding of mutual trust. The Court requires that the EAW FD be implemented in such a way as to live up to the confidence required by mutual recognition. This means that trust is not just being presumed, but needs to be built on and demonstrated in the daily practice. There is another way in which the Court is restoring the balance between fundamental rights protection and enforcement needs in the EAW. The next paragraph regards the harmonising role played by mutual recognition, on the one hand, and the room left to Member States when it comes to provide individuals with a higher standard of protection than that provided by EU law, on the other.

(ii) Harmonisation through Interpretation and Minimum Standard of Protection One of the oft-used arguments in favour of the application of the principle of mutual recognition in criminal matters is that it reduces the need for harmonisation, which is particularly hard to achieve in criminal law due to its high sensitiveness to Member States. However, the case law of the Court shows that

87  Opinion 2/13 of the Court, EU:C:2014:2454. For comments on this specific aspect, see V M ­ itsilegas, ‘Mutual Recognition, Mutual Trust and Fundamental Rights After Lisbon’ in V Mitsilegas et al (eds), Research Handbook on EU Criminal Law (Edward Elgar, 2016); V Mitsilegas, ‘The Symbiotic Relationship Between Mutual Trust and Fundamental Rights in Europe’s Area of C ­ riminal Justice’ (2015) 7 New Journal of European Criminal Law 457. 88  Opinion 2/13, ibid, para 191. 89 On this judgment, and more broadly on mutual trust, see E Bribosia and A Weyembergh, ­‘Confiance mutuelle et droits fondamentaux: “Back to the future”’ (2016) 52 Cahiers de droit e­ uropéen 469; E Bribosia and A Weyembergh, ‘Arrêt Aranyosi et Căldăraru: imposition de c­ ertaines limites à la confiance mutuelle dans la coopération judiciaire pénale’ (2016) Journal de droit européen 225.

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mutual recognition can be a powerful tool for harmonisation as well. Firstly, the very adoption of instruments of mutual recognition such as the EAW FD can be regarded as a form of harmonisation. To this end, one can distinguish between:90 substantive approximation, which concerns norms of substantive criminal law, such as the constituent elements of the conduct, the circumstances, the mens rea, the penalty provided and like; and procedural approximation, which in turn may be understood as procedural approximation stricto sensu (rules related to the national criminal procedure) and procedural approximation lato sensu (rules on conditions and procedures for regulating the function of the mutual recognition principle, such as the EAW). Secondly, harmonisation is reached through the interpretative function fulfilled by the CJEU. Once a given legal phenomenon—such as the EAW—is governed by EU law, it is brought under the interpretative umbrella of the Court. Examples of judicial harmonisation through interpretation had emerged as early as with rulings such as Kozlowski and Wolzenburg, where the Court understood the terms ‘resident’ and ‘staying in’ under Article 4(6) EAW FD as autonomous concepts of EU Law, needing uniform interpretation. This is also a recurring feature of the second phase of the Court’s case law, where the Luxembourg judges were confronted with the interpretation of concepts such as ‘indirect summons’, ‘judicial authority’ and ‘deprivation of liberty’. Identifying an autonomous concept of EU law and providing it with uniform interpretation is a thorny issue. Amongst other things, it implies deciding on the extent to which Member States retain a margin for manoeuver in the case at hand. In terms of fundamental rights protection, this also calls into play the issue of the standard of protection to apply (whether the national, or the EU one). The judgments discussed in this chapter offer a valuable insight into the CJEU’s approach to the autonomous concept-tool and, more broadly, the relationship between EU, and national, law and practices. Three scenario can be identified in this respect. In the first scenario, constituted by the three judgments concerning the interpretation of the concept of ‘judicial authority’ and ‘judicial order’, the issue arose as to the meaning to be attributed to Article 6(1) EAW FD, insofar as the latter provision states that the ‘The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State’. When asked about the role of this national law clause, the Court answered that although Article 6(1) refers, in accordance with the principle of the procedural autonomy of the Member States, to the law of those states, that reference is limited to designating the judicial authority with the competence to issue the EAW. Accordingly, that reference does not concern the

90  C Janssen (n 15 above) 186. More broadly on harmonization, see A Weyembergh, ‘The functions of approximation of penal legislation within the European Union’ (2005) 12 M ­ aastricht Journal of European and Comparative Law 149; A Weyembergh, ‘Approximation of criminal laws, the Constitutional Treaty and the Hague Programme’ (2005) 42 Common Market Law Review 1574 onwards.

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definition of the term ‘judicial authority’ in itself. This is not exactly a straightforward response, and the Court did not elaborate on that. On the basis of this laconic and rather convoluted statement, the Court then stated that the meaning and scope of the concept of ‘judicial authority’—and, as a consequence, of ‘judicial order’—cannot be left to the assessment of each Member State. The Court then went on to draw a clear boundary between the judiciary and other authorities (police services, Ministry of Justice), since only the former is able to offer the sufficient level of guarantees required by mutual trust and mutual recognition. Therefore, the space potentially reserved to national autonomy was limited, for the purposes of preserving individual rights and the rule of law. A symmetric approach was followed in the second scenario, represented by the JZ ruling: the Court aimed to increase individual protection in this case as well, but it did so by expanding, rather than constraining, national autonomy. Here, the interpretation of the concept of ‘detention’ under Article 26 EAW FD was at stake. Firstly, the Court found that that term is used interchangeably with ‘deprivation of liberty’. Secondly, the measure discussed in the case (a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents) could not be regarded as ‘deprivation of liberty’, but only as a restriction thereof. Thirdly, and most interestingly, the Court clarified that Article 26(1) EAW FD merely imposes a minimum level of fundamental rights protection. On the basis of its national law, the issuing judge is allowed to deduct, from the total period of detention which the person concerned would have to serve therein, the period during which that person was subject, in the executing state, to measures involving not a deprivation of liberty but a restriction of it. In these few unexpected—and not very much elaborated on—lines, one could see the Court’s step towards a reconsideration—if not revision—of the principle stated in Melloni. As we know, in that judgment the Court interpreted Article 53 CFREU in the sense that Spain could not apply its own higher standard of protection on the right to fair trial, as this would have hampered the primacy, unity and effectiveness of EU law. In JZ, the Court stated that Article 26 merely imposes a minimum level of protection, and concluded that the Member State concerned was not prevented from applying a higher standard. Therefore, the Member States could depart—at least partially—from the wording of the EAW FD, in order to apply their own, higher standard of protection. On a closer inspection, Melloni and JZ seem to be rather different cases. In the former, the issue was whether a Member State could make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution. Since the very execution of the EAW was at stake in Melloni, the Court refused to provide the Member State with margin for manoeuver. In JZ, the person had already been surrendered and the EAW was being executed; this allowed the adoption of a more

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flexible approach, as the implementation of the FD was not at risk. However, its potential should not be underestimated, and the Court’s follow-up to the relationship between minimum standard of protection and national autonomy in the context of the EAW will deserve special attention. The third scenario is illustrated by Bob-Dogi. Here, the Court is not confronted with autonomous concepts. However, it concerns national practices—a fast-track procedure of issuing EAWs, not requiring the issue of a previous national arrest warrant—as incompatible with the EAW FD, since they cannot guarantee an adequate level of individual rights protection.

V.  Concluding Remarks This chapter showed how the CJEU is redefining its approach to the EAW FD, moving from an effectiveness-oriented interpretation to an understanding that pays increased heed to fundamental rights protection. The EAW is the first and most successful example of mutual recognition in criminal matters. The application of this principle to judicial cooperation in criminal justice has been highly criticised, not the least because of its foundation: namely, the principle of mutual trust. It comes as no surprise that the change in the Court’s approach to the EAW FD passed through a reconsideration of the principle of mutual trust. In this sense, the story of the case law on the FD has known two main eras. In the first era, beginning with the Advocaten ruling and culminating in Radu and Melloni, the Court was adamant that mutual trust amounts to the presumption that Member States respect fundamental rights. In this sense, mutual trust was used as a shield to protect the effectiveness of mutual recognition and the EAW mechanism in particular. This is apparent in Melloni, where the Court refused to interpret Article 53 CFREU as allowing the Spanish Constitutional Court to apply its own, higher standard on the right to fair trial. In the CJEU’s view, this would have undermined mutual trust and recognition and, as a consequence, compromised the efficacy of the FD. In this first phase, mutual trust had much more to do with— actually, was a way to secure—the effectiveness of judicial cooperation, rather than fundamental rights protection. Following this dramatic peak, the Court has been reshaping the content of mutual trust and the role of fundamental rights in the context of EAWs procedures. While in Lanigan the Court stated that the EAW FD has to be interpreted in light of the Charter, in Căldăraru the Court explicitly acknowledged the possibility to postpone and abandon the execution of an EAW in case of risk of fundamental rights violations. In the following rulings, the Court has substantiated its new stance. As the EAW is based on mutual trust, this confidence may not just be presumed. It has to be supported by and built on the concrete operation of the system, in terms of implementation by national authorities and interpretation on the part of the CJEU. To this end, the relationship between EU, and national, laws and practices is key. Three scenarios can be identified in the

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second era of the Court’s law. In the first scenario, the Court sees the terms whose interpretation is requested by the national court as autonomous concepts of EU law. Thereby, the Court states that the meaning and scope of the concept of, eg, ‘judicial authority’ cannot be left to the assessment of each Member State (Poltorak, Kovalkovas and Özçelik). In doing so, the Court aims to ensure the respect of the principle of separation of powers between the judiciary and the executive. In other circumstances, such as Dworzecki, the Court resorts to the autonomous concept to protect the right to fair trial in cases of indirect summons. In the second scenario, embodied by Bob-Dogi, no autonomous concepts are at stake. Nonetheless, national practices—a fast-track procedure of issuing EAWs, not requiring the issue of a previous national arrest warrant—are seen as incompatible with the EAW FD, as they are not capable of guaranteeing an adequate level of individual rights protection. In the third scenario, the Court interprets the term subject to interpretation as an autonomous concept of EU law, but leaves the door open to the application of a higher standard of protection at national level. The JZ ruling is a perfect example. On the one hand, the Court stipulated that the concept of detention under Article 26 EAW FD is concerned with deprivation of liberty, and not mere restriction thereof. On the other, that provision is regarded as merely establishing a minimum level of protection, with the national court being allowed to deduct also periods of restriction of liberty. This statement is significant. It may not be deemed as reversing Melloni: in that case, the application of the national, higher standard could have led to the non-implementation of the FD, whereas in JZ the person concerned had already been surrendered. However, the national court is explicitly authorised to depart—at least partially—from the interpretation p ­ rovided by the CJEU of the key concept in Article 26. In conclusion, and even though these judgments leave a number of questions unanswered as to the actual reach of the principles stated therein, it seems safe to say that the approach of the Court to the EAW mechanism is reaching a better balance between enforcement demands and fundamental rights protection.

18 Mutual Recognition and Cross-Border Interception of Communications: The Way Ahead for the European Investigation Order LORENA BACHMAIER

I. Introduction1 The deadline for transposing the Directive 2014/41/EU regarding the European Investigation Order in criminal matters (‘DEIO’)2 has recently expired: by 22 May 2017 all EU Member States should have implemented the EIO in their domestic laws. If the path towards adopting this Directive was lengthy and difficult, the process of implementation might be no easier. However, the moment has come to face the challenges of its implementation in the best possible way, seeking to balance the competing interests: the swift and efficient cross-border judicial cooperation in criminal investigations in the EU and the admissibility of the evidence obtained abroad, while ensuring a high standard of procedural rights of the defendants involved in them. The EIO represents a major step forward in the international cooperation in the gathering of evidence among the EU Member states, but at the same time, it still keeps certain features of the mutual legal assistance instruments adopted under international conventions.3 This is one of the particularities of the EIO,

1  This chapter has been written within the research project I+D+i Excelencia DER 2013–44888, financed by the Spanish Ministerio de Ciencia e Innovación. 2  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. 3  On the content, scope, grounds for refusal, and requirements set out in the DEIO, I refer generally to the comprehensive analysis done before, see L Bachmaier, ‘Transnational Evidence: Towards the Transposition of the Directive 2014/41 Regarding the EIO’ (2015) 2 eucrim 47–60. In particular, on the scope of application and fundamental rights protection as a ground for refusal, see also L Bachmaier, ‘Cross-border Investigation of Tax Offences in the EU: Scope of Application and Grounds for Refusal

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as described in the Explanatory Memorandum: this instrument is based on the principle of mutual recognition and mutual recognition is the objective to be achieved, however taking into account the flexibility of the traditional mutual legal assistance mechanisms.4 This approach was criticised by those who desired a strict application of the mutual recognition principle and claimed that, within the EU Area of Freedom, Security and Justice (AFSJ), the requested Member States should barely have any possibility to refuse requests for evidentiary assistance coming from other Member States. At the same time, the EIO also earned criticisms for trying to go too far too early in building up a single European judicial area: some Member States were not willing to apply in their territories investigative measures that were assessed as disproportionate or against their own laws and constitutional principles, just to comply with the principle of mutual recognition. At the end the DEIO is the result of the compromise between these ­competing views on the meaning and scope of the principle of mutual recognition.5 Mediators often say that, if in resolving a conflict none of the parties under a mediation process is fully satisfied, it can be said that the process has been successful. This might be applicable to the DEIO: the content may not satisfy completely anyone, but the result can be considered a good piece of legislation that has gone as far as possible in promoting the judicial cooperation for fighting effectively transnational crimes, while introducing flexible mechanisms to avoid Member States finding themselves forced to infringe their own constitutional safeguards

of the European Investigation Order’ (2017) 1 European Criminal Law Review 46–66. With regard to the implementation in Spain, see also, E Martínez García, La orden europea de investigación. Actos de investigación, ilicitud de la prueba y cooperación judicial transfronteriza (Valencia 2016). 4 

Paragraph 6 of the Explanatory Memorandum. is much legal literature on the proposals for adopting the DEIO and the DEIO itself and much more on the principle of mutual recognition. Without aiming to be exhaustive, see, for example L Bachmaier Winter, ‘European Investigation Order for obtaining evidence in the criminal proceedings: study of the Proposal for a European Directive’, Zeitschrift für Internationale Strafrechtsdogmatik (ZIS) 9/2010 special issue, 580–89, 581 ff; M Jimeno Bulnes, Un proceso europeo para el siglo XXI, Cizur (Menor 2011) 92 ff; F Zimmermann, S Glaser and A Motz, ‘Mutual Recognition and its Implications for the Gathering of Evidence in Criminal proceedings: a Critical Analysis of the Initiative for a European Investigation Order’ (2011) 1 European Criminal Law Review 56 ff; F Grande MarlaskaGómez and M Del Pozo Pérez, ‘La obtención de fuentes de prueba en la Unión Europea y su validez en el proceso penal español’ (2011) 24 Revista General de Derecho Europeo Iustel, (http://www.iustel. com) 1–42; M Böse, ‘Die Europäische Ermittlungsanordnung-Beweistransfer nach neuen Regeln?’, ZIS 4/2014, 152–64; S Ruggeri, ‘Introduction to the Proposal of a European Investigation Oder: Due ­Process Concerns and Open Issues’ in S Ruggeri (ed), Transnational Evidence and Multicultural ­Inquiries in Europe (Heidelberg 2014) 29–35; and by the same author in the same volume also ‘Transnational Investigations and Prosecution of Cross-Border Cases in Europe: Guidelines for a Model of fair Multicultural Criminal Justice’, at 193–228; I Zerbes, ‘Fragmentiertes Strafverfahren. Beweiserhebung und Beweisverwertung nach dem Verordnungsentwurf zur Europäischen Staatsanwaltschaft’, ZIS 3/2015, 145–55; and also ‘Legal Issues of Transnational Exchange of Electronic Evidence in ­Criminal Proceedings’ (2015) 3 European Criminal Law Review 304–11; I Armada, ‘The European Investigation Order and the Lack of European Standards for the Gathering of Evidence. Is a Fundamental Rights-Based Refusal the Solution?’ (2015) 1 New Journal of European Criminal Law 8–31; M Daniele, ‘Evidence Gathering in the Realm of the EIO. From National Rules to Global Principles’ (2015) 2 New Journal of European Criminal Law 179–94. 5  There

Mutual Recognition and Cross-Border Interception of Communications  315 when complying with the EIO. The EIO also will help in overcoming the undesirable fragmentation of the legal instruments regarding the collecting and transferring of evidence between the EU Member States.6 The objective of this chapter is not to review all the previous and on-going discussions on the mutual recognition principle and the difficulties in the gathering, transferring and assessing of transnational criminal evidence. The aim is to address certain issues that might give rise to problems in the process of implementation or that will need certain interpretative guidelines. In particular will be discussed some issues and difficulties regarding the interception of communications and the gathering and transfer of electronic evidence. At the moment of writing this chapter, only a few of the Member States have finalised the process of transposing the Directive into the domestic legal order;7 therefore reference will only be made to the provisions of the Directive.

II.  Interception of Communications with Technical Assistance of Another Member State Following the wording of Articles 17 to 20 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (‘EU MLA Convention’),8 the Directive 2014/41 has also included special provisions regarding the interception of telecommunications. In fact, several provisions of Article 30 DEIO resemble, or are practically identical to, those already established in the EU MLA Convention. Some of the specific provisions included under Article 30 DEIO are not strictly necessary, as they only repeat or underline the general rules provided earlier in the Directive, as happens with Article 30(5) DEIO when referring to the general grounds of refusal set out under Article 11 DEIO. However, other provisions included in Article 30 DEIO, following the same structure as the rules contained in the EU MLA Convention, are specifically applicable to the request for interception of communications, providing special rules on the execution of the measure, the content of the request, or the costs of this investigative measure.

6  See paragraph 7 of the Explanatory Memorandum. See also L Bachmaier, ‘The role of the proportionality principle in the cross-border investigations involving fundamental rights’ in S Ruggeri (ed), Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings (Heidelberg 2013) 85–110, 98 and seq; S Alegrezza, ‘Collecting Criminal Evidence Across the European Union: The European Investigation Order Between Flexibility and Proportionality’ in S Ruggeri (ed), Transnational Evidence and Multicultural Inquiries in Europe (Heidelberg 2014) 51–67. 7  As to the situation by December 2016, see Council 15007/1/16 REV 1, State of play of the implementation process, of 7 December 2016: http://data.consilium.europa.eu/doc/document/ST-150072016-REV-1/en/pdf, accessed October 2016. Since then several MS have adopted or are about to finalize the legislative process for adopting the law implementing this Directive. 8  2000/C 197/01.

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Due to its similarity—if not identicality—the practice on the application of Articles 17 to 20 of the EU MLA Convention may—to a certain extent—shed some light on the interpretation of Article 30 DEIO. However, as the principles governing the execution and recognition of MLA requests should be overcome by the principle of mutual recognition—in as much as possible—the approach to these very similar provisions will necessarily be diverse.

A. Necessity and Proportionality of the EIO on Interception of Communications: Replacement and Refusal Following Article 30(1) DEIO, ‘an EIO may be issued for the interception of ­telecommunications in the Member State from which technical assistance is needed’. This provision has to be complemented with the general rules applicable to the issuing of any EIO. According to Article 6(1) DEIO, an EIO shall only be issued when it ‘is necessary and proportionate for the purpose of the proceedings’ and the requested measure could have been ordered ‘under the same conditions in a similar domestic case’. Necessity and proportionality are the conditions that have to be assessed by the ‘judicial’ authority for issuing an EIO.9 Although this is clearly stated under the general rules for issuing an EIO, the Directive, under Article 30(4), reiterates that the EIO must explain why the interception of communications is necessary for the relevant criminal proceeding. Even if this reiteration was not needed, it does no harm to underline that any investigative measure, but especially those encroaching on a fundamental right, has to comply with the proportionality and necessity principles.10 Under a strict application of the mutual recognition principle, the executing authority should not check the proportionality and necessity of the measure requested and therefore, the justification of why such measure is needed and proportional for the investigation should need not appear in the EIO. However, as was mentioned earlier, the DEIO has not gone so far as to provide for the automatic recognition and execution of the EIO in a blind way; rather it provides for the possibility to substitute the measure requested and even to refuse it when it does not meet the proportionality test applicable in the executing state. In particular, the executing authority shall have recourse to an investigative measure other than the one indicated in the EIO where the investigative measures selected by the executing authority would achieve the same

9  These requirements were not included in the first text of the Proposal for a Directive EIO, but added later. See L Bachmaier, ‘European Investigation Order for obtaining evidence in the criminal proceedings: study of the Proposal for a European Directive’, ZIS 9/2010 special issue 580–89, 585. 10  On the proportionality principle see, for example, M Fordham and T de la Mare, ‘Understanding the principles of proportionality’ in J Jowell and J Cooper (eds), Understanding human rights principles (Antwerpen 2001) 27–89, 29 ff; L Bachmaier (n 6 above), 85–110; S Alegrezza, ‘Collecting Criminal Evidence Across the European Union: The European Investigation Order Between Flexibility and Proportionality’ in S Ruggeri (ed), Transnational Evidence and Multicultural Inquiries in Europe ­(Heidelberg, New York 2013) 51–67, 59 ff.

Mutual Recognition and Cross-Border Interception of Communications  317 result by less intrusive means than the investigative measures indicated in the EIO [Article 10(3) DEIO].

And regarding the grounds for refusal, the interception of communications requested in an EIO may be refused if the measure does not exist, would ‘not be ­available in a similar domestic case’ (Article 10(5) DEIO and Article 11(1)(h) DEIO), or there are substantial grounds to believe that its execution ‘would be incompatible with the executing State’s obligation in accordance with Article 6 TEU and the Charter’ (Article 11(1)(f) DEIO).11 In the context of telephone interceptions, such measure exists in all EU Member States, and thus a refusal or substitution based on the non-existence of such measure will never apply. However, the threshold requirements for granting the interception of telephone communications varies greatly in the laws of the EU Member States, and thus it may occur quite often that the interception requested would not be possible for investigating a similar domestic case. In short, the executing authority cannot review the assessment done by the issuing authority as to the necessity of the measure for the aims of the criminal investigation, but it can assess whether the information required could be obtained through less intrusive measures and if such measure could be authorised in a ­similar domestic case. To that end, it is necessary that the executing authority be provided with information on the criminal case investigated, as well as the relevance of the interception of communications for the investigation. If the executing authority considers that the information needed could be obtained through less intrusive means than the interception of communications, the DEIO provides for the substitution of the requested measure; and if the substitution is not feasible or is not accepted by the issuing authority, it could lead to the withdrawal of the EIO (Article 10(4) DEIO), or to the refusal of the execution, under Article 10(5) DEIO. The latter is not strictly labelled as a ground for refusal, but as a situation where ‘it has not been possible to provide the assistance requested’, although in practice it amounts to the refusal to execute the EIO. The same will apply if the executing authority receives an EIO requesting an investigative measure that does not exist in the executing state, for example the installing of microphones for the interception of conversations in a private space (Article 10(1)(a) DEIO). In such case, the executing authority shall notify that such assistance cannot be provided and inform the issuing authority of the possibility of adopting a substitute measure that could serve for achieving, if not the same, at least similar results. Before resorting to another measure different from the requested one, the executing authority should inform the issuing authority, as provided under Article 10(4) DEIO. The cooperation in the gathering of evidence under the DEIO

11  On the grounds of refusal see L Bachmaier, ‘Transnational Evidence: Towards the Transposition of the Directive 2014/41 Regarding the EIO’ (2015) 2 eucrim 53–55; A Mangiaracina, ‘A New and Controversial Scenario in the Gathering of Evidence at the European Level: The Proposal for a D ­ irective on the European Investigation Order’ (2014) 10 (1) Utrecht Law Review113–33, 127–32.

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is based on the fluent communication between the relevant authorities involved in the international cooperation, and thus any questions or problems arising in the process of executing an EIO should be dealt with by first consulting the issuing authority. Establishing a channel of consultations and reciprocal information should allow for finding the best possible solution in the process of cross-border evidence gathering for both the issuing and the executing authority. The assessment of the necessity and proportionality of the interception of communication is closely linked to the rules on the content of the EIO. As provided under Article 5 DEIO, every EIO shall express: the identification of authorities and persons concerned; the objective and grounds, which will reflect the facts that are investigated and the evidence sought; the description of the offence from which the issuing of the EIO originates, indicating the criminal law applicable to it; and a description of the investigative measure(s) to be carried out (Article 5(1) DEIO). Additionally, Article 30(3) DEIO requires that the EIO requesting the interception of communications shall include information for identifying the subject of interception, the desired duration of the interception and sufficient technical data to ensure that the EIO can be executed.

B.  The Duration of the Interception An EIO requesting the interception of telecommunications shall express the ‘desired duration of the interception’ (Article 30(2) DEIO). The expression ‘desired’ has not been used by chance: it conveys, for instance, that the executing authority is not bound by the duration requested by the issuing state. The duration of the interception will need to comply with the timeframe established under the law of the issuing authority, but the executing authority will order the execution of the measure—provided that the other requirements are complied with and that no grounds for refusal exist—according to its own laws. The regulation of the maximum length for interception of telecommunications shows great variations among the EU Member States. While the maximum length of the interception order is one month in Belgium, the Netherlands or Sweden, it can be granted for up to three months in Germany and Spain, and for four months in France and the Czech Republic.12 As long as there is no legal harmonisation in this respect, it is clear that the only manner to avoid clashes of the legal systems, when carrying out measures in the exercise of international cooperation and to prevent the infringement of executing state’s own national rules, is to try to adapt the duration of the measure to the time requested, but always within the timeframes set out in the national laws.

12  See the excellent ‘Comparative analysis’ by T Tropina, in U Sieber and N von zur Mühlen (eds), Access to Telecommunication Data in Criminal Justice (Berlin, Duncker & Humblot 2016) 13–117.

Mutual Recognition and Cross-Border Interception of Communications  319 Further to the necessary compliance with the lex loci, while trying to adapt to the lex fori in this regard, it is unclear if the executing authority can decide on the duration of the interception, applying national proportionality standards. For example, if the EIO expresses two months as the ‘desired’ duration of the interception of telecommunications of the targeted subject, and this duration is within the timeframe established in the laws of the executing state, could the executing authority nevertheless establish a shorter duration, based on a proportionality assessment? To my mind, the executing authority should try to respect the principle of mutual recognition in so far as this does not collide with its own laws and constitutional principles. In that vein, as long as the ‘desired’ duration expressed in the EIO is not contrary to the national provisions, the executing authority should not apply its own criteria to limit such duration. Finally, there is another point that shall be addressed in practice while executing an EIO. Most national legislation allows for extending the duration of the interception of communications, beyond the initial maximum length. For example, Belgium allows for a maximum prolongation period of six months, Spain allows the extension of the three-month initial period to a maximum of 18 months, while Sweden does not establish fixed limits on the prolongation, but the maximum time must comply with the proportionality principle.13 Regarding the prolongation of the initial authorisation contained in the EIO, most national laws subject such time extensions to a periodical assessment on the need of the measure, thus requiring that the judge checks the results obtained so far, and decides whether the requisites of necessity and proportionality are still in place. This periodical review for granting the prolongation of the measure should also be carried out when the interception of communications is executed in a foreign country by way of an EIO. To that end, the executing authority should transmit to the issuing authority the communications intercepted within the time periods set out by it—or immediately, if possible—and the issuing authority should decide on granting the extension or not. Such a prolongation, as a rule, should not exceed the maximum timeframe accepted in the national law of the executing state. Fluent communication between the issuing and executing authorities should be promoted for swiftly addressing these issues, as well as other possible incidents that may appear during the execution of the interception of telecommunications. The control by the issuing authority over the execution of the measure in order to decide over the possible prolongation would be clearly facilitated if there were an immediate transmission of the intercepted communications. The way of transferring the evidence—either directly or once recorded as foreseen under Article 30(6) DEIO—will also have a decisive impact on the filtering of the communications and thus on the admissibility of the evidence collected abroad. This issue will be addressed below.

13 

See T Tropina (n 12 above), 78–79.

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C.  Legal Persons and Interception of Communications (i)  EIO Issued in Criminal Proceedings against a Legal Person Following Article 4(d) DEIO, an EIO can be issued for gathering evidence in proceedings which relate to offences or infringements for which a legal person may be held liable. Thus, the EIO can be issued in criminal proceedings—or administrative proceedings ending up in court having, ‘jurisdiction, in particular, in criminal matters’—against a natural person or a legal person. There is first the question on how to deal with EIOs issued in criminal proceedings against legal persons. Most EU Member States provide for the corporate criminal liability, and thus legal persons can be parties to the criminal proceedings in the position of the defendant, but there are still Member States that do not provide for it, and only impose administrative sanctions for infringements committed by legal persons, as is the case, for example, in Germany. What should happen if the issuing state requests the assistance of another Member State for intercepting the communications in its territory, for the purposes of a criminal investigation against a legal person, and in the executing state a legal person could not be subject to criminal liability? Such a request would fall within the scope of application of the EIO Directive, as the measure requested is specifically covered (Article 3 DEIO), the request is issued within criminal proceedings (Article 4 DEIO), and the measure is relevant for the purpose of such proceedings (Article 30(4) DEIO). Furthermore, the investigative measure requested would exist in the executing state. The question that arises here is whether the executing authority could refuse the execution of the EIO or not, based on the ground that legal persons cannot be criminally prosecuted under its national laws. A question arises as to how to interpret Article 10(1)(b) DEIO and Article 30(5) DEIO, as both refer to a measure that would not be authorised in a similar domestic case. In this context, if the crime investigated is, for example, fraud or money laundering, and for the investigation of such a crime, an interception of the communications could be granted, the investigative measure exists, but should the executing authority conclude that the measure requested in the EIO would be available in a similar domestic case? Or on the contrary, as legal persons would not be subject to criminal investigative measures as accused persons, should the executing authority reason that, in so far as there would be no ‘similar domestic case’ in the executing state, the investigative measure requested in the EIO would not be available? In sum, the result will be different if ‘similar domestic case’ is interpreted as referring to the type and gravity of the crime under investigation, or if it can refer to the ‘criminal case’ for whose purpose the EIO has been issued. In our example, such criminal case would never exist in the executing state, as no charges could be pressed against a legal person. But any case related to an equivalent fraud or offence of money laundering, could fall within the concept of ‘similar case’.

Mutual Recognition and Cross-Border Interception of Communications  321 As to the grounds for refusal stipulated under Article 11(1)(g) DEIO, ie refusal based on the fact that the conduct is not an offence in the executing state and does not reach the minimum gravity in terms of available penalty, and Article 11(1)(h) DEIO, ie the use of the investigative measure is restricted to a list or category of offences, which does not include the offence covered by the EIO; in principle they would not apply, unless the fraud committed by a legal person (in our example) is considered a different ‘category’ of offence. The answer to these questions will, of course, depend on the content of the laws transposing the Directive into the domestic legal orders, and on how far the grounds for refusal are regulated as mandatory or not.14 Nevertheless, it can be assumed that not all transposing laws will go into such details and thus provide an answer to these questions. To this end, it would not be unreasonable to consider that as long as the investigative measure exists in the executing state, and the ­adoption/ exercise of such measure meets the proportionality test, taking into account the gravity of the crime, the assistance requested in the EIO should be provided, even if the criminal proceedings are directed against a legal person, and such possibility does not exist in the executing state. I do not consider that the adoption of the measure of intercepting communications would infringe constitutional principles of the executing state or be incompatible with the executing state’s obligations in accordance with Article 6 TEU and the Charter (Article 11(1)(f) DEIO). As long as the measure would be allowed for the investigation of such criminal offences, it does not appear to infringe any fundamental right that the accused person in the issuing state could be a legal person, and not in the executing state.

(ii)  EIO Requesting the Interception of Communications of a Legal Person When regulating the interception of communication, the EIO Directive does not limit this investigative measure to the communications of a physical person; therefore it shall be concluded that the EIO can also be issued to request assistance for intercepting the communications of a legal person, regardless the fact that the criminal proceedings are directed against a natural or a legal person. Article 30(3) DEIO, when regulating the content of the EIO, states that it shall contain the information necessary for ‘identifying the subject of the interception’ and ‘subject’ can in principle mean a natural as well as legal person. 14  According to the Report from the Commission to the European Parliament and the Council on the implementation by the Member States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of judicial decisions on custodial sentences or ­measures involving deprivation of liberty, on probation decisions and alternative sanctions and on supervision measures as an alternative to provisional detention Brussels, 5.2.2014 COM(2014) 57 final: ‘The grounds for refusal should be implemented as optional for the competent authority’. The same rationale should apply in the process of implementing the DEIO. This is also the stance that appears to follow the Advocate General in the Opinion in the Case C-579/15 Openbaar Ministerie v Daniel Adam Poplawski, ECLI:EU:C:2017:116. However, so far, it may be expected that some Member States, for example Spain or France, will continue to transpose the term ‘may’ as ‘shall’ in connection with the grounds for refusal of an EIO.

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This being said, it is obvious that the scope of the interception of communications of a legal person, which is just a legal fiction made of a structure of physical persons, can be quite different from the interception of communications of a single identified physical person, even if the latter also uses different terminals and numerous telephones. Given that an EIO could be issued for requesting the interception of communications of a legal person,15 the question is whether the issuing authority should identify with precision whose communications are to be intercepted or not. It goes without saying that depending on the size of the company the execution of such measure might be too complicated, costly or even practically impossible to carry out. As stated earlier, the issuing authority has to assess the proportionality of the measure ‘for the purpose of the proceedings’ (Article 6(1)(a) DEIO), and although the executing authority shall not check if such requirements are complied with, it can consult the issuing authority where ‘it has reason to believe’ that the EIO does not meet the required conditions of necessity and proportionality. Article 6(3) of the Directive reads: Where the executing authority has reason to believe that the conditions referred to in paragraph 1 have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO.

The meaning of this provision remains unclear.16 Literally it allows the executing authority to ‘consult’ the issuing one, when there are doubts as to the compliance of the requested measure with the conditions of proportionality and necessity. But, does this mean that the executing authority can question the assessment made by the issuing authority on the necessity of the measure? Having a look to the Explanatory Memorandum, it seems that this interpretation should be excluded. Should then the ‘consultation’ be limited to questioning the proportionality of the EIO? In such case, which criteria of proportionality could be subject to consultation: only the proportionality of the costs, or also the proportionality of the intrusive measure in relation to the offence investigated? The way Article 6(3) DEIO is drafted admits none of these interpretations. In practice, it may well occur that if an EIO requests the interception of communications of a company without further specifying which members, bodies or employees are the subjects whose communications are to be intercepted, the executing authority should open this ‘consultation procedure’. This appears to be reasonable, especially if the legal person is of a significant size. This provision may function as a ‘warning’ to the issuing authority: it will know that the executing state may, throughout these ‘consultations’, exercise some

15  Complying with the requirements of Art 30(3)(a) and (c) DEIO on the sufficient information of the subject and the target identifier. 16  See L Bachmaier (n 11 above), 52–53.

Mutual Recognition and Cross-Border Interception of Communications  323 c­ ontrol over the proportionality assessment made in the EIO. Whatever the intention of the legislator was, at the end, the ambiguity of this article promotes the consultations between authorities, which is positive. However, the Directive does not further determine what shall happen once the executing state has made use of the possibility provided under Article 6(3) DEIO. This provision only states: ‘After that consultation, the issuing authority may decide to withdraw the EIO’. I already pointed out in previous papers that the meaning and aim of this sentence is unclear.17 It could refer to the sharing of costs, in case the execution of the EIO would entail disproportionate efforts for the executing authority, and thus this provision should be read in conjunction with Article 21 DEIO.18 But, if it is not directly linked to the costs, once the consultation is done, what will be the consequence? In our example, if the executing authority considers the intercepting of all communications of a legal person as a disproportionate measure ‘for the purpose of the proceedings’, it shall inform the issuing authority about it. Once the issuing authority has been consulted, if they do not restrict the scope of the EIO and the problem is not linked to the costs, but to the breadth of the measure requested, will the EIO be considered as refused? This rule only foresees the ‘withdrawal’ of the EIO, but not further justifications or explanations on the proportionality of the measure requested. As there is no clear answer on how the executing authority should proceed when facing a request which appears to be too broad, it might be not too farfetched to assume that in practice ways will be found to require a restriction of the scope of the EIO, even forcing the literal text of Article 11 DEIO, which regulates the grounds for refusal. For example, if an EIO requests the interception of the communications of a large company, like Volkswagen, it would not be surprising if it were rejected on the basis of not meeting the proportionality principle, even if the EIO describes in detail why the measure is necessary for the purposes of a criminal investigation.

17  18 

Ibid, p 52. Article 21. Costs. ‘1. Unless otherwise provided in this Directive, the executing State shall bear all costs undertaken on the territory of the executing State which are related to the execution of an EIO. 2. Where the executing authority considers that the costs for the execution of the EIO may be deemed exceptionally high, it may consult with the issuing authority on whether and how the costs could be shared or the EIO modified. The executing authority shall inform the issuing authority in advance of the detailed specifications of the part of the costs deemed exceptionally high. 3. In exceptional situations where no agreement can be reached with regard to the costs referred to in paragraph 2, the issuing authority may decide to: (a) withdraw the EIO in whole or in part; or (b) keep the EIO, and bear the part of the costs deemed exceptionally high.’

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(iii)  Execution of the EIO and Admissibility of Evidence The Directive on the EIO seeks to improve the cooperation in cross-border evidence gathering by making the whole process easier for both authorities involved, while also providing for certain minimum safeguards for the rights of the defendants. The EIO does not include rules on admissibility of evidence or evidentiary exclusionary rules, but it introduces several provisions that should facilitate the admissibility of the evidence collected abroad. The final decision on the admissibility of evidence is still in the domain of the national laws of each of the Member States. Admissibility of evidence collected abroad will depend on how such evidentiary elements have been obtained and which rules have been applied during such a process. There is no uniform practice among the EU Member States. While several legal systems require that for evidence to be admissible, it must have been obtained in accordance with the lex fori, other states admit such evidence as long as the lex loci has been complied with.19 There are still countries that do not check the process through which the evidence was collected abroad and apply a blind trust, the so-called principle of non-inquiry: the formalities or norms that governed the evidence-gathering abroad are not checked and there might not even be a control of the lawfulness of such evidence.20 The diversity of solutions existing in each of the Member States hinders the establishment of what has been named ‘an area of free movement of criminal evidence’ and on the other hand may also have a negative impact on the defendant’s rights of defence. Until sufficient procedural harmonisation at the European level is reached, the best solution to ensure admissibility of evidence would be that the executing authority respects as much as possible the rules and formalities indicated by the issuing authority. Such accommodation of the investigative measure to the lex fori, which is already foreseen in the EU MLA Convention of 2000 (Article 4), is set out in Article 9(2) DEIO. Its purpose is to avoid the evidence collected abroad becoming inadmissible because of non-compliance with the lex fori, while at the same time preventing the lex fori from being imposed in the executing state if it is not compatible with the basic principles of the executing state.

19  On the admissibility of evidence obtained abroad in Spanish criminal proceedings, see, among others, F Grande Marlaska-Gómez and M Del Pozo Pérez, ‘La obtención de fuentes de prueba en la Unión Europea y su validez en el proceso penal español’ 24 Revista General de Derecho Europeo 1–41, 13 ff; F Gascón Inchausti, ‘Report on Spain’ in S Ruggeri (ed), Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings (Springer 2013) 475–95. 20 A van Hoek and M Luchtman, ‘Transnational cooperation in criminal matters and the safeguarding of human rights’ (2005) 1 (2) Utrecht Law Review 1–39, 15; S Ruggeri, ‘Introduction to the ­Proposal of a European Investigation Oder: Due Process Concerns and Open Issues’ in S Ruggeri (ed), ­Transnational Evidence and Multicultural Inquiries in Europe (Heidelberg-New York Springer 2014) 29–35, 15.

Mutual Recognition and Cross-Border Interception of Communications  325 The Directive on the EIO has introduced a general rule aimed at advancing the protection of the defence rights, also in the proceedings where cross-border ­evidence has been collected within the EU: Without prejudice to national procedural rules Member States shall ensure that in ­criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO. ­[Article 14(7) DEIO]

This rule, which was added to the text of DEIO at the final stage of the negotiations, certainly represents a significant step forward in the protection of the defendant’s rights. Even if it does not explicitly abolish the principle of noninquiry, it sets out the obligation of the courts to check how evidence was collected in another M ­ ember State and whether the defendant’s fundamental guarantees were respected. This rule should not be understood as a mere recommendation, but as a real duty of the trial court to exercise certain control over the lawfulness of the evidence collected abroad. The real effect of this rule will depend on how the Directive EIO is transposed in each of the Member States, and how this rule is interpreted by the Court of Justice of the European Union.

(iv) Execution of an EIO on Interception of Communications: Towards the Direct Transmission of the Data With regard to the execution of an EIO regarding the interception of communications, these general rules are also applicable, but Article 30(6) DEIO provides for a specific rule on the execution of the EIO issued for the interception of tele­ communications. It precisely states: Article 30(6) DEIO reads: An EIO referred to in paragraph 1 may be executed by: (a) transmitting telecommunications immediately to the issuing State; or (b) intercepting, recording and subsequently transmitting the outcome of interception of telecommunications to the issuing State. The issuing authority and the executing authority shall consult each other with a view to agreeing on whether the interception is carried out in accordance with point (a) or (b).

