Week 6 - Institutionalization and Enforcement of ECL

Institutional Aspects (outline)

1. Supranational layer → thick vs thin
2. Enforcement of EU criminal law → direct vs indirect
3. Institutions’ competences → operational vs coordinating/facilitating
4. (De)centralisation → centralized vs decentralized
5. Nature of law-enforcement functions → police/investigative vs prosecution vs judiciary

Supranational layer institutions

__Thick__ supranational layer = strong, consolidated bodies with legal personality of their own and direct operational powers in the field (high level of institutional integration) → results in institutional system that is greater than the sum of its parts

__Thin__ supranational layer = no direct operational powers, institutions focused on multilateral cooperation between MS (focus is harmonization and mutual recognition) → institutions merely meant to facilitate and coordinate MS and cooperate multilaterally based on mutual trust etc

Enforcement of EU criminal law by institutions

__direct__ → EU sets standards & EU bodies enforce

* only a few bodies have direct enforcement e.g. competition law through OLAF/EPPO, or financial interests through EPPO

__indirect__ → EU sets standards & MS enforce

* most of these EU institutions promote indirect enforcement through coordinating/facilitating eole

Institutions’ competences

operational vs coordinating/facilitatory

* Coordinating role = Europol, EJN, Eurojust
* Coordinating & operational competences = OLAF, EPPO

(De)centralization of institutions

EU dimension vs Primary reliance on national officers/units

* decentralised = weaker EU dimension, strong reliance on MS authorities
* centralised = strong EU dimension, consistence/uniformity because no reliance on MS authorities

Nature of law-enforcement functions of institutions

1. __Police, investigative authorities__ → Europol, OLAF
2. __Prosecution__ → Eurojust (exercises functions to support and coordinate) + EPPO (direct competence to bring cases before national courts and act as prosecutorial authority in this procedure)
3. __Judiciary__ → EJN, Eurojust

OLAF (European Anti-Fraud Office)

**History**

* earliest european level CJ body (UCLAF) → replaced by OLAF after Santer's Commission fall in 1999
* department within commission, so it's a Directorate General

**Legal Basis**

* Commission Decision 1999/352
* Regulation No 883/2013

**Set-up**

* DG, head of DG appointed for 7year term (only serve one term to prevent concerns over independence and potential corruption)
* OLAF performs (investigative) functions independent from Commission

**Function**

→ investigative functions, but purely administrative (so far reaching powers in administrative proceedings, but there are NOT criminal in nature)

* External investigations: “strengthening the fight against fraud, corruption & any other illegal activity adversely affecting EU financial interests, … any other act or activity by operators in breach EU law”
* Has to rely on MS for cooperation
* Internal investigations: a) fraud, corruption & other illegal activities affecting EU financial interests; (b) serious facts \~ performance of professional activities by EU officials or other staff (Art.1(3), 3 and 4)
* Right to access evidence directly
* Can also take legislative/regulatory prevention initiatives, so a supportive role to the Commission w/r/t legislation about financial things
* Administrative entity with a role in CL
* Art 11(2) reports admissible as CL evidence in MS

**Safeguards**

* Art 9 Reg safeguard: objectivity, presumption of innocence, incriminating and exculpatory evidence

**Overall**

* OLAF considered to be quite powerful, far-reaching competences, significant role in fighting fraud
* Concerns regarding week judicial control over powers and weak accountability mechanisms
* supervisory committee OLAF, but can only issue decisions
* CJEU reluctant to scrutinize OLAF, but might be changing (recently imposed pecuniary sanctions on commission for violations committed by OLAF)

Europol (EU Agency for Law Enforcement Cooperation)

**History**

* intergovernmental origins
* with Maastricht treaty, EU drug unit founded but only powers related to drug offences, until 1995 Europol Convention, replacing EDU

**Legal-basis**

* Art 88 TFEU
* Regulation 2016/794

**Mission** (Art 88(1) TFEU)

* “to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.”
* Crimes = Regulation Art 3 + Annex I and related crimes (related crimes = procuring means, facilitating, ensuring impunity for Annex I crimees)
* Supporting function → provide networks of information exchange for multilateral cooperation (so it can be facilitated)