This Article follows almost exactly, albeit with another wording, the provision contained in Article 18(1) of the EU MLA Convention, where the immediate transmission of the intercepted telecommunications and the recording and subsequent transmission are also foreseen as possible means of executing the MLA request and transferring the results to the issuing authority. It could be said that the Directive does not innovate much on this point, as the possibility of immediate or direct transmission of the communications is already foreseen. However, the impact in practice may differ, because the Directive expressly states that both issuing and executing authorities must agree on how

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the execution of the interception of communications shall be carried out. It may thus be expected that the direct access and immediate transmission of the intercepted telecommunications to the issuing authority will gain increasing importance in the AFSJ. For the moment, the direct data transfer obtained through the interception of communications is hardly used in practice,21 but efforts should be made in order to advance towards the direct transmission of the communications intercepted. The present law and practice on the execution of requests on interception of telecommunications and the transfer of those data in the different Member States is quite diverse. In Belgium, for instance, the real-time transfer of communication data is not possible;22 thus the provisions of Articles 18 and 19 of the EU MLA Convention have not had any practical application so far. In Sweden, no direct access is provided, and the real-time transfer of data has to go through the channels of the Swedish system (police, prosecutor and/or courts).23 In Germany the real-time transfer of data is possible, both on the basis of an international Convention (such as Article 18 EU MLA Convention), as well as upon bilateral agreements.24 In such cases, however, the German authorities must ensure that the German national rules are complied with and that they are respected by the requesting state. To that end, the German authorities, when acting as executing authorities, will subject the transfer of the real-time data to conditions, so that the privileges and immunities applicable under German law are safeguarded by the issuing authority directly accessing the ­communications data. In Spain, for example, there are no legal provisions on the filtering of incoming data or of outgoing data, or on the way the transfer of the information obtained through the interception of communications to the issuing authority is to be carried out.25 In practice, the transfer takes place in different ways: it is not infrequent that a member of the judicial police, or even a member of the public prosecution, travels abroad to take the disks with the recorded communications and brings them to the Spanish Investigating Judge. This is often done when the Spanish officers have already travelled to the relevant country for the purposes of the ­investigation,

21 

See T Tropina (n 12 above), p 116. See G Boulet and P De Hert, ‘Access to Telecommunication Data in Criminal Justice: Belgium’ in U Sieber and N von zur Mühlen (eds), Access to Telecommunication Data in Criminal Justice (Berlin, Duncker & Humblot 2016) 123–246, 238–39. 23  See I Cameron, ‘Access to Telecommunication Data in Criminal Justice: Sweden’ in U Sieber and N von zur Mühlen (eds), Access to Telecommunication Data in Criminal Justice (Berlin, Duncker & Humblot 2016) 611–44, 642–44. 24  T Wahl (with B Vogel and P Köppen) ‘Access to Telecommunication Data in Criminal Justice: Germany’ in U Sieber and N von zur Mühlen (eds), Access to Telecommunication Data in Criminal Justice (Berlin, Duncker & Humblot 2016) 499–610, 594–95. 25  See L Bachmaier, ‘Access to Telecommunication Data in Criminal Justice: Spain’ in U Sieber and N von zur Mühlen (eds), Access to Telecommunication Data in Criminal Justice (Berlin, Duncker & Humblot 2016) 647–704, 701–2. 22 

Mutual Recognition and Cross-Border Interception of Communications  327 but there are also cases where the travel takes place only for bringing the disks with the intercepted communications. However, this is not the only practice. For example, when it comes to judicial cooperation with France, the transfer of data is often done through the liaison magistrates. The National Court reports of cases where the data have been transferred through the Embassy personnel (single cases of data transfer with the USA).26 In investigations where several EU countries are involved and joint investigation teams have been set up, the disks sometimes are transferred through the heads of the respective joint investigation teams. In other cases, the disk is attached to the documents related to the request, and sent by ordinary channels. In sum, there is no uniform practice. But, as far as we know, at present neither the current legal framework nor the technical setting allows for the judge from another EU Member State to have direct access to the data resulting from the telecommunications interception. In view of these diverse systems and taking into account the different scope of privileges and immunities in the laws of each Member State, it can be expected that the execution of the EIO, through an immediate transmission of the data, will not be generally implemented in the near future, although such a system of transmission could considerably improve the admissibility of the evidence. At present it is being discussed how the EIOs on interception of communications could, once ‘recognised’ (ie following a check that there are no grounds for refusal) in the executing state, be enforced by directly accessing to the interception system, so that the authorities of the executing state should not intervene beyond checking the prior authorisation included in the EIO and the maximum duration. As the issuing authority would have direct access to the content data or the conversations that are being recorded, the supervision of the proportionality and necessity of the measure could also be done immediately according to national standards of the issuing state. Similarly, the decision on the prolongation or the suspension of the interception could also be adopted right away, and more importantly, the filtering of the communications would be done by national authorities respecting the immunities and privileges applicable in the forum state. This system however, requires the intercepting authority to agree to comply also with the lex loci, as this control will not be done by the ‘executing’ state. Advancing in this direction should be one of the objectives of the EU Member States, as direct access would not only better ensure the admissibility of the evidence in the forum state and the compliance with the proportionality principle according to its national parameters, but it would also be beneficial to the right of defence of the defendants. Defendants would be subject to the same legal provisions in cross-border interception of communications and in strictly domestic

26  This information has been obtained by interviewing several Investigating Judges of the National Court by the end of 2015.

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ones. There would be no need to be aware of the rules applicable in the executing state with regard to the filtering of data or the protection of immunities, or requirements for prolongation, as the law of the forum/the law of the issuing state would govern all these issues. The need for remedies for challenging the lawfulness of the measure in the executing state would not be necessary either, as in practice, except for the initial authorisation to connect to the interception system and the time-limits, once the EIO is recognised, the execution would be done in accordance to the national rules of the issuing state. In fact, once the EIO is recognised, the issuing state would become the ‘intercepting State’. Allowing the issuing authority to connect directly to the system of interception of telecommunications of the executing state, once the requirements of the EIO have been duly checked by the executing authority, would also increase the safeguards regarding the confidentiality of the information obtained. The executing state would, in principle, not have any knowledge of the content of the communications intercepted, but would only be responsible for the technical execution of the measure, and thus the risks of leaks of the intercepted data might also be reduced. It goes without saying that such a system would clearly improve the cooperation in the gathering of evidence, and provide for swifter transmission of the results to the investigating authority in the issuing state. It would also be consistent with the principles of a single AFSJ, as the issuing authority would have access to the communications directly as if those communications had been intercepted in its own country. However, the direct transmission will not only require a prior situation of mutual trust between the Member States, but also a certain harmonisation of the immunities and privileges in the issuing and executing states, or precise agreements setting out the conditions to be respected in the execution of such investigative measure. Taking the example of the lawyer–client privilege, although it is widely recognised and the interception of such communications is prohibited in most EU Member States, there are still differences on how to filter those conversations if they have been accidentally recorded, or on the person in charge of the filtering and the destruction of these conversations. The rules and practice on how to deal with communications that infringe the lawyer–client privilege vary from country to country. Such differences can of course have an impact on the rights of the defendants and the protection of the privacy in each Member State. If problems may arise in the execution of interception of communications when equal privileges are applicable in the issuing and executing states, the situation can become even more complicated when both states do not have the same rules on immunities and protection of confidential relationships. For example, while professional immunities are broadly regulated in Germany, the approach is much more lenient in the Spanish system. Which law should apply when filtering the intercepted communications? It appears that, in this example, if Spain were the executing state, it would not have problems in authorising a direct access to

Mutual Recognition and Cross-Border Interception of Communications  329 the t­elecommunications, as its standards on the protection of such professional immunities would be respected. In principle, the Spanish executing authority would not have any objection to the fact that the German authorities apply a higher standard of protection and a very strict filtering procedure. Such system would ensure admissibility in the issuing state, while not infringing—rather raising—the standards and laws of the executing state. But, how to deal with the opposite situation, where Spain would be the issuing state and Germany the executing state? Would the executing authority subject the real-time transmission of data to conditions, according to their rules on professional privileges and immunities? If direct access is granted, how would the German authority control that the issuing state finally respects those conditions, and deletes conversations and communications that should not be intercepted under German law? These are only some of the problems that might arise in the application of Article 30(6) DEIO, as they have already risen with Article 18 EU MLA Convention. As stated earlier, experience has shown that the direct transmission has hardly had any impact in practice. If things are to change in the execution of the EIOs, it is something that is difficult to affirm now. What is sure is that reaching the point where another EU Member State obtains direct access to the telecommunications interception system in the executing country will require not only continuous efforts towards improving the mutual trust, but also the development of adequate software to be able to filter those communications that are not covered by the authorising order and/or are subject to a privileged protection. Moreover, this swifter cooperation will require specific agreements in each case, defining the scope of the interception in a clear way and the safeguards to be put in place for respecting both the lex loci and the lex fori/the laws of the issuing and executing states. Even if the difficulties might appear to be insurmountable, both from technical and legal points of view, the ASFJ needs to advance in that direction for improving the cross-border judicial cooperation in the collecting and transfer of telecommunication data. The cooperation has to progress and has to overcome present situations where, for example, a police officer of the issuing state is sent to the executing state to collect the physical disk with the recorded communications, or situations where privileged communications are recorded and not filtered, by the intercepting authority, and are kept within the investigation file, pending the application of the exclusionary rule of evidence by the trial court. Further problematic issues could be raised, such as the impact of the accidental findings, or the need for translation of the communications recorded. For these issues, a closer cooperation between the Member States will be needed and more harmonisation would also contribute to ensuring the rights of suspects but ­citizens in general. All these issues will have to be discussed and common ­guidelines should be defined in the implementation of the EIO, not only in order to improve the efficiency of the investigative measures, but also in order to respect the ­privileges and immunities in each state.

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III.  Interception of Communications without Technical Assistance of Another Member State Article 31 DEIO regulates how to proceed in cases where the interception of the telecommunications in another Member State does not require the technical assistance of such state. The main obligation for the ‘intercepting’ state is to notify the relevant state where the intercepted communications took place. The exact terms of Article 31(1) DEIO read as follows: Where, for the purpose of carrying out an investigative measure, the interception of telecommunications is authorised by the competent authority of one Member State (the ‘intercepting Member State’) and the communication address of the subject of the interception specified in the interception order is being used on the territory of another Member State (the ‘notified Member State’) from which no technical assistance is needed to carry out the interception, the intercepting Member State shall notify the competent authority of the notified Member State of the interception.

Such notification shall be done either prior to the interception if the location of the subject is known, or during or after the interception when the authority issuing the interception order did not previously know of it. This provision is almost identical to Article 20 EU MLA Convention, also establishing the obligation to notify the relevant state and the possibility of the latter to require the termination of such interception if it would not be allowed in a similar domestic case. Furthermore, the notified Member State can also ‘where necessary’ communicate to the ‘intercepting State’ that the intercepted material cannot be used or be used only under certain conditions (Article 31(2) DEIO and Article 20(4) EU MLA Convention). The reasons why this Article has been introduced in the EIO Directive might be explained by the fact that the Directive will replace the EU MLA Convention of 2000 as of 22 May 2017, as stated in Article 34(1)(a) DEIO, and therefore the rules for specific investigative measures have just been transferred from one legal instrument to the other. Whatever reasons might be behind Article 31 DEIO, the fact is that it is now part of the Directive and it needs to be interpreted beyond the international law context. Such a rule is understandable within the principle of international comity,27 which will govern the international relations. However, it may acquire a different meaning in the context of the EU AFSJ and the principle of mutual recognition that should function as the ‘cornerstone’ of the judicial cooperation in civil and criminal matters in the EU.

27  The concept of international comity, much used in public and private international law, is understood as courtesy, reciprocity, moral obligation, or respect for foreign sovereignty. The doctrine of comity has been considered, not as a rule, but a term that characterises many functional elements that make an international legal order. See for example, JR Paul, ‘The transformation of International ­Comity’ (2008) 71 Law and Contemporary Problems 19–38, 19–20.

Mutual Recognition and Cross-Border Interception of Communications  331 Yet Article 31 DEIO constitutes a provision which is not related to the ­European Investigation Order, as no assistance is needed for executing the investigative measure, and thus no EIO will be issued and it could be said that in a certain way the ‘issuing authority’ is the same as the ‘executing authority’. It might be useful to provide for such notification in the DEIO for the aim of keeping mutual trust, for the exchange of information among Member States and for showing respect to the sovereign powers of each of the Member States, even though such notification is not related to the EIO or to the request for assistance in collecting evidence. It is curious that the extensive Explanatory memorandum does not make any reference to this Article. That being said, it might be appropriate to address some questions regarding the interpretation and implementation of this provision.

A.  Obligation to Notify about the Interception Accessing the telecommunications of subjects located in another country—or data stored in another country—is an action that raises issues on sovereignty principles and international comity.28 The fact that technology allows to access telecommunications regardless of territorial borders does not mean that it should be automatically considered lawful. However, in the global digital world, it has become increasingly accepted that it is not feasible to apply territorial concepts to the cyberspace, and that physical boundaries and geographical frontiers are not relevant anymore in the virtual world. In this field, further discussions and studies are needed in order to consider how to overcome the traditional concepts on jurisdiction linked to the concept of territoriality and state sovereignty, which may no longer fit the globalised digital environment. Linking the issues of jurisdiction to the locality of the person whose communications are intercepted or to the place where the digital data are physically stored, does not seem to be a valid approach anymore. For example, since telephone or internet communications can also be established—and also intercepted—while flying on an aircraft, would it be sensible to apply the traditional notions of territory to such interceptions, and oblige the requesting state to notify the state where the aircraft is registered or the states whose airspace is being overflown? The notions of physical location are even less important regarding electronic data stored in the cloud, where the intercepting authority might not even be aware where those servers are located. Besides the need for reviewing the concept of sovereignty in cyberspace and in the digital environment, the DEIO establishes the obligation to notify the ­relevant state prior to the interception of the telecommunications if the competent

28  See JL Goldsmith, ‘The internet and the legitimacy of the remote cross-border searches’ (2001) University of Chicago Legal Forum 103–18.

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a­ uthority knows that ‘the subject of the interception is or will be on the territory of the notified Member State’ (Article 31(1)(a) DEIO). If the authority does not know beforehand where the subject is or will be (or the location of the data), the notification shall be made to the Member State where he/she was at the moment of the interceptions, once this is known. Several questions arise here. First, whom shall the competent authority notify of the fact of the interception? And second, must the competent authority notify all Member States in which the subject was located while his/her communications were intercepted? It shall be assumed that if such notification is required for comity purposes and respect of national sovereignty, the notification should be made to the central authority of the relevant Member State(s). It is difficult to think of another recipient of such notification, especially in those cases where the person has no permanent domicile in that state, or is travelling across several EU countries. The actual practice regarding these notifications is quite variegated: some Member States regularly send such notifications, while others never do it.29 In accordance with Article 30(3) DEIO, the ‘notified State’ can prohibit the interception where the ‘interception would not be authorised in a similar domestic case’. As a consequence, it seems adequate that the notification is addressed to a judicial authority. If the person has a domicile, it might be interpreted that the territorially competent judicial authority should be the recipient of the notification, in order to better assess the lawfulness of the investigative measure in the relevant territory. However, this is unclear. The second question relates to the content of the notification. Should the ‘intercepting State’ notify the interception of the telecommunications—to be carried out or already executed—using the form set out in Annex C (Article 31(2) DEIO)? The text provides expressly that the notification shall include all information necessary, including a description of the case, legal classification of the offence(s) and the applicable statutory provision/code, in order to enable the notified authority to assess, whether the interception would be authorised in a similar domestic case; and whether the material obtained can be used in legal proceedings [Annex C, V].

This might be the most adequate approach in practice.

B.  Consequences of Notification and of Non-notification Once the notification is made in accordance with the procedure foreseen in the DEIO, it is for the notified state to decide whether it applies the prohibition of the investigative measure and/or the use of the materials obtained by way of the telecommunications interception.

29 

Information obtained from Spanish practitioners.

Mutual Recognition and Cross-Border Interception of Communications  333 What is the role of the ‘notified authority’, taking into account that in these cases it is not the ‘executing authority’? Should there be a kind of validation, similar to that provided under Article 2(d) DEIO? Should this provision be applied here by analogy? Is the notification a mere formality or could the ‘notified State’ really check the proportionality and lawfulness of the interception? In use of this power, the notified state could, for example, ban the remote search of computers in its territory if such measure is not regulated in its national laws; it could also prohibit the use of the materials intercepted. If the measure is foreseen in the laws of the relevant state, in order to assess whether such measure could be adopted in a similar domestic case, the notified state shall check all the data related to the criminal investigation and see if any of the grounds for refusal would apply. Even if the ‘notified State’ could adopt such decisions, such prohibitions should be used very sparsely, and this for various reasons. Firstly if the use of the materials obtained through such interceptions is frequently prohibited, this can lead to the practice that Member States avoid complying with the requirement of notification, which would also run counter to mutual trust. Furthermore, the general obligation of the Member States to protect their citizens in their territory from encroachment of their rights through foreign interception of communications is not applicable anymore in the cyber-world. Therefore it does not seem justified that a state could enforce a prohibition to access communications in their territory, when technical assistance is not needed. Notifications should be made, but not with the aim of obtaining authorisation from the notified state, but rather for keeping good relations and a fluent exchange of information. Otherwise, as practice has shown already, the intercepting authorities will just skip this obligation. It should be further discussed whether Article 30(3) DEIO should be kept, taking into account the difficulties in enforcing its compliance. If, in accordance with the domestic law of the state where the telecommunications were intercepted, the authorities decide that such measure would not be authorised in a similar domestic case, then the investigative measure would not comply with the lex loci. In such a situation, it will depend on the national transposing laws to decide whether the notified state should prohibit such measure or not. The Directive only states that the ‘notified State’ may prohibit the measure or the use of the data obtained thereof. What would be the consequences in the forum state/intercepting state if the ‘notified State’ does prohibit the use of the intercepted communications? Would the ‘intercepting State’ be bound by such a decision? Would such a decision render the evidence obtained in the foreign state inadmissible in the forum state? These are questions that will need to be faced by the courts in practice and again, certain uniform guidelines would help in implementing adequately this provision of the Directive. In our opinion, in those cases where technical assistance is not needed for the interception of communications, the Member States should adopt

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a flexible stance, and try not to make use of the possibilities of prohibiting those measures or the evidence obtained ‘if they would not be authorised in a similar domestic way’. In this sense, we are in favour of not trying to exercise territorial boundaries and old concepts of sovereignty in cyberspace. In any event, regardless of the position of the ‘notified State’, if the measure was unlawful in the state of ‘execution’, the admissibility of evidence could be questioned in the intercepting state. This topic, however, is to be dealt with by each national court, and cannot be adequately analysed within the scope of this chapter. Finally, what would be the consequences if the ‘intercepting State’ did not comply with the obligation to notify the state where the subject of the interception was located? Would this lack of notification affect the validity of the evidence obtained through the ‘non-notified’ interception of telecommunications? If admissibility of evidence is an issue to be counterbalanced in the forum/ intercepting state, the absence of notification to the authorities in the ‘executing’ state would be an issue affecting merely the principle of international comity. But, if in the forum/intercepting state, such notification is considered an essential element for the lawfulness of the interception and the evidence, then the defendant could invoke the exclusion of such evidence. At the end, the answer to these issues on the admissibility of evidence, in cases of non-compliance with the obligation to notify the Member State where it was obtained, will depend on the domestic rules applicable to the admissibility of evidence in criminal proceedings and also on the rules implementing the DEIO in each Member State. This situation might lead to a great diversity, and in this regard a common approach on admissibility of evidence would be desirable.

IV. Conclusions In this chapter, only some aspects of this EIO Directive have been addressed, and particular attention has been paid to its implementation in the transnational interception of telecommunications. There are still many issues that need to be further analysed, and practice will be observed in order to elaborate guidelines and identify best practices, as well as possible shortcomings. One of these issues undoubtedly is the right to data protection of the information transmitted in execution of an EIO, as well as the further use of the data transmitted for other proceedings or to trigger other investigations. Notwithstanding the positive assessment of this Directive, there will be many issues that will need to be addressed in the national laws implementing it, and practical problems to solve, that will require the willingness of the Member States to foster an effective cooperation in the gathering of evidence. Special efforts will be further needed for consolidating or creating mutual trust, but also for showing understanding towards different legal and constitutional traditions. With this aim,

Mutual Recognition and Cross-Border Interception of Communications  335 it would be advisable that the Member States take a flexible approach when implementing the Directive, and regulate the grounds for refusal as optional grounds and not as mandatory ones. On the one hand, the implementation of the EIO will definitely facilitate the cooperation between the Member States in prosecuting crimes, and a swift cooperation in the interception of telecommunications will undoubtedly have a positive impact in fighting transnational crimes more effectively. However, in this field, the imbalance between the powers of the prosecution and the defendant become even more manifest. Such imbalance is not caused by the EIO, because it is also present at the domestic level. In many countries, the defence is not allowed to gather evidence independently, and can only request the investigating authority or court to adopt measures. This situation cannot be described as respecting the principle of equality of arms. This is especially visible when it comes to the gathering of evidence through the interception of telecommunications. This measure is almost always secret; it entails a very serious encroachment on the fundamental rights of the affected persons, and finally it has a very wide scope, which cannot always be limited beforehand. Moreover, almost in no country is the defence provided with the possibility to request the interception of telecommunications for providing exculpatory evidence or for challenging the reliability of the evidence provided by the prosecution. Ultimately, although Article 1(3) DEIO foresees the possibility for the defendant to have access to cross-border evidence, this will rarely be possible with regard to the interception of telecommunications. Further discussions should be held in order to find some compensation to the defence for the shortcomings detected in relation to the principle of equality of arms.30 On the other hand, the Directive does not contain any provision regarding the protection of the rights of third parties that may be affected when executing an EIO, save for the rules on witnesses’ and experts’ testimonies through videoconference, telephone or other audio-visual means (Articles 24 and 25 DEIO). In so far as third parties’ fundamental rights will be affected through the interception of communications, the national laws should ensure that third persons are properly informed of the measure that has affected them and the ways to protect their rights. This should be done in the executing state by the competent judicial authority; however it is unclear who should be responsible for informing when the interception of the telecommunications has been done from a foreign state without technical assistance of the state in which the third person is located. Despite the shortcomings, uncertainties and possible imbalances, the fight against transnational crime within the EU requires a much more efficient international judicial cooperation, which cannot rely anymore on the traditional notions

30  Critic also with the lack of provision on the defence participation in the execution of an EIO, although with regard to the text of the Proposal for a Directive, S Ruggeri, ‘Introduction to the Proposal of a European Investigation Order: Due Process Concerns and Open Issues’ in S Ruggeri (eds), Transnational Evidence and Multicultural Inquiries in Europe (Heidelberg-New York, Springer 2014) 17.

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of international law, and the protection of the states’ own sovereign powers. This is why all Member States should approach the transposition of the Directive on the EIO in a timely way and with the will to foster as much as possible the principle of mutual recognition. Being positive that each country can activate a ground for refusal, if the cooperation requested would run counter their own conception and regulation of the fundamental rights, flexibility should be a core concept. When facing a request via EIO, national competent authorities should not seek grounds for refusal, but they should, rather, the other way round, try to overcome those obstacles that hinder the cooperation. States should also endeavour to establish fluent consultation channels with the authorities of the other Member States involved in the execution of EIOs. The expectations put on the EIO are very high, and they should not be lowered or even destroyed in the process of transposing this Directive into the national legal orders. After more than a decade of efforts in negotiating this Directive, it is the moment for the Member States to ensure the efficient and timely implementation of the EIO, demonstrating that an effective system of judicial cooperation in the gathering of evidence is one step forward in the establishment of the ASFJ, and that this can also be achieved in compliance with the fundamental rights of the defendants.

Part V

The Quest for Balance Regarding Criminal Justice Actors and in Their Mutual Relations

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19 A Comparison of the Evolution and Pace of Police and Judicial Cooperation in Criminal Matters: A Race Between Europol and Eurojust? SABINE GLESS AND THOMAS WAHL

I.  About Roles and Functions When thinking about how to address the ‘Comparison of the evolution and pace of police cooperation and judicial cooperation’ topic, we immediately thought about a purported Europol vs Eurojust ‘race’—a kind of disequilibrium or competitive relationship that could be observed in the last 10 years. We realised that— at least from the perspective of a university ‘ivory tower’—it would not be easy to discover the rules of this comparison between police cooperation and judicial cooperation, since this cooperation features a multitude of legal frameworks, working languages, actors and stakeholders.1 Starting from the drawing board of EU policy-makers, the two EU agencies in charge of cross-border cooperation in criminal matters developed more or less according to the plan set by national decision-makers, in their respective fields: Europol has been responsible for police cooperation and data exchange from an early stage, but it has, up to now, had no formal executive power or command over national law enforcement authorities and thus bears very limited responsibility for ‘operations on the ground’; the cyberspace, however, may be a different matter.2

1 Cf M Coninsx, ‘Eurojust’ in V Mitsilegas, M Bergström and T K ­ onstadinides (eds), Research ­ andbook on European Criminal Law (Edward Elgar, 2016) 454: ‘yet the European Union is composed H of interactions among 30 different legal systems and 24 working languages. Such differences between national legal systems must be taken into account when establishing a novel European actor and its set of competences’. 2  Cf Council Decision 2009/371/JHA [2009] OJ L121/37, Recital 7; see also S Gless, ‘Europol’ in V Mitsilegas, M Bergström and T Konstadinides (eds), Research Handbook on European Criminal Law (Edward Elgar, 2016) 460.

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Europol is considered the hub for information exchange in the Union—a role that is in the literature also described as Europol being the Union’s main ‘information broker’ in the area of criminal law enforcement.3 By comparison, Eurojust, which is responsible for the coordination of and cooperation between the judicial authorities of the 28 EU Member States, appears to be inherently more reserved and seems to stay a cautious step or two behind Europol due to its role as a judicial authority. Although Eurojust’s operational capacities were stepped up in 2008,4 Eurojust is mainly a coordinator and advisor that pays close attention to traditional legal frameworks. Its role can be briefly described as a ‘supranational coordinating and clearing house’, which is able to quickly solve legal problems or render mutual legal assistance more effective when national prosecutions deal with cross-border crime.5 On the basis of these initial considerations, it is assumed that the roles of these two European Union bodies essentially are the same as those allocated at national level: the police involved in operational actions and the judiciary balancing the different interests at stake. It therefore appears that the question is not so much about the challenge as to who is first or who is a step ahead in a race between the police and the judiciary but rather whether the two bodies have found their place within the scenario of multi-level law enforcement.6 In the following section (II), we verify this assumption by looking at the deve­ lopment of these two European Union agencies and their mission in the area of freedom, security and justice. This is exemplified by the agencies’ role in the fight against terrorism and cybercrime.7 We further scrutinise whether our analysis of the status quo will be valid in view of the reform of the legal frameworks gover­ ning the role and function of the two bodies. The adaptations under the European Union`s Lisbon Treaty have been made for Europol by Regulation (EU) 2016/794 of 11 May 2016,8 and the question arises as to what will come out of it in the future. Subsequently, in section III, we examine which (common) challenges the two institutions must meet henceforth, focusing on two issues: (A) are Europol and Eurojust able to find a European response to new cross-border crime ­phenomena; and (B) is accountability ensured for them and their agents?

3  Cf T Wahl, ‘The European Union as an Actor in the Fight Against Terrorism’ in M Wade and A Maljevic (eds), A war on terror? (Springer 2010) 107, 144. 4  Council Decision 2009/426/JHA [2009] OJ L138/14. For the reform see also Michèle Coninsx (n 1 above) 442 et seq. 5  T Wahl (n 3 above) 147. 6  The term ‘law enforcement’ is used here in a wider sense not only referring to police and other competent law enforcement authorities which dissuade or discover criminal activity, but also includes the investigation and prosecution of criminal behaviour by the judiciary, ie the prosecutorial services and the criminal courts. For the use of the term in this sense cf (1974) 124 New Law Journal Part 1, p 358. 7  Other areas of possible comparison could have been the trafficking in human beings, smuggling, large-scale fraud, etc. 8  Regulation (EU) 2016/794 of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA [2016] OJ L135/53.

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II.  Mission Accomplished—Where does One Go Now? The European Union’s law-maker has set clear goals for both agencies giving them a mission for criminal justice cooperation, on the one hand, and police cooperation, on the other. According to Article 85 TFEU, Eurojust’s mission is to support and strengthen coordination and cooperation between the national authorities of the 28 Member States that conduct investigations into and prosecute serious cross-border crime. By equipping Eurojust with coordination and cooperation tools, promoting a fluent exchange of information, giving it the mandate to assist with the application of the EU’s legal instruments based on the principle of mutual recognition of judicial decisions, and endorsing best practices across the EU, Eurojust contributes to close cross-border cooperation among the competent judicial authorities. Europol’s mission, on the other hand, is—according to Article 88 TFEU—to support and strengthen action by the Member States’ police authorities and other law enforcement services. Within this mandate it will prevent and combat serious crime affecting two or more Member States, including terrorism and crimes which affect a common interest covered by a Union policy. By improving and facilitating information sharing by the competent national law enforcement authorities with Europol, equipping Europol with data systems and capacities to produce strategic intelligence, establishing specialist knowledge (such as in the area of cybercrime) and extending Europol’s abilities to cooperate and build up partnerships with other EU institutions, international organisations and third states, as well as the private sector, Europol could fulfill its role as a support unit to national law enforcement activity. Overall, both institutions have accomplished the goals given to them by primary EU law in recent decades. Is that enough? The answer depends on one’s ambition for the future of EU cooperation.

A. Europol Europol commenced its activities in 1999 after Member States had agreed on the establishment of a European Police office and eventually adopted the Europol Convention.9 Its predecessor, the European Drugs Unit (EDU) had already become operational in the early 1990s.10 9 For further information see S Puntscher Rickmann, ‘Security, Freedom and ­ Accountability: Europol and Frontex’ in E Guild and F Geyer (eds), Security versus Justice? Police and ­Judicial Cooperation in the European Union (Ashgate 2009) 19–20. 10  For further information see: F R Monaco, ‘Europol: The Culmination of the European Union’s International Police Cooperation Efforts’ (1995) 19 Fordham International Law Journal 247, 282.

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From the very start, Europol’s mandate was directed to ‘action’, but predominantly in the digital world and in the processing of data. As is well known, Europol was designed from the start with a main focus on data exchange between the national authorities of EU Member States and as the nucleus of a European intelligence unit.11 The data mandate was subsequently extended to more areas of crime (including, for instance, terrorism),12 but the EU Member States never ventured into making Europol a European ‘FBI’ with real operational competences. Article 88 paragraph 3 TFEU still sets the limit: Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.

In 2009, Europol was transformed into an EU agency. This transformation strengthened the European influence on Europol as it made it subject to general rules and procedures applicable to EU agencies.13 These general rules and procedures not only include budgeting and auditing, but also affect the revision of the legal basis and—to a limited extent—the judicial oversight of Europol by the Court of Justice of the European Union (CJEU).14 Europol’s powers lie basically in producing intelligence,15 but it also offers direct assistance to national units. Europol’s activities with regard to preventing and combating alleged terrorist threats are a good example in this context. Two months after the terrorist attacks of 9/11 in the US the Counter-Terrorist Task Force (CTTF) became operational. In 2007, the CTTF was transferred to the First Response Network. Europol was mandated to (1) collect in a timely manner all relevant information and intelligence concerning the current terrorist threat in the EU; (2) analyse the collected information and undertake the necessary operational and strategic analysis; and (3) draft a threat assessment document based on information received.16 In addition, Europol developed several products and services that assist law enforcement authorities in the Member States in conduc­ ting ongoing investigations.17 Europol has adjusted its capabilities continuously.

11 

Monaco (n 10 above), 248–49, 274–77. C Ladenburger, ‘Police and criminal law in the Treaty of Lisbon: a new dimension for the Community method’ (2008) 4 European Criminal Law Review 20, 23; Thomas Wahl (n 3 above) 144–45. 13  See, for instance, M Tebaldi/M Calaresu, ‘Level of Europeanization and Policy O ­ utcomes: The Common Security Policy and the Case of Europol’ (June 2013) SAGE Open, 7. 14  S Gless (n 2 above) 464 et seq. 15 For further information on the importance of data exchange as part of EU policy: M Fletcher, R Lööf and B Gilmore, EU Criminal Law and Justice (Edward Elgar Publishing 2008) 92–97; A Nunzi, ‘Exchange of information and intelligence among law enforcement authorities. A ­European Union perspective’ (2007) 78 Revue internationale de droit pénal 143, 147–48. 16  T Wahl (n 3 above) 145; see furthermore S Rozée, C Kaunert and S Léonard, ‘Is Europol a ­Comprehensive Policing Actor?’ (2013) 14 Perspectives on European Politics and Society 374. 17  See, for instance, Europol Review, General Report on Europol Activities, 2009, p 17. 12 

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In January 2016, the European Counter Terrorism Centre (ECTC) was launched at Europol and reacts to the new Jihadist terrorism which threatens the EU (in particular marked by the attacks on Charlie Hebdo in January 2015). The main function of the ECTC is to be a hub to exchange information, conduct analysis and coordinate operational support. The ECTC is able to provide quick and effective support on a 24/7 basis to counter-terrorism and criminal investigations when the terrorist event has a transnational or international scope. The support includes the analyses of an enormous amount of data generated by the criminal investigations, establishment of mobile offices or provision of Arab language experts who are able to monitor websites and social media in Arabic or track networks that support the financing of terrorist activities.18 Beyond the fight against specific physical cross-border crime threats, Europol is largely involved in preventing and combating cybercrime. Europol has been using its cybercrime mandate and has been hosting the European Cybercrime Centre (EC3) since 2013. The EC319 is meant to coordinate cross-border law enforcement activities against cybercrime, provide technological expertise to the competent national authorities and assist national authorities in their efforts to dismantle and disrupt cybercrime networks. The EC3 has a promising future and has already expanded its staff and activities. Among other projects, it hosts a Joint Cybercrime Action Taskforce (J-CAT), which is composed of cyber liaison offi­ cers from EU Member States and non-EU partners, as well as officers from EC3. The taskforce operates in a rather flexible legal framework, following the objective ‘to pro-actively drive intelligence-led, coordinated action against key cybercrime threats and top targets’.20 The new legal framework confirms Europol’s shift in its action to focus police work on cyberspace. Regulation (EU) 2016/794 now provides a legal setting for this approach by pointing out, in the description of Europol’s task, that the (already existing) European Cybercrime Centre should be further developed and that Europol is to support Member States’ actions in preventing and combating forms of crime which are facilitated, promoted or committed using the Internet.21 In addition, the new legal framework seems to change the role of Europol. In this regard, two issues are particularly striking for us, which are somewhat hidden in Regulation (EU) 2016/794. Firstly, the new Regulation indeed still contains a provision according to which Europol can request Member States to initiate criminal investigations. However, a few changes have been inserted. For instance, the new provision refrains from using the words that the Member States

18 For more information about the ECTC see https://www.europol.europa.eu/crime-areas-andtrends/crime-areas/terrorism, accessed 3 August 2017; see also Cornelia Riehle, (2016) eucrim 69–70. 19 Europol, ‘European cybercrime centre-EC3’: https://www.europol.europa.eu/about-europol/ european-cybercrime-centre-ec3, accessed 3 August 2017. 20  See Europol, ‘Joint cybercrime action taskforce (J-CAT)’: https://www.europol.europa.eu/ec3/ joint-cybercrime-action-taskforce-j-cat, accessed 3 August 2017. 21  Regulation (EU) 2016/794 (n 8 above), Art 4 para 1(l) and (m).

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shall give such requests ‘due consideration’22 and introduces a time-limit for national authorities to justify their decision not to follow Europol’s requests.23 Herewith, Europol’s request should become more ‘powerful’ although the request remains non-binding in nature since it is (still) up to the national authorities to ­comply with the request or not. As a consequence, however, Europol’s abilities to instruct or direct national police authorities to launch criminal investigations are reinforced by the new provision.24 Even more prominent is the second issue: Regulation (EU) 2016/794 stresses that Europol should ‘have the fullest and most up-to-date information possible … in order to develop an understanding of criminal phenomena and trends to gather information about criminal networks, and to detect links between different criminal offences’.25 Europol further explicitly receives a green light ‘to choose the most efficient IT structure’, in order to ‘be able to swiftly detect links between investigations and common modi operandi across different criminal groups, to check cross-matches of data and to have a clear overview of trends’.26 This ‘vision’ is implemented by Article 18 which foresees, inter alia, that Europol may process personal data for the purpose of ‘operational analyses’. Although Article 18 ­paragraph 3 of Regulation (EU) 2016/794 includes some guarantees for data protection, in the case of these ‘operational analyses’, the legal text nowhere mentions ‘how’ these analyses are carried out. In short, the new legal framework endorses Europol’s capacity in carrying out data-mining operations. Data mining is defined as the technique of exploring sets of data in order to identify interesting structures in the data, including patterns, statistical or predictive models of the data and relationships among parts of the data.27 This possibility presents certain risks with regard to respect for data protection standards and illustrates once more Europol’s move towards having a more active role, almost comparable to the role of national police services. If Europol goes down this road, it must also meet the requirements for police authorities with regard to accountability set for national police.

22 

Cf Art 7 para 1 Council Decision 2009/371/JHA vs. Art 6 para 1 Regulation (EU) 2016/794. Regulation (EU) 2016/794 (n 8 above), Art 6 paras 1 and 2 read as follows: ‘(1) In specific cases where Europol considers that a criminal investigation should be initiated into a crime falling within the scope of its objectives, it shall request the competent authorities of the Member States concerned via the national units to initiate, conduct or coordinate such a criminal investigation. (2) The national units shall inform Europol without delay of the decision of the competent authorities of the Member States concerning any request made pursuant to paragraph 1.’ 24  See Regulation (EU) 2016/794 (n 8 above), Art 6: ‘In specific cases where Europol considers that a criminal investigation should be initiated into a crime falling within the scope of its objectives, it shall request the competent authorities of the Member States concerned via the national units to initiate, conduct or coordinate such a criminal investigation.’ 25  Regulation (EU) 2016/794 (n 8 above), Recital 23. 26  Regulation (EU) 2016/794 (n 8 above), Recital 24. 27  R Sicurella and V Scalia, ‘Data Mining and Profiling in the Area of Freedom, Security and Justice’ (2013) 4 New Journal of European Criminal Law 409, 420 with further references. 23 

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B. Eurojust By comparison, Eurojust’s work appears to be rather low-key in nature. A provisional unit (called Pro-Eurojust) located in Brussels started to operate some years after Europol, in March 2001, with the mission to enhance judicial cooperation in criminal matters. The terrorist attacks of 11 September 2001 accelerated the development of various forms of judicial cooperation, including the formal establishment of Eurojust in 2002 by a Council Decision,28 with a seat in The Hague. Today, after the revision of Eurojust’s legal framework in 2008, a strengthened College, composed of one National Member for each Member State, is responsible for Eurojust’s organisation and operation.29 The main task is to solve conflicts of jurisdictions or difficulties in mutual legal assistance in criminal matters, such as extradition/surrender or the collection of evidence abroad. All College Members have a minimum set of powers to operate from their desk in their respective home countries; the powers, however, are set by national legislation. Eurojust has not been designed for operational action. Its priority rather lies in increasing levels of judicial networking. An important tool in this regard is the Eurojust National Coordination System (ENCS). Its goal is to guarantee in each Member State the effective and swift flow of information between the judicial authorities at the national level, from the national member to Eurojust and from the national contact points to the European Judicial Network in criminal matters (EJN).30 A Eurojust National Correspondent in each Member State is responsible for the functioning of the ENCS and the correspondent serves as ‘the lighthouse’ for the other ENCS members, and for the Eurojust National Member.31 By means of the ENCS, the tasks of Eurojust in the Member States should be facilitated, ensuring, inter alia, that Eurojust’s case management system is fed with enough and reliable information and defining Eurojust’s competence in relation to the EJN.32 As mentioned above, the establishment of Eurojust is closely linked to the ­terrorist attacks of 2001. As a result, Eurojust is also considered a key player in the EU’s fight against terrorism, and combating terrorism is one of its priorities.33

28  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinfor­ cing the fight against serious crime [2002] OJ L63/1. 29  Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against ­serious crime. This Decision was adopted by the Council in December 2008 and took effect on the day of its publication in the Official Journal of the European Union [2009] OJ L138/1 (04.06.2009). 30  Á Gutiérrez Zarza, Exchange of Information and Data Protection in Cross-border Criminal Proceedings in Europe (Springer 2015) 79. 31  ‘Eurojust paper on the ENCS structure and profile of the national correspondent for E ­ urojust’ (Eurojust, 11 July 2011): http://www.eurojust.europa.eu/Practitioners/objectives-tools/Documents/Eurojust%20Note%20on%20the%20Eurojust%20National%20Coordination%20System% 20%28ENCS%29/ENCS-and-National-Correspondent-for-Eurojust.pdf, accessed 3 August 2017. 32  See also Art 12 para 5 of the 2008 Eurojust Council Decision (n 29 above). 33  T Wahl (n 3 above) 147; Eurojust News (October 2009) Issue No 1 on the fight against terrorism.

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In the wake of the terrorist attacks in Madrid in March 2004, the College of ­Eurojust set up a Counter-Terrorism (CT) Team within Eurojust and also created a scoreboard by means of which Eurojust keeps track of the progress achieved in major counter-terrorism initiatives.34 The major purpose of these steps was to improve and facilitate networking, since a decision was taken ‘to progress from purely reactive coordination efforts to more proactive … contributions in the fight against terrorism.’35 Furthermore, Eurojust strives to gain expertise in all aspects of the phenomenon of terrorism. Since 2005, Member States have been obliged to ­designate National Correspondents for Terrorism. These correspondents must provide Eurojust with certain items of information, including data which identify the person, group or entity that is the object of a criminal investigation or pro­ secution; the offence concerned and its specific circumstances; information about final convictions for terrorist offences and the specific circumstances surroun­ ding those offences; links with other relevant cases; and requests for judicial assistance, including letters rogatory, addressed to or by another Member State and the response.36 The information received is processed in Eurojust’s case management system and analysed, if necessary, by legal analysts.37 Recently, Eurojust has also been more and more involved in the fight against cybercrime. It set up a Task Force on Cybercrime and is supporting the European Judicial Cybercrime Network. The cybercrime network brings together practitio­ ners to share their experience and expertise regarding the challenges that are faced during investigations and prosecutions of cybercrime or cyber-enabled crimes, such as electronic evidence, the differentiated treatment of specific categories of data in criminal proceedings, encryption or jurisdiction.38 Recently, Eurojust also took up efforts to strengthen cooperation between the judicial and law enforcement authorities and takes part in some of Europol’s anti-cybercrime activities.39 One of Eurojust’s most powerful tools remains rather informal and low profile: coordination meetings. In such meetings, Eurojust brings together judicial autho­ rities from different Member States to exchange information on a specific case, to overcome possible obstacles to cooperation, and to ensure the speedy e­ xecution of requests for judicial cooperation. Such meetings allow for the exchange of information as well as for legal discussions. Both may lead to criminal investigations in the Member States.

34 

O Bures, EU Counterterrorism Policy—A Paper Tiger? (Routledge 2011) 117. Cited by Oldrich Bures (n 34 above) referring to an Interview with Michèle Coninsx, at that time Chair of the Counter-Terrorism Team of Eurojust, in September 2009. 36  Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences [2005] OJ L253/22, Art 2 paras 2, 3 and 5. 37  Eurojust News (October 2009) Issue No 1, p 3. 38  Cf Eurojust press release of 25 November 2016, ‘Kick-off meeting for the European Judicial Cybercrime Network’: http://www.eurojust.europa.eu/press/PressReleases/Pages/2016/2016-11-25. aspx, accessed 3 August 2017. For the underlying Council Conclusions see Thomas Wahl, (2016) eucrim 75. 39 Eg with a representative at the EC3 (cf Eurojust Annual Report 2015: http://www.eurojust. europa.eu/doclibrary/corporate/eurojust%20Annual%20Reports/Annual%20Report%202015/ Annual-Report-2015-EN.pdf, accessed 3 August 2017, p 33). 35 

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In addition, Eurojust was granted several powers to exert influence on national investigations and prosecutions, such as the right to ask the competent authorities of the Member States concerned to undertake an investigation or prosecution of specific criminal acts, to request Member States to coordinate among themselves, to ask for specific investigative measures to be taken or to take any other measure justified for the investigation or prosecution of a case.40 In addition, the national members of Eurojust are—subject to national legislation—entitled to exercise certain powers in their capacity as a competent national authority. Most national members are entitled, for instance, in agreement with a national competent authority to issue complete requests for judicial cooperation, to execute in their Member State requests for judicial cooperation or to order in their Member State investigative measures considered necessary at a Eurojust coordination meeting.41 As with Europol, Eurojust’s legal framework is under review. Likewise, Eurojust is to be ‘Lisbonised’, meaning that its structures and governance are to be aligned to the setting of the Lisbon Treaty (more precisely: the Treaty on the Functioning of the EU (TFEU)) as well as to the EU’s approach of de-centralised agencies.42 Similarly to Europol, the (current) legal basis of the Council Decision is to be replaced by a Regulation. In 2013, the Commission tabled a proposal,43 on which the JHA Council reached a general approach at its meeting on 12–13 March 2015.44 One of the objectives of the Eurojust reform is to strengthen the operational work in the fight against cross-border crime, as well as to increase operational effectiveness. It is explicitly mentioned that Eurojust should act ‘on its own initiative’, by which Eurojust is imputed a more ‘proactive role’.45 However, we must wait for the outcome of the negotiations of the legal text to know what that really means.

C.  Europol vs Eurojust? Coming back to our preliminary question of whether there is a ‘race’ to discover between police and judiciary at the European level, or whether both agencies— Europol and Eurojust—have found their own place in the European Union’s ­setting of combating cross-border crime: the reader may first observe that both have undergone parallel developments in priority policy areas, such as terrorism

40  Council Decision 2009/426/JHA [2009] OJ L138/14, Art 6 para 1(a). Eurojust here acts through its national member(s) concerned. In a reduced manner, similar rights were conferred on the College of Eurojust, see Art 7 para 1(a) of said Council Decision. 41  Cf Council Decision 2009/426/JHA [2009] OJ L138/14, Art 9b. See also Coninsx (n 1 above) 445. 42  See also Coninsx (n 1 above) 452–53. 43  Proposal for a Regulation on the European Union Agency for Criminal Justice C ­ ooperation ­(Eurojust), COM(2013) 534 final. For an overview of the proposal and a first analysis see A ­Weyembergh, ‘An Overall Analysis of the Proposal for a Regulation on Eurojust’ (2013) eucrim 127. 44 Further negotiations were put on hold in 2015 because advancement of the Regulation on the European Public Prosecutor’s Office was awaited. The following refers to the draft regulation on E ­ urojust in the version of the last and publicly available amendments by the Council: Council doc 6643/15 of 27 February 2015. 45  Coninsx (n 1 above) 453. See also Art 2 para 3 of the Draft Regulation, Council doc 6643/15.

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and cybercrime. Looking at the subject-matter may lead to the conclusion that ­Eurojust is lagging behind Europol. Whereas Europol began to increase its ­capacity to tackle terrorism shortly after 2001, it took the terrorist attacks of Madrid in 2004 for Eurojust to reinforce its structures to tackle the phenomenon of terrorism. Likewise, whereas Europol had already started to intensify expertise and knowledge about the crime phenomenon of cybercrime in 2013, Eurojust seems to have created similar structures three years later in 2016.46 But on the national level, too, police force and judicial authorities keep up with the changing world of crime at a different pace. However, the seemingly nearly identical powers of both agencies to request national authorities to initiate criminal investigations could indicate that there is competition between them. Is Europol not by nature regularly quicker to process relevant investigative data and forward them to national counterparts accompanied with the request to go ahead with criminal investigations in the case which may flow in criminal prosecutions? And yet, from a continental European point of view, should it not be the rule that the ‘judiciary’—ie Eurojust—takes the lead in providing the impetus for opening criminal prosecutions? Even if one takes the perspective of the inquisitorial model for criminal justice systems, with strong public prosecution services and ‘juges d’instruction’, who are in charge of criminal prosecution in many countries of the European continent, we do not believe that we can speak today about a ‘race’ or ‘competition’. It is more appropriate to emphasise the functions of the two EU bodies in the area of freedom, security and justice. Focusing again on the EU’s architecture, Europol and Eurojust have, to date, each fulfilled their assigned function. It has been correctly observed that both institutions target, in the first place, different audiences: national police authorities on the one hand; prosecutors and other judicial authorities on the other.47 Therefore, ‘their activities are driven by different logics and concerns’.48 Europol’s work has always been directed to ‘action’; it is marked by efficiency, pro-activeness and pragmatism.49 By contrast, Eurojust has—in a quiet and discreet way—increasingly fulfilled its key role as ‘facilitator’ in enhan­ cing judicial coordination and cooperation within the EU; this is also true for the aforementioned crimes of terrorism and cybercrime. Eurojust does its work more behind the scenes and is less visible. It is to be understood from this that its work is focused on formalism and legal compliance, characteristics that correspond to judicial mindsets.50

46  However, it should not be ignored that Eurojust has invested efforts in the fight against child pornography on the Internet in the past. 47  A Weyembergh, I Armada and C Brière, ‘The inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area’ (2014) Study for the LIBE C ­ ommittee, 2014: http:// www.europarl.europa.eu/RegData/etudes/STUD/2014/510000/IPOL_STU%282014%29510000_ EN.pdf, accessed 3 August 2017, section 2.1.1.1(b). 48 Ibid. 49 Ibid. 50 Ibid.

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This conclusion remains the same if we look at the agencies’ powers to request the initiation of criminal proceedings in the EU Member States. Attention must be drawn to the fact that Europol and Eurojust operate in a multi-level criminal law enforcement environment, which respects the characteristics of the national criminal justice systems. Criminal investigations may be dealt with in one country by judicial authorities and in another by a police authority. The existence of two rights to ask for criminal investigations/prosecutions to be initiated is acceptable as long as it remains up to the national legal order how to further proceed with the information received from the supranational level. Eventually, an important issue to consider when the two institutions are assessed is that although identical terms, such as ‘operation’ or ‘pro-activeness’ are used, their meaning may differ in different contexts.51 Thus, the emphasis on increasing the operational capabilities of Eurojust in the new draft Regulation does not mean that Eurojust is given new powers to carry out operations,52 but rather refers to a change of internal structures so that the national members of Eurojust can better concentrate on the casework, instead of spending time with additional administrative and managerial issues.53 Similarly, the notion that Eurojust should have a more pro-active role refers to the coordination of cases54 rather than that it should carry out real operational analysis, which is work that continues to be reserved for Europol. If the assessment that there is ‘no race’ taking place between the two agencies, but rather a common effort in accordance with their respective raisons d’être still holds true, the question remains as to whether this assessment is still valid if one looks less at the historical side of their activities, but rather on the future ­competences assigned to Europol. In fact, today we might be facing a decisive break with the past. If Europol makes full use of its new competences and focuses on operational analyses, including data mining, its role could develop into a pace-setter as a ‘main detector of criminal activities’ within the EU.55 As a consequence, it would indeed be the supranational police force that takes the lead in producing evidence and it would be the judicial service (Eurojust) that would be behind, functioning as a sole ‘executor’ of the police material.56 If we add Europol’s ­competences to request national authorities to initiate criminal investigations, there is even a growing risk that Europol could bypass its judicial counterpart at the ­supranational level and 51 

Weyembergh, Armada and Brière (n 47 above), section 2.1.3.4. See also the Draft Regulation on the powers of the national members, Council doc 6643/15, Art 8 which, in substance, is going to take over the current legislation. 53  Coninsx (n 1 above) 453. 54  Cf Draft Regulation on Eurojust, Council doc 6643/15, Recital 10. 55  De Capitani remarks in this regard that Europol by trying to become the main EU’s intelligence information hub is brought closer to the model of an EU National Security Agency than to a European FBI as it was in its first place (https://free-group.eu/2015/12/06/the-new-europol-no-more-europeanfbi-not-yet-european-nsa/, accessed 3 August 2017). The trend can already be observed in the field of Europol’s role in strategic analysis. 56  For keeping Eurojust’s role as a mediator/facilitator in the current draft proposal of a Regulation on Eurojust, see Weyembergh (n 43 above), (2013) eucrim 127, 130. 52 

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act ‘on its own initiative’. It is hoped, however, that both agencies will constantly work together and that Europol will not rush ahead without involving Eurojust properly.57

III.  Challenges for the Future—Law in Action It is not enough just to put Europol and Eurojust side by side and to compare them. If we want to fulfill our task, we must also take into account which common challenges both institutions will face in the future and how these challenges are to be met. In this context, we will focus on two issues: —— coming up with a European value-based response to cross-border crime; —— securing adequate accountability for the agencies themselves and their agents.

A.  Delivering a European Value-based Response A European response to cross-border crime must transcend national perspectives by combining ideas and pooling resources from the national criminal justice systems and giving priority to European values. Transcending national perspectives means striving to develop an overall picture but it does not mean merely piling up more information; it can also mean identifying weaknesses and speaking up. As a chain is only as strong as its weakest link, information exchange and cooperation only works when everyone assists with it. Therefore, Europol and Eurojust must not only be provided with new databases, but the national police forces and other authorities must agree on and implement an adequate model of informationsharing. The relevant authorities must identify weaknesses and speak up about them, not only but also with regard to efficiency in terms of cooperation. In other words: in order to give a European response, the European agencies must strive not only for efficiency, but also for values. That is not only necessary with regard to the Member States’ level, but also with regard to the European or even global level. Consequently, when implementing certain instruments, both Europol and Eurojust must themselves balance their interests in terms of the efficient prevention and combating of crimes, with the protection of human rights, including the citizens’ right to privacy and protection of personal data as a European value nurtured in the history of this continent.58 Again, Europol might be more exposed than Eurojust, and not solely in the domain of terrorism, but also in its cyberspace

57 

Instructive in this regard, Weyembergh, Armada and Brière (n 47 above), section 2.1.3.1. F Bignami, ‘European Versus American Liberty: A Comparative Analysis of ­Antiterrorism Data Mining’ (2007) 48 Boston College Law Review 676; E De Busser, ‘Examples and Assumptions: Transatlantic Data Protection in Criminal Matters’ (2012) 15 Journal of Internet Law 3, 8–9. 58  See:

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activities. For instance ‘cyber patrols’ and subsequent profiling will raise privacy and human rights concerns.59 The meaning of a ‘European’ response in practice becomes particularly relevant if Europol and Eurojust interact with authorities outside the European Union. Reference in this regard must be made to the ‘safe harbour’—decision of the CJEU.60 On the one hand, it was right that the European Union itself gave an answer to transnational data transfer agreements. Despite criticism of the deal reached between the EU and the US, such a mechanism for transferring data across the Atlantic would not have, and could not have been negotiated by one E ­ uropean country on its own. On the other hand, the decision of the CJEU sets clear guidelines (also by referring to the landmark ‘Digital Rights Ireland’ ­decision61) on what are the essential European data protection standards and the European values of proportionality and accountability.62 The CJEU further c­ larified these principles when it recently stated that the planned agreement on the transfer of Passenger Name Record Data to Canada partly does not meet requirements of fundamental rights and data protection in the European Union.63 It is therefore up to the E ­ uropean public authorities, including Europol and Eurojust, to raise the ­‘European’ voice when it comes to data transfers from and to third countries, in particular the US. The agreements of Europol and Eurojust on the exchange of data with third parties might be put under overall critical scrutiny and review in the light of the previous and future case law of the CJEU on European data protection standards.

B.  A Vision of Checks and Balances Accountability, judicial control and judicial review are some of the crucial issues in the ‘safe harbour’ decision. This is why the decision brings us to the second challenge of both agencies, namely accountability of cross-border cooperation. Today, accountability is the icon for good governance, democratic governance and judicial control.64 Judicial control has been considerably strengthened since the pre-Lisbon days of the ‘third pillar’ framework.65 This is a consequence of the improvement and strengthening of judicial control by the CJEU under the Lisbon Treaty. The CJEU may, in principle, exercise a certain level of control, not only over the validity and 59 

For a deeper analysis see Sicurella, Scalia (n 27 above) 409 et seq. Case C-362/14 Maximillian Schrems v Data Protection Commissioner, ECLI:EU:C:2015:650. 61  Case C-293/12 Digital Rights Ireland Ltd, ECLI:EU:C:2014:238. 62  Schrems (n 60 above), paras 91 et seq. 63  CJEU, Opinion 1/15 of 26 July 2017, ECLI:EU:C:2017:592. 64  For further details on the concept of accountability S Puntscher Rickmann, ‘Security, ­Freedom and Accountability: Europol and Frontex’ in E Guild and F Geyer (eds), Security versus Justice? Police and Judicial Cooperation in the European Union (Ashgate 2009) p 23. 65 C Ladenburger, ‘Police and criminal law in the Treaty of Lisbon: a new dimension for the ­Community method’ (2008) 4 European Criminal Law Review 20, 30; Monaco (n 10 above) 281–82. 60 

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interpretation of the rules laid down in the agencies’ constitutive instruments but also over their actions, in accordance with the limits enshrined in the general provisions of the TFEU. The current Regulation on Europol, as well as the current proposal for a Regulation on Eurojust, address the question of democratic accountability in the broad project of ‘Lisbonisation’ of both EU agencies. Articles 85 and 88 TFEU explicitly provide for involvement of the European Parliament and national parliaments in democratic oversight of the two bodies, as a result of an overall strengthening of their roles under the Lisbon Treaty.66 Regulation (EU) 2016/794 foresees the establishment of a Joint Parliamentary Scrutiny Group (JPSG), which will consist of members of the competent committee of the European Parliament67 and the national parliaments.68 How the oversight works in practice remains unclear, since this form of accountability is new in the area of European criminal law enforcement. Thus, the JPSG will certainly have a pioneering role. Its task will be to ‘politically monitor Europol’s activities in fulfilling its mission, including as regards the impact of those activities on the fundamental rights and freedoms of natural persons’ (emphasis added).69 The re­ference to ‘political monitoring’ implies that parliamentary scrutiny is excluded for Europol’s day-to-day work, in particular for its operational work.70 To take a current topic, the JPSG will therefore not be able to shed light on the issue as to how Europol procures for big data analysis—an issue on which the national governments and the European Commission have not been willing to disclose information.71 Europol is obliged to transmit to the JPSG certain documents, such as threat assessments or strategic analysis reports, administrative arrangements, the multiannual programming or annual work programme of Europol, and the evaluation report drawn up by the Commission. Although the JPSG may request other re­levant documents, Regulation (EU) 2016/794 clearly intends to deny the parliamentary watchdog access to important information that is marked ‘classified’.72

66  For Europol see also E Disley/I Barrie/W Hughes/B Patruni, ‘Evaluation of the implementation of the Europol Council Decision and of Europol’s activities’ (Europol, 2012) xxxvii: https://www.europol. europa.eu/sites/default/files/publications/rand_evaluation_report.pdf, accessed 3 August 2017. 67  This is currently the LIBE committee. 68  Regulation (EU) 2016/794 (n 8 above), Art 51. 69  Regulation (EU) 2016/794 (n 8 above), Art 51 para 2, first subparagraph. 70 M Monroy, ‘New Europol regulation due to enter into force from May 2017—oversight is likely to remain superficial’: http://www.andrej-hunko.de/europa/dokumente/7-beitrag/3190-neweuropol-regulation-due-to-enter-into-force-from-may-2017-oversight-is-likely-to-remain-superficial, accessed 3 August 2017. 71  Cf Question for written answer of 4 June 2015 by MEP Cornelia Ernst, subject: ‘Internet Analysis Coordination Teams at Europol’, E-009059-15; Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Andrej Hunko, Jan van Aken, Wolfgang Gehrcke, weiterer Abgeordneter und der Fraktion DIE LINKE.—Drucksache 18/4382—Maßnahmen im operativen Europol-Aktionsplan für das Jahr 2015 zu Cyberangriffen mit deutscher Beteiligung, BT-Drucks. 18/4585 of 10 April 2015. 72  Monroy (n 70 above).

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The JPSG should be fed by Europol only with more or less general, even regularly publicly available information, and additional information requests are subject to the requirement of their necessity for the fulfilment of the JPSG’s task relating to political monitoring.73 Even if the JPSG does indeed identify problems, the JPSG is only entitled to draw up ‘summary conclusions’ on the political monitoring of Europol and submit those conclusions to the European Parliament and national parliaments. The European Parliament will forward them for information purposes to the Council, the Commission and Europol.74 It is to be expected that Europol does not have to fear direct consequences of this parliamentary scrutiny. Regarding these material, procedural and factual limitations, the—often long awaited—democratic control of Europol by the parliaments may turn out to be a ‘blunt sword’ only.75 Whether parliamentary oversight of Eurojust will be designed in a parallel way still remains to be seen.76 However, the current draft Regulation is less promising. The content of the draft is restricted to setting up limited reporting duties of ­Eurojust, in particular to transmit its annual activity report to the European ­Parliament and the national parliaments. Parliamentary discussions on ‘specific operational cases’ is explicitly excluded.77 One might wonder whether it is right that democratic control over Eurojust can remain steps behind the level of control over Europol. However, this issue must be reserved for a more in-depth analysis that cannot be carried out here.

IV. Conclusion One thing has become clear in the last decade: both Europol, processing an enormous amount of data and planning to take (police) action in cyberspace, and Eurojust, in charge of facilitating judicial cooperation in the real world in and outside of the European Union, today represent the European face of tackling cross-border crime. Considering the various challenges for criminal justice systems today, the EU Member States and the European agencies must ensure that they can master their tasks. Overall, we believe that—looking at the evolution of Europol and Eurojust—their relationship is not about a ‘race’, but about joint efforts. Each body has stepped in to fulfill the role and function assigned to them.

73 

Cf Regulation (EU) 2016/794 (n 8 above), Art 51 paras 3, 4. Ibid, Art 51 para 5. 75  Critical also is Monroy (n 70 above). 76  See also Weyembergh (n 43 above), (2013) eucrim 129, indicating already a weak transposition of the Lisbon Treaty as regards democratic control on Eurojust. 77  Draft Regulation on Eurojust, Council doc 6643/15, Art 55 para 2. 74 

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Law in action might have turned out differently in certain respects than the drawing board visions of European cooperation in criminal matters. At a time when Europe is under pressure, its bodies, agencies and institutions serve as an example. When, in certain countries, there is a political shift towards greater nationalism and in others the balance between security and individual freedom shifts more towards security, European bodies, agencies and institutions should stand up for European solutions. Europol has already been ‘Lisbonised’, when it started its work as the ‘EU Agency for Law Enforcement Cooperation’ on 1 May 2017, when the new Regulation replacing and repealing the previous Europol legal framework entered into force. ­Eurojust still awaits its new ‘Lisbonised’ legal basis. The delay is also due to the fact that Member States decided to first dedicate themselves to set up the European Public Prosecutor’s Office and put aside negotiations on a Regulation on Eurojust. Hence, Europol starts to work according to a mandate that has been endorsed and will intensify its work on operational analysis. A new form of data handling has been established—including data mining operations—which may lead to the not improbable scenario that Europol works as a pace-setter at the European level and Eurojust solely as an insurer of judicial follow-up of police results. It is therefore all the more important that both EU agencies act jointly as they have done in the past.78 At the same time, competent actors at both levels must ensure that European values and the all-embracing commitment to individual rights and liberties are not sacrificed on the altar of short-term law enforcement actions. Standing up for European values concerns Europol, Eurojust, as well as all European institutions and all its citizens.

78  For recent examples, see joint Europol–Eurojust press releases: ‘”Avalanche” network d ­ ismantled in international cyber operation’ (1 December 2016); ‘178 arrests in successful hit against money mu­ling’ (22 November 2016); ‘EUR 320 million VAT fraud: key targets arrested’(20 October 2016). For the complementarity of Europol and Eurojust see also Weyembergh, Armada and Brière (n 47 above), section 2.1.1.3.

20 The Cooperation Between Police and Justice at the EU Level: The Representative Example of Joint Investigation Teams ANNE WEYEMBERGH, INÉS ARMADA AND CHLOÉ BRIÈRE

I. Introduction The starting point of this chapter lies in a research paper drafted in 2014 for the LIBE Committee of the European Parliament on interagency cooperation and the future architecture of the EU criminal justice and law enforcement area.1 This paper contained a specific part on the cooperation between Europol and Eurojust, which concluded that close cooperation between the two agencies is essential in order to assist national authorities in fighting serious crime from the preliminary police investigation phase up to the trial stage. This cooperation is, however, not always smooth or easy to organise, either in law or in practice: negotiations on the Europol and Eurojust Regulations indeed evidence the tensions in the field. The study also revealed the imbalance between law enforcement agencies and the judiciary at EU level, particularly in terms of resources, both human and financial, between Europol and Eurojust, which necessarily impacts on their respective role and weight in the EU area of criminal justice. In order to analyse cooperation between police and judicial authorities at EU level and particularly between the two main JHA agencies in the field, joint investigation teams (JITs) have been selected as a representative case study. This choice is justified by a series of reasons, mainly the hybrid nature of JITs. Their mixed

1  A Weyembergh, I Armada and C Brière, ‘The interagency cooperation and future architecture of the EU criminal justice and law enforcement area’ (Research paper for the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament, 2014: http://www.europarl.europa.eu/ thinktank/fr/document.html?reference=IPOL_STU(2014)510000, accessed 10 March 2017).

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nature is evidenced by the confusion between the current legal basis in the Treaty (namely Article 89 TFEU pertaining to police cooperation) and secondary law (namely the 2000 MLA Convention2 and the Framework Decision of 13 June 2002 on JITs,3 both of which are instruments of judicial cooperation in criminal matters) on the one hand, and the involvement of both police officers and judicial authorities in JITs,4 on the other hand. Such hybridity is symptomatic of the blurring boundaries between police and judicial authorities, a blur that exists at national level as well as at European level. At the latter level, the blur is even reinforced by the coexistence of different national criminal systems and the diversity in the distribution of competences between police and judicial authorities.5 This chapter thus focuses on the relationship between Europol and Eurojust in relation to JITs. Since the 2014 research paper, new developments have occurred, especially linked to the evolution in the negotiation of the two draft Regulations on Europol6 and Eurojust.7 On 30 November 2015 the LIBE Committee voted and approved (by 43 to 5, with 4 abstentions)8 the text of the draft Europol Regulation as it stood after inter-institutional negotiations. On 10 March 2016, the Council adopted its position at first reading,9 paving the way for the final adoption of the Regulation by the European Parliament in its plenary session the following month of May,10 ending the legislative process.11 The Regulation was finally adopted and

2  See Article 13 of the Convention of mutual assistance in criminal matters between the Member States of the European Union [2000] OJ C197/1. 3  See Council Framework Decision of 13 June 2002 on Joint Investigation Teams [2002] OJ L162/1, which, pursuant to Article 5, will cease having effect once the 2000 MLA Convention has entered into force in all Member States. 4 ‘It should be possible for police officers and judicial authorities to work together in the JIT ­considering the different national systems of investigation and prosecution’: See Network of National Experts on JITs, ‘Conclusions of the second meeting’ (Council doc 15023/06, 2006) p 5. 5  See A Weyembergh and F Galli (eds), Do labels still matter? Blurring boundaries between administrative and criminal law. The influence of the EU (Éditions de l’Université Libre de Bruxelles, 2014). 6  Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the EU Agency for Law Enforcement Cooperation and Training (Europol) …’ COM(2013) 173 final. 7  Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the EU Agency for Criminal Justice Cooperation (Eurojust)’ COM(2013) 535 final. 8 Committee on Civil Liberties, Justice and Home Affairs, Result of roll-call votes of 30 November 2015: https://polcms.secure.europarl.europa.eu/cmsdata/upload/3524205e-b76b-48cdb20b-75202539357d/RCV%2030%20November%202015.pdf, accessed 10 March 2017. 9 Council, Press release ‘Updated rules for Europol: Council adopts position at first reading’: http://www.consilium.europa.eu/en/press/press-releases/2016/03/10-updated-rules-for-europol/, accessed 10 March 2017. 10  European Parliament, Legislative Resolution of 11 May 2016 on the Council position at first reading with a view to the adoption of a Regulation … on the European Union Agency for Law Enforcement Cooperation (Europol) … P8_TA(2016)0215. 11  Regulation (EU) 2016/794 of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) … [2016] OJ L135/53. The main differences between the Common Position and the original Commission proposal are set out in Commission, ‘Communication concerning the Position of the Council at first reading with a view to the adoption of a Regulation … on the European Union Agency for Law Enforcement Cooperation (Europol) …’ COM(2016) 209 final.

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published in May 2016.12 Work is less advanced in relation to the Eurojust Regulation. A partial general approach was reached by the JHA Council in March 2015,13 but the text has not changed since. The Council is now waiting for the European Parliament to table amendments to the proposal.14 The situation has been blocked as the Committee on Civil Liberties has decided to withhold its position to await progress on the issue of the relationship between Eurojust and the European Public Prosecutor’s Office.15 This chapter will be divided in two parts. A first part will briefly present the evolution of competences of both agencies in JITs and their cooperation in the field (section I). In the second part, the different aspects relating to the functioning of JITs will be analysed, with a view to identifying where a problematic blur between the authorities and agencies involved is witnessed (section II). In the conclusion, other areas of blur will be discussed, especially the involvement of intelligence services in JITs, which is particularly topical in the current counterterrorism context. It is important to highlight that the present chapter will focus on JITs as a tool for cooperation in criminal matters within the EU legal order. As a consequence, it will address neither JITs as a tool of customs cooperation16 nor JITs as a tool of cooperation outside the EU legal order.17

12  In line with Protocol 21 to the EU Treaties and in spite of the result of the Brexit referendum, on 16 December 2016 the UK notified its formal intention to opt in the Europol Regulation: see Council doc 15753/16 of 21 December 2016. Ireland has equally notified its wish to participate, while Denmark does not take part in it; see respectively Recitals 72 and 74 of the Regulation. 13  See Council doc 6643/15 of 27 February 2015. The provisions relating to the European Public Prosecutor were excluded from the General Approach as the draft EPPO Regulation was not sufficiently advanced at the time. Neither the UK nor Ireland have yet expressed their wish to opt into the Regulation, while Denmark does not take part in it: see points 2 and 3 of the referred Council doc, pp 1–2. The UK has, however, stated it may opt in at a later stage: see Rt Hon James Brokenshire MP’s (then Parliamentary Under Secretary of State for Security) written statement to Parliament: www.gov. uk/government/speeches/european-commissions-proposals-on-eurojust-and-the-european-publicprosecutors-office, accessed 10 March 2017. 14 Information from the Presidency on current legislative proposals—Netherlands Presidency, 10 March 2016: http://english.eu2016.nl/binaries/eu2016-en/documents/publications/2016/03/10/ ongoing-legislative-files/ongoing-legislative-files.pdf, accessed 10 March 2017. 15 European Parliament, Legislative Train, Eurojust: http://www.europarl.europa.eu/legislativetrain/theme-area-of-justice-and-fundamental-rights/file-eurojust, accessed 10 March 2017. See also European Parliament, Resolution of 5 October 2016 on the EPPO and Eurojust (2016/2750(RSP)), P8_TA-PROV(2016)0376. 16  See Article 24 of Council Act 98/C 24/01 of 18 December 1997 drawing up, on the basis of Article K3 of the Treaty on European Union, the Convention on mutual assistance and cooperation between customs administrations [1998] OJ C24/2. 17  Non-EU treaties allowing the setting up of a JIT include Article 20 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (8 November 2001, CETS No 182), Article 27 of the Police Cooperation Convention for South-East Europe (PCC SEE, Vienna, 5 May 2006), Article 19 of the UN Convention against Transnational Organised Crime (UNTS No 39574, New York, 15 November 2000), Article 49 of the UN Convention against Corruption (UNTS No 42146, New York, 31 October 2003) and Article 5 of the EU–US Agreement on mutual legal assistance ([2002] OJ L26/3). JITs may also be set up on the basis of bilateral treaties.

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II.  The Evolution of Europol and Eurojust’s Competences in JITS and their Necessary Cooperation A.  Competences of Europol and Eurojust in JITs Since JITs were included in the 2000 MLA Convention, both Europol and Eurojust have had competences in relation to JITs, which have evolved with their respective legal frameworks. Concerning Europol, its competences in JITs were first introduced through the 2nd Protocol amending the Europol Convention.18 Under the 2009 Council ­Decision,19 Europol has the following powers: it can suggest the setting up of a JIT in specific cases;20 it may participate in JITs in a supporting capacity in so far as those teams are investigating criminal offences in respect of which Europol is competent;21 the heads of the national units may provide support in the establishment of JITs involving Europol;22 and Europol staff may liaise directly with members of a JIT and provide members and seconded members with information from any of the components of its information processing systems.23 Under the Europol Regulation, which will enter into force 1 May 2017,24 Europol can coordinate, organise and implement investigative and operational actions to support and strengthen actions by the competent authorities of the Member States that are carried out in the context of JITs, where appropriate in liaison with Eurojust;25 it can participate in JITs,26 as well as propose that they be set up;27 when participating, Europol staff may, within the limits of the laws of the Member States in which the JIT is operating, assist in all activities and exchanges of information with all members of the JIT, and may also provide all members of the JIT with information processed by Europol;28 and finally Europol can support Member States’ JITs, including by providing operational, technical and financial support.29

18  Article 3a introduced by the Second Protocol amending the Convention on the establishment of a European Police Office (Europol Convention) [2002] OJ C312/2. 19  Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol) [2009] OJ L121/37. 20  Ibid, Article 5(1)(d). 21  Ibid, Article 6(1). For a detailed analysis, see Bart de Buck, ‘Joint Investigations Teams: The ­participation of Europol officials’ (2007) 8 ERA Forum 253. 22  Europol Council Decision (n 19 above) Article 8(7)(c). 23  Ibid, Article 6(4). 24  Ibid, Article 77(2). 25  Europol Regulation (n 11 above) Article 4(1)(c)(ii). 26  Ibid, Articles 4(1)(d) and 5. 27  Ibid, Article 4(1)(d) and Article 5(5). 28  Ibid, Article 5(2) and (3). 29  Ibid, Article 4(1)(h).

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Turning now to Eurojust, its competences in relation to JITs were first r­ egulated in the 2002 Eurojust Council Decision.30 Under the revised 2008 Council ­Decision,31 the following is provided: either through its national members or through the College, Eurojust may request the competent authorities in EU Member States to set up a JIT;32 Member States are required to recognise national members as competent authorities to set up and participate in JITs, although they may render their participation subject to the agreement of the competent national authority;33 national members shall be informed whenever national authorities set up a JIT and of its results;34 and finally, the Secretariat of the JIT network is created and based at Eurojust;35 and national contact points of the JIT Network are part of the Eurojust National Coordination System.36 In the future, Eurojust’s powers in relation to JITs will be defined in the Eurojust Regulation.37 Since the latest version of the Regulation only contains the C ­ ouncil’s position, which will most likely evolve once negotiations with the Parliament resume, suffice it to say that, at the current stage of the negotiations, the text in the Regulation is rather aligned to that in Europol’s Regulation in so far as JITs are concerned. For instance both agencies may provide operational, technical and financial support to JITs.38 These recent and upcoming changes seem to reflect a move towards a certain systematisation and approximation of the provisions governing the two agencies’ involvement in JITs. This alignment is particularly important as it allows the two agencies to become key partners of national authorities desiring to conduct crossborder investigations and prosecutions. The assignment of similar competences to both agencies may nevertheless pose certain challenges, and require that the two cooperate closely together.

30  See Articles 6 and 7 of Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1. 31  Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime as amended by Council Decision 2003/659/JHA [2003] OJ L245/44, and by Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust [2009] OJ L138/14. A consolidated version is available for information purposes at Council doc 5347/3/09 of 15 July 2009. For an examination of Eurojust’s role in JITs see M Helmberg, ‘Eurojust and Joint Investigation Teams: How Eurojust can support JITs’ (2007) 8 ERA Forum 245. 32  Eurojust’s Council Decision (n 31 above), respectively Articles 6(1)(a)(iv) and 7(1)(a)(iv). 33  Ibid, Article 9f. 34  Ibid, Article 13(5). 35  Ibid, Article 25a(2). 36  Ibid, Article 12(2)(d). 37 Council, partial General Approach on Eurojust (n 13), Article 4(1)(e), Article 4(2)(d), Article 8(2)(d), Article 20(2)(d), Article 21(4), Article 39(2), Article 48(4) and Article 52(3). 38  Ibid, Article 4(1)(e) and Europol Regulation (n 11 above) Article 4(1)(h).

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B.  The Need for Europol-Eurojust Cooperation It is worth recalling that both Europol and Eurojust were established on a strong inter-governmental logic, meaning they act as facilitators and service providers to national authorities, which remain owners of their respective investigations and prosecutions.39 Thus, it is up to the national authorities involved in a JIT to decide whether and which agency to involve or resort to for assistance. Since at EU level Europol and Eurojust have both received competences with regard to JITs, and since in practice they are frequently involved in the same JIT,40 their mutual cooperation is essential. Such cooperation is organised in their bilateral cooperation agreement, signed in 2010, which provides a division of their respective tasks,41 as well as a duty to inform each other of their participation in a JIT at the earliest opportunity. JITs are often mentioned as a good example of the cooperation between the two agencies. For instance, both agencies co-organise the JITs’ experts annual meeting42 and participate in training programmes and seminars relating to JITs; the two can participate in JITs, separately as well as jointly, and examples of their cooperation can be found in their annual reports;43 they also regularly exchange information on the JITs they support throughout the year44 and they conducted together a joint JITs project, which led inter alia to the adoption of the ‘JITs Manual’.45 Both the Europol Regulation and the draft Eurojust Regulation include specific provisions relating to their cooperation in the field of JITs. Both preambles contain a Recital insisting on the importance of their operational c­ ooperation,

39  For Eurojust, see Eurojust, Evaluation of the Eurojust Council Decision and the activities carried out by Eurojust, Final report, 2015, p 29: http://www.eurojust.europa.eu/doclibrary/Eurojust-framework/ej-legal-framework/Pages/other-relevant-documents.aspx, accessed 10 March 2017. 40  32% out of the 65% of cases in which the agencies are involved in JITs, involve the two agencies at once, see Network of National Experts on JITs, First JIT Evaluation Report (2015) Council doc 15179/15, p 20. 41 Cooperation Agreement between Europol and Eurojust (2010): http://www.eurojust.europa. eu/doclibrary/Eurojust-framework/agreements/Agreement%20between%20Eurojust%20and% 20Europol%20%282010%29/Eurojust-Europol-2010-01-01-EN.pdf, accessed 7 April 2017. See ­Article 6(2)—‘When it is decided to participate in such a team, Eurojust shall endeavour to bring its support in order to facilitate coordination between the judicial authorities concerned and Europol shall endeavour to support the intelligence gathering and investigative efforts of the team’. 42  See for instance Eurojust, Annual Report (2012) p 35 or Europol, Europol Review (2013) p 26. 43  See for instance Eurojust, Annual Report (2012) p 27; Eurojust, Annual Report (2014) p 16 or Europol, Europol Review (2012)—Operation Playa (drug trafficking case), p 32. 44  Europol and Eurojust, Joint Annual Report to the Council and the Commission for 2013 (2014) Council doc 11305/14, p 3. 45  Joint Investigation Teams Manual, Council doc 15790/1/11 REV 1 (2011). Modernising the JIT supporting tools will also be implemented in close cooperation between Eurojust and Europol; see Network of National Experts on JITs, Conclusions of the Eleventh Annual Meeting (2015) Council doc 11992/15, p 2.

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in particular with regard to any activity involving the financing of JITs.46 More precise elements can also be found in the core of both texts. The Europol Regulation refers to Europol’s task of ‘coordinating, organising and implementing investigative and operational actions to support and strengthen action’ of Member States’ competent authorities ‘in the context of joint investigation teams … and, where appropriate, in liaison with Eurojust’ (emphasis added).47 The draft Eurojust Regulation also contains elements referring to Europol. Eurojust may for instance ‘give assistance in order to improve cooperation between the competent authorities of the Member States, in particular on the basis of Europol’s analyses’ (emphasis added).48 Once the negotiations resume, additional references to Europol could be introduced in the Eurojust Regulation, notably to insert an invitation to liaise with Europol where appropriate. Once the Eurojust Regulation is adopted, the 2010 bilateral cooperation agreement between the two agencies will most likely be adapted to the agencies’ new legal framework, including in relation to JITs. Europol–Eurojust cooperation regarding JITs is all the more essential given the blurred boundaries existing in the field. Indeed, the current provisions, as well as those agreed or under negotiation, are not very clear, and they include overlapping competences, which can be a source of tensions between the two agencies.

III.  Aspects of the JITS Functioning where a Problematic Blur can be Witnessed between the Authorities Involved in JITS Both Article 13 of the 2000 MLA Convention and the JITs Council Framework Decision of 13 June 2002 refer to ‘competent authorities’ without providing further details. Such lack of precision is meant to accommodate the divergent allocation of tasks between law enforcement and judicial authorities in the investigation and prosecution of criminal offences at national level. At the same time, the lack

46  Council, partial General Approach on Eurojust Regulation (n 13 above): http://data.consilium. europa.eu/doc/document/ST-6643-2015-INIT/en/pdf, Recital 26a, and Europol Regulation (n 11 above) Recital 9. The later Recital reads as follows: ‘Given the importance of the inter-agency cooperation, Europol and Eurojust should ensure that necessary arrangements are established to optimise their operational cooperation, taking due account of their respective missions and mandates and of the interests of Member States. In particular, Europol and Eurojust should keep each other informed of any activity involving the financing of joint investigation teams.’ 47  Europol Regulation (n 11 above), Article 4(1)(c)(ii). 48 Council, partial General Approach on Eurojust (n 13 above), Article 4(1)(c). See also ibid, Article 4(3)(a): ‘Eurojust may provide Europol with opinions based on analyses carried out by Europol’.

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of definition allows one aspect of JITs’ added-value to be brought to life, which is precisely to facilitate investigators with different professional backgrounds to work together for a common investigative purpose.49 This situation results, however, in numerous difficulties. On the one hand, very divergent transposing legislation coexists in the various Member States. As a consequence, the answer to the following questions varies from one Member State to another: is an MLA request necessary to set up a JIT? Who is competent to authorise a JIT? Who is competent to sign a JIT agreement? Who may act as JIT leader and as seconded member? On the other hand, this situation impacts the distribution of tasks between Europol and Eurojust. While the former is the law enforcement cooperation agency and Eurojust the judicial cooperation agency, the discretion left to Member States regarding the composition of JITs ultimately impacts the cases in which the agencies can get involved in. Seven main aspects relating to the functioning of JITs reveal issues where the roles of Europol/Eurojust could overlap: identification of the need for a JIT (A), drafting of the JIT agreement and operational action plan (B), funding opportunities (C), participation in JITs and/or assistance to JITs (D), coordination of investigations (E), allocation of jurisdiction (F), and JIT evaluation (G). They will be examined in turn.