**Tasks** (Art 88(2) TFEU + Art 4 Reg)

* intelligence related tasks: collect, store, process, analyse and exchange information
* operative tasks: coordination, organization, implementation of investigative and operational action jointly with MS authorities or in JITs (in liaison with Eurojust)
* NOT allowed to conduct investigations itself → only supports and facilitates

**Set-up**

* Europol liaison officers (diplomatic status, access to Europol info system)

European Judicial Network

**Legal basis**

* Council Decision 2008/976 and 16/09/2008
* precursor: Joint Action 1998
* Art 2 decision = EJN → “taking into account the constitutional rules, legal traditions & internal structure of each MS, the central authorities responsible for international judicial cooperation & the judicial or other competent authorities with specific responsibilities within the context of int’l cooperation”

**Function**

* loose network of national contact points to help promote cooperation with judicial authorities of different MS

**Set-up**

* EJN contact points in MS = active intermediaries
* National correspondents = coordinators
* Tool correspondents = website data
* Commission contact point + secretariat = Eurojust

**Modalities of operation** → Art 3 decision

* facilitate establishment of contacts between MS
* periodic meetings of MS representatives
* providing up-to-date background information

**Function of contact points** → Art 4 decision

* facilitating judicial cooperation between MS, especially serious crimees
* providing legal/practical info - judicial cooperation requestions
* training sessions on judicial cooperation

**Annual EJN meetings** (Arts 5-6)

Eurojust (EU agency for Criminal Justice Cooperation)

**History**

* after establishment EJN, desire for strong judicial network remained but MS did not want supranational prosecutor
* from intergovernmental to supranational
* Cn Decision 2002 replaced by decision 2009/426/JHA

**Legal basis**

* Art 85 TFEU
* Reg 2018/1727
* amended in may 2022 in light of war Russia/Ukraine (ensures cooperation Eurojust, national courts, and ICC)
* close cooperation + separate and temporary storage facility for crimes Ukraine

**Mission** - Art 85(1) TFEU, Art 2(1) Reg

* “to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more MS or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the MS' authorities and by Europol.” (+ EPPO/OLAF)

**Tasks**

* Initiating criminal investigations, proposing initiation of prosecutions conducted by national authorities, in particular offences against EU financial interests;
* Coordination of \[those\] investigations & prosecutions;
* Strengthening judicial cooperation, incl. by resolution of conflicts of jurisdiction & by close cooperation with EJN.
* Preserving, analysing, storing and enabling the exchange of evidence with national authorities and international judicial authorities, esp. ICC (new Art. 4(1)(j) Reg).

**Competence** - Art 3 Reg (material competence → when can Eurojust facilitate?)

* Annex I serious crimes, where EPPO does not exercise competence, unless MS not participating in the EPPO enhanced cooperation are involved
* Crimes against EU budget, the ones where EPPO does not have/exercise competence
* Non-Annex I crimes, where requested by MS
* Annex I related crimes (procuring means, facilitating or committing, ensuring impunity)
* Crimes affecting MS+non-MS; crimes affecting 1 MS with EU-wide repercussions

**Operational functions** - Art 4 Reg

* Providing information and support to MS (para. 1) (National Members)
* Initiating and coordination role (para. 2) (National members)
* Analytical, logistical and mediatory support (paras. 3-5) (College)
* Supporting functions: Art 4(1)
* Coordinating functions: Art 4(2)

**Governance structure** - Art 6 Reg

* National members & deputies: 1 per MS, 5 year term (renewable x1)
* College: all national members + 1 EuComm representative
* Executive Board: President, 2 VPs, 1 EuComm rep, 2 College members
* Administrative director

Organization of work

* On-call coordination mechanism (Art. 19 Reg): receipt of requests, contactable 24/7
* Eurojust National Coordination System (Art. 20 Reg): 1/> national correspondents per MS
* Case management system (Arts. 23-25 Reg): temporary work file and index; DP Officer
* Processing of personal data (Ch IV Reg): see Art. 29; Art. 31; Arts. 36-38; Arts. 43-46.