A.  Identification of the Need for a JIT The need for a JIT, ie the possibility and desirability of setting one up,50 may be identified by national authorities, and by either Europol or Eurojust.51 Either agency can indeed suggest to Member States that they should establish a JIT.52 Although in practice the need for a JIT is most often identified through contacts between national authorities, Eurojust and Europol seem to contribute very

49  References are to be made to Article 32 TEU (Treaty of Nice consolidated version), read together with Articles 30 and 31 of the same Treaty. Article 32 provided that ‘the Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State’. The competent authorities referred to in Article 31 are ‘judicial or equivalent authorities of the Member State’, and those referred to in Article 30 are ‘the police, customs and other specialised law enforcement services of the Member State’. A similar wording is now included in Articles 82 and 87 TFEU respectively. 50  Some of the issues that need to be considered include the complexity of the case, the number of Member States involved, alternative instruments, advantages in terms of avoided MLA requests and information exchange, and cost-benefit analysis. See Network of National Experts on JITs, ‘Conclusions of the second meeting’ (n 4 above) p 4. 51  Ibid, p 6: ‘Setting up of JITs should be a bottom-up process on the initiative of investigating/ prosecuting authorities; nevertheless, Eurojust, Europol and OLAF are also in the position to identify suitable investigations for JITs’. 52 Europol’s Council Decision (n 19 above) Article 5(1)(d) and Europol Regulation (n 11 above) Article 5(5); and for Eurojust; Eurojust Council Decision (n 31 above) Articles 6(1)(a)(iv) and 7(1)(a)(iv), and Council, partial General Approach on Eurojust (n 13 above) Article 4(2)(d).

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often to ascertaining the need for a JIT.53 Two scenarios can, at least in theory, be envisaged: 1) The first and most common scenario is the bottom-up approach,54 where the involvement of either agency stems from a national investigation. They may, for instance, turn to Europol for information exchange or to Eurojust for coordinating mutual legal assistance requests.55 As the JIT Manual acknowledges, in such a context either agency is in a position to identify a suitable case for a JIT,56 and may then request Member States to act upon such a request.57 2) A more proactive scenario can, however, also be envisaged, and would originate from Member States’ obligation to provide information to Europol and Eurojust.58 On at least one occasion a JIT-worthy case was identified from intelligence gathered by Europol, using the so-called ‘top-down approach’.59 However, the less information is provided by national authorities to both agencies, the fewer chances they have to take such a proactive approach.60 In either of the two scenarios, one must keep in mind that neither Europol nor Eurojust can impose the creation of a JIT on the Member States concerned.

53  National Experts on JITs, First JIT Evaluation Report (n 40 above) p 15. Of the 42 JITs cases reviewed in the report, Eurojust suggested the setting up of a JIT in 40% of cases, while Europol did in 29% of cases. 54  See E De Wree, ‘Law enforcement information exchange in the pre-operational phase of a JIT’ in CRRJ Rijken and G Vermeulen (eds), Joint investigation teams in the European Union from theory to practice (TMC Asser Press, Springer, 2006) p 54. 55  ‘Eurojust can help identify operational cases which are suitable for JITs, through its co-ordination work. This has happened in the past, and it seems likely that such a scenario will occur more frequently in the future. For example, a country may request Eurojust to help with the co-ordination of a crossborder case and it may transpire during the co-ordination work that a JIT would enhance the efficiency of the investigation’: M Helmberg, ‘Eurojust and Joint Investigation Teams’ (n 31 above) p 249. 56  Joint Investigation Teams Manual (n 45 above) p 13. 57  Joint Investigation Teams Practical Guide (2016) Council doc 11501/16, p 23. ‘Europol’s capabilities are particularly suitable, as intelligence and information available on a potential JIT case can be checked against Europol’s databases, helping to identify further links and allowing Europol’s analysts to draw a comprehensive picture of a case, rather than assessing solely from the national perspective(s)’. 58  See particularly Europol’s Council Decision (n 19 above) Articles 8(4) and 14(3) and Europol Regulation (n 11 above) Article 7(6)(a): ‘Each Member State shall, via its national unit or, subject to paragraph 5, a competent authority, in particular: (a) supply Europol with the information necessary for it to fulfil its objectives, including information relating to forms of crime the prevention or combating of which is considered a priority by the Union’. For Eurojust see Article 13 of Eurojust’s consolidated Council Decision and Article 21 of the Council’s partial General Approach to the Eurojust Regulation. 59 ‘In the initiative aimed at starting a THB-JIT, Europol had learned from the organised crime reports that several Member States experienced problems with regard to Trafficking in Human Beings involving Bulgarian nationals’. See Eveline de Wree, ‘Law enforcement information exchange in the pre-operational phase of a JIT’ (n 54 above) p 55. 60  Concerning Eurojust for instance, ‘The evaluation showed that Member States’ experience with Article 13 varies considerably. More than half of the Member States had not yet fully implemented the Article at the time of the evaluation visit, and in general only little awareness existed among practitioners of the obligations therein. Those who knew about Article 13 still did not systematically transfer the relevant information in a structured way’. Council, Final report on the sixth round of mutual evaluations (2014) Council doc 14536/2/14, p 34.

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Both the consolidated Eurojust Council Decision (as well as the upcoming Regulation) and the Europol Council Decision and upcoming Europol Regulation use terminology that clearly shows that national authorities are not bound by the proposal and may well refuse to set up the JIT.61 In such cases, when the request emanates from Eurojust, Member States must, however, justify their refusal.62 However, neither Article 5(1)—nor Article 7(3) for that matter—of Europol’s Council Decision nor yet Article 5(5) of the Europol Regulation seem to require Member States to justify their refusal to set up a JIT. There is no apparent reason for this asymmetry. It must, moreover, be stressed that, even in the event that Member States do set up a JIT upon Europol or Eurojust’s request, this does not necessarily imply that those agencies will be taking part in the JIT. While their participation appears logical, in reality this will be decided by the national authorities involved on a case-by-case basis. One final remark in relation to Europol’s power to suggest the setting up of a JIT appears appropriate. Article 5(5) of the Europol Regulation reads: ‘Where Europol has reasons to believe that setting up a joint investigation team would add value to an investigation, it may propose this to the Member States concerned’. One may wonder if this wording restricts Europol’s opportunities to suggest the setting up of a JIT compared to that in the Council Decision, which merely refers to suggesting the setting up of joint investigation teams ‘in specific cases’.63

B.  Funding Opportunities Both Eurojust and Europol may assist in and advise on obtaining funding.64 They may also fund the JITs themselves. Their financial support ‘particularly enables more frequent face-to-face meetings between JIT partners and the exchange of investigators during simultaneous operations in several countries’.65 The explicit funding possibilities that both agencies will enjoy under the future Regulations have given rise to some controversy.66

61  Eurojust Council Decision (n 31 above) Articles 6(1)(a) and 7(1)(a) and Council, partial General Approach on Eurojust (n 13 above) Article 4(2)(d): both texts use the word ‘ask’ (the competent authorities of the Member States concerned), while Article 5(1)(d) of Europol’s Council Decision (n 19) refers to suggesting the setting up of joint investigation teams. The fact that the adopted Europol Regulation uses the term propose in Article 4(1)(d) changes nothing in this regard. 62  Eurojust Council Decision (n 31 above) Article 8. The Council’s partial General Approach on Eurojust (n 13 above) maintains this obligation (see Article 4(6)). 63  Europol Council Decision (n 19 above) Article 5(1)(d). 64  Joint Investigation Teams Manual (n 45 above) p 13. 65  Network of National Experts on JITs, First JIT Evaluation Report (n 40 above) p 33. The report quotes one particular evaluation form, which reported that ‘support for the meetings of the JIT partners helped to plan [the] next steps of [the] investigation, exchange information, foster mutual trust and make contact easier by phone or email’. 66  Weyembergh, Armada and Brière, ‘The interagency cooperation …’ (n 1 above) 20–23.

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Eurojust started providing financial support to JITs early on,67 and its funding covers expenses for travel, accommodation, translation and interpretation, as well as the loan of equipment.68 The Council’s partial General Approach to the Eurojust Regulation includes funding of JITs among Eurojust’s operational functions,69 and specifically lists the operating costs of funding JITs in Eurojust’s expenditure,70 thus consolidating the status quo. In the Europol Council Decision, funding of JITs was not explicitly dealt with.71 Europol nevertheless provides financial support to JITs mainly via the funding of operational meetings.72 Its financial support may cover the costs incurred in the organisation of operational meetings (travel, accommodation) as well as the costs associated with the technical equipment it offers (mobile offices, forensic support, etc).73 The Europol Regulation does, however, explicitly refer to Europol’s ­competence to finance JITs.74 The fact that both agencies are competent to fund JITs is not a bad thing. JITs have proven extremely useful in the fight against crime, but are expensive tools. In a context of economic crisis, it seems national authorities strongly depend on EU funding. Authorities and officials think that the increase of funding channels will lead to an increase in the use of JITs. While this would be a welcome and likely development, two concerns (i) and (ii), and one question (iii), arise.

(i)  Imbalance in Resources to Fund JITs A first concern relates to the imbalance in the resources available to each agency for funding JITs, and the derived risk of marginalising judicial authorities. Eurojust started funding JITs on the basis of two consecutive grants obtained under the European Commission’s Prevention of and Fight against Crime Programme (ISEC), which ran during the 2007–13 period.75 From mid-2013 onwards, Eurojust

67 Ibid.

68 Eurojust, JIT funding Guide (2016): http://www.eurojust.europa.eu/doclibrary/JITs/JITs%20 funding%20application%20procedure/JITs%20Funding%20Guide/JITs-funding-practical%20 -guide_EN.pdf, accessed 10 March 2017, p 2. 69  Council, partial General Approach on Eurojust (n 13 above) Article 4(1)(e). 70  Ibid, Article 48(4). 71  Europol Council Decision (n 19 above) Article 5(5), which does however mention Europol’s financial support to euro counterfeiting investigations, including JITs. 72  Europol and Eurojust, Joint Annual Report (n 44 above) p 4. 73  Europol website: https://www.europol.europa.eu/activities-services/services-support/jointinvestigation-teams, accessed 10 March 2016. See also National experts on JITs, First JIT Evaluation Report (n 40 above) p 33. 74 Europol Regulation (n 11 above) see particularly, Recital 63 and Article 4(1)(h), and also Article 57(4). 75  A first grant from July 2009–December 2010, thanks to which Eurojust supported 11 JITs and a second grant from October 2010–September 2013, thanks to which Eurojust supported 18 JITs. For more details, see Eurojust, ‘Joint Investigation teams’ (2013) 9 Eurojust News 8–9. See also particularly the National experts on JITs, ‘Conclusions of the sixth annual meeting’ (n 60 above) and ‘Conclusions of the ninth annual meeting’ (2014) Council doc 7259/14.

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has funded JITs on the basis of its own budget:76 by means of an example, in 2015 Eurojust had a €500,000 budget to finance JITs.77 Eurojust’s grants allow no prefinancing payments; rather Eurojust co-finances JITs by reimbursing 95 per cent of the total eligible costs.78 This is in stark contrast with the development of Europol’s JIT-funding capacities. As explained above, Europol used to fund JITs indirectly, mainly via the funding of operational meetings. The situation changed when the activities formerly supported by the ISEC Programme that had first funded JITs via Eurojust were taken over by the so-called Internal Security Fund (Police) instrument,79 which covers the period 2014–20.80 On 22 December 2014, Europol signed with the European Commission (DG Home) a Delegation Agreement that for the first time empowered Europol to finance operational actions (including JITs) falling within the priorities of the European Multidisciplinary Platform Against Criminal Threats (EMPACT). As previously explained, the funding originates from the EU Internal Security Fund (Police) instrument and was valued at €7 million over two years.81 From 2017 onwards, new rules apply concerning Europol’s funding (a two-track approach), but the predominance of Europol’s funding capacity remains. New developments: An Explanatory note on the implementation of the EMPACT Delegation Agreement including current state of play and future funding was presented by Europol before the Standing Committee on Operational Cooperation on Internal Security (COSI) in June 2016. Europol informed the Committee about the current state of play of funding and the future funding challenges in 2017, as set out in 10031/16, and invited the Committee to give some strategic input. The Presidency noted that delegations supported the launch of a mini-call allowing some competition between different priorities to reallocate the unspent money from the 2015 grants. This mini call would be launched in mid-September 2016. Regarding future funding, delegations seemed favourable to the two-track approach suggested by

76 See Eurojust’s website: http://www.eurojust.europa.eu/Practitioners/JITs/JITS-Funding/Pages/ JITs-funding-project.aspx, accessed 10 March 2017. As was previously mentioned, the Council’s partial General Approach on the Eurojust Regulation confirms this situation, including the funding of JITs among Eurojust’s expenditure (Article 48(4)). 77  Eurojust wishes to strengthen its pivotal role in relation to JITs by inter alia securing funds to support such teams. See Eurojust, Eurojust Multi-Annual Strategy 2016–2018: http://www.eurojust. europa.eu/doclibrary/corporate/corporatepublications/Eurojust%20Multi-Annual%20Strategy%20 2016-2018/Eurojust-MASP-2016-2018_EN.pdf, accessed 10 March 2017, p 7. 78  These costs are governed by the requirements of Article 126(2) of Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union … [2012] OJ L298/1. 79  Established by Regulation 513/2014 [2014] OJ L150/93. 80  Commission, ‘Funding—Security, Borders, Police’: http://ec.europa.eu/dgs/home-affairs/financing/fundings/security-and-safeguarding-liberties/index_en.htm, accessed 10 March 2017. 81  Europol News, ‘Europol launches Call for Proposals with €7m funding from the EU Internal Security Fund’, 30 January 2015: https://www.europol.europa.eu/latest_news/europol-launches-callproposals-%E2%82%AC7m-funding-eu-internal-security-fund, accessed 10 March 2017.

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Europol in 10031/16 but needed some further clarifications. Various delegations called for flexibility in funding, which should be adapted to concrete operational needs. Some delegations would also welcome better administrative support. Europol was invited to submit a paper for the COSI meeting in September, which should clarify a number of outstanding issues and provide some suggestions on the way forward, e.g. on the distribution key. The Committee also called on the participants in the OAPs to make full use of the money allocated under the Delegation Agreement.82

In the COSI discussions of September 2016: The Chair noted overall support for the two-track approach proposed by Europol. ­Delegations also agreed with a certain degree of prioritisation for the allocation of money under the traditional calls for some OAPs, depending on the political priorities. Some delegations mentioned illegal migration. A majority of delegations opposed the ‘first come, first served’ approach to awarding fast-track grants. No clear objections were made to the distribution (1-2-1) of the EUR 4 million of funds for 2017. Europol was invited to keep COSI regularly informed of these funding issues.83

Europol’s increased JIT-funding powers may appear problematic as they create an imbalance between the funding capacities of the two agencies. Such imbalance remains in spite of the increase of Eurojust’s budget.84 This may result in tensions between the two agencies; tensions which should be avoided.85 There is indeed a risk that judicial authorities and/or Eurojust will become marginalised in JITs.86 In this regard, one should recall the important expertise accumulated by Eurojust in the past few years, and the essential role judicial authorities play in ensuring, inter alia, that information gathered in JITs can later be used as evidence before national courts.

(ii)  The Risk of Double Funding A second concern relates to the risk of double funding, which was not tackled in either of the two Regulations as proposed by the Commission. The situation changed, however, during the negotiations, a development that must be ­welcomed.

82  Standing Committee on Operational Cooperation on Internal Security, Summary of discussions (20 June 2016) Council doc 11113/16, p 3. http://data.consilium.europa.eu/doc/document/ ST-11113-2016-INIT/en/pdf. 83  Standing Committee on Operational Cooperation on Internal Security, Summary of discussions (28 September 2016) Council doc 13319/16, p 4. http://data.consilium.europa.eu/doc/document/ ST-13319-2016-INIT/en/pdf. 84  The budget available to fund JITs (within Eurojust’s own budget) has doubled from €500,000 to €1 million. It remains below the level of funding that Europol can provide. 85  Weyembergh, Armada and Brière, ‘The interagency cooperation …’ (n 1 above) pp 22–23 and 57. 86  Note that Art 4, Regulation 513/2014 (n 79 above) reads: ‘the Instrument shall support actions in Member States, and in particular those from the following list: (a) actions improving police cooperation and coordination between law enforcement authorities, including with and between ­relevant Union bodies, in particular Europol and Eurojust, joint investigation teams and any other form of cross-border joint operation, access to and exchange of information and interoperable ­technologies’ (emphasis added).

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The Europol Regulation now includes a provision that reads: ‘In respect of the financial support to joint investigation teams’ activities, Europol and Eurojust shall jointly establish the rules and conditions upon which the applications shall be processed’.87 A similar provision can be found in the Council’s partial General Approach to the Eurojust Regulation.88 Leaving the issue to the agencies’ themselves has thus been preferred over the option of establishing a centralised service to channel JIT funding requests to the most appropriate agency.89 The Europol Regulation, moreover, includes a Recital recommending that Europol and ­Eurojust keep each other informed of any activity involving the financing of joint i­nvestigation teams.90 A similar Recital has also been included in the Council’s partial General Approach to the Eurojust Regulation.91 This is in line with ­Article 6 of the Agreement between Eurojust and Europol providing that the parties shall inform each other of their participation in a JIT at the earliest opportunity.

(iii)  Is there Added Value in Eurojust/Europol JIT Participation? A last issue arises in relation to Eurojust and Europol’s respective participation in a JIT as a consequence of the allocation of EU funding. The consolidated Eurojust Council Decision92 provides that whenever a JIT involves their Member State and receives Community funding, national members shall be invited to participate. The Council’s partial General Approach on the Eurojust Regulation contains a similar mechanism, as it provides that ‘if the joint investigation team is funded by the Union budget the national members concerned will always be invited to participate’ (Article 8(2)(d)). This could be interpreted to mean that whenever the Union budget is granted (including when the budget is allocated through Europol) to financially support a JIT, national members of Eurojust have to be invited. In order to guarantee the balance between the two agencies, one may wonder whether such a requirement should not have been extended to Europol too. A mirroring provision is indeed lacking in the Europol Regulation. That said, the question arises as to whether involving Europol and Eurojust whenever EU funding is granted has an added-value in all cases.

87 

Europol Regulation (n 11 above) Article 61(4). partial General Approach (n 13 above) Article 52(3), which instead of referring to ­Eurojust and Europol’s joint establishment of the rules and conditions upon which the applications shall be processed, uses the following wording: ‘Eurojust shall establish in cooperation with Europol the rules and conditions … (emphasis added)’. This asymmetry will hopefully be fixed when negotiations on the Eurojust Regulation resume. 89  The JIT Secretariat had been suggested as coordinator because of its expertise in the field. See on this Weyembergh, Armada and Brière, ‘The interagency cooperation …’ (n 1 above) p 22. 90  Europol Regulation (n 11 above) Recital 9. 91  Ibid, Recital 26a. 92  Eurojust Council Decision (n 31 above) Article 9f. 88 Council,

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C. The Setting up Phase—Drafting of the JIT Agreement and Operational Action Plan (OAP) Even if a JIT model agreement exists,93 several instruments strongly recommend involving both Eurojust and Europol at the setting up stage: the JIT Manual for instance recommends that investigators, prosecutors, magistrates and/or judges from the Member States considering the creation of a JIT, together with delegates from Eurojust and Europol, meet to discuss the matter at the earliest opportunity before a formal proposal and agreement is made (emphasis added).94

It is argued that particularly in the preparatory assessment and negotiation phase, the two agencies may support the Member States by providing legal advice as well as expertise from prior JIT participation.95 In the same vein, Article 6 of their cooperation agreement enables Europol and Eurojust to participate together in the setting up of JITs at the request of one or more Member States, and to bring their support and expertise to national judicial and law enforcement authorities regarding the preliminary discussions on setting up a JIT. The setting up of a JIT requires the negotiation and signature of a JIT agreement between the competent authorities of the Member States involved, which must lay down the purpose and duration of the JIT as well as the composition of the team.96 Participants may also wish to draft an Operational Action Plan, a separate document from the JIT Agreement which lays down the specific operational details, strategy and planning for achieving the JIT’s purpose.97 The setting up of a JIT thus requires making both legal and operational arrangements:98 judicial and law enforcement authorities are consequently required to work together at this stage, both at national and European levels. Far from overlapping, Eurojust and Europol would thus offer complementary assistance at the setting up phase of the JIT. In this light, the inclusion in the Europol Regulation of a provision specifically laying down Europol’s capacity to assist Member States in setting up

93  See Council, Recommendation on a model agreement for setting up a joint investigation team (JIT) [2003] OJ C121/1; Council, Resolution on a Model Agreement for setting up a joint investigation team [2010] OJ C 70/1 and Council, Resolution on a Model Agreement for setting up a JIT [2017] OJ C18/1. 94  Joint Investigation Teams Manual (n 45 above) p 7. 95  Ibid, p 16. 96  See 2000 MLA Convention (n 2 above) Article 13(1) and JIT Framework Decision (n 3 above) Article 1. See also Council, Model Agreements (n 93 above). Several Member States have moreover developed bilateral agreements with other Member States (eg France and Spain). The content of the agreement may be amended at a later stage by agreement of all parties. 97  Joint Investigation Teams Manual (n 45 above) p 16. 98  Experts report however that, though planning of JIT activities is necessary, the use of the OAP is not frequent, and even decreasing. Less formal and burdensome ways of agreeing on operational arrangements seem to be taking precedence over the OAP. See National Experts on JITs, First JIT Evaluation Report (n 40 above) p 17.

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JITs99 is the logical counterpart to Article 9f of the Eurojust Council Decision entitling national members to participate in JITs, including in their setting up. A similar provision is also included in the Council’s partial General Approach on the Eurojust Regulation.100 Tensions might, however, arise from the fact that the involvement of neither agency is legally imposed. The decision lies in the hands of the competent authorities, which are free to request the assistance of either agency during the setting up phase.101 Article 6 of the cooperation agreement between the two agencies recalls this by stating: At the request of one or more Member States, the Parties may together participate in the setting up of a joint investigation team … as well as bring their support and expertise to the national judicial and law enforcement authorities regarding the preliminary discussions about setting up of joint investigation teams (emphasis added).

The involvement of only one of the two agencies appears in this regard problematic: not only will national authorities be deprived of the relevant experience accumulated by the other agency, but competition might arise between them. The agency being ‘left out’ might fear its counterpart is taking over its role and expertise.

D.  Participation in JITs and/or Assistance to JITs This issue is particularly complex to analyse. While the two agencies can formally participate in a JIT, they may also provide assistance to the national authorities on a more punctual basis, that is, without formally participating in the JIT.102 As a first step we will analyse the rules applicable to each agency’s formal participation in JITs (i). We will then examine the forms of assistance they can provide, be it as formal participants or more informally (ii).

99 Europol Regulation, (n 11 above) Article 5(5). By contrast, the previous wording (Europol Council Decision (n 19 above) Article 8(7)) is less clear, since in its relevant part, reads: ‘The heads of the national units shall meet on a regular basis to assist Europol on operational matters, on their own initiative or at the request of the Management Board or the Director, in particular to: … (c) provide support in the establishment of joint investigation teams involving Europol in accordance with Article 5(1)(d) and Article 6’. 100  Council, partial General Approach on Eurojust (n 13 above) Article 8(2)(d). 101  National Experts on JITs, First JIT Evaluation Report (n 40 above), p 17: Out of the 42 JITs examined, Eurojust was involved in 16 cases at the setting up phase while Europol was involved in 4 cases. 102  As is put in relation to Eurojust’s participation: ‘Eurojust can provide support to a JIT on the basis of its general missions and objectives. However, in accordance with Article 9f of the Eurojust Decision, its participation is in most cases formalised to ensure clarity on the applicable framework’: Joint Investigation Teams Practical Guide (n 57 above) p. 21.

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(i)  The Rules of Participation in a JIT Article 13(12) of the 2000 MLA Convention103 allows, to the extent that the laws of the Member States concerned or the provisions of a legal instrument applicable between them permit, persons other than the competent authorities of the Member States setting up the JIT to take part in the activities of the team. Such ‘other persons’, which are known as participants to the JIT, include, inter alia, officials from Eurojust or Europol.104 Participants are thus legally differentiated from the members of the JIT,105 and do not enjoy the rights conferred upon the members (for example, the right to be present when investigative measures are taken)106 unless the JIT agreement explicitly provides otherwise. The possibility to take part in JITs was subsequently incorporated into the legal framework of each agency: (a) Article 9f of Eurojust’s consolidated Council Decision107 entitles national members to participate in JITs, although Member States may make their participation subject to the agreement of the competent national authority.108 As said earlier, national members, their deputies or their assistants must be invited to participate in any JIT involving their Member State if Community funding is provided. In the future, if the Council’s partial General Approach on the Eurojust Regulation is maintained, the regime governing the participation of national members in JITs appears to be more restrictive. Indeed, Article 8(2)(d) not only requires the agreement of the competent national authority for national members to be able to participate in JITs, but further subjects the participation of national members to national law.109

103 

This provision was copy-pasted into Article 1(12) of the JIT Framework Decision (n 3 above). participants include, depending on national and other relevant legislation, local NGOs (victim support, local expertise), non-competent authorities (eg tax authorities, social services), expert/sworn witnesses, specialists (eg accounting, IT), international organisations, and third states. See Network of National Experts on JITs, Conclusions of the seventh annual meeting (2012) Council doc 8725/12, p 7. 105  Network of National Experts on JITs, ‘Conclusions of the fifth annual meeting’ (2009) Council doc 17161/09, p 5: the conclusions include a heading entitled ‘Members versus participants’. 106  Joint Investigation Teams Manual (n 45 above) p 12. 107  Before the reform of Eurojust the participation of Eurojust in JITs was considered to apply to Eurojust acting as a College, and this was reflected in the first Model Agreement. See Annette Herz, ‘The role of Europol and Eurojust in Joint Investigation Teams’ in Conny Rijken and Gert Vermeulen (eds) (n 54 above) p 172. 108  While each Member State may decide whether the national member participates in the JIT as a national competent authority or on behalf of Eurojust, in this section we will focus only on the later possibility, since when national members participate in the JIT as national authorities they become ‘members’, not ‘participants’ of the JIT. They can then consequently even become leaders of the team. See Eurojust, ‘Joint Investigations Teams’ (n 75 above) p 4. 109  It is to be noted that the initial proposal of the Commission was more in line with the wording in the Council Decision (Article 8). 104  Other

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(b) The participation of Europol in JITs has evolved over time.110 In the year 2000 a Council Recommendation111 referred to the support Europol could provide to JITs through its national units. The JIT Protocol to the Europol Convention,112 which entered into force on 29 March 2007, first introduced the legal basis for the participation of actual Europol officials to JITs. The Europol Council Decision brought about little change in this regard, since the Council did not take on board the increased powers put forward by the Commission in its proposal.113 Pursuant to Article 6 of the Europol Council Decision, Europol staff may participate in JITs in a supporting capacity, in so far as the JIT is investigating criminal offences for which Europol is competent.114 Recital 9 of the Council Decision is, moreover, relevant: to ensure Europol staff are really able to participate in JITs, the adoption of a Regulation guaranteeing that Europol staff do not benefit from the application of immunities while participating in a JIT in a supporting capacity is announced.115 The Europol Regulation no longer mentions Europol’s participation ‘in a supporting capacity’, the implications of which are difficult to determine. The new text moreover removes Article 6(2) and (3) of the current Council Decision according to which the administrative implementation of participation by Europol staff in a joint investigation team shall be laid down in an arrangement between the Director and the competent authorities of the Member States participating in the joint investigation team, with the involvement of the national units. The rules governing such arrangements shall be determined by the Management Board.116

110  For a detailed analysis of this evolution, see A De Moor, ‘The Role of Europol in Joint Investigation Teams, A Foretaste of an Executive European Police Office’ in M Cools et al (eds), Readings on Criminal Justice, Criminal Law & Policing (Maklu, 2009) particularly pp 340–49. 111  Council, Recommendation in respect of Europol’s assistance to joint investigative teams set up by the Member States [2000] OJ C357/7. 112 The Protocol amending the Convention on the establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol [2002] OJ C312/2. 113  For instance, the power to suggest that members of a JIT take specific coercive measures. See Article 6 of the Commission, Proposal for a Council Decision establishing the European Police Office, COM(2006) 817 final. 114  Eurojust’s mandate with regard to JITs is therefore wider pursuant to Article 4(2) of its Council Decision. 115  And was later adopted: see Council Regulation (EC) No 371/2009 of 27 November 2008 amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of officials and other servants of the European Communities to whom the provisions of Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply [2009] OJ L121/1. The new Europol Regulation (n 11 above) contains a similar Recital (Recital 16) referring to the 1969 Regulation. 116  The rules specify the conditions under which Europol staff are placed at the disposal of the JIT. See Europol, Decision of the Management Board laying down the rules governing the arrangements regulating the administrative implementation of the participation of Europol officials in Joint Investigation Teams [2007] OJ C72/35.

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From the date the Regulation becomes applicable, the JIT agreement alone will lay down the conditions relating to the participation of the Europol staff in the team, including the information on the rules on liability.117

(ii)  Forms of Assistance to JITs The respective legal frameworks are, however, rather sparing when it comes to the precise role and tasks Eurojust and Europol can play when participating in JITs or assisting them. In this regard, one must note that the assistance they can provide may be formalised in the JIT agreement or may, on the contrary, remain rather informal.118 (a) With regard to Eurojust, Article 9f of the consolidated Eurojust Council ­Decision barely refers to the national members’ entitlement to participate in JITs, ‘including in their setting up’. The Council’s partial General Approach on the Eurojust Regulation does not add much when it refers to national members’ participation ‘as necessary in joint investigation teams including in their ­setting up’.119 Article 4(1)(e) of the same text does refer to Eurojust’s provision of operational, technical and financial support to Member States’ crossborder operations and investigations, including joint investigation teams. The lack of precision in these provisions indirectly implies that the specifics of Eurojust’s participation will have to be laid down in the JIT agreement.120 As an indication, it is worth mentioning that in the past Eurojust has, for instance, provided assistance: in identifying issues and assisting in JIT extension agreements; providing feedback from other JITs and dealing with issues not considered at the time of drafting the agreement; during operations, assisting and facilitating MLA requests to countries not taking part in the JIT agreement, including countries outside the EU; and offering advice on and supporting partnership applications to the European Commission for funding.121 (b) A few more indications are provided in Europol’s Council Decision. Within the limits provided for by the law of the Member State in which a JIT is operating, Europol staff may assist in all activities and exchange information with all members of the JIT. They may not, however, take part in the taking of any coercive measures.122 According to the JIT national experts, in practice the support of Europol can take various forms. For instance when considerable information management is required, Europol’s facilities, such as the

117 

Europol Regulation (n 11 above) Article 5(1). Network of National Experts on JITs, Conclusions of the seventh annual meeting (n 104 above), p 8. 119  Council, partial General Approach on Eurojust (n 13 above) Article 8(2)(d). 120  See in this sense Council, Appendix I, Resolution on a Model Agreement for setting up a JIT (n 93 above) Appendix I. 121  See J Luis Lopes da Mota, ‘Eurojust and Its Role in Joint Investigation Teams’ (2009) 3 Eucrim 89. 122  Europol Council Decision (n 19 above) Article 6(1) in fine. 118 

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Anne Weyembergh, Inés Armada and Chloé Brière mobile office, its communication network and centralised access to different EU and non-EU databases, is particularly valuable to the activities of a JIT, as are special analytical and operational capabilities, including asset recovery and tracing expertise.123

The JIT Model Agreement contains a section entitled ‘specific arrangements related to the participation of Europol’ which among other things, places Europol officials under the guidance of the JIT leader. The Europol Regulation maintains a similar wording to that of Article 6(1) in fine of the current Council Decision,124 and refers to Europol’s assistance in all activities and the possibility to exchange information with all members of the JIT.125 An important change seems, however, to have been introduced via Article 4(1)(c)(ii), which includes among Europol’s tasks to ‘coordinate, organise and implement investigative and operational actions to support and strengthen actions’ of Member States’ competent authorities ‘in the context of joint investigation teams, in accordance with Article 5, where appropriate, in liaison with Eurojust’. Whereas the previous developments refer to the participation or assistance of each agency, it is worth mentioning that national authorities sometimes wish to involve both agencies in the same JIT.126 Article 6(1) of the Cooperation agreement between Europol and Eurojust refers to such possibility, ie the joint participation of the two agencies in JITs upon request of one or more Member States. In that case, participation in JIT actions will take place in accordance with the legal framework in place and the details laid down in the JIT agreement.

E.  Coordination of Investigations In the common understanding, JITs implement an EU area of criminal justice, in the sense that the JIT agreement allows the team to move and operate together within the JIT territory. In this scenario the coordination of the investigations is inherent to the JIT,127 and the need to involve the two agencies might be less 123 

National Experts on JITs, Conclusions of the seventh annual meeting (n 104 above), p 8. Europol Regulation (n 11 above) Article 5(2). 125  Ibid, Article 5(3) and (4); These provisions further develop the mechanism for information sharing, indicating that Europol participants may, under the conditions established, provide members of the team with necessary information processed by Europol; moreover, the information obtained by Europol while participating to the JIT may, upon the necessary consent, be processed by Europol in accordance with the Regulation. 126  Network of National Experts on JITs, First JIT Evaluation Report (n 40 above) p 13: Eurojust and/or Europol were involved in 83% of the 42 JITs evaluated, and they were involved together in 43% of these JITs. 127  Network of National Experts on JITs, Conclusions of the eleventh annual meeting (n 45 above) p 9 ‘Since JITs are set up in relation to investigations requiring coordinated and concerted action, the need to ensure the effective coordination of on-going proceedings and to plan investigative/ prosecutorial steps accordingly forms—to a large extent—an integral part of the JIT concept’. 124 

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acute. In practice, however, a JIT will often operate differently, namely as parallel investigations carried out by national authorities within their own territory.128 In this scenario, an additional effort to coordinate the activities of the members of the JIT is required. Neither the JIT Framework Decision nor the Council Decisions on Europol and Eurojust specifically refer to the possibility of requesting the assistance of the agencies in the coordination of JIT investigations.129 While the new Europol Regulation does explicitly provide for this possibility,130 the Council’s partial General Approach on the Eurojust Regulation continues to be silent in this regard. Nonetheless, the task of coordinating investigations belongs to the general mandate of both agencies, and implicitly includes the coordination of investigations carried out in the framework of a JIT. In this light, the coordination of the JIT activities is one of the services these agencies can provide, and so whether or not they are formally participants to the JIT. As a consequence, three alternatives can be envisaged. Firstly, one can envisage a JIT exclusively composed of national authorities which at a later stage turn to either Eurojust and/or Europol to help coordinate their investigations. A second alternative would consist of a JIT in which Eurojust and/or Europol are participants, but the coordination is carried out by the national authorities themselves. A final alternative would be the most complete from an EU agency perspective, and would be the case in which Eurojust and/or Europol are participants to the JIT and are, moreover, required to help coordinate the national investigations. This being said, it is worth recalling the difficulties that arise because of the complex legal framework applicable to the coordination of investigations. This is the aspect relating to JITs where a blurring of boundaries might be more important and problematic. Eurojust is in charge of the coordination of judicial authorities and Europol is competent for the coordination of police and other law enforcement authorities. However, because of the mixed nature of JITs, which often involve both law enforcement and judicial authorities, and the differences in terms of distribution of competences between the judicial and police authorities at national level, such a formal distinction is somewhat artificial. When taking a decision on which agency to involve in the coordination of a JIT, national authorities should bear in mind the specific added-value that each of the agencies can bring. The difference between turning to Eurojust to organise

128  There are also JITs that combine both types of investigations: ‘In a large number of cases, for instance, investigations are carried out first in parallel by the different States involved, and evidence collected is exchanged periodically between them. In a second stage, JIT members are seconded by each State to support a coordinated operational phase’: Joint Investigation Teams Practical Guide (n 57 above), p 10. 129  This is, however, mentioned, inter alia, in Network of National Experts on JITs, Conclusions of the fourth annual meeting (2008) Council doc 17512/08, p 4. 130  Europol Regulation (n 11 above) Article 4(1)(c)(ii).

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coordination meetings and/or coordination centres131 and turning to Europol for organising operational meetings or setting up operational centres132 is immaterial if attention is not given to the specific tasks entrusted to each agency. Indeed, both agencies bring specific added-value to the coordination of Member States’ criminal investigations. Close cooperation between the two agencies is thus imperative in order to provide assistance to national authorities during the entire criminal justice ­lifecycle, from the police investigation phase up to the trial stage, and manage the necessities of cooperation and coordination between judicial and law enforcement ­authorities.133 However, in practice, national authorities have a discretionary power to decide who will attend such meetings and if they so wish, they may exclude the participation of the other agency,134 thus compromising their close cooperation. Nonetheless, it is the need for flexibility that creates a grey zone, which on occasions leads to tensions between the two agencies. For instance, it has been brought to our attention that Eurojust was concerned that the participation of judicial authorities in Europol’s meetings results in judicial issues being discussed without the involvement of Eurojust. Eurojust has shown concern with the wording in the Europol Regulation, according to which Europol shall assist/support and strengthen Member States’ ‘competent authorities’. These would include police authorities, law enforcement authorities as well as other authorities responsible under national law for preventing and combating criminal offences.135 Such a vague and open definition of ‘competent authorities’ is of course problematic given that it could encompass judicial authorities as well. Since the grey zone with regard to the definition of Europol and Eurojust’s respective tasks is both unavoidable and undesirable, the best approach is to favour flexibility but with due regard to the Treaties.136 In this respect, it should be recalled that Article 88(1) TFEU on Europol’s mission refers to the support and strengthening of Member States’ ‘police authorities and other law enforcement services’. Emphasis must be placed on ensuring that flexibility is handled in good faith. In the interest of all parties, and in order to construct a real AFSJ, both Eurojust and Europol should respect their fields of expertise and their respective ‘raisons d’être’. In that regard, the insertion of a new paragraph in the preambles of the Europol Regulation and the partial General Approach on the E ­ urojust

131 

For more details, see Eurojust, Annual Report (2013) pp 21 and 23. For instance, law enforcement authorities may obtain strategic analysis of the modus operandi of a given criminal group, and thus they may be able to detect new suspects/links. For more details, see Europol, Europol Review (2013) p 17. 133  Eurojust, Evaluation of the Eurojust Council Decision (n 39 above) p 93. 134  Refusals of national authorities may be to the detriment of either Eurojust of Europol. They are often due to confidentiality issues and the wish to keep certain information away from police services/ judicial authorities. 135  Europol Regulation (n 11 above Article 4(1)(c) read together with Article 2(a). 136  See Articles 85 and 88 TFEU. 132 

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­ egulation is to be welcomed. These paragraphs explicitly provide that the two R agencies ‘shall ensure that necessary arrangements are established to optimise their operational cooperation, taking due account of their respective missions and mandates and of the interests of Member States’ (emphasis added).137 In addition, it might be wise to include a general duty to involve the other agency in its coordination activities wherever its expertise is relevant, unless Member States explicitly oppose this. In the latter event, an obligation to inform the other party of the reasons given by the national authority should apply. Furthermore, it would be interesting to keep track of all refusals and justifications provided by national authorities, since they could then be regularly assessed in an objective and scientific way in order to reflect upon the opportunity of rendering both agencies’ participation mandatory. The opportunity of abolishing the possibility that Member States enjoy to oppose the participation of an EU agency, which reflects the persistent intergovernmental nature of their work, might indeed have to be reconsidered in the longer run. This change would be more in line with the communitarisation brought about by the Lisbon Treaty, although the potential counterproductive effect on the good functioning of the EU agencies and the trust national authorities place in them must be carefully considered.

F.  Competence / Allocation of Jurisdiction Within the EU Area of Freedom, Security and Justice, and particularly due to globalisation, Member States are increasingly confronted with situations where several Member States have criminal jurisdiction to investigate and prosecute the same criminal offences.138 Such situations may lead to conflicts of jurisdiction, and it is thus necessary for the Member States concerned to choose a forum for the trial. The issue of determining the most suitable jurisdiction often arises in criminal cases in which a JIT has been set up, since JITs are commonly created to investigate and prosecute crimes for which more than one Member State can claim jurisdiction.139 The decision on the competent jurisdiction is crucial, particularly

137  Council, partial General Approach on Eurojust (n 13 above) Recital 26a, and Europol Regulation (n 11 above) Recital 9. 138  P Polyvios, ‘Conflicts of jurisdiction in criminal proceedings: analysis and possible improvements to the EU legal framework’ (2006) 1 Revue Internationale de droit pénal 113–19. ‘Two or more Member States may be able to establish their jurisdiction for the same facts in situation where the commission of a criminal offence crosses the territory of several Member States, or the effects of an offence are felt in the territory of several Member States, or in situation where an offence is being committed in a MS but the nationality or place of residence of the perpetrators persons or victims points to another Member State’. 139  JIT Framework Decision (n 3 above) Article 1(1): ‘A joint investigation team may, in particular, be set up where: (a) a Member State’s investigations into criminal offences require difficult and demanding investigations having links with other Member States; (b) a number of Member States are conducting investigations into criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Member States involved.’

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to ensure that national rules regarding admissibility of evidence are respected. Such a decision may take place at different stages: when the JIT is set up,140 during the operational phase of the JIT or once the JIT’s purpose has been achieved.141 According to national experts on JITs, ‘admissibility of evidence and settling potential conflicts of jurisdictions should be actively discussed during the setting up of the JIT and reflected in the JIT agreement to facilitate the fulfilment of the formalities and procedures in each jurisdiction’.142 However, deciding the competent jurisdiction for trial can sometimes be difficult at an early stage, since the information available at that time is often insufficient to determine the best placed state to prosecute the offence/s (eg suspects may still not have been identified, criminal assets not yet traced, etc). Moreover, new elements arising in the course of the investigation might affect the original decision on the best-placed jurisdiction for trial. As is well known, Eurojust has a clear mandate in this regard, and it enjoys extensive competence to assist national authorities on conflicts of jurisdiction. As a reminder, Eurojust might intervene on this issue, either informally or formally. Eurojust may intervene without the registration of a formal request. For example, coordination meetings often prove to be a practical and useful forum for early discussion and agreement on jurisdiction issues between the competent authorities involved in parallel investigations. Likewise, potential conflicts of jurisdiction have also been discussed and prevented as a result of agreements reached within the scope of Eurojust-supported JITs.143 Moreover, national authorities have a general duty to inform Eurojust of any case where conflicts of jurisdiction have arisen or are likely to arise (Article 13(7) (a) of the consolidated Eurojust Council Decision). Article 12 of the 2009 Council Framework Decision on the prevention of conflicts of jurisdiction144 also notes that, where it has not been possible to reach consensus in accordance with Article 10 of that Decision, the matter shall, where appropriate, be referred to Eurojust by any competent authority of the Member States involved, if Eurojust is competent to act under Article 4(1) of the Eurojust Decision. In addition, the consolidated Eurojust Council Decision provides two legal bases for the intervention of Eurojust on this issue. Under Article 7(2), the College has the power to issue a non-binding opinion on the case.145 Until 2015, the College had not yet made use 140  JIT experts recommend including the decision in the JIT agreement, or at least discussing it in advance. Network of National Experts on JITs, ‘Conclusions of the second meeting’ (n 4 above) p 4. 141  ‘At the latest before the closure of the JIT, settlement of jurisdiction and practical steps related thereto (eg review of the scope of respective proceedings, sharing and/or possible transfer of jurisdiction, etc.) may need to be considered among JIT partners, although the arrangements taken can be implemented after the closure of the JIT’; Joint Investigation Teams Practical Guide (n 57 above) p 11. 142  Network of National Experts on JITs, ‘Conclusions of the ninth meeting (n 75above) p 12. 143 Ibid. 144  Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328/42. 145 ‘Where two or more national members cannot agree on how to resolve a case of conflict of jurisdiction as regards the undertaking of investigations or prosecution pursuant to Article 6 and in

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of this power, so it is not possible to assess its effectiveness.146 The reasons why a non-binding opinion has never been used is that agreement can very often be worked out based on the powers of Article 6 and between national members and national authorities.147 Under Article 6(1)(a)(ii), Eurojust national members may ask the competent national authorities ‘to accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts’. It was reported that national members interviewed predominantly saw their role in the field of prevention of conflicts of jurisdiction and cases of recurrent difficulties as a pre-emptive one, focused on identifying and avoiding potential issues before they come to a head rather than simply addressing them once they manifest themselves.

The use of Article 7(2) is indeed considered a measure of last resort.148 The future Regulation on Eurojust also contains provisions relating to conflicts of jurisdictions, although drafted differently. Article 4(2)(b) of the Council’s partial General Approach reads: In the exercise of its tasks, Eurojust may ask the competent authorities of the Member States concerned, giving its reasons, to … accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts

and see (4) of the same Article.149 These provisions, read together with Article 5(1) and (2)(a) of the same draft Regulation, indicate that Eurojust can exercise this power, either acting through one or more of the national members concerned, or as a College. As a consequence, it seems to us that at least on this point, no overlap between Europol and Eurojust arises.

G.  Evaluating JITs The second JIT expert annual meeting was, back in 2006, the first forum in which the idea of establishing a pool of knowledge concerning JITs was considered.150 Two years later, experts recommended evaluating JITs once judicial proceedings

particular Article 6(1)(c), the College shall be asked to issue a written non-binding opinion on the case, provided the matter could not be resolved through mutual agreement between the competent national authorities concerned. The opinion of the College shall be promptly forwarded to the Member States concerned. This paragraph is without prejudice to paragraph 1(a)(ii)’. 146 

Eurojust, Evaluation of the Eurojust Council Decision (n 39 above) p 48. Ibid, p 49. 148 Ibid. 149  ‘Where two or more Member States cannot agree on which of them should undertake an investigation or prosecution following a request made under point (a) and (b) of paragraph 2, Eurojust shall issue a written opinion on the case. The non-binding opinion shall be promptly forwarded to the Member States concerned.’ 150  Network of National Experts on JITs, ‘Conclusions of the second annual meeting’ (n 4 above) p 6. 147 

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are finished, with particular attention to the particularities regarding coercive measures, procedural rules and admissibility of evidence in the Member States. The idea of making available such evaluations to Eurojust and Europol was put forward, to allow dissemination in an appropriate way (eg JIT guide).151 When the JIT Secretariat was established and inserted in the administration of Eurojust,152 the Secretariat became the ‘JIT information centre’ on national experiences with JITs. To that end, the Secretariat was to collect relevant court decisions and prepare English summaries of them.153 In order to establish such a database of national case law, the possibility of preparing reporting forms was put forward.154 The eighth meeting of the JITs Network was then largely devoted to discussing the evaluation mechanism: matters such as the purpose,155 method and addressees of the evaluation156 and the subsequent use of the obtained information were discussed.157 Thereafter the JIT Network Secretariat developed an evaluation form158 to be disseminated by National Experts to assess the performance and results achieved by JITs at national level. Evaluation should be initiated at the closure of the JIT and completed after the end of the last trial in the countries involved.159 Evaluations are thus carried out at national level, although Eurojust and Europol offer their venues and video-conference facilities to facilitate joint evaluations by the members of a JIT.160 In spite of this ‘overlap’, which is meant to foster the gathering of data regarding national experiences with JITs, it is the JITs’ Network Secretariat that centralises the information. On that basis, a first JIT evaluation report was released in December 2015,161 analysing the results of 42 JIT evaluation forms.162 151 

Network of National Experts on JITs, ‘Conclusions of the fourth annual meeting’ (n 129 above) p 7. Eurojust Council Decision (n 31above) Article 25a(2). 153  Network of National Experts on JITs, Conclusions of the fifth annual meeting (n 105 above) p 4. 154  Netwok of National Experts on JITs, Conclusions of the seventh annual meeting (n 104 above) pp 6 and 7. 155  Enhancing awareness of the JIT concept, identifying and preventing judicial and practical obstacles, sharing best practices between practitioners, and developing the JIT tool were among the cited purposes. 156  Network of National Experts on JITs, Conclusions of the eight annual meeting (2013) Council doc 7241/13, p 5: ‘Participants discussed different methods to perform evaluation, such as informal meetings and special forms. They agreed that a standard process is essential to reduce the workload, to achieve consistency and to allow for identification of common obstacles and best practices. One possible approach to achieve consistency of results is for Eurojust and Europol to prepare a template/ standard form for the practitioners.’ 157  Ibid, p 3: ‘The results of such an evaluation could be used by the practitioners to improve the setting up and functioning of JITs, guide Eurojust and Europol to continue to expand their supportive role and assist the EU and national legislators in further developing the legal regime surrounding the JIT concept’. 158  The template was ‘tested’ on two JITs (Operations ‘Playa’ and ‘Magellan’) and amended on the basis of the outcome of those evaluations. Network of National Experts on JITs, ‘Conclusions of the ninth meeting (n 75 above) p 4. 159  Ibid, p 3. 160  Network of National Experts on JITs, Conclusions of the tenth annual meeting (2014) Council doc 17115/14, p 16. 161  It was first presented to the Network of National Experts on JITs, Conclusions of the eleventh annual meeting (n 45 above) p 11. 162  First JIT Evaluation Report (n 40 above). 152 

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The importance of this exercise should not be underestimated. The lack of knowledge of JIT practices has long been an obstacle for improving this crossborder tool. The periodic evaluation reports prepared by the JIT Network Secretariat will help identify—and prevent—judicial and practical obstacles to JITs operations.

IV. Conclusion The analysis in this chapter reveals that JITs are indeed a field in which Europol and Eurojust are especially called to cooperate. Past experience with JITs show that overall, their cooperation works smoothly and to the advantage of national criminal investigators. Out of the seven areas examined earlier, there are at least two where no overlap between Eurojust and Europol’s competence is noticed, namely the allocation of jurisdiction, which is logically entrusted to Eurojust, and JIT evaluation, which is in the hands of the JIT Secretariat. Regarding the five remaining fields, some overlap exists but is not per se problematic. The advantages of the existing overlap are particularly obvious with regard to the identification of the need for a JIT, the drafting of the JIT agreement and Operational Action Plan, the participation in and/or assistance to JITs or the funding of JITs. The later has illustrated that overlaps require particular efforts of cooperation and coordination. In this regard, while the risk of double funding has been positively resolved, the severe imbalance regarding the resources available to the agencies for funding JITs will likely create tensions and prejudice good cooperation. Finally, the most sensitive area appears to be that of coordination of investigations. In spite of the vague wording in the Europol Regulation regarding this issue, the Treaty provisions must be respected and emphasis must be placed on ensuring that the existing flexibility is handled in good faith. Since negotiations on the Eurojust Regulation are still ongoing, its final wording remains unknown. Further analysis will be required once it is adopted. However, and in spite of the issues identified, a positive evolution can be witnessed in the negotiations, with more attention being granted by the EU legislator to the necessary cooperation between the two agencies in the field of JITs. To conclude this chapter, the debate will be extended to other areas of blurring which are particularly relevant in the fight against terrorism. In this field, as in relation to other transnational crimes, ensuring a good and sound cooperation between law enforcement and judicial authorities both at national and EU level is crucial. Beyond the importance of their mutual cooperation, the question of their cooperation with intelligence services also arises, including in the framework of JITs. The blurring boundaries between intelligence services (within the meaning in French of services de renseignements) on the one hand, and police services and

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other law enforcement agencies, on the other hand, come to the debate. Different elements contribute to this blur, both at national and EU level: firstly, the growing importance of prevention in the field of counterterrorism has an impact on both substantive and procedural criminal law. The burgeoning number of inchoate offences which criminalise preparatory acts is coupled with the development of investigative measures of a growing proactive nature. Secondly, Member States have different internal divisions between national competent authorities, particularly between intelligence services and other law enforcement agencies, and some Member States even have bodies which are entrusted a double function (eg Direction Générale de la Sécurité Intérieure (France)). These complexities are multiplied at a European level where the different actors are called to cooperate. JITs are at the heart of this debate, as is shown by the establishment of FrancoBelgian JITs in the aftermaths of the terrorist attacks in Paris and Brussels. These terrible events have at least had one positive consequence: JITs are increasingly being used in relation to terrorism. This witnesses a change in the general climate and mentalities in favour of more and better cooperation at three levels: between national authorities; between these and the EU agencies; and finally between the agencies themselves. The success of JITs in counterterrorism must in principle be welcomed: the more proactive JITs can be, the more efficient they will be. The setting up of a JIT indeed allows participating Member States to feed their criminal intelligence into the JIT. All participants profit from the intelligence/information exchanged among the parties, which may be used to prevent terrorist attacks or to investigate for instance, the recruitment of terrorists. However, the use of JITs as an intelligence tool raises many sensitive legal questions. Without pretending to be exhaustive, two issues will especially be mentioned. The first one relates to the explicit incompetence clause provided in the Treaties, according to which national security remains the sole responsibility of each Member State.163 One may wonder if this clause prevents Member States from allowing the involvement of intelligence services in a JIT. If the former question is answered in the negative, a second legal question concerns the use of the information obtained within such a JIT: can intelligence be assimilated with judicial information and used as evidence in subsequent criminal proceedings? This question is of course extremely sensitive especially with regard to the rights of the defence. Whether or not the terrorist threat leads to a more proactive use of JITs is a trend to be followed up.

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Article 4(2) TEU and Articles 72 and 73 TFEU.

21 The Draft Regulation on the Establishment of the European Public Prosecutor’s Office—Issues of Balance Between the Prosecution and the Defence HANS-HOLGER HERRNFELD1

I. Introduction The European Commission presented its proposal for a Regulation on the establishment of the European Public Prosecutor’s Office (EPPO) on 13 July 2013.2 The legal basis for this Regulation is Article 86 of the Treaty on the Functioning of the European Union (TFEU), according to which the Council, acting unanimously and after obtaining the consent of the European Parliament, may establish a European Public Prosecutor’s Office in order to combat crimes affecting the financial interests of the Union. After three years of intensive negotiations in the relevant Council working party on cooperation in criminal matters (COPEN), the EPPO may now be established as an EU body with the power to investigate and prosecute criminal offences affecting the financial interests of the Union. This is a development that will raise new issues in terms of striking a balance between the prosecution and the defence in the field of EU criminal law. The following chapter will provide readers with an overview of the state of negotiations and focus on major elements of the current draft Regulation.

1  This chapter is based on the manuscript of the author’s presentation at the ECLAN 10th Anniversary conference 25–26 April 2016, European Commission, Brussels (Workshop on ‘The balance between prosecution and defence’). It reflects the state of negotiations at the time of the conference except where otherwise indicated. The contribution reflects the author’s personal views and not that of the German Federal Ministry of Justice and Consumer Protection. 2 Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM(2013) 534 final: http://ec.europa.eu/justice/criminal/files/regulation_eppo_en.pdf.

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This overview will be followed by some remarks on five specific aspects of the draft Regulation where issues of ‘balance’ have arisen in the course of the negotiations: the choice of jurisdiction; the procedural rights of the suspect, in particular regarding access to the case file; the ordering of investigative measures; cross-­ border cooperation; as well as the judicial review of procedural acts of the EPPO. At its meetings in June, October and December 2015, the Justice and Home Affairs (JHA) Council had been requested to give approval to ‘packages’ of individual sections and articles of the draft EPPO Regulation. These parts of the draft Regulation concerned the structure of the EPPO, its material and territorial competence as well as provisions on the opening of and conducting of an investigation, decisions on prosecution or dismissal, and relevant procedural rights. While, in each of these three Council meetings, the package presented to the Council received, in general, the support of a majority of Member States, there have always been some Member States that have voiced concerns about individual aspects or specific articles of these ‘packages’. Negotiations during the Dutch Presidency of the EU in the second half of 2016 focused on information management and data protection as well as provisions on cooperation with other EU agencies and third states, staffing, budget and finance and the final provisions of the draft Regulation.

II.  Main Elements of the EPPO The European Public Prosecutor’s Office will be established as a ‘body’ of the ­European Union with its own legal personality (Article 33). The EPPO will be independent, and the Member States and the Union institutions, bodies, offices and agencies are expected to respect the independence of the Office and not to seek influence over how its tasks are exercised (Article 6). The rules on the establishment of the EPPO, its structure and competences as well as the procedural provisions for the criminal investigations to be conducted by the EPPO are supposed to be laid out in a single Regulation based on Article 86 of the TFEU. ­Notwithstanding its independence from the Member States and its establishment as a ‘body’ of the Union, the EPPO will—in terms of structure, competences and the procedural law applicable to its operational work—come across as a new hybrid entity in the area of EU criminal law. It will to a large extent rely on existing structures and human resources in the Member States and its applicable legal framework will be interwoven with the divergent national legal regimes.

3  References to ‘Articles’ without further indications are references to the draft EPPO Regulation as it stood at the time of the ECLAN conference in April 2016, except where otherwise indicated. The full text of the draft EPPO Regulation as of 31 December 2016 has been published as Council document 5766/17 on 31 January 2017 at: http://db.eurocrim.org/db/en/vorgang/306/ (https://db.eurocrim.org/ db/en/doc/2669.pdf), accessed December 2016.

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A.  Structure of the European Public Prosecutor’s Office In terms of internal structure, the EPPO is supposed to consist of a Central Office as well as a network of so-called ‘European Delegated Prosecutors’ in the Member States. The Central Office will be composed of a European Chief Prosecutor acting as head of the EPPO (Article 10 paragraph 1), several so-called ‘European Prosecutors’ (Article 11), two Deputy European Chief Prosecutors (Article 10 paragraph 2), who will be appointed from among the European Prosecutors (Article 13a), and an Administrative Director (Articles 15a and 15b). The organisational structure of the Central Office will consist of a College and Permanent Chambers, members of which will be the European Chief Prosecutor, the ­Deputies and the European Prosecutors (Articles 8 and 9), supported by the staff of the Central Office (Article 7 paragraph 5). The European Chief Prosecutor and the European Prosecutors will be engaged as ‘temporary agents’ in accordance with the Staff Regulations of the European Union. All other Central Office staff will be recruited according to the rules and regulations applicable to officials and other servants of the European Union ­(Article 54 paragraphs 1 and 2). There will be one European Prosecutor from each Member State that participates in the establishment of the EPPO. However, the European Prosecutors are certainly not supposed to be acting as ‘representatives’ of their Member State of origin in the College. Rather, bringing in the necessary knowledge of the national language(s) and legal expertise from their Member State of origin, their role will be to supervise the investigations carried out by and on behalf of the EPPO in ‘their’ Member State and act as liaison between the Permanent Chambers and ‘their’ European Delegated Prosecutors. Thus, while the concept of a ‘College’ may give rise to the drawing of certain parallels with the structure of Eurojust, the rules of the EPPO Regulation on the appointment and possible dismissal of the European Prosecutors (Article 14), as well as their status as temporary agents under the Staff Regulations of the EU, are intended to ensure their independence from the judicial system of their Member State of origin and to provide them with an unequivocally European mandate and mission. While the European Prosecutors will primarily have a supervisory role at the central level, the responsibility for the EPPO investigations will lie with the European Delegated Prosecutors in the Member States—the so-called ‘decentralised level’ (Article 7 paragraph 4) of the EPPO. These European Delegated Prosecutors will, save for certain exceptional circumstances (Article 23 ­paragraph 4), be responsible for all investigations and prosecutions which they have initiated, which have been allocated to them or which they have taken over from national authorities, using their right of evocation (Article 12 paragraph 1). The European Delegated Prosecutors may, ‘in accordance with this Regulation and with national law’, either undertake the investigation measures and other measures themselves or instruct the competent authorities in their Member State to do so. These authorities shall, ‘in accordance with national law’, ensure

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that all ­instructions are followed and undertake the measures assigned to them ­(Article 23 paragraph 1). The concept of European Delegated Prosecutors as part of a ‘decentralised’ approach, as well as the role of Member States’ law enforcement authorities carrying out investigative measures on behalf of the EPPO, were already core elements of the original Commission proposal.4 However, in the course of negotiations in the Council, these ‘decentralised’ aspects have been further emphasised, largely reducing the role of the central level. The tasks of monitoring and directing the investigations and prosecutions will finally be conducted by the Permanent Chambers (Article 9 paragraph 2) and the supervision of the investigations and prosecutions will be the responsibility of the European Prosecutors (Article 11 paragraph 1). The European Delegated Prosecutors will be part of the EPPO acting as a ‘single office’ (Article 7 paragraph 1). However, in terms of legal status, they will not be temporary agents of the Union. Instead, they will remain active members of the public prosecution service or the judiciary of their Member State ­(Article 15 ­paragraph 2).5 In addition, they will be provided with contracts as ‘Special Advisors’ in accordance with Articles 5, 123 and 124 of the Conditions of Employment of Other Servants of the European Union (Article 54 paragraph 5). Thus they will all be wearing a ‘double hat’ in terms of their status: as ­European ­Delegated Prosecutors in accordance with the terms of the EPPO Regulation and as (national) prosecutors or members of the judiciary in accordance with the law of their respective Member State. This kind of ‘double-hat’ construction had already been foreseen in the original Commission proposal.6 In the course of the negotiations on the draft EPPO Regulation, this has been seen by some delegations as an important principle that would help to ensure that the European Delegated Prosecutors can be granted the powers to order investigative measures in their Member State. Indeed, Article 12 paragraph 1 of the draft EPPO Regulation states that the European Delegated Prosecutors ‘shall have the same powers as national prosecutors in respect of investigations, prosecutions and bringing cases to judgment’. This, however, presumably could have been achieved in the Member States even without the ‘double-hat’ concept by applying the principle of ‘assimilation’, giving a European Delegated Prosecutor the same powers as a national prosecutor has in accordance with domestic law. This ‘double-hat’ construction requires specific provisions on the delineation of disciplinary powers which, on the one hand, will be in the hands of the EPPO ­College (Article 15 paragraph 3). On the other hand, because the European ­Delegated Prosecutors will have a formal status as prosecutors under domestic law,

4 COM(2013) 534 final (n 2 above), Section 3.3 of the explanatory memorandum as well as Article 6 and Article 18 paragraph 1. 5  Technically, the wording of that provision would also allow Member States to nominate a person as EDP who is not a member of the prosecution service or the judiciary; however, the Member States would have to provide that person with such a status ‘from the time of their appointment’ as EDP. 6  Draft Article 10 paragraph 2 and recital 16 of the original Commission proposal (n 2 above).

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the Member States’ authorities may also exercise disciplinary powers ‘for reasons connected with’ the European Delegated Prosecutor’s responsibilities under the EPPO Regulation. However, they may do so only with the consent of the European Chief Prosecutor (Article 15, paragraph 4, second sentence). Independent from this ‘double-hat’ construction is another type of ‘double hat’ which the European Delegated Prosecutors may be wearing: in accordance with Article 12 paragraph 3, European Delegated Prosecutors ‘may also exercise functions as national prosecutors, to the extent that this does not prevent them from fulfilling their obligations under this Regulation’. Thus the Member State may—in agreement with the European Chief Prosecutor7—also give a European Delegated Prosecutor (or allow him/her to retain) other functions as national prosecutor, and make him/her only a ‘part-time European Delegated Prosecutor’. Again, this had already been foreseen in the original Commission proposal.8 In the course of negotiations, the relevant rules on ‘conflicts of interests’ (Article 12 paragraph 3) and the applicable disciplinary powers (Article 15 paragraph 4) have been amended—in both cases bringing the national authorities more onto an equal footing with the role of the EPPO’s central level.

B.  The Competences of the European Public Prosecutor’s Office The rules on the competences of the EPPO have been subject to difficult—and sometimes heated—discussions in the Council’s preparatory bodies, COPEN and the Coordinating Committee in the area of police and judicial cooperation in criminal matters (CATS). In one respect, the final text still follows the conceptual approach of the original Commission proposal:9 the material competences of the EPPO will not be specified in the EPPO Regulation itself; instead, the EPPO Regulation is supposed to refer to the Protection of the Union’s Financial Interests (PIF) Directive; thus the EPPO will in principle be competent to investigate those types of offences that will be defined in that Directive. The Commission had presented a proposal for such a ‘Directive on the fight against fraud to the Union’s financial interests by means of criminal law’ on 11 July 2012.10 The Council had then adopted a ‘general approach’ on the draft Directive in June 2013. However, it then proved difficult to reach a final agreement in the trilogue between the Commission, the Council and the European Parliament.11

7  This would follow from Article 12(2) of the EPPO Regulation according to which the number of EDPs shall be agreed upon between the European Chief Prosecutor and the Member State’s authorities. 8  Article 6(6) of the Commission proposal (n 2 above). 9  Article 12 of the original COM proposal (n 2 above). 10  Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, COM(2012) 363. 11  Negotiations continued in 2016 under the consecutive EU Presidencies of the Netherlands and the Slovak Republic until finally an agreement on the PIF Directive could be established in December 2016/January 2017 (cf text set out in Council document 14902/16 of 2 December 2016).

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According to Article 17 paragraph 1 of the draft EPPO Regulation, the EPPO ‘shall be competent in respect of the criminal offences affecting the financial interests of the Union which are provided for in Directive 2017/xx/EU, as implemented by national law’. While the assumption is that the PIF Directive will at the time of its adoption, based on Article 83 paragraph 2 of the TFEU, only contain PIF offences in terms of Article 86 paragraph 1 of the TFEU, the text of the PIF Directive can be amended in the future by way of the ordinary legislative procedure. Since ­Article 17 paragraph 1 of the EPPO Regulation provides for an EPPO competence for ‘criminal offences affecting the financial interests of the Union’, this should serve to clarify that the EPPO competence can, by way of any such future amendment of the PIF Directive, at least not be extended beyond the scope of Article 86 paragraph 1 of the TFEU. However, Article 17 paragraph 1 of the draft EPPO Regulation makes a ‘dynamic reference’ to the PIF Directive. Thus it would be possible for the legislator to—indirectly but ‘automatically’—broaden the EPPO’s competence by way of a future amendment of the PIF Directive as long as such an amendment does not go beyond the scope of Article 86 paragraph 1 of the TFEU. Any further extension of competences of the EPPO, ie beyond the protection of the Union’s financial interests, would only be possible by way of the special procedure set out in Article 86 paragraph 4 of the TFEU. The fact that the draft EPPO Regulation foresees such a ‘dynamic reference’ to the PIF Directive could be seen as rather surprising, considering that Article 86 paragraph 2 TFEU would seem to suggest that the EPPO competences will be determined by the EPPO Regulation itself and thus by way of a special legislative procedure, requiring unanimity in the Council. Contrary to this, the PIF Directive is supposed to be based on Article 83 paragraph 2 of the TFEU, which—or so it is presumed12—would in this case13 foresee the application of the ordinary legislative procedure. Article 17 paragraph 1 of the draft EPPO Regulation foresees that the EPPO’s competence will be determined by the PIF Directive ‘as implemented by national law’. In principle, this does seem appropriate because the investigation and prosecution of a particular case in a particular Member State needs to take into account the specific criminal law provisions of that Member State. The provisions of the PIF Directive do not set out directly applicable EU criminal law; they merely serve to harmonise—to a certain extent—the criminal laws of the Member States. However, this intertwining of the PIF Directive and domestic criminal laws may cause difficulties in practice when it comes to determining whether the EPPO has

12  The Council and European Parliament have been negotiating the draft PIF Directive on that assumption. However, as requested by the EP, the PIF Directive is now supposed to include provisions on VAT-related fraud. And it could be argued that the inclusion of provisions on indirect taxes would require a unanimity decision in the Council as foreseen in Article 113 TFEU for legislative provisions on indirect taxes (Cases C-338/01 Commission v Council, ECLI:EU:C:2004:253, and C-533/03 Commission v Council, ECLI:EU:C:2006:64). 13  According to Article 83 paragraph 2 TFEU directives establishing minimum rules on defining criminal offences and sanctions shall be adopted by the same legislative procedure as was followed for the ‘harmonisation measures in question’.

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competence for a particular case or not. First of all, it will be necessary to know whether a particular offence under national law is considered to be an ‘implementation’ of the PIF Directive. Secondly, uncertainties may arise where a domestic provision goes beyond the specific obligations stemming from the corresponding provision of the PIF Directive: would the national law provision in this respect still be considered by the EPPO and national courts to be an ‘implementation’ of the PIF Directive? Also, uncertainties may arise when a future amendment of the PIF Directive has not yet been implemented in that Member State. The G ­ erman delegation, supported by some other delegations, had advocated a different approach to determining the material competence of the EPPO: the idea was to foresee an annex to the EPPO Regulation, which would specify for each Member State the relevant provisions of domestic law where the EPPO would be competent for a criminal offence provided that the offence has been affecting the financial interests of the Union. This proposal did not meet with the approval of all other delegations. However, the Regulation now requires the Member States to notify the EPPO by sending it a list of offences under domestic law where the EPPO will be competent (Article 73) and this list will be made publicly available, thereby providing at least a certain degree of clarity. Nevertheless, such lists can only have a declaratory effect whereas the competence of the EPPO will still need to be determined by applying the criteria in Article 17 paragraph 1 in a specific case. The EPPO will also be competent to investigate certain non-PIF offences, ie offences which are not defined in the PIF Directive. Already the original ­Commission proposal attempted to address the fact that a PIF offence may be committed in such a way that the circumstances of the case are ‘inextricably linked’ with another type of offence which, even if it may also be affecting the financial interests of the Union, is not a PIF offence as defined by the PIF Directive.14 Furthermore, the Commission’s proposal acknowledged the fact that a particular criminal act may be committed not only to the detriment of the Union budget but also affect the financial interests of others, such as a particular Member State in the case of co-financing, eg, of infrastructure projects. After complex negotiations in the COPEN working group, Article 17 paragraph 2 now foresees such an ancillary competence of the EPPO for other offences than those set out in the PIF Directive, provided that the offence is inextricably linked to the PIF offence as described in Article 17 paragraph 1. The notion of ‘inextricably linked’ is intended to address situations where the circumstances of the case are linked in such a way that conducting independent, parallel investigations—in respect of the PIF offence by the EPPO and the non-PIF offence by a national prosecutor—could, in accordance with the jurisprudence of the CJEU, lead to a ne bis in idem situation. An example referred to in the course of the negotiations would be the falsification of a document which is then used by the offender to fraudulently obtain EU funding. In order to ensure that such an extension of competences of the EPPO would not go

14 

Article 13 and recital 22 of the original COM proposal (n 2 above).

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beyond the limitations of Article 86 paragraph 1 of the TFEU, the EPPO may exercise such competence in respect of inextricably linked offences only in accordance with Article 20 paragraph 3 (cf further below). In addition to Article 17 paragraph 2, the EPPO will, in accordance with ­Article 17 paragraph 1a, also be competent for offences regarding participation in a criminal organisation as defined in Framework Decision 2008/841/JHA, as implemented in national law, if the focus of the criminal activity of such a criminal organisation is to commit any of the offences referred to in paragraph 1.

The wording of this paragraph, which has been inserted following a request by another delegation, does not specifically require as a condition of exercising such a competence that the EPPO is also investigating specific cases of PIF offences which allegedly have been committed by the criminal organisation. However, the idea was that paragraph 1a formulates such an ancillary competence for a specific type of ‘inextricably linked offence’, which perhaps could otherwise not be sufficiently addressed by Article 17 paragraph 2 due to the limitations for exercising EPPO competences set out in Article 20 paragraph 3. As indicated above, in view of the limitation of EPPO competences to crimes affecting the financial interests of the Union (Article 86 paragraph 1 TFEU), it seemed necessary to ensure that these limitations would not in effect be circumvented in cases where the EPPO exercises a competence also in respect of ‘inextricably linked’ other offences under domestic law. In line with the jurisprudence of the CJEU on the choice of the appropriate legal basis by the Union legislator,15 Article 20 paragraph 3 limits the possibilities for exercising an EPPO competence to cases where the PIF crime is considered to be preponderant: the EPPO shall not exercise a competence in case of inextricably linked offences where the non-PIF crime would be considered to be the more severe offence—when judged by the applicable (statutory) maximum sanction level (paragraph 3, subparagraph (a)). The exclusion of an EPPO competence then applies both to the PIF offence as well as to the ‘inextricably linked’ non-PIF offence.16 Thus, where the EPPO may not exercise a competence, the national prosecution authority retains full exclusive competence also in respect of the related PIF offence.17 If both offences are considered to be equally severe in terms of the applicable maximum sanction levels, the EPPO may exercise a competence in respect of both offences only where the non-PIF offence is considered to have been merely ‘instrumental’ to committing the PIF offence (paragraph 3 subparagraph (aa). A possible example would be

15 

Cf eg Case C-137/12 Commission v Council, ECLI:EU:C:2013:675, paragraph 53. accordance with Article 20 paragraph 3, the EPPO shall in this case ‘refrain from exercising its competence in respect of any offence falling within the scope of Article 17’—and thus also the PIF offence under paragraph 1 of that article. 17  In the course of negotiations under the Slovak EU Presidency, Article 20 paragraph 3 has been supplemented by a new paragraph 3a according to which the EPPO may, with the consent of relevant national prosecution authorities, exercise its competence even in cases which would otherwise be excluded due to application of paragraph 3 subparagraph (a). 16  In

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where an offender falsifies a document and uses this in a fraudulent customs declaration: if these are considered ‘inextricably linked’, and even though the applicable domestic law prescribes for both offences the same maximum penalty, the EPPO may still exercise its competence on the grounds that the falsification of the document is considered to have been ‘instrumental’ to committing the EU fraud offence.18 In contrast to the approach foreseen in the original Commission proposal,19 the draft Regulation does not address in the context of ‘ancillary offences’ the situation of a criminal offence having been committed to the detriment not only of the Union budget but also a Member State’s budget. The question of whether the EPPO may always exercise its competence when the crime has caused damage to the Union’s budget, even if the same offence also caused damage to the budget(s) of one or more Member State(s), is now addressed in paragraph 3 subparagraph (b) of Article 20. The text foresees that the EPPO shall refrain from exercising its competence and refer the case to the national authorities if there is a reason to assume that the damage caused or likely to be caused, to the Union’s financial interests by an offence as referred to in Article 17 does not exceed the damage caused, or likely to be caused to another victim.20

This provision will apply irrespective of whether, in the particular case, there has been only one offence (but two victims) or two ‘inextricably linked’ offences. These complex rules on the material competence of the EPPO may make it difficult in a particular situation to determine whether the EPPO may—in accordance with the EPPO Regulation—exercise its competence or not. Contrary to the original Commission proposal, the EPPO competence is not, however, designed as an ‘exclusive competence’. The EPPO and the national prosecution rather share—in principle—competences for PIF offences except where, in accordance with Article 20 paragraph 3, the EPPO shall refrain from exercising a competence, thus leaving the competence exclusively in the hands of the national authorities. A further exception to exercising an EPPO competence is set out in Article 20 paragraph 2: ‘Where a criminal offence falling within the scope of Article 17 caused or is likely to cause damage to the Union’s financial interests of less than EUR 10 000’, the EPPO shall in principle refrain from exercising its competence and thus leave the case to the national authorities; here again, there are exceptions to the exception, set out in subparagraphs (a) and (b).

18  For explanation of the term ‘instrumental’, cf recital 49a of the draft EPPO Regulation: ‘offences which have been committed for the main purpose of creating the conditions to commit the offence affecting the financial interests of the Union’ (n 3 above). 19  Recital 22 of the original Commission proposal (n 2 above). 20  Exceptions to this rule have been inserted under the Slovak EU Presidency in December 2016 in respect of crimes in accordance with Article 3(a) and (d) of the PIF Directive; in these cases the EPPO can exercise a competence even where the damage caused to the EU is lower than that caused to another victim.

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Where, however, the EPPO exercises a competence, either by opening a new investigation or by taking over an investigation which had been opened by a national authority (the so-called ‘right of evocation’—Article 22a), the EPPO’s competence will become an exclusive competence, requiring national prosecution authorities to refrain from exercising their own competence (Article 20 paragraph 1). Finally, also the rules on the application of the personality principle by the EPPO (cf Article 18: ‘personal competence’) build on an intertwining of the EPPO Regulation and applicable national law. Whereas the EPPO could always be competent for offences committed within the territory of a Member State that is participating in the establishment of the EPPO,21 the exercising of a competence in respect of extraterritorial offences committed by (own) nationals or by EU officials depends on whether the particular Member State has jurisdiction over such offences in accordance with its domestic law. Thus, where a court, in accordance with its domestic law, has jurisdiction for a PIF offence committed by an own citizen, either in another Member State that is participating in the establishment of the EPPO, a Member State that is not participating in setting up the EPPO, or in a third state, the EPPO would be able to investigate and prosecute the case (also) on the basis of ‘personal competence’.

C. Legal Regime Applicable to Investigations Conducted by the EPPO The draft EPPO Regulation does not contain a fully-fledged ‘EPPO code of criminal procedure’. It contains a number of important procedural law provisions on the opening of an investigation, investigative measures and procedural rights, as well as on decisions to prosecute or to dismiss a case. These regulate—sometimes in great detail—internal decision-making processes. However, in substance, many of these provisions are not ‘self-standing’ as such but refer to applicable national law in order to specify the conditions or procedures for their application. Furthermore, Article 5 paragraph 3 clearly shows that the EPPO Regulation is not expected to provide final answers to all questions of criminal procedure law when it states that ‘[n]ational law shall apply to the extent that a matter is not regulated by this Regulation’. Article 86 paragraph 3 of the TFEU would have allowed taking a further step by establishing a dedicated code of criminal procedure for the EPPO (‘the Regulation shall determine … rules of procedure applicable to its activities’). The Commission had provided financial support to a project conducted by the University

21  The current text of the draft EPPO Regulation refers only to ‘Member States’ (n 3 above). Should the EPPO be established by way of enhanced cooperation, the Regulation here—and in many other provisions—will need to refer to the Member States that participate in the establishment of the EPPO.

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of Luxembourg to draft ‘European Model Rules for the Procedure of the future European Public Prosecutor’s Office’.22 However, when the Commission presented its proposal for an EPPO Regulation,23 it already refrained from setting out a complete, stand-alone procedural law framework for the EPPO. Its Article 11 paragraph 3 contained a similar reference to national law being applicable ‘to the extent that a matter is not regulated by this Regulation’, and many questions of procedural law were indeed not specifically addressed by the Commission proposal. In other cases, in particular in respect of investigative measures, the draft Regulation contained complex own rules but referred, for further detail, to ­‘conditions … set out in national law’.24 In the course of negotiations in the Council, such specific references to applicable national law have been added to numerous other provisions of the draft. This has been criticised by some as attempts to retain national sovereignty and/or to ensure conformity of EPPO activities with relevant national law. Perhaps it would not have been necessary to include such specific ‘national links’ in all cases. However, the general provision of Article 5 paragraph 3 on subsidiary applicability of national law leaves room for a rather broad range of interpretation of the condition set out therein for such applicability, ie that ‘a matter is not regulated by this Regulation’. Thus, such specific references to national law in individual articles of the Regulation may now help clarify the question of whether the Regulation leaves room for a subsidiary application of national law or not. Furthermore, the original Commission proposal did not really clarify, in situations where more than one Member State is involved in a case somehow, which Member State’s law applies in addition to or in the absence of relevant provisions of the Regulation. According to Article 11 paragraph 3 of the original Commission proposal, this was supposed to be ‘the law of the Member State where the investigation or prosecution is conducted’. But what if investigative measures in the course of a particular investigation are carried out in several Member States? Which of the Member State’s laws applies in such a case to matters not regulated by the Regulation? Furthermore, according to the original Commission proposal it was possible for the European Chief Prosecutor to conduct the investigations himself/herself and in ‘cross-border cases’ to ‘associate several European Delegated Prosecutors with the investigation’.25 Which Member State would in such a case be considered to be ‘the Member State where the investigation … is conducted’— thus determining the Member State whose law becomes applicable? In the course of negotiations in the Council, the provision of Article 5 ­paragraph 3 now clarifies that—in principle—this is the law of the Member State whose European Delegated Prosecutor is handling the case in accordance

22 

Available at: http://www.eppo-project.eu/index.php/EU-model-rules/english. See n 2 above. Article 26 paragraph 2 of the original Commission proposal (n 2 above). 25 Article 16 paragraph 2 and Article 18 paragraph 3 of the original Commission proposal (n 2 above). 23  24 

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with Article 12 paragraph 1. The draft Regulation no longer envisages that the ­European Chief Prosecutor may conduct investigations himself/herself. In exceptional circumstances a European Prosecutor may, in accordance with Article 23 paragraph 4 first sentence, decide to conduct the investigations in a particular case, which had previously been handled by a European Delegated Prosecutor, himself/herself. In such case, he/she assumes the ‘powers, responsibilities and obligations’ of that particular EDP (second sentence)—thus providing for subsidiary application of that Member State’s national law in terms of Article 5 paragraph 3. Aside from the general rule set out in Article 5 paragraph 3, the draft Regulation now also contains numerous specific provisions clarifying which Member State’s national law applies to the issue at hand.26

III.  Five Issues in Respect of Striking a Balance between the Prosecution and the Defence A.  Choice of Jurisdiction in a ‘Single Office’ In the area of criminal law, the EU does not (yet) apply a system of shared responsibilities in terms of deciding which Member State is competent to conduct investigations, prosecution and adjudication of a particular criminal offence. EU substantive criminal law frequently obliges Member States to establish ­jurisdiction—at least—in respect of offences committed within their own territory, as well as in respect of those committed by one of their nationals abroad. The principle thus is rather that of—potentially—concurrent jurisdiction in case of extraterritorial offences. Member States are also free to apply additional jurisdictional principles. The Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings27 intends to help avoid the adverse consequences arising from such parallel proceedings. The only effective mechanism to ‘solve’ conflicts of jurisdiction, however, is the eventual application of the ne bis in idem principle. As explained above,28 the EPPO Regulation will bring about a system of vertical division of competences (and of labour) between the EPPO and the Member States’ authorities, which will include elements both of concurrent and of shared competences. In terms of a horizontal division of competence—between the European ­Delegated Prosecutors of different Member States—the original Commission 26  Cf eg: Articles 22(1), 23(1), (2) and (4), 25, 26, 27, 28, 32, 33(1), 34, 35(2) and (3), 36(1), 36a, 36c(2), 36d, 36e(2), 37(4), 43a(1) and 59(5), (6) and (7). 27  Council framework decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings [2009] OJ L328/42. 28  Cf section II.B above.

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proposal seems to have considered this as a largely technical matter where cases could be allocated to European Delegated Prosecutors irrespective of territory and/or jurisdiction of the respective Member State. Only at the end of the investigation phase was the EPPO to determine the Member State where the case would be heard by a court. The Commission’s proposal for the EPPO Regulation had foreseen a rather flexible list of criteria which the EPPO would take into account in making its decision on the choice of forum.29 This approach would have neglected the fact that the opening of a case by a European Delegated Prosecutor of a certain Member State may in itself have an impact on the rights and interests of the suspect. To the extent that national law on criminal procedure applies whenever the EPPO Regulation does not regulate a certain aspect of the investigations, the decision on which European Delegated Prosecutor opens and carries out the investigations will have an effect on the question of the applicable national law. The same applies for the applicable substantive criminal law (even when harmonised to a certain extent by the adoption of the PIF Directive). Also, the situation of the suspect may differ considerably depending on whether the investigations are carried out in the Member State where he/she lives, or whether the EPPO—for whatever reason—chooses a different Member State for this purpose, and requires the person to be surrendered to that Member State. The issue is not whether to grant the suspect the right to choose the Member State where investigations take place, but rather that the decision must not be arbitrary and should take due account of his/her rights and interests. Furthermore, situations should be avoided where an investigation of a case is started and carried on by a European Delegated Prosecutor of one Member State, and then the EPPO takes the decision on the choice of forum for the prosecution in the courts of a particular Member State only in the final stages of the investigation. Such late decisions would not only negatively impact the efficiency of the investigation and prosecution, but they could also seriously impact the position of the defence. It was thus an important achievement that the Council has agreed to make major changes to the original approach: the Regulation now foresees an early decision on which European Delegated Prosecutor should be handling the case, based on a specific list of criteria. First of all, the draft Regulation now clarifies that an investigation can only be opened by a European Delegated Prosecutor from a Member State that has, in accordance with its domestic law, jurisdiction over the offence (Article 22 paragraph 1). Also, where a Permanent Chamber instructs a European Delegated Prosecutor to open an investigation, it can do so only if the respective Member State has jurisdiction over the case in question (Article 22 paragraph 3). Therefore, the question of ‘choice of jurisdiction’ in respect of which European Delegated Prosecutor should be handling the case can only arise in cases where two or more Member States have jurisdiction, such as, eg, where a national of one Member State commits a PIF crime on the territory of another Member

29 

Article 27 paragraph 4 of the original Commission proposal (n 2 above).