EPPO (European Public Prosecutor's Office)

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**History**

* origins from study on Corpus Juris 1998-2000 + EuComm Green Paper 2001

**Legal Basis**

* Art 86 TFEU + Council Regulation 2017/1939
* Art 86(1) = “In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with SLP \[unanimity + EP consent\], may establish a EPPO from Eurojust.”
* emergency accelerator: absent unanimity in Council 9>MS may refer to EuCn
* in case of disagreement (4mnth) 9>MS who would proceed with initiative to establish EPPO on the basis of enhanced cooperation
* ultimately, Art opens up possibility of creating Prosecuto's office, but it is not required
* ultimately adopted under Enhanced Cooperation 22 MS
* Art 86(2) = EPPO is responsible for…
* investigating, prosecuting and bringing to judgment \[in liaison with Europol\], the perpetrators of, and accomplices in, offences against EU financial interests
* exercise functions of prosecutor in MS competent courts regarding such offences
* (to extend powers to serious cross-border crimes: Cn unanimity + EP & Comm)

**Material Competence** (Art 22 EPPO Reg)

* crimes affecting the financial interests of the EU as outlined in PIF directive (irrespective of classification under national law after implementation)
* Art 3(2)(d) PIF offences have to be serious (so 10mil damage)
* offences regarding participation in a criminal organizatioon
* any other offences linked to criminal conduct under PIF directive
* no competence regarding national direct taxes of MS that do not contribute to EU budget

**Nature**

* independent, decentralized, indivisible prosecution body
* Only EU body that performs prosecutorial functions before national courts in Member state
* Although EPPO operates in each participating MS through structure there's a clear hierarchy in structure which unifies them all under a single indivisible office

**Structure** (Arts 8-13 EPPO Reg)

* __Central Office__: European Chief Prosecutor (ECP) + 2 Deputy ECPs; College of (European) Prosecutors (1 per participating MS); Permanent Chambers (2 Euro Ps + chair: ECP/Deputy/another); Administrative Director.
* __Decentralised__: (at MS level) European Delegated Prosecutors in MS (**EDP**) – 2/> per participating MS

Procedure


1. Reporting → EU bodies, MS authorities: inform EPPO without undue delay about possible crimes and/or opened investigation (Art 24)
2. Start of investigation EPPO →initiation by EDP, possibly upon instruction of PC (Art 26) or exercising right of evocation of a case, unless invstgn is finalized or indictment submitted to a court (Art 27)
3. Conduct of investigation → the handing EDP undertakes investigation measures (Art 30(1)) or instructs MS authorities; reports to the competent EuroProsecutor and to the PC any significant developments (Art 28)
4. Referral or prosecution → PC refers case to national authorities (Art 34) or prosecution in a national court (art 36)
5. note: simplified procedure Art 40; defense rights per Directives and national law Art 41

Future of institutional integration in the area of criminal justice (outline)

Development of EU criminal justice ‘system’

* No grand design, growth by accretion \~ political will
* Fragmentation: partial overlaps, glaring gaps
* Integration through the institutions: mission (being) accomplished?

Nature of the ‘system’

* Repressive? A bias towards investigative/prosecutorial interests
* (Defence) rights protection: still an afterthought?
* Managerialism & decentralisation: operational CL powers mostly remain with MS

Criminal justice euro-bureaucracy

* Complex and multi-tiered, yet embryonic
* Entia non sunt multiplicanda praeter necessitatem?
* Competences overlaps and tensions (and ever more regulation): inter-agency cooperation or ‘interinstitutional competition’?