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State. Here, Article 22 paragraph 4 now clearly states that, ‘as a rule’, investigations shall be initiated and handled by a European Delegated Prosecutor from the Member State ‘where the focus of the criminal activity’ is. The principle of territoriality here applies to the location of the criminal activity and not the place where the damage occurs. The Regulation allows for certain deviations from that rule only on duly justified grounds, ‘taking into account the following criteria, in order of priority’: the place where the suspect or accused person has his/her habitual residence; the nationality of the suspect or accused person; and the place where the main financial damage has occurred. The reason why it had been proposed to include the latter criterion as the last in the list was to ensure that, where none of the other criteria apply, such as, eg, where a non-EU-citizen commits a PIF crime in a country outside the EU, the EPPO could still investigate and prosecute the case provided that the Member State of ‘the place where the main financial damage occurred’ has jurisdiction for such extraterritorial offences. After an investigation has been initiated, a subsequent re-allocation of the case is possible but only ‘in the general interest of justice’ and in accordance with the criteria mentioned above (Article 22 paragraph 5). Furthermore, the draft Regulation now no longer offers the EPPO the opportunity to simply ‘choose’ the Member State where the case shall be prosecuted30 once the investigation is deemed to be completed. As a principle, the Regulation now envisages that the European Delegated Prosecutor, who has been handling the case, will bring the case to court in his/her own Member State. The Permanent Chamber may decide to bring the case to court in a different Member State if it considers that there are ‘sufficiently justified grounds to do so, taking into account the criteria set out in Article 22 paragraphs 4 and 5’ (Article 30 paragraph 2). If the Permanent Chamber decides to do so, the case will be reallocated to a European Delegated Prosecutor of that Member State for the purposes of prosecution, and the case will thus no longer be handled by the European Delegated Prosecutor who had been leading the investigations. Depending on circumstances, the Permanent Chamber may also decide to join several cases where investigations have been conducted by different European Delegated Prosecutors against the same person(s), with a view to prosecution of these cases at the court of one Member State, provided that this Member State, in accordance with its law, has jurisdiction over each of these cases (Article 30 paragraph 3).31 A decision by the EPPO to prosecute the case in the courts of a particular Member State does not prevent the court from itself determining whether or not it actually has jurisdiction in accordance with the domestic law of that Member

30  Article 27 paragraph 4 of the original Commission proposal in this respect contained only a rather ‘flexible’ list of criteria to be taken into account. 31 A similar possibility to merge or split cases during the investigation phase is foreseen in Article 22 paragraph 5. Here again, such decisions may be taken ‘when in the general interests of justice’ and taking into account the criteria set out in Article 22 paragraph 4.

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State. A different question is, if the court does have jurisdiction for the case in accordance with domestic law, whether the court considers that the EPPO also has taken due account of the above-mentioned criteria of the EPPO Regulation ­(Article 22 paragraph 4) when deciding on the choice of the Member State where the case shall be brought to court (Article 30 paragraph 2). In the course of negotiations, it has been discussed repeatedly whether it would be appropriate to provide for a possibility for the suspect (or even a victim) to challenge such forum choices taken by the EPPO before the European Court of Justice. It has been argued that it would not be appropriate to expect a court of a Member State to decide not only whether it has jurisdiction in accordance with domestic law but also whether the EPPO has—considering the criteria set out in the draft Regulation—chosen the right one amongst several possible jurisdictions. On the other hand, a majority of delegations in the Council favoured the principle set out already in the original Commission proposal,32 to primarily entrust the national courts with the judicial review of decisions taken by the EPPO.33 Considering that the draft Regulation now does contain a list of criteria on the choice of forum, including a clear order of priority, it would also be possible to leave judicial review of such EPPO decisions on the choice of forum to the national courts, which should be competent to review such decisions at the latest at the trial stage.34 Existing mechanisms for requesting a preliminary ruling by the CJEU would allow—or even oblige— national courts to request a ruling from the CJEU on the interpretation of the respective provision of the draft EPPO Regulation, in order to ensure that these criteria are applied in the same way throughout the EPPO territory.35

B. Procedural Rights, in Particular Right to Information and Access to the Case File The original Commission proposal included a specific chapter on ‘procedural safeguards’.36 The final text of the draft EPPO Regulation now contains a single article on these: Article 35. As in the case of the original Commission proposal, the new Article 35 paragraph 1 clarifies that the activities of the EPPO ‘shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter of Fundamental Rights of the European Union, including the right

32 

Article 36 of the original Commission proposal (n 2 above). Cf section III.E below. 34  Following further discussions under the Slovak EU Presidency, this is the approach taken in the revised Article 36 of the draft EPPO Regulation; cf also draft recital 78, second paragraph which now reads: ‘Procedural acts relating to the choice of the Member State whose courts will be competent to hear the prosecution, which is to be determined on the basis of the criteria laid down in this Regulation, are intended to produce legal effects vis-à-vis third parties and should therefore be subject to judicial review before national courts at the latest at the trial stage.’ 35  Cf section III.E below. 36  Chapter IV of the COM proposal (n 2 above), Articles 32 to 35. 33 

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to a fair trial and the rights of the defence’. Paragraph 2 of that article clarifies that suspects and accused persons shall in particular have the procedural rights set out in several EU Directives on procedural rights,37 ‘as implemented by national law’. Furthermore, paragraph 3 of Article 35 states that suspects and accused persons additionally ‘shall have all the procedural rights available to them under the applicable national law’. In taking up language from Article 35 of the original Commission proposal, the Council finally38 made an important amendment to the latter provision by adding to paragraph 3: ‘including the possibility to present evidence, to request the appointment of experts or expert examination and hearing of witnesses, and to request the European Public Prosecutor’s Office to obtain such measures on behalf of the defence’. Two additional articles contained in the original Commission proposal on the right to remain silent and on the right to legal aid, which had largely referred to the applicable national law, have not, however, been taken up in the final draft text of the Regulation as these rights are now specified in the two most recent Directives 2016/343/EU and 2016/1919/EU.39 Thus, here again, the procedural rights of suspects and accused persons will largely depend on the procedural law of the different Member States, rather than on uniform rules that will be applicable to all EPPO investigations. This approach had already been taken by the original Commission proposal. While this may mean that suspects that are under investigation in different Member States will enjoy different levels of procedural safeguards (even if harmonised by the abovementioned Directives), the alternative solution of creating dedicated, uniform EPPO rules on procedural safeguards could have resulted in different treatment of suspects within any given Member State depending on whether the investigation is carried out by the EPPO or by a national prosecutor. The clear majority of Member States have voiced more concerns about the latter possibility than about having different, albeit harmonised, rules applicable in different Member States.

37  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to translation and interpretation in criminal proceedings [2010] OJ L280/1; Directive 2012/13 of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1; Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 to strengthen the presumption of innocence and the right to be present at trial in criminal proceedings [2016] OJ L65/1; Directive 2016/1919/EU of the European Parliament and of the Council on the right to provisional legal aid for citizens suspected or accused of a crime and for those subject to a European Arrest Warrant [2016] OJ L297/1. 38  This happened during the final stages of the negotiations in November 2016. 39  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1 and Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297/1.

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Specific considerations were necessary on the rights of the suspect to be informed and to be granted access to the case file. Effective investigations may require limiting these rights in particular at the beginning of the investigations, and where covert investigative measures are necessary. Member States’ legislation on criminal procedure establishes rules that are intended to strike a proper balance between the interests of investigators/prosecutors and the rights and interests of suspects or third persons affected by investigative measures. The EU Directive 2012/13/EU on the right to information in criminal proceedings40 provides for certain minimum standards in this respect, but it does not fully harmonise Member States’ legislation. In light of this, it seemed prudent to also provide for the application of national law in respect of the right to information and access to case files. If the EPPO Regulation instead were to include isolated provisions limited to certain aspects of this matter only, the well-balanced, but different rules applicable in the Member States may be adversely affected to the detriment of either the prosecution or the suspects. As a result of the negotiations in the Council working group, the draft Regulation now contains a provision according to which not only will the EPPO case files be ‘managed by the handling European Delegated Prosecutor in accordance with the law of his/her Member State’, but the national law of that Member State also applies to the access to the case file by suspects and accused persons, as well as by other persons involved in the proceedings (Article 36c paragraph 2). For the same reason, it could be considered appropriate also to apply the national law on data protection to the handling of the case files. In particular, this could serve to avoid discrepancies that might otherwise arise between obligations stemming from national procedural law and those from the EPPO Regulation, eg on the point of time when a suspect needs to be informed about the fact that certain personal data has been collected by way of a telephone interception operation or by way of obtaining traffic data from the telecommunications provider. Negotiations in the Council working group, however, went in a different direction. The draft Regulation now contains a complex chapter on data protection that has been largely modelled on the text of Directive (EU) 2016/680 on data protection in the area of police and criminal justice.41 However, Article 37 paragraph 4 now clarifies that the EPPO, when applying the Regulation’s provisions on the rights of data subjects in respect of information, access and rectification or erasure (Articles 37f to 37k), ‘shall, where relevant, act in compliance with national

40  Directive 2012/13 of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. 41  Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA [2016] OJ L119/89.

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­ rocedural law on the obligation to provide information to the data subject and p the possibilities to omit, restrict or delay such information’.

C.  Investigative Measures—Applicable Law Contrary to some expectations, the draft EPPO Regulation does not contain a set of rules on investigative measures available to the EPPO, such as those of the ‘European Model Rules for the Procedure of the future European Public Prosecutor’s Office.’42 Instead, the draft Regulation largely refers to the applicable national law—as did the original Commission proposal.43 Thus European Delegated Prosecutors shall ‘be entitled to request or to order any … measures in their Member State which are available to prosecutors under national law in similar national cases’ (Article 25 paragraph 244). The draft EPPO Regulation itself formulates two overall conditions for taking any investigative measures: that ‘there are reasonable grounds to believe that the specific measure in question might provide information or evidence useful to the investigation’, and that ‘there is no less intrusive measure available which could achieve the same objective’. Furthermore it states that ‘the procedures and the modalities for taking the measures shall be governed by the applicable national law’ (Article 25 paragraph 3). However, there was widespread consensus in the Council that the EPPO ­Regulation should go a bit further than this and should contain a ‘minimum catalogue’ of measures, which the Member States must make available (also) to the European Delegated Prosecutors when investigating a case on behalf of the EPPO. The original Commission proposal had foreseen a rather extensive list of such measures.45 Article 25 paragraph 1 of the draft Regulation now contains a considerably reduced list of measures, and requires Member States to ‘ensure that the EDPs are entitled to order or request’ these investigative measures. The list includes: search and seizure, obtaining the production of relevant objects and of computer data (including banking account data and (communications) traffic data),46 freezing of instrumentalities and proceeds of crime, as well as the interception of telecommunications.47 The only additional condition provided for in paragraph 1 is that the offence is punishable by ‘a maximum penalty of at least four years of imprisonment’. The idea—initially supported by most Member States—was that Member States’ legislation thus would have to ensure that their 42 

Cf section II.C above and n 2 above. Article 26 paragraph 2 of the original Commission proposal (n 2 above). 44  To be noted: the text of paragraph 2 speaks of ‘other measures’—‘other’ here means any other than those which the Member States have to make available in accordance with paragraph 1. 45  Article 26 paragraph 1 of the original Commission proposal (n 2 above). 46  The provision excludes from this obligation ‘data specifically retained in accordance with national law pursuant to Article 15(1), second sentence, of Directive 2002/58/EC’. 47  In the course of further negotiations under the Slovak EU Presidency, subparagraph (f) was added to the catalogue, requiring Member States to ensure that measures to ‘track and trace an object by technical means, including controlled deliveries of goods’ are also available to the EPPO. 43 

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national law allows for these measures in respect of all PIF offences, provided that this four-year maximum condition is fulfilled, and that these measures may be taken under the only further condition that the requirements set out in Article 25 paragraph 3 are met. The question was whether additional conditions or limitations that the national law may foresee for taking such investigative measures could still apply in case of the types of measures listed in paragraph 1. It took some effort to finally reach agreement on the additional provisions now set in Article 25 paragraphs 1a and 1b: the Regulation now allows for the measures listed in paragraph 1 to be subject to additional conditions under national law ‘foreseen for specific categories of persons or professionals legally bound by an obligation of confidentiality’ (paragraph 1a). This provision thus would ‘allow’ a Member State, for example, to continue applying national law on attorney–client privileges in respect of the seizure of files or correspondence between a suspect and his/her defence lawyer. It would seem to be a bit surprising that the question of whether Member States should be allowed to impose such limitations really required extensive negotiations in the Council working groups. Perhaps other delegations had simply taken it for granted that such additional conditions under national law would continue to apply. But it is reassuring to see this clarified in the text now. This is—at least from the perspective of German law—also true for the provision now included as paragraph 1b of Article 25. While paragraph 3 of that Article does require the EDPs and/or domestic courts to take due account of the principle of proportionality when deciding on an investigative measure in a particular case, paragraph 1 of that Article would require the legislator of the Member States to ‘make available’ all the measures listed in that catalogue in case of all PIF offences provided that the four year maximum condition is fulfilled. In respect of particularly intrusive measures listed in points (c), (e) and (f)48 of paragraph 1, the newly inserted paragraph 1b now allows Member States to make the ‘availability’ of these measures ‘subject to further conditions, including limitations, provided for in the applicable national law’. In respect of the interception of electronic communications and technical measures to ‘track and trace’ (points (e) and (f) of paragraph 1), Member States may limit the ordering of these measures to ‘specific serious offences’. Paragraph 1b thus allows Member States to continue to apply certain conditions and limitations under national law which are considered to be necessary. These limitations serve notably to take due account of the principle of proportionality at the level of the national legislators when enacting certain conditions and limitations relating to the ordering of certain investigative measures.

48  Subparagraph (c): obtaining the production of relevant objects and of computer data, including banking account data and (communications) traffic data; subparagraph (e): interception of telecommunications; subparagraph (f): track and trace an object by technical means, including controlled deliveries of goods. The latter was added here under the Slovak EU Presidency as a consequence of adding these measures in paragraph 1.

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This reinforces the respect for the principle of proportionality since its application is not left only in the hands of the European Delegated Prosecutor, or of a judge, when ordering an investigative measure in a specific case, taking due account of the proportionality principle set out in Article 25 paragraph 3. The intertwining of the EPPO Regulation and applicable national law can make it difficult to determine which investigative measures are ‘available’ in accordance with Article 25 in a specific case. An ‘EPPO Code of Criminal Procedure’ could have had the advantage of more clarity and legal certainty. However, considering the existing differences between the national codes of criminal procedure, such an ‘EPPO Code’ would require compromises, and would inevitably lead to possible differences in treatment—within the jurisdiction of any given Member State— depending on whether a person is a suspect in an EPPO investigation or in a national investigation conducted by the same prosecutor at the same court.

D.  Cross-border Investigations Particularly difficult negotiations have taken place on the rules on cross-border investigations. After lengthy discussions in the Council working groups, some improvements have been achieved as compared to the original Commission proposal; but the result—in my view—is still one of the weaker points of the draft Regulation. As explained above, the EPPO is considered to be a ‘single office’ (Article 7 ­paragraph 1). However, the EPPO Regulation does not overcome the territoriality of application of national law and of judicial (court) decisions. If—in the absence of an EPPO Code of Criminal Procedure—the Regulation refers to national law in respect of the substantive conditions for the ordering of investigative measures, the Regulation also has to determine which law shall apply in case of a crossborder investigation. The same is true for any requirements and procedures for judicial (ie court) decisions on coercive measures (such as telephone interceptions), as well as for the modalities for the enforcement of measures ordered by an EDP or a court. Now, one may think that the EPPO Regulation could use the legal concepts of mutual recognition as enshrined in the European Investigations Order (EIO) Directive.49 However, a considerable number of Member States believed that this would not be appropriate in the case of the EPPO as it is intended to be a ‘single office’. In their view, the rules applicable to EPPO investigations should be ‘more European’ than the EIO and thus there should be no need for crossborder ­‘recognition’ of investigative measures ordered by the European Delegated Prosecutor handling the case. Also, in their view, there should be no need for the 49  Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters [2014] OJ L130/1; cf in this context also the considerations by the EP in the resolution of 5 October 2016 on the EPPO and Eurojust, P8_TA(2016)0376.

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handling European Delegated Prosecutor to first obtain a court order or judicial authorisation in his/her own Member State, which then has to be recognised by a court in the Member State where the investigative measure is supposed to be enforced.50 The outcome of negotiations now leads to a rather complex set of rules, some of which may turn out to be rather difficult to apply in practice. Article 26 paragraph 1 provides that the EDP handling the case ‘decides on the adoption’ of the necessary investigative measure and ‘assigns’51 it to a European Delegated Prosecutor located in the Member State where the measure needs to be carried out (‘the assisting European Delegated Prosecutor’). The European Delegated Prosecutor handling the case may assign any measures which are available to him/her in accordance with the law of his/her own Member State, ie the Member State where the investigation proceedings as such take place (Article 22). In other words, the adoption and ‘assignment’ of the measure will not need to take into account the law of the Member State where the specific investigation measure is supposed to be enforced, ie the Member State of the assisting European Delegated Prosecutor. As paragraph 2 of Article 26 clearly expresses, ‘the justification and adoption of such measures shall be governed by the law of the Member States of the European Delegated Prosecutor handling the case’. Following the ‘assignment’ to a European Delegated Prosecutor in the Member State where the investigation measure is to be carried out, the assisting EDP shall ‘undertake the assigned measure, or instruct the competent national authority to do so’ (Article 26 paragraph 4). In line with the ‘single office’ concept, there is no formal recognition procedure. However, the draft EPPO Regulation does contain rules applicable in case the assisting European Delegated Prosecutor has concerns about the assigned measures, eg due to the fact that such a measure ‘would not be available in a similar domestic case under the law of his or her Member State’ (Article 26 paragraph 5(d)), which may eventually require a decision by the Permanent Chamber in order to resolve any such conflicts (Article 26 paragraphs 6 and 7). While the law of the Member State of the European Delegated Prosecutor handling the case applies to the ‘adoption’ of the investigative measure, and while the assisting European Delegated Prosecutor thus only has limited possibilities to refrain from undertaking the assigned measure, the enforcement of the measure is to be carried out in accordance with the law of the Member State where the assisting European Delegated Prosecutor is located (Article 27). This reference to national law does not concern the question of whether the requested measure may be taken under the law of that state but merely the modalities (‘formalities and procedures’) to be observed when taking the measure. The rules described thus far apply only where no judicial (court) authorisation is required—either under the law of the Member State of the handling European 50 

Cf now draft EPPO regulation, recital 63: ‘only one authorisation’ (n 3 above). term ‘assigns’ is used in Article 26 in order to avoid the term ‘order’ so as to underline the difference to the concept of mutual recognition. 51  The

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Delegated Prosecutor or that of the assisting European Delegated Prosecutor. If the law of the Member State where the measure is to be carried out requires a judicial authorisation, it must be obtained by the assisting European Delegated Prosecutor in accordance with the law of his/her Member State (Article 26 paragraph 3, first sentence). Thus, in this case the legal regime of both Member States will need to be complied with. The reason is that in such a situation, the provisions of paragraphs 1 and 2 of Article 26 apply as well. Thus, as a starting point, the European Delegated Prosecutor handling the case will need to decide on the adoption of the measure in accordance with the law of his/her Member State. Only as a second step would the assisting European Delegated Prosecutor need to obtain the judicial authorisation in accordance with the law of his/her ­Member State. ‘Judicial authorisation’ may—depending on the different systems applicable in the Member States—mean a judge or a court confirming the handling ­European Delegated Prosecutor’s decision, or it could mean a judge or a court ordering the ‘assigned’ measure. In either case, the court will apply its own law; thus the law of the Member State where the investigative measure is to be carried out. If the judicial authorisation is refused by that court or judge, the European Delegated Prosecutor handling the case ‘shall withdraw the assignment’ (Article 26 paragraph 3, first and second sentences). A major difference arises here in comparison to the situation where no judicial authorisation is required: the above-mentioned provisions of paragraphs 5, 6 and 7 of Article 26 do not apply where a court or a judge in the Member State of the assisting European Delegated Prosecutor needs to authorise the measure. In particular, there is no room for a final decision by the Permanent Chamber (paragraphs 6 and 7) in case of conflicting views of whether the assigned measure would be ‘available’ also under the law of that state. Instead, the court/judge of that Member State has full control over whether to authorise the measure in accordance with the law of his/her own Member State. There are no ‘limited grounds for refusal’ as foreseen for instance in the EIO Directive.52 Thus, while the ‘single judicial authorisation’ concept that has made its way into the draft Regulation may be considered to be philosophically in line with the concept of the ‘single office’, it does, in a way, stay short of what has been achieved with the EIO Directive. It may be considered to be reminiscent more of traditional concepts of mutual legal assistance, with the ‘executing state’ retaining full control over the requested measure. The provisions of paragraph 3, first and second sentences as described above apply not only where, in similar domestic cases, a judicial authorisation would be required only in the Member State of the assisting European Delegated Prosecutor, but also where such authorisation would be required under the law of both Member States. Thus, in the latter case, the ‘single judicial authorisation’ principle requires that the judicial authorisation in the Member State of the European

52  Cf Articles 10 and 11 of the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1.

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Delegated Prosecutor handling the case is replaced by a single authorisation to be obtained in the Member State of the assisting European Delegated Prosecutor. Finally, there is yet another situation regulated by Article 26: If the law of the assisting European Delegated Prosecutor does not require judicial authorisation for the specific investigative measure, but the law of the handling EDP does, such authorisation shall be obtained in that Member State and submitted by the handling European Delegated Prosecutor together with the assignment to the assisting European Delegated Prosecutor (paragraph 3, third sentence). As the law of the assisting European Delegated Prosecutor’s Member State does not require a judicial authorisation, here again, the ‘single judicial authorisation’ principle is observed. Paragraphs 5 to 7 will also apply in this situation, allowing the assisting European Delegated Prosecutor to raise concerns, eg on the grounds that the assigned measure would not be available in similar domestic cases in his/her Member State and with the Permanent Chamber eventually taking a final decision. The possibility to apply this rule (of a single authorisation in the Member State of the handling European Delegated Prosecutor) also where the law of the assisting EDP’s Member State also requires a judicial authorisation in similar domestic cases, did not meet with consensus in the Council. Many Member States did not want to give up judicial authorisation by their own judges or courts for measures to be taken within their territory. It remains to be seen whether this system of cross-border cooperation will serve to make cooperation easier than cooperation under the EIO Directive or cooperation based on similar rules of mutual recognition of judicial authorisations in the EPPO Regulation.53 As explained above, in accordance with Article 26 paragraph 3, first and second sentences, the judicial authorisation needs to be obtained in the Member State of the assisting European Delegated Prosecutor. The role of the judges/courts in that Member State will not be to simply ‘recognise’ a previous judicial authorisation obtained in the Member State of the handling European Delegated Prosecutor. Their full control of whether to authorise the measure in accordance with the law of their own Member State may require them to directly review the EPPO case file in order to make their own assessment of whether the conditions set out in their own law for ordering a specific measure are fulfilled. Such a review of the case file by the judge/court in the assisting EDP’s Member State may be difficult, considering that the case file is kept by the handling EDP, in accordance with the law of that Member State. Furthermore, such a review of the case file—or even essential parts thereof—may require obtaining translations thereof into the language(s) of one or more assisting EDP’s Member State(s). Moreover, in situations where a judicial authorisation would be required only in

53 Cf for a critical review of Article 26 also: Anne Weyembergh and Chloé Briere, ‘Towards a ­uropean Public Prosecutor’s Office (EPPO)’, Research study commissioned by the European E ­Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, (2016) p 32.

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the Member State of the assisting EDP, the rules of the draft EPPO Regulation may require a judicial authorisation, even where under the rules of the EIO Directive, the authorities of the executing state would recognise a decision taken by a prosecutor in the issuing state without obtaining such a judicial authorisation. From the perspective of the defence, it may be reassuring to note that— whenever a judicial authorisation in the Member State of the assisting EDP is required—Article 26 would ensure that cross-border measures can only be ordered and enforced where both the standards set by the law of the handling EDP’s state and by that of the assisting EDP are met. This dual requirement set by Article 26 may help ensure that the higher standards in terms of protection will prevail. This solution may also help ensure that evidence taken in another Member State can actually be used in the trial court.54 A question that has not been specifically addressed in the draft EPPO Regulation is the subsequent judicial review of measures ordered and undertaken by or on behalf of the EPPO. As I will explain in the next section, the principle now foreseen in the draft EPPO Regulation is that the courts of the Member States will be competent to review procedural acts of the EPPO ‘which are intended to produce legal effects vis-à-vis third parties’ (Article 36 paragraph 1). Therefore, the suspect, or another person negatively affected by the investigative measure, may be able to challenge the decision taken by the handling European Delegated Prosecutor to adopt the investigative measure in accordance with Article 26 paragraph 2. The competent courts to challenge the decision taken by the European Delegated Prosecutor handling the case would be the courts of that Member State. If, however, a judicial authorisation by a judge or court has been obtained in the Member State of the assisting European Delegated Prosecutor in accordance with Article 26 paragraph 3, first sentence, that decision of the judge or court may also be subjected to a subsequent judicial review, on application by the suspect or an affected third person, in accordance with the law of that Member State. While Article 26 has been based on the principle of a ‘single judicial authorisation’, that principle actually only applies to the involvement of a judge/court in the process of ordering an investigative measure. When it comes to a possible subsequent judicial review of the measure that has been taken, such judicial review may—in accordance with applicable domestic law—take place in the courts of either or both Member States. And unlike the EIO Directive,55 the draft EPPO Regulation does not contain a provision according to which ‘the substantive reasons’ for ordering the investigative measure ‘may be challenged only in an action brought in the issuing State’ (cf Article 14 paragraph 2 of the EIO Directive).

54 

Cf in this respect also Article 31 as well as recital 70 of the draft EPPO Regulation (n 3 above). Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1. 55 

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E.  Judicial Review This brings me to the final point to be addressed here: the judicial review of procedural acts of the EPPO. Negotiations on the relevant provisions in Article 36 had not been finalised at the time of the ECLAN conference in April 2016 but were eventually concluded, following further intense negotiations, by the time of the October 2016 JHA Council meeting. Already the original Commission proposal had been based on the idea that— whenever possible and appropriate—judicial review of decisions of the EPPO should be sought before the proper courts of the Member States, and not before the CJEU. The Commission proposal worked with a ‘legal fiction’, according to which the EPPO ‘shall be considered as a national authority for the purpose of judicial review’.56 The intention was to thereby preclude the suspect (or other persons affected by an EPPO decision) from challenging an EPPO decision before the CJEU in accordance with Article 263 of the TFEU. The same was to apply in respect of Article 265 of the TFEU (infringements due to failure to act) and Article 268 of the TFEU (disputes relating to compensation for damages).57 After much discussion, the text of Article 36 has now been subjected to a complete overhaul. However, the underlying principle is still that it is the national courts that should be competent for judicial review of procedurals acts of the EPPO ‘which are intended to produce legal effects vis-à-vis third parties’ (Article 36 paragraph 1). The latter phrase has been copied from Article 263 paragraph 1 of the TFEU. The intention was not only to give the national courts a competence, but also to clarify that the procedural acts of the EPPO, which could otherwise be challenged before the CJEU in accordance with Article 263 paragraph 1 of the TFEU, ‘shall’ be subject to review by national courts. While paragraph 1 of Article 36 also states that such a review shall be possible ‘in accordance with the requirements and procedures laid down by national law’, recital 79 of the draft EPPO Regulation clearly points in this respect to Article 19 paragraph 1 of the TEU as well as the jurisprudence of the Court of Justice on the principles of equivalence and effectiveness.58 As explained above,59 it is clarified in the recitals to the draft Regulation that decisions of the EPPO on ‘the choice of the Member State whose courts will be competent to hear the prosecution’ are considered

56 

Article 36 of the original COM proposal (n 2 above). Cf recital 37 of the original COM proposal (n 2 above). Recital 79, paragraph 1: ‘National procedural rules governing actions for the protection of individual rights granted by Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Union law (principle of effectiveness)’. On these notions, cf Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council, ECLI:EU:C:2013:625, para 102. 59  Cf section III.A above. 57 

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to constitute p ­ rocedural acts which are intended to produce legal effects vis-à-vis third ­parties.60 Furthermore, in accordance with Article 36 paragraph 1, national courts shall also be competent to exercise judicial review ‘in case of failures of the European Public Prosecutor’s Office to adopt procedural acts which are intended to produce legal effects vis-à-vis third parties and which it was legally required to adopt under this Regulation’. The draft Regulation foresees only one exception to the principle set out in Article 36 paragraph 1: according to paragraph 3, the national courts will not be competent to exercise judicial review of decisions of the EPPO to dismiss a case (ie decisions under Article 33). In so far as they are contested directly on the basis of Union law, such decisions shall be subject to review only before the CJEU in accordance with Article 263 of the TFEU. What is the rationale for largely entrusting the courts of the Member States with the competence for judicial review of procedural acts of the EPPO? And is it legally possible to have a Regulation establish rules on judicial review that deviate from those set out in the TFEU? As to the first question, the reason underlying this choice of favouring national courts is linked to what has been explained above: the EPPO will to a large extent need to apply national criminal procedure laws. This will be true in particular when ordering or requesting Member States’ courts to authorise or to order an investigative measure. Giving such judicial authorisations would in any event have to be the task of the courts of the Member States, because, under the current provisions of the TFEU on the competences of the CJEU, there would be no procedures available to authorise or to order investigative measures. Considering that the national judges/courts will be entrusted with such advance judicial control over investigative measures and, considering that the evidence produced by such investigative measures will be used again by the national courts as trial courts, it would not be appropriate to have—as a possible intermediate step—the CJEU exercising judicial review in respect of investigative measures taken by or on behalf of the EPPO. Furthermore, the current procedures for direct actions for annulment (Article 263 of the TFEU) would normally take too long to be applied in the case of criminal proceedings. It thus seemed more appropriate—also in the interest of the defence—to entrust the national criminal courts with judicial review of procedural acts of the EPPO. As to the latter question, ie the compatibility of this regime with the Treaties, the answer is positive and this is considered to be possible under the rules of the Treaties. Article 86 paragraph 3 of the TFEU specifies that the Regulation in accordance with paragraph 1 (thus the regulation establishing the EPPO) shall determine ‘the rules applicable to the judicial review of procedural measures’ taken by the EPPO. Furthermore, Article 263 paragraph 5 of the TFEU states that ‘acts ­setting up bodies … of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these

60 

Cf recital 78, second paragraph, of the draft Regulation (n 3 above).

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bodies … intended to produce legal effects in relation to them’. While it may be doubtful whether the latter provision alone would be a sufficient basis to fully preclude the possibility for direct action for annulment under Article 263 of the TFEU, it has been pointed out, in the course of the negotiations, that Article 86 paragraph 3 TFEU would allow for judicial recourse to the national courts to be envisaged regarding procedural measures of the EPPO while at the same time specifically precluding direct action before the CJEU under Article 263 of the TFEU. When the revised version of Article 36 was first presented for negotiations in the COPEN working group in the summer of 2016, the intention clearly was to limit the competence of the CJEU in respect of actions under Article 263 of the TFEU to a list of specific types of procedural acts, including decisions to dismiss a case. While this presumably still was the intention when delegations agreed to the final text of the draft Regulation, paragraph 3 no longer specifically precludes a competence of the CJEU for the type of procedural acts referred to in paragraph 1, ie procedural acts in respect of which the national courts shall be competent for judicial review. Indeed, it would have been preferable to specifically retain, in paragraph 3, a subsidiary competence of the CJEU for actions for annulment, in accordance with Article 263 of the TFEU in cases where the law of the competent Member State does not provide for appropriate legal remedies against procedural acts of the EPPO which produce legal effects vis-à-vis third parties. While Article 36 paragraph 1 of the draft Regulation in principle entrusts the national courts with the judicial review of procedural acts of the EPPO, paragraph 2 clarifies the important role which the CJEU will nevertheless have in this respect. Aside from merely referring to the ‘normal’ competence of the CJEU to give preliminary rulings (Article 267 TFEU) on ‘the interpretation or the validity of provisions of Union law, including this Regulation’ (Article 36 paragraph 2 point (b)), the list of competences includes one point that may come as a surprise: the CJEU shall also be competent to give preliminary rulings concerning: ‘the validity of procedural acts of the European Public Prosecutor’s Office, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law’. This latter competence was included in the text of Article 36 in order to ‘clarify’ that the national courts, when reviewing the legality of a procedural act of the EPPO, ‘may do so on the basis of Union law, including this Regulation, and also on the basis of national law, which applies to the extent that a matter is not dealt with by this Regulation’. However, ‘national courts should always refer preliminary questions to the Court of Justice when they entertain doubts about the validity of those acts vis-à-vis Union law’.61 The idea was that, in accordance with the case law of the CJEU,62 national courts would not be competent to declare—on their 61 

Cf recital 79, second paragraph of the draft EPPO Regulation (n 3 above). Cf recital 79, second paragraph of the draft Regulation. In the course of the negotiations, reference in this respect has been made in particular to the case C-314/85 Foto-Frost v Hauptzollamt LübeckOst, ECLI:EU:C:1987:452, paras 15 to 17. 62 

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own findings—a procedural act of the EPPO to be null and void as the CJEU can in accordance with Article 263 and 264 TFEU. As has been further stated in the recitals to the draft EPPO Regulation, this does not apply where the national court entertains doubts about the validity of the procedural acts of the EPPO with regard to national procedural law or to national measures transposing Directives, even if this Regulation refers to them.63 In such a case, the national court may take a final decision on the validity of the procedural act in question without first having to ask for a preliminary ruling by the Court of Justice. Thus, in case the national court does have doubts about the validity of a procedural act of the EPPO and if these doubts are merely based on the question of compliance with Union law, the national court could not—based on its competence in accordance with Article 36 paragraph 1—simply declare the procedural act to be null and void. Instead, it will have to stay the proceedings and refer the question to the CJEU in accordance with Article 267 of the TFEU. In spite of the delays that may be involved in these proceedings, the approach taken by Article 36 presents the advantage of setting up a ‘one-stop-shop’ for the suspect, or other concerned persons, when requesting judicial review of a procedural act of the EPPO in accordance with the applicable domestic law of that Member State. In many cases, the national courts will be able to take a final decision without having to request a preliminary ruling from the CJEU. And even where that is required in accordance with Article 36 paragraph 2, such proceedings at the CJEU may be considerably faster, as it could be possible to use the urgent preliminary ruling procedure64 rather than the longer proceedings under Article 263 of the TFEU. In my view, Article 36, as it has developed in the course of negotiations, does strike a proper balance between the prosecution and the defence. At the same time, the envisaged involvement of the CJEU can still ensure the European dimension when it comes to judicial review of procedural acts of the EPPO. Article 36 thus reconfirms that national courts ‘in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed’.65 The approach of a ‘division of labour’ between the CJEU and the national courts that is now foreseen by Article 36 needs to ensure an overall adequate level of judicial review and protection. In many respects, such a guarantee of an adequate level of judicial protection by the Member States’ courts may be taken for granted (as this also lays the grounds for mutual trust as a basis for mutual recognition). However, specifically where the EPPO will be taking decisions on subjectmatters which are normally not issues of relevance in purely national cases, such as, eg, decisions on the choice of forum in a cross-border setting, the Member 63 

Recital 79, third paragraph of the draft Regulation (n 3 above). Cf Article 107 Rules of Procedure of the Court of Justice. 65  Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council, ECLI:EU:C:2013:625, para 99. 64 

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States will need to ensure that their courts are actually competent to review such forum decisions of the EPPO—at the latest at the trial stage.66 Also, it could have been preferable to ensure that, where the suspect (or a concerned other person) challenges a procedural act of the EPPO in a national court and raises a question of its validity vis-à-vis Union law, the decision to request a preliminary ruling by the CJEU is not left merely to the consideration of the national court.67 In the course of negotiations on Article 36, it had been proposed to amend Article 36 paragraph 2, requiring the competent court, upon request of the applicant, to request a preliminary ruling, except where the national court considers that the answer would be reasonably clear and free from doubt.68 This proposal, unfortunately, was not met with sufficient approval from other delegations.

IV. Conclusion It is currently not known yet, if and when the EPPO will actually see the light of day. However, in my view it is likely to be the case—even though not all Member States will then be participating in the adoption of the EPPO Regulation. Even if thus established only by way of enhanced cooperation,69 the EPPO would be a new milestone in the development of the Area of Freedom, Security and Justice. When the EPPO assumes responsibility for investigation and prosecution of PIF offences, this will raise new issues of the right balance to be struck between the prosecution and the defence. The EPPO, operating under a ‘single-office’ principle, can have considerable advantages over current forms of cross-border cooperation between independently operating investigators and prosecutors of different Member States. However, it remains to be seen whether the current provisions of Article 26 on cross-border investigations will really turn out to be advantageous in comparison to what has been achieved within the EU by the EIO Directive. The approach foreseen in that provision may actually make things more difficult, as the case may be, for both the prosecution and the defence. The heavy reliance of the draft EPPO Regulation on references to national law would not have been the only possible solution. However, the draft text as it stands now, at least in my view, does offer a coherent approach in that respect. And it at least attempts to strike a proper balance between the rights and interests of the prosecution and the defence. Whether this will actually be achieved in practice

66 

Cf above: section III.A). C-283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECLI:EU:C:1982:335 para 9 on the fact that Art 267 TFEU ‘does not constitute a means of redress available to the parties to a case pending before a national court or tribunal’. 68  This exception had been worded along the lines of the ‘acte-claire doctrine’ of the CJEU in that same Case C-283/81, CILFIT (n 67 above), paras 13 to 16. 69  Article 86 paragraph 1, third subparagraph TFEU. 67 Case

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remains to be seen. In particular, the intricate relationship between the Regulation and the national laws to which the Regulation refers makes this hard to predict. It may be that, on specific issues, the balance shifts slightly to either side, depending on applicable national law and practice. And thus there may come a point in time when it will be deemed appropriate to redesign the system and negotiate a fullyfledged code of criminal procedure for the EPPO. Whether the outcome of future negotiations on such an dedicated EPPO Code of Criminal Procedure would tip the balance—when compared to national law—more towards the interests of the prosecution or to that of the defence may depend on the different Member States’ perspectives.

22 The Material Scope of Competence of the European Public Prosecutor’s Office: Lex uncerta and unpraevia?1 JOHN A.E. VERVAELE

I. Introduction In any rule-of-law-based criminal justice systems, it is of key importance that the state powers to investigate, prosecute and punish (ius puniendi) are not only granted by law, but also subject to the command and control by law. This controlrestraint is the very essence of the rule of law and the ‘Rechtstaat’, as the nationstate has to guarantee both the liberty and security of citizens. This has not only consequences for the way in which substantive criminal law is enacted, following the maxim of Beccaria: ‘nullum crimen, nulla poena sine lege’,2 but also for the bridge between substantive criminal law and the empowerment of use of investigative and prosecutorial powers by judicial authorities, like a prosecutor. A suspect has to know for which offences he can be held criminally liable and what penalties could be applied (substantive legality). These offences and penalties must be laid down in clear, specific and definite terms (lex certa) and be foreseeable before the commission of the acts (lex praevia). Moreover, the suspect has to know for which offences and under which legal requirement judicial authorities can use their investigative and prosecutorial powers (procedural legality). Coercive measures, such as searches or telecommunication surveillance, cannot be used without procedural thresholds and references

1  This is an elaborated and updated version of a former version published in 2014 in the ERA Forum, see John A.E. Vervaele, ‘The material scope of competence of the European Public Prosecutor’s Office: Lex uncerta and unpraevia?’ (2014) 15 ERA Forum 85–99: http://link.springer.com/article/10.1007/ s12027-014-0338-z. 2 C Beccaria, Dei delitti e delle pene, 1764: https://archive.org/details/deidelittiedelle00becc, or C Beccaria, On Crimes and Punishment, D Young (trans) (New York 1986); Volker Krey, Keine Strafe ohne Gesetz: Einführung in die Dogmengeschichte des Satzes ‘Nullum Crimen, Nulla Poena sine Lege’ (De Gruyter 1983).

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to terms of substantive law (offences and penalties), as they infringe the right of privacy of persons. The material scope of competence of a prosecutor is thus not a residual issue. It is an essential part of the design of the criminal justice system, as it triggers the procedural competence of the judicial authorities and the related procedural guarantees for the persons involved in criminal proceedings. These key requirements, derived from the rule of law, were recognised as human rights and are laid down in Article 7 of the European Convention on Human Rights (ECHR) (substantive legality) and in Article 8 ECHR (procedural legality) and in their counterparts under EU law: Article 49 CFREU (substantive legality) and Article 52(1) CFREU (procedural legality). This reasoning is mandatory not only for the use of ius puniendi at the level of the Member States, but also when investigative or prosecutorial functions are vested within a European Public Prosecutor’s Office (EPPO). Even if the negotiations will result in a structure that is strongly embedded in national law, the suspect has the right to lex certa and lex praevia when it comes to the substantive competence of the EPPO, it being composed by the composite of several national jurisdictions in the Area of Freedom, Security and Justice (AFSJ). In this chapter, which is narrowly linked to the topic of the needed balances of the EU area for criminal justice and especially the balances between the efficiency of the fight against PIF-offences and the protection of fundamental rights, we will verify what the possibilities are for complying with the legality requirements for the material scope of the EPPO under the Lisbon Treaty and analyse if and to what extent these possibilities have been used in the proposed and currently negotiated Regulation on EPPO in relation to the criminal law protection of the financial interests of the EU.3 We will conclude with a brief assessment of the compliance of the text with the substantive legality principle.