=> OLAF v. Europol v. Eurojust v. EJN v EPPO

Operational Powers EU institutions

* Only EPPO has operational powers (to investigate/prosecute) in the domain of criminal justice
* OLAF has operational powers but only administrative

__Advantages__

* investigative powers should be efficient → need EU level institution to make things coherent and efficient
* especially w/r/t EU fraud, also because domestic authorities don't really have the willingness to investigate (but maybe for other crimes, national authorities would be better to investigate)
* Sovereignty shouldnt be an issue because that's the whole point of the EU
* Potentially extend competence to serious crimes and annex crimes? (Huge debate)

__Disadvantages__

* Losing cultural differences and legal diversity between MS, esp w/r/t criminal procedure
* Investigative powers should be efficient, but for certain crimes domestic authorities would be much better suited to investigate
* EPPO powers can encroach upon MS sovereignty, even if related to fraud

Pros/Cons (de)centralization

__Pros of centralization__

* supranational approach to CJ = more consistent and effective enforcement EU law
* could include establishment EU crim code, EPPO wider jurisdiction or that EDPs answer direectly to Prosecutor, and harmonization of criminal procedure
* enhances protection of fundamental rights
* increases transparency
* reduces risk of discrimination and unequal treatment of indvls across MS

__Cons of centralization__

* CJ is area of national sovereingty, national justice systems better equipped to respond to local needs
* CJ systems of MS already heavily embedded in EU framework → we have enough institutions and agencies
* further centralization would be unnecessary and undermine principles of subsidiarity and proportionality

What is the exact relationship between the EPPO and OLAF, Europol, and Eurojust?

Art 101 EPPO (and OLAF)


1. The EPPO shall establish and maintain a close relationship with OLAF based on mutual cooperation within their respective mandates and on information exchange. The relationship shall aim in particular to ensure that all available means are used to protect the Union’s financial interests through the complementarity and support by OLAF to the EPPO.
2. Without prejudice to the actions set out in paragraph 3, where the EPPO conducts a criminal investigation in accordance with this Regulation, OLAF shall not open any parallel administrative investigation into the same facts.

Art 102 EPPO (and Europol)


1. The EPPO shall establish and maintain a close relationship with Europol. To that end, they shall conclude a working arrangement setting out the modalities of their cooperation.
2. Where necessary for the purpose of its investigations, the EPPO shall be able to obtain, at its request, any relevant information held by Europol, concerning any offence within its competence, and may also ask Europol to provide analytical support to a specific investigation conducted by the EPPO.

Art 100 EPPO (and Eurojust)


1. The EPPO shall establish and maintain a close relationship with Eurojust based on mutual cooperation within their respective mandates and on the development of operational, administrative and management links between them as defined in this Article. To this end, the European Chief Prosecutor and the President of Eurojust shall meet on a regular basis to discuss issues of common concern.
2. In operational matters, the EPPO may associate Eurojust with its activities concerning cross-border cases, including by: sharing info, data, invite MS for support etc

=> OLAF could be seen as superfluous in light of EPPO. But not everyone is a part of EPPO.

Eurojust value for international crimes

* Eurojust has added value because it is a strong interconnected judicial network → can ensure close cooperation, storage capacity for evidence, coordinating → it is kind of like an extra, special body that fills gaps often found in the cooperation in transnational criminal offences or international crimes

Added value of Eurojust when it comes to the fight against impunity core international crimes

* Support in preserving evidence, and storing it in a centralized way that remains unaffected
* MS A wants to cooperate with MS B because they know MS B has evidence/witnesses important for crime committed MS A -> borderless union, MS A necessarily needs cooperation with MS B but doesn't know how to make use of the instruments
* Eurojust supports them here -> how to issue EAW? Who to? EIO?
* Eurojust as liaison for cooperation
* Becoming more important because intl crimes mandate of Eurojust has been invested in since the war Ukraine/Russia
* Connect MS, supervise, coordinate, set up JITs
* Unlike EPPO, Eurojust mandate encompasses international crimes
* Centre under Eurojust for JIT Ukraine -> research; meant to offer logistical supports
* ICPA
* Kind of like a workgroup that is able to work from the premises of Eurojust

Kai Ambos has noted: "the remarkably repressive tendency of the European criminal justice project, providing for an avalanche of repressive institutions, which ... operate in a compound network (*Verbund*) of criminal prosecution". He also points out that the EPPO "will not be matched by a proper European criminal defence institution." Do you agree with the substance and the delivery of his critique?  

I literally don't know what this means but

* Question of procedural safeguards?
* defence rights & position of defendant
* judicial review
* evidence gathering

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