II.  The Treaty Frame Article 86 TFEU provides for a clear legal basis to establish the European Public Prosecutor’s Office (EPPO) and for specific indications when it comes to the investigation, prosecution and adjudication of crimes affecting the financial interest (PIF crimes) of the European Union (EU). However, Article 86 TFEU is silent on the precise scope of the competence ratione materiae of the EPPO, as it contains

3  The most recent versions of the texts were at the time of finalising this text, (i) for the PIF Directive, Council, Proposal for a Directive on the protection of the Union’s financial interests by means of criminal law—Political agreement, Council doc 5478/17, 1 February 2017, and (ii) for the EPPO Regulation, Proposal for a Regulation on the establishment of the EPPO—State of Play (consolidated text), Council doc 15760/16, 22 December 2016.

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only a limited reference to a basic mandate to combat crime affecting the financial interest of the EU or, after a unanimity decision in the Council, to an extended mandate to combat serious crimes having a cross-border dimension. This divide is the result of the negotiations in Working Group X of the European Convention preparing the draft Constitutional Treaty, where Member States did not agree as to the necessity and added value of an EPPO.4 Whereas some Member States wanted an EPPO to investigate and prosecute offences against the financial interests of the Union, others had a preference for an EPPO with a remit in line with the competences of Europol and Eurojust and also in line with the reach of the socalled ‘euro-offences’, that have been harmonised since the Treaty of Maastricht by conventions and framework decisions5 and are the subject of further harmonisation under Article 83(1) TFEU. This divide resulted in the phrasing of the legal basis for the EPPO in Article III-274 of the draft Constitutional Treaty, which was to a very large extent copy pasted into Article 86 TFEU: Article 86 1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office from Eurojust. … 4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor’s Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State.

4  Final report of Working Group X, ‘Freedom, Security and Justice’, CONV 426/02: http://europeanconvention.eu.int/pdf/reg/en/02/cv00/cv00426.en02.pdf, at p 20:

‘The Group agrees on the objective of a more efficient prosecution of offences against the Union’s financial interests. A significant number of members believe that current instruments are inadequate. The Group considered some proposals made in favour of the creation of a ­European Public Prosecutor responsible for detecting, prosecuting and bringing to judgment in the national courts the perpetrators of crimes prejudicial to the Union’s financial interests. They have proposed that the Treaty should provide a legal basis to that effect. Others have considered that a convincing case was not made for the creation of such a body and that there were strong objections on both practical and accountability grounds. To some other Members, the need exists for a proper European Public Prosecutor’s Office with a scope of action going beyond the protection of the financial interests of the Union. They believe that the current Eurojust could evolve towards that Office.’ 5  In particular the French Conseil d’état demanded that the scope of competence of the EPPO should be enlarged to cover not only offences against the financial interests of the EU, but also other forms of serious cross-border criminality. See: Conseil D’État, Rèflections sur l’institution d’un parquet europèen (24 February 2011), p 58.

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Article 86 TFEU further indicates that the regulation by which the EPPO will be established shall determine the general rules applicable to the EPPO, besides the specific rules on criminal procedure that are mentioned: Article 86: … 3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

It is rather unclear whether the phrasing ‘determine the general rules applicable’ refers also to the applicable substantive criminal law or is limited to general principles sensu strictu. The drafting of Article III-274 of the draft Constitutional Treaty and of ­Article 86 TFEU has, however, its predecessors and it is interesting to compare these texts with that of the draft of Article III-175, prepared by the Convention:6 Article III-175 1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor’s Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. 2. The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union’s financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences. 3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

It is surprising not only that the material scope of competence included PIF crimes as well as serious crimes having a cross-border dimension, but also that Article III-175(2) clearly indicates that the determination of the substantive criminal law will be part of the regulatory package of the establishment of the EPPO. It is also clear from Article III-175(3) that the general rules are thus something other than substantive criminal law.

6 

Draft Treaty establishing a Constitution for Europe, 18 July 2003 (CONV 850/03) p 140.

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It is also interesting to compare the text with the first proposal of the European Commission for a Treaty amendment in order to provide for a legal basis to establish an EPPO, namely the 2000 contribution to the Intergovernmental Conference on institutional reforms (preparing the Treaty of Nice) on ‘The criminal protection of the Community’s financial interests: a European Prosecutor’:7 [Proposed] Article 280a: … 3. The Council, acting in accordance with the procedure laid down by Article 251, shall lay down the general conditions governing the performance of the functions of the ­European Public Prosecutor and shall adopt, in particular: (a) rules defining the facts constituting criminal offences relating to fraud and any other illegal activity prejudicial to the Community’s financial interests and the penalties incurred for each of them; (b) rules of procedure applicable to the activities of the European Public Prosecutor and rules governing the admissibility of evidence; (c) rules applicable to the judicial review of procedural measures taken by the European Public Prosecutor in the exercise of his functions.

In the Communication the European Commission clearly insists on the full package and the relationship between substantive criminal law and criminal procedure: In conclusion, the Commission proposes that the Conference supplement the current provisions concerning the protection of the Community’s financial interests with a legal basis allowing: —— the appointment of an independent European Public Prosecutor exercising the prosecution function in the courts of the Member States in the field of the protection of the Community’s financial interests and within the framework of specific rules adopted for this purpose; and —— the subsequent adoption through secondary legislation of: —— the regulations applicable to his office, —— rules of substantive law concerning the protection of financial interests by the European Public Prosecutor (offences and penalties), —— rules governing criminal procedure and the admissibility of evidence, —— rules concerning judicial review of actions taken by the Public Prosecutor in the performance of his duties.8

We can thus conclude that Article 86 TFEU is phrased in an ambiguous way when it comes to the legal basis for harmonising the material scope of competence of the EPPO. Its predecessors were much clearer and did include an express reference 7  COM(2000) 608 final, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2000:0608: FIN:EN:PDF, accessed September 2016; for analysis see also the EC Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM(2001) 715 final: http://ec.europa.eu/anti_fraud/documents/fwk-green-paper-document/green_ paper_en.pdf, accessed September 2016. 8  Ibid, p 8.

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to substantive criminal law as an inclusive part of the EPPO regulatory package. We cannot, however, conclude, either, that the legislator has deliberately excluded from the EPPO regulatory package the definition of offences covered by the material scope of competence of the EPPO. In view of this intermediate conclusion it is wise to verify whether there are other legal bases in the TFEU that could serve for specifying the material scope of competence of the EPPO. In any case, Article 86 TFEU is part of the provisions in Title V TFEU on an Area of Freedom, Security and Justice (AFSJ). Within Title V TFEU there are various legal bases providing for the harmonisation of substantive criminal law, and thus for the harmonisation of the actus reus and mens rea of the offences, and for the harmonisation of the applicable criminal penalties. The most obvious legal basis for harmonising substantive criminal law is the one provided for under Article 83 TFEU. It does contain a double-track possibility, as Article 83(1) TFEU is dealing with euro-offences and Article 83(2) is dealing with national criminal law enforcement of harmonised areas: Article 83 TFEU: 1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament. 2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.

Article 83 directives are classic directives decided under the co-decision procedure to which the Community method does apply, but there are a couple of particularities under Article 83. There is not only an ‘emergency brake’,9 but some Member States 9  Article 83(3): ‘Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure’.

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do not participate (Denmark) or have a privileged ‘opting-in’ position (the UK, Ireland). When it comes to the criminal law enforcement of hard-core European interests, such as the fight against human trafficking in the AFSJ or the criminal law enforcement of market abuse and insider trading in the financial markets,10 it is strange that some EU Member States do not participate or do not opt-in (as the UK did for the draft directive on market abuse).11 Finally, the question arises (as it did in the past)12 if and to what extent it is possible to harmonise substantive criminal law on the basis of other articles in the treaties, outside the frame of Title V TFEU on the AFSJ and thus unconnected with the necessity of judicial cooperation in criminal matters (the title of C ­ hapter 4 of Title V TFEU). In the area of the protection of the EU’s financial interests there is a specific provision in the TFEU, namely Article 325 TFEU: Article 325 1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. … 4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union’s institutions, bodies, offices and agencies.

Article 325 TFEU replaced the former Article 280(4) of the Amsterdam Treaty which contained the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice.’ This wording was deleted by the Lisbon Treaty. Article 235 TFEU is a comprehensive article on the PIF protection and contains a legal basis to take measures in order to assure an effective deterrent and protection. Given the similar wording (fight against fraud affecting the financial interest of the Union) to that in Article 86 TFEU, these measures are clearly not limited to prevention. Moreover, the article aims at affording effective and equivalent protection both at national level and at EU level (paragraph 3). So there is a certain logic to qualifying Article 235 TFEU as

10  MJJP Luchtman and JAE Vervaele, ‘Enforcing the market abuse regime (insider dealing and market manipulation): towards an integrated model of criminal and administrative law enforcement in the EU?’ (2014) 5 New Journal of European Criminal Law 192–220. 11  For a more in-depth analysis of Article 83 TFEU, see JAE Vervaele, ‘Harmonised Policies and the harmonization of substantive criminal law’ in F Galli and A Weyembergh(eds), Approximation of substantive criminal law in the EU (Éditions Université Libre de Bruxelles 2013) 43–72. 12 JAE Vervaele, ‘The European Union and harmonization of the criminal law enforcement of EU policies: in search of a criminal law policy’ in I Cameron and M Ulväng (eds), Essays on ­criminalization & sanctions (Iustus, Upsala 2014) 185–225.

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a specialis in relation to the generalis of Article 83(1)–(2). Moreover, it excludes a couple of institutional disadvantages of Article 83(1)–(2) as it does not provide for an emergency brake and does not include special positions for Member States (such as non-participation or opting-in clauses). Finally, under Article 325, both directives and regulations can be adopted. The tricky issue is whether Chapter 4 of Title V and Article 83(1)–(2) are the exclusive legal basis in the TFEU for criminal law harmonisation or whether this can be complemented by a specific legal basis, like the one in Article 325 TFEU. The Treaty gives us no guidance on this point and it will be, if called in, up to the ECJ to decide.

III.  The Eppo-Proposal of the European Commission and its Versions under Negotiations The European Commission submitted, in July 2013, its proposal for a Council regulation on the establishment of the European Public Prosecutor’s Office.13 From the recitals and the text it is clear that the Commission aims at a limited material scope of competence; thus including only PIF offences and excluding serious crimes having a cross-border dimension (recital 21 and Article 4; Article 12). Concerning the content of the material scope, the Commission definitely opts to define this be reference to national law, ‘which criminalises acts or omissions affecting the Union’s financial interest and determines the applicable penalties by implementing the relevant Union legislation’, in particular through the new 2013 proposal for a directive, still under negotiation, on the fight against fraud to the Union’s financial interests by means of criminal law14 (recital 24). Furthermore the proposal extends the competence to offences that technically are not considered PIF offences, but which, because of their constituent facts, are identical and inextricably linked with PIF offences (the so-called ancillary competence for mixed cases). The proposal has so far been negotiated under seven successive Presidencies (Greece, Italy, Latvia, Luxembourg, The Netherlands, Slovakia and Malta). Even if under the actual state of the art the procedural elements have been mostly embedded in the national jurisdictions of the Member States, the material competence of the EPPO is still of substantial importance.

13  COM(2013) 534 final: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0534: FIN:EN:PDF, accessed September 2016. 14  See section IV below.

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IV.  Substantive Harmonisation of the PIF-Offences15 Do we really know today which offences fall within the ambit of crimes ‘affecting’ the financial interests of the Union? Will the EPPO know tomorrow what the content is of ‘nullum crimen, nulla poena sine lege praevia’? Will the citizen (suspect, victim, etc) know tomorrow for which offences the EPPO can search and seize, for which it can prosecute, and which penalties could be applied? The actual harmonisation of PIF-offences goes back to a legislative package of 1995,16 containing a Maastricht Convention and several Protocols.17 The Convention does not contain a specific list of PIF-offences, but rather a ‘catch all’ definition of fraud. The mens rea is clear, although the intentional nature of an act or omission may also be inferred from objective, factual circumstances (Article 1(4)). The actus reus is not clearly defined and contains, rather, a descriptive list of situations: Article 1 1. For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of: (a) in respect of expenditure, any intentional act or omission relating to: —— the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities, —— non-disclosure of information in violation of a specific obligation, with the same effect, —— the misapplication of such funds for purposes other than those for which they were originally granted;

15 P Asp, The Substantive Criminal Law Competence of the EU (Stockholms Universitet 2012); R Sicurella, ‘Setting up a European Criminal Policy for the Protection of EU Financial Interests: Guidelines for a Coherent Definition of the Material Scope of the European Public Prosecutor’s Office’ in K Ligeti (ed), Toward a Prosecutor for the European Union, Vol 1: A Comparative Analysis (Hart ­Publishing 2013) 885; K Ligeti, ‘Approximation of Substantive Criminal Law and the Establishment of the European Public Prosecutor’s Office in F Galli and A Weyembergh (eds) (n 12 above), 73–84. 16  The package contained also a regulation on administrative PIF-irregularities, Regulation 2988/95 on the protection of the EC’s financial interests [1995] OJ L312/1, and the legal basis for the OLAFRegulation 2185/96 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities [1996] OJ L292/2. 17  Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) [1995] OJ C316; First Protocol of 27 September 1996 [1996] OJ C313, and second Protocol of 19 June 1997, drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the Protection of the European Communities’ Financial Interests [1997] OJ C221/2.

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John A.E. Vervaele (b) in respect of revenue, any intentional act or omission relating to: —— the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities, —— non-disclosure of information in violation of a specific obligation, with the same effect, —— misapplication of a legally obtained benefit, with the same effect.

Concerning the criminal penalties, the Convention provides in Article 2 for the following: Article 2 1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1 (1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding ECU 50 000.

It is clear from the outset that this harmonisation neither lays down a common term of imprisonment, nor specifies minimum terms or maximum terms. The result is that this package has been implemented by the Member States in their national legislation in a very slow and unconvinced way. The picture is a complete patchwork. Some Member States considered that their legislation already complied under common fraud provision in their criminal codes; others elaborated specific offences but only linked, for instance, to subsidy-fraud; a lot did not elaborate specific criminal provisions in the area of structural funds. The result is also that not only the level of imprisonment but also the type of other criminal penalties available is fully dependent upon the national legislator and thus offers no common set of equivalent standards of penalties in the AFSJ. The Commission’s reports on the implementation of the PIF Convention and Protocols show a real implementation patchwork of pieces and gaps.18 Even the Anti-Fraud Unit of the EU (OLAF) has great difficulty in finding its way through the patchwork of applicable PIF law in the Member States: The fact is that, nearly six years after the PFI convention was drawn up, the harmonisation objective has not been achieved and the whole area of the protection of Community financial interests continues to suffer from a lack of minimum standards of criminal-law protection that can actually be applied throughout the European Union.19

18 

COM(2004) 709 final and COM(2008) 77 final. Point 1.2 of Explanatory Memorandum to Proposal for a directive on the criminal law protection of the Community’s financial interests, COM(2001) 272final: http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=COM:2001:0272:FIN:EN:PDF, accessed September 2016. See also the two Reports of the Commission on the Implementation of the Convention on the Protection of the European Communities’ financial interests and its protocols, of 2004 (COM(2004) 709 final) and 2008 (COM(2008) 77 final). 19 

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Academic experts elaborated in the ’90s within the Corpus Juris project20 a concrete set of PIF-offences. Their work inspired the Commission when proposing a directive in 2001 on the criminal law protection of the Communities’ financial interest, based upon Article 280(4) of the Amsterdam Treaty.21 The draft directive, aimed at replacing the 1995 Convention and Protocols, contained more specific criminal law definitions of fraud, corruption and related money laundering. However, in the field of criminal penalties this proposal did not prescribe minimum or maximum penalties or types of penalties either. This draft directive got stuck in the negotiations, due to problems both with the content and with the legal basis,22 and was thus never adopted. In 2011 the European Commission insisted in its communication ‘On the protection of the financial interest of the EU by criminal law and by administrative investigations—An integrated policy to safeguard taxpayers’ money’,23 on the importance of substantive law harmonisation in the field: 4.2. Strengthening substantive criminal law Criminal law is a cornerstone of EU action to prevent and fight damage to the EU budget. Due to the remaining loopholes in, and deficient implementation of, the Convention on the protection of financial interests, an initiative on the protection of EU financial interests will be prepared, replacing its pending proposal on the criminal-law protection of financial interests. Any new measure must guarantee consistency and fairness in application of criminal sanctions relating to fraud, depending on the particular way the offence was committed. Definitions of additional core offences, including on embezzlement and abuse of power should be envisaged as a part of the measure, to the extent relevant for the protection of EU financial interests. The approximation of rules on jurisdiction and time limitation will also be further analysed in order to improve criminal investigation results. This proposal may include, to the extent relevant for the protection of EU financial interests, more systematic rules on aiding and abetting, instigation, attempt, as well as on intent and negligence. It may also set out clearer rules on the criminal liability of appointed and elected office holders, and of legal persons regarding the protection of financial interests.

In 2012 the European Commission submitted a new proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law under the Lisbon Treaty.24 The proposal not only ‘Lisbonises’ the existing acquis, but also includes, in Articles 2–6, two additional offences not covered by previous third-pillar instruments, namely fraud in public procurement or grant procedures

20  M Delmas-Marty (ed), Corpus Juris portant dispositions pénales pour la protection des intérêts financiers de l’Union européenne (Economica, 1997); M Delmas-Marty and JAE Vervaele, Implementation of the Corpus Juris in the Member States (Intersentia, vols 1–4, 2000–2002). 21  COM(2001) 272 final. 22  Article 280 was the predecessor of article 325 TFEU. By using Article 280 the Commission avoided the criminal law harmonisation in the third pillar. 23  COM(2011) 293 final. 24  COM(2012) 363 final.

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and misappropriation of funds.25 The Commission did not include all the offences listed in the Corpus Juris project; neither did it include criminal liability for legal persons. The provisions on penalties in Articles 7–9 are more innovative. Article 7 requires penalties to be ‘effective, proportionate and dissuasive’, but Article 8 sets out very innovative imprisonment thresholds. EU-fraud, public procurement fraud and misappropriation of funds should be punishable by a minimum penalty of at least six months’ imprisonment and a maximum penalty of at least five years’ imprisonment in cases involving an advantage obtained or damage caused of at least €100,000. For money laundering and corruption the same imprisonment thresholds apply in cases involving an advantage or damage of at least €30,000. In case of commitment within a criminal organisation for all PIF offences the maximum penalty should be at least 10 years of imprisonment (Article 8(2)). The introduction in Article 8(1) of mandatory minimum penalties is entirely new. The proposed Directive is based on Article 325(4) TFEU. During the negotiations within the Council, Member States have obtained very substantial changes of the proposal. In the agreed general approach in the Council in June 2013 the legal base has changed from Article 325(4) TFEU to Article 83(2) TFEU. From the opinion of the Legal Service of the Council, in favour of this change, it becomes clear that all the possible limitations (ie, not applicable to Denmark, opting in for the UK and Ireland, emergency procedure) apply. In case of the UK and Ireland not opting in, they would remain bound by the 1995 PIF Convention. Secondly, Member States have explicitly excluded revenues arising from VAT from the scope of the Directive. This is astonishing, as the ECJ has clearly ruled that VAT-revenues are part of the financial interests of the Union26 and many serious EU fraud cases are related to ‘VAT carousel’ cases. In the recent Taricco judgment27 the ECJ has clearly underlined again that VAT-compliance is part of the protection of the financial interests of the EU, as stipulated in Article 235: 36. In that respect, it must be recalled that, in relation to VAT, it follows from Directive 2006/112, read in conjunction with Article 4(3) TEU, that Member States are not only under a general obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory, but must also fight against tax evasion (see, to that effect, judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraph 25 and the case-law cited).

25  The Commission has reflected on including the other offences mentioned in the Corpus Juris, namely a specific offence of abuse of office and the breach of professional secrecy. However, the Commission decided not to include a special offence on abuse of office as ‘it has been considered a superfluous addition to the offence of misappropriation. Similarly, an offence of breach of professional secrecy has not been included in the proposal as the conduct is already covered under the disciplinary-law measures of the EU Staff Regulations.’ See L Kuhl, The Initiative for a Directive on the Protection of the EU Financial Interests by Substantive Criminal Law (2012) 2 eucrim 65. 26  Case C-539/09 Commission v Germany [2011] ECR I-11235, paragraph 72. 27  Case C-105/14, Criminal proceedings against Ivo Taricco and Others (ECJ, 8 September 2015).

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37. Furthermore, Article 325 TFEU obliges the Member States to counter illegal activities affecting the financial interests of the European Union through effective deterrent measures and, in particular, obliges them to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own interests (see judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraph 26 and the case-law cited). 38. The Court noted, in that respect, that since the European Union’s own resources include, inter alia, as provided in Article 2(1) of Decision 2007/436, revenue from application of a uniform rate to the harmonised VAT assessment bases determined according to EU rules, there is thus a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the EU budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second (see judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraph 26).

Nevertheless, the VAT issue has long been a reason of substantial divide between the Council at the one hand and the Commission and Parliament on the other hand, and has for a long period of time blocked further progress on the proposed directive during the ongoing co-decision procedure at the European Parliament. However, at the moment of finalising this chapter,28 a compromise was finally reached in December 201629 and should result in the inclusion of serious cases of cross-border VAT fraud within the scope of the PIF Directive when above a threshold of €10 million.30 In relation to the penalties, Member States did strike out of the text any reference to minimum terms of imprisonment. Concerning the minimum maximum term of imprisonment, it has been lowered to at least four years in case of serious offences. Whether an offence is serious is defined in the directive itself.31 A reference to national law is, however, maintained in the preamble.32

V. Conclusion The EPPO aims at establishing a coherent European system for the investigation and prosecution of offences affecting the Union’s financial interest.33 It also aims to contribute to the further development of an area of justice, and to enhance the

28 

1 February 2017. See http://www.consilium.europa.eu/en/press/press-releases/2016/12/08-jha-protection-againstfraud/. 30  See Art 2.2 in the version of text published in Council doc 5478/17, 1 February 2017 (‘when the intentional acts or omissions defined in Article 3(d) are connected with the territory of two or more Member States of the European Union and involve a total damage of at least EUR 10 million’). 31  See Art 7(3), ibid. 32  See recital 16, ibid. 33  Point 3.3 of the Explanatory memorandum of the EPPO proposal. 29 

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trust of EU businesses and citizens in the Union’s institutions, while respecting all fundamental rights enshrined in the Charter of Fundamental Rights of the European Union.34 Once the EPPO is established, will a suspect know for which offences he can be held criminally liable and which penalties could be applied (substantive legality)? Will the citizen (suspect, victim, etc) know for which offences the EPPO can apply coercive measures, like searches and tapping of telecommunications, for which it can prosecute and which penalties could be applied? We have to take into account that the EPPO will bring those suspected of PIF-offences to judgment before national courts, after having used a range of autonomous powers of investigation and prosecution.35 The choice of the forum court and thus the adjudicative jurisdiction is not predefined. In this regard, compared to the Commission’s proposal, some guidance has been introduced. Indeed, according to Article 29 of the EPPO proposal as agreed upon in December 2016,36 the case will be prosecuted in the Member State of the European Delegated Prosecutor handling the case. However, a court of another Member State may be granted jurisdiction according to the criteria defined in Article 22(4). This means that the discretionary power in terms of choice of jurisdiction has been restricted but not in a way that allows the suspect to foresee the forum in which he has to stand trial. The European Commission has chosen to regulate the material scope of competence of the EPPO by harmonising national substantive criminal law through a directive based on Article 82(2). This means that equivalent components of substantive criminal law in the AFSJ for the competence ratione materiae of the EPPO depend on the level and content of the harmonisation in the directive and on the quality of the implementation in each individual Member State. Article 17 of the current text: The European Public Prosecutor’s Office shall be competent in respect of the criminal offences affecting the financial interests of the Union which are provided for in Directive 2017/xx/EU, as implemented by national law, irrespective of whether the same criminal conduct could be classified, under national law, as another type of offence.

During the negotiations, the competence of the EPPO changed drastically. It no longer possesses an exclusive competence for prosecuting PIF-offences, and the rule of priority that was foreseen in previous versions of Article 18(1) has

34 Ibid. 35  36 

Recital 7 of the EPPO proposal. See Council doc 15760/16, 22 December 2016.

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disappeared.37 The EPPO now shares the competence with national prosecutors, and Article 18 of the current text merely states when the EPPO can exercise its right to evoke a case: The European Public Prosecutor’s Office shall be competent for the offences referred to in Article 17 where such offences: (a) were committed in whole or in part within the territory of one or several Member States; or (b) were committed by a national of a Member State, provided that a Member State has jurisdiction for such offences when committed outside its territory; or (c) were committed outside the territories referred to in point a) by a person who was subject to the Staff Regulations of Officials or to the Conditions of Employment of Other Servants of the European Communities, at the time of the offence, provided that a Member State has jurisdiction for such offences when committed outside its territory.

Concerning the level and content of the harmonisation by the PIF Directive, the analysis has made clear that the directive, like the PIF Convention and Protocols of 1995, is only aiming at a very minimalistic minimum harmonisation. Negotiations have further watered down the minimum harmonisation proposed by the Commission. The way the offences are spelled out in the draft directive leaves much leeway to the Member States when it comes to implementation.38 VAT has been maintained within the scope of application of the Directive, but the Council has limited it to serious offences against the common VAT system,39 thus limiting the criminal law protection to certain types of offences. Concerning the applicable criminal penalties, as mentioned before, the current version of the text has only slightly remedied the weaknesses identified in previous versions. The current text only provides that offences shall be ‘punishable by effective, proportionate and dissuasive criminal sanctions’ (Article 7(1)), and ‘by a maximum penalty which provides for imprisonment’ (Article 7(2)). A maximum penalty of at least four years of imprisonment is now provided for offences that involve considerable

37  See for instance Art 18(1) of the Latvian General Approach which reads as follows: ‘The European Public Prosecutor’s Office shall have /has priority competence to investigate and prosecute any criminal offence referred to in Articles 17 and, where applicable, Article 18, where such offence

(a) was committed in whole or in part within the territory of one or several Member States, or (b) was committed by a national of a Member State, or (c) when committed outside of these territories referred to in point a) of this Article by a person who was subject to the Staff Regulations or Conditions of Employment of Other Servants, at the time of the offence, provided that a Member State, according to its law, has jurisdiction for such offences when committed outside its territory.’ 38 

See Articles 3 and 4 of the PIF Directive—Political agreement (Council doc 5478/17). See Article 3(d), read together with recital 4 (serious VAT offences: ‘connected with the territory of two or more Member States of the Union, result from fraudulent scheme whereby these offences are committed in a structured way with the aim to take undue advantage of the common VAT system and involve a total damage caused by the offences exceeds the threshold of EUR 10 millions’). 39 

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damage or advantage. However, despite the indication that ‘considerable’ means offences involving more than €100,000, the text still allows Member States to provide for this level of sanction ‘on the basis of other serious circumstances defined in national law’ (Article 7(3)). What does this mean for the level of implementation? Even when it comes to the common minimum harmonisation, Member States have a great margin of discretionary power at their disposal. Some of them will, as in the past, consider that their existing law already provides for the criminal law protection and does not need any amendments; others will ‘pick the cherries’, others will expand beyond the minimum harmonisation needed. The results are twofold. First, the existing fragmentation of the design of the PIF-offences in the legal orders of the Member States will not be resolved; beside the legislative patchwork there will also be implementation gaps. Secondly, the implementation of the Directive will not lead to a clear and precise body of law of PIF-offences and penalties, and the differences between the Member States will remain substantial. This means that the suspect will have great difficulty to know for which PIFoffences he can be held criminally liable and what penalties could be applied in each individual jurisdiction where he could stand trial. This means also that the substantive threshold for the triggering of autonomous European investigative measures varies substantially from one Member State to another. This results thus in a non-foreseeable ‘géométrie variable’ instead of a clear, specific and definite body of offences and penalties. This lex uncerta and unpraevia is not only a substantial threat to the rights of suspects, but also a substantial source of legal problems for the use of coercive powers by the EPPO. If we set up an EPPO, even with a structure that is strongly embedded in national law, a directive is definitely not the right instrument, as it aims at harmonising national law. What is needed is a uniform body of offences and penalties that are prescribed by a regulation and can be applied in both tracks, by the EPPO in cross-border investigations or by the EPPO-Deputies in national settings. These offences must obviously correspond to the autonomous definition of PIF in EU law, as defined by the ECJ, and thus cover all fields, including VAT and structural funds for instance. This body of PIF-offences can be laid down at national level in a specific part of the Criminal Code or in a special criminal act or statute. This regulation can be part of one of the regulations based on Article 86 TFEU.40 Only by following this path will we come to a set of offences and penalties that will comply with the substantive legality principle and thus with the ECHR and CFREU, and that will serve as a common level playing-field for the criminal law enforcement by the EPPO. Otherwise, the EPPO is condemned to act as a prisoner of a composite of national arrangements. The added value will be very doubtful

40 In the same vein of interpretation, see L Picotti, ‘Le basi giuridiche per l’introduzione di norme penali comuni relative ai reati oggeto della competenza della Procura Europea’ in G Grasso, G Illuminati. R Sicurella, S Allegrezza (eds), Le sfide dell’attuazione di una Procura europea: definizione di regole comuni e loro impatto sugli ordinamenti interni (Giuffré 2013) 65–108: www.penalecontemporaneo.it, accessed October 2016.

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and the risks of non-compliance with minimal ECHR and CFREU standards will be high. The text of the PIF Directive is very likely to be adopted soon, and the negotiations on the EPPO proposal will not change the definition of the EPPO’s material competence. The future of the protection of the Union’s financial interests is now foreseeable to a certain extent, but it does not appear as a bright one. The EU legislator had a delicate task to ensure a correct balance between the efficiency of the EPPO’s prosecutions and respect for the fundamental rights of suspects and accused persons. The result of the negotiations fails to guarantee both interests, and under the current system, neither the EPPO’s efficiency will be ensured, nor the protection of fundamental rights.

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Part VI

Conclusion

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23 Afterword(s) on Mutual Recognition and the Respect for Fundamental Rights Revisited—Following the Judgment in Aranyosi and Căldăraru1 JUDGE LARS BAY LARSEN2

I. Introduction The European Criminal Law Academic Network (ECLAN) was established by the end of 2004—at a point in time when I had fairly recently completed my personal transition from national (and in part also EU-) administrator of law enforcement and prosecution to that of a national judge. The year after, I was appointed judge at the Court of Justice of the European Union (CJEU) with effect from January 2006. Although others were clearly more closely involved in the Network, due to my past, present and future fields of work I remained caught in the web of ECLAN. Not long after I started as a judge at the CJEU in Luxembourg, I had the good luck to get in contact with Professor Anne Weyembergh. Whether she actually said ‘hi, like the spider to a fly’,3 I cannot fully recall, but the fact is that I was shortly thereafter drawn into the part of the web devoted to the Summer School in ‘The EU Area of Criminal Law’ organised annually by the Institute for European Studies of the ULB in collaboration with ECLAN. Quite a number of summer schools and a few other ECLAN events later, I was pleased to be given the honour to make some personal comments at the end of two interesting conference days to mark the 10th anniversary of ECLAN.

1  Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen EU:C:2016:198. 2  The views expressed in this chapter are mine and not necessarily shared by my colleagues or my Court. 3  ‘The Spider and the Fly’ by the Rolling Stones on ‘Out of Our Heads’ (LP) (1965), presumably inspired by the poetic fable of Mary Howitt (1799–1888).

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Judge Lars Bay Larsen

It was then, and still is, almost a ‘mission impossible’ to take into account the wide scope and academic qualities of the various excellent presentations made by two ministers, ie the Belgian and the Luxembourgish Ministers for Justice, ­respectively Mr Koen Geens and Mr Félix Braz, and one EU Commissioner, namely Commissioner Vera Jourova, as well as by a large number of outstanding academics and practitioners from many different Member States and several nonMember States. While not neglecting the debate with all the other participants, who actively contributed to the success of the conference, the breadth and depth of their expertise is well reflected in the overall content of and the various contributions to this book. Therefore, I will devote the following few pages, as I also did in my afterword at the conference, to address a single issue of general importance, both from a practical and an academic point of view, which was certainly a theme brought up several times during the two conference days: taking stock of the balance between Mutual Recognition and protection of fundamental rights in the Area of Freedom, Security and Justice (AFSJ) after the judgment in Aranyosi and Căldăraru.4

II.  The Principle of Mutual Recognition Based on Mutual Trust Mutual Recognition and Mutual Trust are essential building blocks that we find in many areas of the European Union law construction,5 for instance recognition of professional diplomas and technical standards. However, at the Special European Council in Tampere (in Finland) in 1999 the Heads of State and Government decided to step up the efforts made with the Maastricht and Amsterdam Treaties, and endorsed a proposal to base rapid progress in the new area of Justice and Home Affairs (JHA) on the principle of Mutual Recognition based on Mutual Trust.6 The underlying idea was that it would take far too long for the EU to achieve sufficient results in the day-to-day practical cooperation in JHA matters, by using the ordinary Community method consisting of more or less systematic harmonisation, slice by slice, directive by directive, regulation by regulation, or framework decision by framework decision, of the various parts of the JHA area (immigration, border controls, visa, asylum, police, penal law, counterterrorism, civil law, etc).

4 

Aranyosi and Căldăraru (n 1 above). E Bribosia and A Weyembergh, ‘Confiance mutuelle et droits fondamentaux: “Back to the future”’ [2016] Cahiers de Droit Européen 469, 473–75. 6  European Council, ‘Presidency Conclusions of the Tampere European Council’, 15–16 October 1999. 5 

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 435

‘Foreign’ judicial decisions should instead simply be recognised by being given quasi-automatically legal effect under the jurisdiction of the executing Member State, which implies no need for comprehensive exequator procedures anymore. After all, the issuing Member State (in a European Arrest Warrant7 case) or the competent Member State (in a Dublin regime8 case) is bound by the same international minimum standards for the protection of fundamental rights laid down in the European Convention on Human Rights (ECHR) and in the EU primary law as the executing Member State.9 Consequently, we do not really need to harmonise the national substantive or procedural penal laws, in a situation where a person is accused of having committed an offence by a Member State, but is currently in another one, as in that case this person should just be returned to the former, where the alleged infraction is being investigated. The person concerned would then have to rely on the judicial protection provided there—and ultimately in Strasbourg. That the EU, and particularly an EU of 28 Member States, is (also) in the JHA field really ‘united in diversity’ does not make this starting point too simplistic or downright wrong per se. It does, however, put it under some pressure. In fact, the further the different levels of punishment provided for a certain type of crime are from one another between the Member States, the more difficult it becomes politically to accept the full recognition of foreign decisions. Thus, it may be politically delicate, for example, to transfer your own nationals for a crime that in your country is not punishable at all or only with a small fine, whereas it carries a standard sentence of six months’ imprisonment in the requesting Member State. Today, it seems fair to say that the difficult negotiations on the EAW (which in reality were only given a breakthrough in the aftermath of the attacks in New York City and Washington DC on 11 September 2001) as well as our experience of the application of this first—and less than perfect—instrument giving legal substance to the principle of Mutual Recognition based on Mutual Trust, have confirmed that in practice it is not really a question of either harmonisation or Mutual Recognition. It is how to combine these elements. Mutual Recognition is politically so much easier to accept when it is accompanied by if not full harmonisation of national laws, then at least a certain degree of approximation.

7  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States—Statements made by certain Member States on the adoption of the Framework Decision [2002] OJ L190/1 (EAW). 8  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31 (Dublin III). 9  D Flore, ‘Reconnaissance mutuelle, double incrimination et territorialité’ in G de Kerchove and A Weyembergh (eds), La reconnaissance mutuelle des décisions judiciaires pénales dans l’Union Européenne (Éditions de l’Université de Bruxelles, 2001) 65, 67.

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Judge Lars Bay Larsen

It is certainly true that the CJEU has been a steady and strong defender of the principle of Mutual Recognition based on Mutual Trust. This has been repeated time and again in the jurisprudence of the Luxembourg Court in the AFSJ, be it in cases on the Dublin regime,10 Brussels IIbis Regulation on child abductions,11 the EAW12 or article 54 of the Schengen Convention on the principle of ne bis in idem.13 This was certainly emphasised in Opinion 2/13 on the draft international agreement on the EU Accession to the ECHR.14 However, the CJEU has never argued that Mutual Trust must also be blind trust.15 Like so many other things in life and in law, it is a question of striking the right balance. Here the balance between effective judicial cooperation and protection of fundamental rights is at stake. If too much emphasis is put on efficiency, fundamental rights might be violated by both Member States involved, as h ­ appened in the M.S.S. case before the European Court of Human Rights (ECtHR) in Strasbourg.16 If one goes too far to the other side, the result might be a fully-fledged obligation of a complete (double) control by the courts of one Member State of the level and quality of judicial scrutiny in another Member State, which in turn would set EU judicial cooperation in the AFSJ back by around 60 years.

III. The M.S.S.–N.S. Jurisprudence and its Potential Extension In the M.S.S. case17 Greece was judged by the Strasbourg Court for systematically not living up to the minimum standards required for material reception 10  Dublin III (n 8 above) and predecessors; Joined Cases C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I-13905, para 83. 11  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L338/1 (Brussels IIbis); C-195/08 PPU Rinau v Rinau [2008] ECR I-5271 para 50. 12  EAW; C-399/11 Criminal proceedings against Stefano Melloni, EU:C:2013:107, para 63. 13  ‘Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders’ (CISA) [2000] OJ L239/19; Joined Cases C-187/01 and C-385/01 Criminal proceedings against Hüseyin Gözütok and Klaus Brügge [2003] ECR I-01345, para 33. 14  Opinion 2/13 of the Court (Full Court) EU:C:2014:2454. 15  K Lenaerts, ‘The Principle of Mutual recognition in the Area of Freedom, Security and Justice’ (4th Annual Sir Jeremy Lever Lecture, All Souls College, University of Oxford, 30 January 2015): http://1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wp-content/uploads/2015/ 02/The-Principle-of-Mutual-Recognition-in-the-area-of-Freedom-Security-and-Justice.pdf, accessed 3 April 2017, 29. 16  M.S.S. v Belgium and Greece (Application no 30696/09) judgment of 21 January 2011, ECHR 2011-I 255. 17 Ibid.

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 437

c­ onditions and legal processing of asylum seekers, returned from other Member States (in casu Belgium) in accordance with the Dublin II Regulation.18 However, Belgium was also found to have violated the ECHR. Even if Belgium had returned the persons who had asked for international protection, to Greece, in accordance with the Dublin II Regulation, that had been done in spite of the fact that Belgium should have (at least) known that at the time there was a general problem with the respect of fundamental rights for such persons in Greece. Belgium argued that there had to be a presumption that the receiving (competent) Member State respected its obligations under EU law and the ECHR, which is part of the common Union acquis. The Strasbourg judgment did not deny that such a presumption could well be the starting point, but, on the other hand, this cannot justify the sending Member State ‘turning a blind eye’. In M.S.S. the situation in Greece was such that Belgium had an obligation to take stock of it more actively, and to eventually refrain from returning the persons concerned to Greece. The CJEU has later followed the M.S.S. jurisprudence in its decision on N.S.,19 and in subsequent case law like Puid20 and Abdullahi.21 For quite some time I and my colleagues in Luxembourg were frequently asked whether the jurisprudence developed in the cases of M.S.S.,22 N.S.23 and subsequently Abdullahi24 and Puid,25 which are on fundamental rights related to the Dublin regime, would also apply—mutatis mutandis—in other parts of the AFSJ like Penal Law, for instance to the EAW. My answer used to be that I supposed so, but that so far this question had not been raised before the Court.26

18  Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1 (Dublin II). 19  Joined Cases C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and M.E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I-13905. 20  Case C‑4/11 Bundesrepublik Deutschland v Kaveh Puid EU:C:2013:740. 21  Case C‑394/12 Shamso Abdullahi v Bundesasylamt EU:C:2013:813. 22  M.S.S. (n 16 above). 23  N.S. (n 19 above). 24  Abdullahi (n 21 above). 25  Puid (n 20 above). 26 Occasionally I was confronted with the argument that this question was actually raised in Case C-396/11 Ciprian Vasile Radu (EU:C:2013:39) and that the Court simply missed a good opportunity to express itself. That is not so. There is no fundamental right that obliges the police in a Member State to ask a suspect for his comments before they issue a EAW and start looking for him in the other Member States. It follows that any general statement from the Court on fundamental rights in Radu would have been an, in my opinion inappropriate, obiter dictum of a very general abstract nature. The Advocate General in Radu, Ms Eleanor Sharpston, was in a very different situation, since she, as a good AG, of course had to include some observations on fundamental rights in her opinion (see paras 63–97 of her conclusions, EU:C:2012:648) for the unlikely eventuality that the Court would wish to make such a general abstract obiter dictum.

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IV. After Aranyosi and Căldăraru However, in the Aranyosi and Căldăraru cases27 the issue did come up, and following the judgment it seems fair to sum the basic elements up like this: —— The judgment confirms that the legal reasoning of the M.S.S.28 and N.S.29 jurisprudence does apply at least mutatis mutandis. More specifically, it follows from this judgment: —— That there is still a presumption that the requesting Member State respects fundamental rights, in particular article 4 of the Charter of Fundamental Rights of the European Union and article 3 of the ECHR. This follows also from article 6 of the Treaty on the European Union (TEU).30 —— However, it is a rebuttable presumption. The competent authorities of the requested Member State are not allowed ‘to turn a blind eye’ to information that indicates that this presumption in fact does not reflect reality in the requesting Member State.31 —— On the other hand, this does not imply that the requested Member State is to carry out a systematic double control of fundamental rights protection in the requesting Member State. The requesting Member State retains the primary responsibility for the protection of fundamental rights on its territory, under its jurisdiction.32 —— It is normally for the person(s) concerned to demonstrate—or at least point to—the factors that may raise a reasonable doubt as to whether there is an issue related to fundamental rights protection that needs to be looked further into. —— The process of ‘presumption rebutting’ includes two thresholds, which must be born in mind: —— The first threshold concerns when the national judge must go to his ‘cupboard’ and take out ‘his ‘fundamental rights tool-box’, as it has sometimes—and in my view appropriately—been expressed by colleagues. This threshold should not be set too low, but not too high either. If set too low, we risk sending judicial cooperation back to before the 1957 Council of Europe Convention on extradition33 (which, by the way, was also built on Mutual Trust).

27 

Aranyosi and Căldăraru (n 1 above). M.S.S. (n 16 above). 29  N.S. (n 19 above). 30  Aranyosi and Căldăraru (n 1 above), paras 77–78. 31  Ibid, paras 88 ff. 32  Ibid, paras 102–103. 33  Council of Europe, ‘European Convention on Extradition’ (Paris, 1957) ETS No 24. 28 

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—— The second threshold concerns when the executing judicial authority should ask the issuing authority for further clarification and ultimately refuse to e­ xecute. This threshold should be even higher, but at the same time not too high. Indeed, if set too high, then it will imply a violation of the Charter and of the ECHR. If it is set too low, EAW obligations will be violated. It is a bit like with Goldilocks and the Three Bears; it ‘has to be just right’. —— It is important to stress that the national court in the executing Member State does not carry out an independent examination, ie a fact-finding mission, in the requesting Member State. Rather, it shall ask the judicial authority that has issued the EAW for supplementary information, or even ‘guarantees’ ­concerning the person in question.34 —— Also in the Aranyosi and Căldăraru cases, the issue was whether general difficulties (the question of heavily overcrowded prison conditions) amounted to ‘extraordinary circumstances’. Nevertheless, in order to ‘benefit’ from the non-execution of a EAW, the person requested should be likely to be affected, otherwise the deficiencies of the issuing Member State are not relevant to him. Thus, there is always an individual element: Is the person in front of the judge affected by the extraordinary circumstances/general deficiencies, or does he or she belong to a group of affected persons?

V.  A Fundamental Disagreement on Fundamental Rights Between the Two European Courts? Both as an ECLAN ‘fly’ and as a judge, one could perhaps have hoped that academic commentaries would have stressed the tight link between the jurisprudence of the two European Courts in these areas, and see this case law on the ­Dublin regime and on the European Arrest Warrant as evidence of a fruitful judicial dialogue between Strasbourg and Luxembourg. Regrettably, this has not really been the situation. On the contrary, a number of critics35 have tried to identify as many differences as possible between the two European Courts’ respective case law, notably on the Dublin regime, to conclude that there is a real conflict between Strasbourg and Luxembourg when it comes to the role of fundamental rights. According to these critics, the main difference between the ECtHR’s approach and that of the CJEU is that the judges in Strasbourg take into account individual

34 

Aranyosi and Căldăraru (n 1 above), paras 95–96. a comprehensive overview, see especially Bribosia and Weyembergh, ‘Confiance mutuelle’ (n 5 above). 35  For

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Judge Lars Bay Larsen

infringements of fundamental rights, whereas those in Luxembourg are focused exclusively on ‘systemic’ deficiencies in the asylum procedure and in the reception conditions of asylum seekers. If the critics are right in their analysis of the existing case law, it implies that there is a disagreement between the two European Courts, which could develop into an open conflict in the future if the CJEU has to rule on a situation of individual infringement without ‘systemic’ deficiencies. I was not a member of the formation either in the N.S. case,36 or in the ­Abdullahi case,37 but personally I am not convinced that such a restrictive understanding of my Court’s case law is justified. One may certainly directly deduce from N.S.,38 Puid39 and Abdullahi40 that an asylum seeker should not be transferred to a Member State facing ‘systemic deficiencies’ in reception conditions and in the processing of requests for i­ nternational protection. In fact, this obligation is now explicitly recorded in the Dublin III Regulation.41 Yet, this does not necessarily imply that the case law from the CJEU should be read as meaning that individual infringements of fundamental rights are without relevance in the Dublin context or in other parts of the AFSJ. Admittedly, as was recalled in Opinion 2/13, the principle of Mutual Trust in this area requires every Member State to consider all the other Member States to be complying with EU law and particularly with fundamental rights, unless exceptional circumstances occur.42 While the Court, in Opinion 2/13, put emphasis on the principle of Mutual Trust, it is not explained with precision what should be regarded as such ‘exceptional circumstances’ capable of justifying a derogation from this principle. Returning to the specific question on the Dublin system, the presumption inferred by the principle of Mutual Trust explains why the Court underlined in N.S. that ‘it cannot be concluded … that any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply’43 with the Dublin Regulation (emphasis added). For the same reason, it was also said in N.S. that ‘it would not be compatible with the aims of the [Dublin II Regulation] were the slightest infringement of [the asylum directives] to be sufficient to prevent the transfer of an asylum seeker’ (emphasis added).44 Hence, any infringement of a fundamental right or the slightest infringement of secondary asylum law is not enough. This does not, however, imply that

36 

N.S. (n 19 above). Abdullahi (n 21 above). N.S. (n 19 above). 39  Puid (n 20 above). 40  Abdullahi (n 21 above). 41  Dublin III (n 8 above), art 3 para 2. 42  Opinion 2/13 (n 14 above), para 191. 43  N.S. (n 19 above), para 82. 44  N.S. (n 19 above), para 84. 37  38 

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 441

g­ eneral or ‘systemic’ deficiencies are always required. Although systemic or general deficiencies were what the claimants invoked in N.S.,45 and what sufficed to resolve their case, Opinion 2/1346 applies the broader terminology of ‘exceptional circumstances’. The same reasoning can be applied to the Puid47 and Abdullahi48 judgments, where only the (general) Greek situation at approximately the same time was called into question. It has to be admitted that it was perhaps not impossible to read this case law as excluding the relevance of individual infringement, but it was merely one of the possible readings. Some national jurisdictions took a position on this question, including the Supreme Court of the United Kingdom, which came to the conclusion that Union law should not be interpreted as precluding the transfer of an asylum seeker only in situations of systemic deficiencies.49 Furthermore, a careful analysis of the Tarakhel judgment50 shows, in my opinion, that the ECtHR had, at least as much regard to the overall situation in Italy as it had to the individual situation of the applicants in question. It is true that Italy was not facing the type of ‘systemic deficiencies’ that you can find in M.S.S.51 and N.S.,52 but the problem at stake in Tarakhel53 was closely linked to a general deficiency of the reception conditions for families in Italy. In other words, one might say that there were general difficulties and perhaps deficiencies in the Italian system, but they did not affect everybody who asked for international protection. Families with small children might thus be seriously affected, whereas single male applicants might not be confronted with similar difficulties. It seems then that it is still a question of general/systemic circumstances that, however, only affect certain parts of the group of persons requesting international protection. To put the label ‘individual circumstances’ on such a situation, seems then somewhat misleading, although ‘a rose by any other name would smell as sweet’.54 The CJEU has not yet been confronted with the real individual situation, but it seems at least that nothing in Aryanosi and Caldararu55 or in Opinion 2/1356 excludes that also purely individual circumstances may eventually amount to ‘exceptional circumstances’.

45 

N.S. (n 19 above). Opinion 2/13 (n 14 above). 47  Puid (n 20 above). 48  Abdullahi (n 21 above). 49  EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, [2014] AC 1321. 50  Tarakhel v Switzerland (Application no 29217/12) (ECtHR, 4 November 2014). 51  M.S.S. (n 16 above). 52  N.S. (n 19 above). 53  Tarakhel (n 50 above). 54  William Shakespeare, Romeo and Juliet: Act II, Scene II. 55  Aranyosi and Căldăraru (n 1 above). 56  Opinion 2/13 (n 14 above). 46 

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Judge Lars Bay Larsen

In Lanigan,57 a EAW case between the UK and Ireland, the Irish referring court was confronted with a question on exceptional circumstances of an individual nature. However, this was not the question the Irish court referred to the CJEU. The national court seemed not to have any doubt that they had to consider whether there was a real danger for Mr Lanigan in serving a prison sentence in the UK, although he claimed a danger particular to him on grounds of his personal past, and did not refer to any alleged systemic deficiencies in the UK prison system.

VI.  Where the Shoe Still Pinches Consequently, the most interesting legal question for national judges in this area is perhaps not to know what to do when they are dealing with a clear situation of general deficiencies or of exceptional circumstances of a true individual nature.58 The more difficult question is still for the national judge to know when—or in respect of which other Member States—he or she will have ‘to take out the fundamental rights tool-box from his or her cupboard’ in order to examine more in-depth an alleged general failure in the protection of fundamental rights in a specific Member State. What is the threshold for doing so, or a contrario what is the threshold for not doing so, so to issue a quicker ruling, in cases where it may seem manifestly clear that there is not such a systemic failure in the protection of fundamental rights in the issuing Member State? In other words, when must the national judge seek at least some more detailed information through embassies, EU Agencies, UNHCR, NGOs (Amnesty International, Human Rights Watch etc) before he or she may eventually dismiss the allegation? When is it reasonable for a national judge to consider that there is no reasonable doubt—and rely on the presumption that fundamental rights will be respected? These are questions that merit a continued judicial dialogue with and among national judges as well as between the two European Courts—despite the fact that especially the latter two courts are placed in very different situations when it comes to the treatment of factual evidence. However, judicial dialogue does not take place in a sterile environment, in splendid isolation from the rest of the world. No doubt the academic world and, in particular, the research and discussions nourished and supported by networks like ECLAN may also in the next decade make a valuable contribution to the search for the right balance between, on the one hand, efficient, loyal and trustful cooperation and, on the other hand, the need to properly protect fundamental rights.

57 

Case C-237/15 PPU Minister for Justice and Equality v Francis Lanigan EU:C:2015:474. Obviously, there may still be scope for further clarification also in these areas, such as in pending Case C-496/16 Criminal proceedings against Pál Aranyosi. 58 

INDEX

Aarhus de-radicalisation and rehabilitation model, 259–61 access to information about convicted persons, 4, 5–6 see also data protection; Eurojust; Europol; information-sharing accession to ECHR, 128–29, 147–48, 159, 308, 436 admissibility of evidence, 204–05 Directive on the European Investigation Order, 28, 319, 324–25, 333–34 EIOs, 193, 196 EPPO, 205, 206–07 TFEU framework, 416–417 harmonisation of procedural criminal law, 101, 169 interception of communications, 333–34 joint investigation teams, 379–80 allocation of jurisdiction, 377–78 United States, 207, 209 allocation of powers in multi-level polities, 105–06 ever-closer union concept, 78 normative criterion, 73, 74 performance criterion, 73–74 subsidiarity as a, 79–82 political values criterion, 73, 74 respect for national identities, 78–79 subsidiarity principle, 76–78 performance criterion, as a, 79–82 theoretical framework, 73–76 see also competences; criminal competence, development in the EU; subsidiarity Amsterdam Treaty, 45 competences reform, 4, 49–55 CJEU, 112, 114–15 preliminary ruling procedure, 115–17 fighting cross-border crime, 89–90 mutual recognition instruments, 434 adoption of, 189–91 necessity requirement, 90 top-down approach, 144 approximation, see harmonisation Aranyosi and Caldararu joint cases, 6–7, 134, 153, 162–63, 182, 286–87, 438–39 Area of Freedom, Security and Justice, creation of, 49–52

legal interests, 66, 69 subsidiarity and the role of the EU, 103–05 Brexit, 26, 32, 64, 186–87 Charter of Fundamental Rights of the European Union (CFREU), 18, 58, 144, 146, 286, 289–90 balancing liberty and security, 30 data protection, 239, 243–44, 247, 249, 255 deprivation of liberty, 300–01 detention conditions and degrading treatment, 182, 299 EAW and, 128, 134, 294–96 EIO, 198 legality principle, 428 minimum standards, 198–99, 428–29 mutual trust, 158, 161, 162–63, 230–32 ne bis in idem, 198 primacy doctrine, 123 protection of defendants’ and victims’ rights, 172–73 right to a fair trial, 310, 311 rule of law, 414 coherence, 131, 180, 181–82 harmonisation of substantive law, 171–72, 173, 175–76 mutual trust and achieving coherence, 221 development of a transatlantic privacy framework, 237–40 development of global security standards, 236–37 operational oversight, 221–24 presumption of adequacy, 228–32 reciprocity and internalisation, 232–36 regular monitoring and review, 225–28 national and supranational laws, 176 procedural and substantive law, 175–76 proportionality and, 178–79 competences: development of criminal competences, 36–38 harmonisation, 38–39 Lisbon Treaty, 39–40 mutual recognition, 39 EU and national competences, 26–27 exclusive versus shared responsibility, 66 jurisdiction distinguished, 65

444 

Index

validity of secondary legislation, 126–27 see also criminal competence, development in the EU compliance with procedural rights and victims’ rights, 6–7, 24, 53–54, 59, 61, 85–87, 91 mutual recognition, 101–02, 109, 125, 166–68, 172–73 conferral principle, 19–20, 35–36, 78 Convention Implementing the Schengen Agreement (CISA): Article 54, 125, 198 interpretation, 130 Convention on Mutual Assistance in Criminal Matters, 194, 196, 324 interception of telecommunications, 315–16, 325–26, 320 joint investigation teams, 358–59, 371 coordination of investigations and prosecutions, see Eurojust; Europol; joint investigation teams Council of Europe, 43–44 Additional Protocol to the Convention on the Prevention of Terrorism, 271–72, 274–75, 278, 280 co-legislator, as, 4, 27, 144–45, 152 Convention on Personal Data Protection: control principle, 243 locus regit actum and forum regit actum, 196 mutual trust, 157 Corpus Juris project, 37, 107, 203–04, 423, 424 corruption, 4, 7, 8, 59, 83, 167, 423–24 EU officials, 69 private sector, 46–47, 54 public officials, 46 criminal competence (development in the EU), 36–37 criminal justice between Amsterdam and Lisbon Treaties: confiscation of criminal assets, 53 framework decisions, 52–53 harmonisation of substantive law, 54 procedural rules, 54–55 protection of personal data, 53 standing of victims in criminal trials, 53–54 criminal justice between Maastricht and Amsterdam Treaties, 45–49 EU conventions, 46 joint actions, 46–49 joint positions, 45 third pillar instruments, 45–49 European Economic Community, 40–42 introduction of sanctions, 42–44 evolving nature of EU criminal law, 3–4 implied Community Criminal Competence, 55–57 Lisbon legislative measures, 60–61 procedural cooperation, 60, 61–62 procedural rights, 61 substantive cooperation, 60–61

Maastricht Treaty, 44–45 Commission powers, 45 CJEU powers, 45 European Parliament powers, 45 national powers, 45 Lisbon Treaty, 57–60 minimum harmonisation, 58–59 Protocols 21 and 22, 60 qualified majority voting, 60 special arrangements, 60 subsidiarity principle, 59–60 TFEU, 57–59 outlook, 63–64 post-Amsterdam Treaty: adoption of necessary measures, 51 harmonisation, 50 inter-governmental decision-making, 50–51 methods of police and judicial cooperation defined, 49–52 questions regarding competences, 51–52 reform of third pillar arrangements, 49 cross-border crimes, 83–84 comparative efficiency test, 83–84 efficiency-based rationales for EU action, 83–84 types of EU intervention, 84–86 EU comparative efficiency in fighting cross-border crimes, 83–84 national crimes distinguished, 82–83 Treaty developments, 89 Amsterdam Treaty, 89–90 Lisbon Treaty, 90–91 Maastricht Treaty, 89 TFEU, 90–92 types of EU intervention: cooperation in cross-border enforcement, 84–85 harmonisation of rules of criminal procedure, 85 harmonisation of substantive criminal law, 86 cross-border interception of communications, see European Investigation Order; interception of communications cybercrime, 4, 97, 340, 341, 343, 346, 347–48 data protection, 13, 18 CFREU, 243–44 control principle, 243 Council of Europe Convention on Personal Data Protection, 243 Directive 95/46/EC, 243 EIO, 334 EPPO Regulation, 399 Europol standards, 344 legal framework, 246 Directive 95/46/EC, 243, 245–57

Index Directive 2016/680/EU, 244–45 General Data Protection Regulation, 245–47 Passenger Name Record data: adequacy of US safeguards, 217–19 proportionality and accountability, 351 supervisory authorities, 29, 243–44, 255 competence, 248–50 complaint handling, 253–55 independence, 247–48 powers, 250–53 role, 247 Terrorist Finance Tracking Programme, 221, 222, 225–27, 234–36, 237–40 adequacy of US safeguards, 224, 228–32 Data Protection Directive for Police and Criminal Justice Authorities (Directive 2016/680/EU), 244–45, 246 Article 45, 248–50 Article 47, 250–53 Articles, 52–55, 253–55 EPPO Regulation and, 399 General Data Protection Regulation, 245–47 supervisory authorities, 255 competence, 248–50 complaint handling, 253–55 independence, 247–48 powers, 250–53 role, 247 data retention, 14–15, 18, 229, 239–40 de-radicalisation, see Aarhus de-radicalisation and rehabilitation model Denmark: Aarhus de-radicalisation and rehabilitation model, 259–61 criminal law relating to terrorism and foreign fighters, 261–63 ban on travelling, 278–81 convictions in Danish courts, 281–83 outlook, 283–84 Passport Code, 267–68 reform of treason provisions, 263–67 foreign terrorist fighters, 258–59 see also foreign terrorist fighters detention conditions, 6–7, 162–63, 182–83, 286–87 EAW and, 299–300 direct and indirect effect, 50, 52, 118–20, 122–23, 124 Da Silva Jorge case, 122 Pupino case, 122 Directive on Combatting Terrorism (Directive 2017/541), 275–77 Directive on Legal Aid (Directive 2016/1919/EU), 6, 202, 398 Directive on Presumption of Innocence (Directive 2016/343/EU), 6, 124, 202, 398

 445

Directive on Procedural Safeguards for Children involved in Criminal Proceedings (Directive 2016/800/EU), 6, 202 Directive on the EIO (Directive 2014/41/EU), 192–93, 313–15 interception of telecommunications: with assistance from other member states, 315–29 without assistance from other member states, 330–34 mutual recognition, 188 ne bis in idem, 198 see also European Investigation Order Directive on the Protection of Individuals with Regard to Processing of Personal Data and the Free Movement of such Data (Directive 95/46/EC), 229–31, 243, 245–46, 247–48 Directive on the Protection of the Unions Financial Interests (PIF Directive), 204–05, 387 EPPO and, 388–92, 395, 429 harmonisation of PIF offences, 421–25, 427 division of powers, 74, 152–54 complexity within EU institutional design, 143–44 tensions between EU institutions, 144–47 double subsidiarity test, 94–95 economic and financial crimes, 7 efficiency-based rationales for EU action, 72 cross-border and national crime distinguished, 82–83 EU comparative efficiency and cross-border crime, 83–84 EU comparative efficiency and national crime, 86–88 subsidiarity principle and, 79–82 types of intervention against cross-border crimes, 84–85 instruments harmonising procedural law, 85 instruments harmonising substantive law, 86 judicial cooperation instruments, 84–85 encryption of data and communications, 14–15 enforcement of EU criminal law: application of fundamental tenets of EU law, 121–23 application of secondary legislation, 123–24 direct and indirect effect, 118–19, 122–23 national level, at: direct and indirect effect, 118–19 framework decisions, 120 liability for breaches of EU law, 119 primacy doctrine, 118 relationship between different instruments, 119–21 primacy doctrine, 118, 122–23 validity of secondary legislation, 124–25 challenges, 126–29

446 

Index

environmental issues, 35–36, 42, 54, 56–57, 87–88, 108, 126–27, 167 Eurojust, 4, 340, 353–54 challenges: balancing interests and human rights, 350–51 oversight, 353 goals and objectives, 341, 345–47 Europol compared, 347–50 joint investigation teams with Europol, 355–57, 381–82 allocation of jurisdiction, 377–79 coordination of investigations, 374–77 drafting JIT agreements, 369–70 Eurojust competences, 358 Europol competences, 357 Europol/Eurojust cooperation, 360–61 evaluating JITs, 379–81 forms of assistance, 373–74 funding opportunities, 364–68 identification of need for JIT, 362–64 imbalance in resources, 365–67 overlap of Europol and Eurojust roles, 361–79 risk of double funding, 367–68 rules of participation, 370–73 Europadelikte, 107 European Agenda on Security, 5, 6 European Anti-Fraud Office (OLAF), 4, 422–23 European Arrest Warrants (EAW), 4, 108, 121 human rights and, 133–35, 285–87 mutual recognition and, 185–86 validity of secondary legislation, 127–28 see also European Arrest Warrant Framework Decision European Arrest Warrant Framework Decision (EAW FD), 189, 285–87 harmonisation, CJEU interpretation and, 309–11 mutual recognition, CJEU interpretation and: deprivation of liberty concept, 300–02 detention conditions, 299–300 indirect summons, 302–03 issuing EAWs, 304–06 Melloni case, 295–97 Radu case, 294–95 relationship between national arrest warrants and EAWs, 303–04 right to be released, 298–99 time limits for execution and the right to be released, 297–99 mutual trust and, 306–08 European Convention on Human Rights (ECHR), 289 balancing prosecution and defence, 31 Dublin II Regulation and, 436–37 EAW and, 29–30, 198–99, 294, 439 EIO and, 194, 198–99, 200

EU accession, 128–29, 147, 308, 436 legality principle, 428–29 liberty of movement and deprivation of liberty, 301 minimum standards, 200, 206, 211, 428–29, 435 mutual recognition principle, 289–90, 239 mutual trust, 161 privacy and data protection, 235 rule of law, 414 travel bans, 280 European Court of Human Rights (ECtHR): CJEU, disagreement with, 439–42 deprivation of liberty, 301 EAW FD, 294–96, 299, 301 minimum standards: rights of the defence, 200 victims’ rights, 102 see also MSS case European Court of Justice (CJEU), 111–13, 138–39 action for annulment procedure, 113, 125 Amsterdam Treaty, 112, 114–15 preliminary ruling procedure, 115–17 direct and indirect effect, 118–19, 122–23, 124 enforcement of EU criminal law: application of fundamental tenets of EU law, 121–23 application of secondary legislation, 123–24 national level, at, 118–21 EAW and human rights, 133–35 ECtHR, disagreement with, 439–42 infringement procedure, 113 interpretation of EU criminal law legislation, 129–30, 135–38 EAW, 131–32, 133–35, 286–87 judicial authority, 185–86 jurisdiction, 113–18 Lisbon Treaty, 112, 117–18, 123 Maastricht Treaty, 111–12, 114 preliminary ruling procedure, 113, 125 primacy doctrine, 118, 122–23, 124 state liability, 124 tensions between EU institutions, 144–47 TEU, 112 TFEU, 112–13 validity of secondary legislation, 124–25 accession to ECHR, 129 challenges, 126–29 compliance, 127–28 delimitation of competences, 126–27 Melloni case, 128–29 European Criminal Law: balancing different competences, 25–26 agencies (Europol/Eurojust/EPPO, etc.), 30–31 diversity and unity, 28–30 EU and national competences, 26–27, 35–64

Index EU institutions (European Parliament/ European Commission/Council of the EU), 27–28, 141–54 police and judicial authorities, 31 prosecution and defence, 31–32 human and fundamental rights, relationship with, 24–25 European Criminal Law Academic Network (ECLAN), 3, 433–34 academic/practitioner relationship, 22–23 achievements, 21–22 background, 19–21 independence, 23 European Criminal Record Information System (ECRIS), 4, 5–6 European Framework Decision on Combating Racism and Xenophobia (2008/913/JHA), 6, 97–99 European Internal Security Strategy, 31, 148–49 voluntary nature of information exchange, 149–50 European Investigation Order (EIO), 16 application, 195–96 grounds for non-recognition, 197–99 interception with technical assistance from member states, 315–16 direct transmission of data, 325–29 duration of interception, 318–19 EIOs against legal persons, 321–23 mutual recognition principle, 316–18 necessity and proportionality, 316–18 interception without technical assistance from other member states, 329–31 consequences of notification/ non-notification, 332–34 obligation to notify, 331–32 legal remedies, 199–200 mutual recognition instrument, as a, 191–92, 313–15 application, 195–96 grounds for non-recognition, 197–99 legal remedies, 199–200 proportionality, 196–97 scope, 193–94 types of proceedings covered, 193–94 validation procedures, 192–93 notification procedures: consequences of notification/ non-notification, 332–34 obligation to notify, 331–32 proportionality, 196–97 scope, 193–94 types of proceedings covered, 193–94 validation procedures, 192–93 European Parliament: co-legislator, as, 4, 27, 144–45, 152 increasing role, 144–45

 447

European Public Prosecutor’s Office (EPPO) proposal, 4, 7–8, 15, 17–18, 109, 383–84, 425–29 admissibility of evidence, 206–07 background, 203–04 balancing prosecution and defence, 411–12 access to case files, 399 applicable law, 400–02 choice of jurisdiction, 394–97 conditions and limitations, 400–02 cross-border investigations, 402–06 judicial review, 407–11 procedural rights, 397–400 protection of personal data, 399–400 right to a fair trial, 397–98 rights of suspects and accused persons, 398–99 rights of the defence, 397–98 competences: division of competences between national authorities and EPPO, 394–95 material scope, 413–29 PIF Directive and, 387–92 European Commission proposal, 420 final text, 204–05 harmonisation of PIF offences, 421–25 initial proposal, 204 judicial oversight, 205–06 legal framework: EPPO Regulation, 392–94 TFEU, 392–93, 414–20 material scope of competences, 413–14 TFEU framework, 414–20 structure of the office, 385–87 Europol, 4, 339–40, 353–54 challenges: accountability, 351 balancing interests and human rights, 350–51 delivering European value-based response, 350–51 judicial control, 351–53 judicial review, 353 goals and objectives, 341–44 Europol compared, 347–50 joint investigation teams with Eurojust, 355–57, 381–82 allocation of jurisdiction, 377–79 coordination of investigations, 374–77 drafting JIT agreements, 369–70 Eurojust competences, 358 Europol competences, 357 Europol/Eurojust cooperation, 360–61 evaluating JITs, 379–81 forms of assistance, 373–74 funding opportunities, 364–68 identification of need for JIT, 362–64 imbalance in resources, 365–67

448 

Index

overlap of Europol and Eurojust roles, 361–79 risk of double funding, 367–68 rules of participation, 370–73

see also Charter of Fundamental Rights of the European Union; European Convention on Human Rights General Data Protection Regulation, 245–47

fight against terrorism, 257–58 intergovernmental cooperation, 11–13 see also Aarhus de-radicalisation and rehabilitation model foreign terrorist fighters, 11, 283–84 case law (Denmark), 281–83 challenges: preventing travel to conflict zones, 257–58 receiving and dealing with those returning from conflict zones, 258 Council of Europe: Additional Protocol to the Convention on the Prevention of Terrorism, 274–75 Denmark, 258–59 Aarhus de-radicalisation and rehabilitation model, 259–61 ban on travelling, 278–81 convictions in Danish courts, 281–83 criminal law relating to terrorism and foreign fighters, 261–81 outlook, 283–84 Passport Code, 267–68 reform of treason provisions, 263–67 European Union: Directive on Combatting Terrorism, 275–77 travel bans: calls for travel bans in Denmark, 277, 278–81 Australian model, 277 UN Security Council Resolutions: International Humanitarian Law and, 270, 273–74 Resolution 1373 (2001), 268–69 Resolution 2170 (2014), 269, 272 Resolution 2178 (2014), 269–74 fraud, 4, 8, 15, 41–42, 44–45, 51, 57, 61, 63–64, 69, 109, 269, 320–21, 387 Protection of the Unions Financial Interests offences, 419–25 see also European Anti-Fraud Office freezing of assets, 5, 53–54, 60–62, 189–91, 400 function-legal interests, 66 fundamental rights, 18, 24–25, 32 balancing enforcement demands of EAW, 285–87, 291–94, 311–12 CJEU and, 294–311 mutual trust and mutual recognition, 287–91 harmonisation and, 200–03 mutual recognition and, 185–89, 211, 287–91 EIO and, 191–200 mutual trust and, 160–64, 287–91

harmonisation, 16, 38–39, 50 CJEU interpretation of EAW FD, 189, 309–11 fundamental rights, 200–03 legal integration, 164–66 aims, 121 coherence, 175–76 legal integration and, 168–69, 182–84 procedural criminal law, 166–68 proportionality, 178–79 relationship with harmonisation, 169–71, 181–82 subsidiarity, 176–78 substantive criminal law, 166–68 ultima ratio, 179–81 level of harmonisation, 200–03 minimum harmonisation: TFEU, 58–59 mutual recognition principle and, 169–71, 181–82 normative grounds for EU action, 96–97 harmonisation of procedural criminal law, 101–02 harmonisation of substantive criminal law, 97–101 PIF offences, 421–25, 427 procedural law, 13, 101–02, 169 cross-border crimes, 85 legal integration, 166–68 substantive criminal law, 13, 54, 97–101, 171–76 cross-border crimes, 86 legal integration, 166–68 human rights, see European Convention of Human Rights; European Court of Human Rights; fundamental rights information-sharing Aarhus de-radicalisation and rehabilitation model, 259–60 Data Protection Directive, 244–45 Europol, 341, 350–51, 374, 380 General Data Protection Regulation, 245–47 sharing personal data between EU and US, 238–39 sharing data between member states, 244–45 see also data protection institutional balance principle, 141–43, 152–54 division of powers principle, 143 see also division of powers institutional legal interests, 66 interception of communications: notification procedures:

Index consequences of notification/ non-notification, 332–34 obligation to notify, 331–32 with technical assistance from member states, 315–29 direct transmission of data, 325–29 duration of interception, 318–19 EIOs against legal persons, 321–23 mutual recognition principle, 316–18 necessity and proportionality, 316–18 without technical assistance from other member states, 329–31 consequences of notification/nonnotification, 332–34 obligation to notify, 331–32 joint investigation teams (JITs), 355–57, 381–82 Europol competences, 357 Eurojust competences, 358 Europol/Eurojust cooperation, 360–61 overlap of Europol and Eurojust roles, 361–62 allocation of jurisdiction, 377–79 coordination of investigations, 374–77 drafting JIT agreements, 369–70 evaluating JITs, 379–81 forms of assistance, 373–74 funding opportunities, 364–68 identification of need for JIT, 362–64 imbalance in resources, 365–67 risk of double funding, 367–68 rules of participation, 370–73 judicial review, 55, 112–13, 118, 280, 351–53 procedural acts of the EPPO, 204, 397, 406–11 validity of secondary legislation, 126–29 jurisdictional issues, 12 cyberspace, 13–14 see also competences legal integration, 164–66, 183 coherence, 175–76 harmonisation of criminal laws: aims, 171–75 coherence, 173–74 procedural criminal law, 166–68, 172–74 relationship with mutual recognition, 169–75 substantive criminal law, 166–68, 171–72, 173–74 mutual recognition, 168–69 aims, 171 relationship with harmonisation, 169–75 proportionality, 178–79 relationship between harmonisation and mutual recognition, 169–71, 181–82 subsidiarity, 176–78 ultima ratio, 179–81 see also harmonisation; mutual recognition

 449

legality principle: ECHR, 428–29 legislative co-decision, 144–45 Lisbon Treaty: CJEU, 112, 117–18, 123 development of criminal competences, 39–40, 57–60 impact, 60–62 fighting cross-border crime, 90–92 material scope of EU’s penal jurisdiction, 67–68 qualified majority voting, 60, 67 Maastricht Treaty, 19 competences reform, 44–45 impact, 45–49 CJEU, 111–12, 114 fighting cross-border crime, 89 minimum standards, 17 CFREU, 198–99, 428–29 ECHR, 200, 206, 211, 428–29, 435 ECtHR: rights of the defence, 200 victims’ rights, 102 procedural rights, 17, 211 MSS case, 436–37 mutual legal assistance (MLA), 13, 98–99, 188, 313–14, 340, 404–05 EU/US agreements, 216–21, 238, 241 transatlantic counter-terrorism cooperation, 220 mutual recognition principle, 4, 13, 16, 185–89, 287–89 accession to ECHR and, 128–29 aims, 121 CFREU, 289–90 CJEU and ECtHR disagreement on interpretation, 439–42 CJEU interpretation of EAW FD, 294–306 coherence, 175–76 EAW FD, 189, 291–92 deprivation of liberty concept, 300–02 detention conditions, 299–300 grounds for refusal, 292–93 indirect summons, 302–03 interpretation by CJEU, 293–311 issuing EAWs, 304–06 Melloni case, 295–97 Radu case, 294–95 relationship between national arrest warrants and EAWs, 303–04 right to be released, 298–99 rights of individuals, 292 time limits for execution and the right to be released, 297–99 ECHR, 289–90 EIOs, 191–92 application, 195–96

450 

Index

grounds for non-recognition, 197–99 interception with technical assistance from member states, 315–29 interception without technical assistance from other member states, 329–34 legal remedies, 199–200 proportionality, 196–97 scope, 193–94 types of proceedings covered, 193–94 validation procedures, 192–93 existing mutual recognition instruments, 189–91 interception with technical assistance from member states, 315–16 direct transmission of data, 325–29 duration of interception, 318–19 EIOs against legal persons, 321–23 mutual recognition principle, 316–18 necessity and proportionality, 316–18 interception without technical assistance from other member states, 329–31 consequences of notification/ non-notification, 332–34 obligation to notify, 331–32 instruments: EAW FD, 189, 189, 291–306 EIO, 191–200, 313–36 legal integration and, 168–69, 182–84 mutual trust and, 158–59, 182, 211, 434–36 proportionality, 178–79 relationship with harmonisation, 169–71, 181–82 subsidiarity, 176–78 TFEU, 58 ultima ratio, 179–81 see also European Arrest Warrant; European Investigation Order mutual trust, 4, 157–58, 164 CJEU interpretation of EAW FD and, 306–08 CJEU interpretation, 159–60, 162–64 legislative bodies’ interpretation of, 160–61 mutual recognition and, 158–59, 182, 211, 434–36 transatlantic counter-terrorism cooperation and, 221, 240–42 development of a transatlantic privacy framework, 237–40 development of global security standards, 236–37 operational oversight, 221–24 presumption of adequacy, 228–32 reciprocity and internalisation, 232–36 regular monitoring and review, 225–28

EU comparative efficiency in fighting national crimes, 86–88 protection of EU interests, 92–93 national sovereignty, 18, 26, 107, 200–03, 332, 393 ne bis in idem, 15, 43, 125, 130, 198, 292–93, 389, 394, 436 NS case, 437 OLAF, see European Anti-Fraud Office Passenger Name Record (PNR) data: EU/US Agreements on the transfer of Passenger Name Record data, 217–21 development of global security standards, via, 236–37 reciprocity and internalisation, via, 232–36 transatlantic counter-terrorism cooperation: EU concerns, 217–21 EU criticisms, 217–18 scrutiny concerns, 219 Passenger Name Record Directive, 150–51 performance criterion of subsidiarity, see efficiency-based rationales for EU action police and judicial authorities: balancing different competences, 31 distrust between, 150 see also Eurojust; Europol police and judicial cooperation compared, 339–54 see also Eurojust; Europol primacy doctrine, 118, 120, 122–23, 124, 203, 206, 286, 296 privacy, see data protection procedural law: Amsterdam Treaty, 54–55 compliance, 6–7 Directive on Procedural Safeguards for Children involved in Criminal Proceedings (Directive 2016/800/EU), 6 harmonisation, 13, 85, 101–02 Lisbon legislative measures, 60, 61–62 minimum standards, 17 substantive law, relationship with, 108 proportionality: EIO, 196–97 harmonisation of procedural criminal law, 178–79 harmonisation of substantive criminal law, 178 mutual recognition instruments, 178–79 Protocol 21 of the TFEU, 60 Protocol 22 of the TFEU, 60 qualified majority voting, 60, 67

national crimes, fight against: cross-border crimes distinguished, 82–83 enforcement of EU policies, 94–96

radicalisation, see Aarhus de-radicalisation and rehabilitation model

Index Rome Treaty, see Treaty on the Functioning of the European Union rule of law, 24, 135, 158, 211, 215–16, 220, 240–41, 306, 310 ECHR, 413–14 see also fundamental rights safe havens, 86, 89, 91, 95, 100, 103–04 security challenges, 4 cybercrime, 4 fight against terrorism, 11–13 financial crime, 4 foreign terrorist fighters, 11 migration crisis, 11 radicalisation, 4 serious organised crime, 4 Schengen Information System, 11, 149, 247–48 state liability, 118–19, 120, 123–24 statutes of limitations, 108–09 subsidiarity principle, 71–72 allocation of powers, 76–78 Amsterdam Protocol, 79–80 applications, 104–05 comparative efficiency test, 79–81 cross-border crimes, 83–84 cross-border crimes, 83–84 national crimes distinguished, 82–83 EU comparative efficiency in fighting cross-border crimes, 83–84 types of EU intervention, 85–86 democratic deficit distinguished, 79 double subsidiarity test, 94–95 efficiency-based rationales for EU action, 79–82, 108 cross-border and national crime distinguished, 82–83 EU comparative efficiency and cross-border crimes, 83–84 EU comparative efficiency and national crime, 86–88 instruments harmonising procedural law, 85 instruments harmonising substantive law, 86 judicial cooperation instruments, 84–85 types of intervention against cross-border crimes, 84–86 enforcement of EU policies, 94–96 European Council guidelines on interpretation, 79 harmonisation, 176–78 efficiency-based rationales for EU action, 85–86 normative grounds for EU action, 97–102 mutual recognition, 176–78 national crimes: cross-border crimes distinguished, 82–83 EU comparative efficiency in fighting national crimes, 86–88 normative grounds for EU action, 96–97, 108

 451

harmonisation of procedural criminal law, 101–02 harmonisation of substantive criminal law, 97–101 TEU, 109 TFEU, 59–60 substantive law: cross-border crimes, 86 harmonisation of substantive criminal law, 97–101 procedural law, relationship with, 108 subsidiarity principle, 97–101 surrender procedures, 29–30, 85, 130, 133–38, 162–63, 182–83, 189–90 see also European Arrest Warrant Framework Directive Tampere Council, 144, 157, 174, 185, 211, 288, 434 Taricco case, 108–09, 424 terrorism, see fight against terrorism; foreign terrorist fighters; Terrorist Finance Tracking Programme; transatlantic counter-terrorism cooperation Terrorist Finance Tracking Programme: EU/US Agreements on the Terrorist Finance Tracking Programme: operational oversight, 221–24 presumption of adequacy, via, 228–32 reciprocity and internalisation, via, 232–36 regular monitoring and review, 225–28 EU concerns, 218–21 lack of transparency, 219–20 scrutiny concerns, 219–20 transatlantic counter-terrorism cooperation, 217–21 training of judicial practitioners, 8–9 transatlantic counter-terrorism cooperation: challenges for the EU, 216–17 agreements between US and criminal justice agencies, 217 executive/operational agreements, 217–21 traditional agreements, 217 executive/operational agreements, 217–21 EU/US Agreements on the transfer of Passenger Name Record data, 217–21 EU/US Agreements on Terrorist Finance Tracking Programme, 217–21 mutual trust and, 221, 240–42 development of a transatlantic privacy framework, via, 237–40 development of global security standards, via, 236–37 operational oversight, via, 221–24 presumption of adequacy, via, 228–32 reciprocity and internalisation, via, 232–36 regular monitoring and review, via, 225–28

452 

Index

travel bans: Australian model, 277 calls for travel bans in Denmark, 277, 278–81 Treaty of Amsterdam, see Amsterdam Treaty Treaty of Lisbon, see Lisbon Treaty Treaty of Maastricht, see Maastricht Treaty Treaty of Rome, see Treaty on the Functioning of the European Union Treaty on the European Union (TEU), see Lisbon Treaty Treaty on the Functioning of the European Union (TFEU): Article 83, 67–69 Article 325, 68 clarification of substantive criminal competences, 59 CJEU, 112–13 financial interests of the EU, 93 minimum harmonisation, 58–59 mutual recognition principle, 58 Protocol 21, 60 Protocol 22, 60 qualified majority voting, 60 shared competences, 58 special arrangements, 60 subsidiarity principle, 59–60

TREVI group, 44, 144, 146, 150 ultima ratio principle, 179–80 harmonisation of procedural criminal law, 181 harmonisation of substantive criminal law, 180–81 mutual recognition, 181 UN Security Council Resolutions concerning foreign terrorist fighters: International Humanitarian Law and, 270, 273–74 Resolution 1373 (2001), 268–69 Resolution 2170 (2014), 269, 272 Resolution 2178 (2014), 269–74 United States: cross-border cooperation, 207 advantages of US system, 207–10 extradition, 209–10 fundamental rights and the Bill of Rights, 207–08 supremacy clause, 207 Victims’ Rights Directive (Directive 2012/29/EU), 7, 61, 101–02