The European Investigation Order: shaping a new approach to mutual recognition in criminal matters.

By Steve PEERS (*) and Emilio DE CAPITANI (**)

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make trans-border investigations faster and more efficient.
That current patchwork of rules comprises:
– the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);
– parts of the Schengen Convention;
– the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);
– the 2008 Framework Decision on the European evidence warrant;[i] and
– the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts.
The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

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Access to documents: the Council might not implement a key CJEU judgment

by Professor Steve PEERS

Monday, 19 May 2014

The EU is often accused by critics of a lack of openness and transparency – and often such criticisms are justified. This is particularly the case as regards the EU legislative process. In principle, this process ought to resemble the open process seen in national legislatures, with full public access to the drafts of legislation that passes through the legislative chamber(s).

However, despite the adoption of a general Regulation on access to documents in 2001, this aspect (among others) of EU transparency is problematic.
The reason for this is that, within the Council, some Member States wish to keep their positions secret, at least while the negotiations are ongoing. Of course, this profoundly undermines the argument that citizens of each Member States, via national parliaments, can hold each individual government accountable for its action within the Council. For some Member States, though, accountability would bring embarrassment.

The CJEU, in accordance with its prior case law emphasising the importance of transparency in the EU legislative process, ruled in the Open Access Info judgment last year that the names of Member States in principle had to be released to the public.

This ruling would seem to be straightforward enough. But the Council is trying to wriggle out of it.

According to an internal Council document discussed by Member States’ EU ambassadors (Coreper) last week, the Council is considering three options:
– referring always to Member State positions;
– making no reference to Member State positions;
– or continuing an unsystematic approach to this issue.

The first option (full transparency) is rejected, because it sometimes this will not be ‘appropriate’, ie it might embarrass Member States. The second option is rejected, because it will be useful to have a record of Member States’ positions. So the suggestion is for the third option.

If this third option is chosen, what seems likely to result is that whenever a Member State believes that its position might be embarrassing, it will ask that there should be no listing of its name in the footnotes.

Moreover, the Council document does not foresee any active transparency, ie disclosing a document with Member States’ positions as soon as it is drawn up.

The new rules (when agreed) will only apply to documents when an individual requests a copy of them. By the time that the Council replies to such a request, discussions on a particular issue could have moved on and so there will not be an opportunity to have a public debate on whether a particular Member State’s position is justified.

So the whole process of challenging the Council in Court as regards this crucial aspect of EU legislative decision-making is ultimately likely to have only limited practical effect.

Perhaps the next step in this battle will have to be non-judicial: either a demand by the European Parliament that the Council open up its legislative proceedings further (or at the very least, that both institutions open up the secretive ‘trialogue’ process); or a complaint to the European Ombudsman that the Council should proactively make all its legislative documents public without individual request.
(NDR Emphasized by me)

‘The next Justice and Home Affairs programme: will it be fit for purpose?’

By Henri LABAYLE , Steve PEERS and Emilio DE CAPITANI

“If a man does not know what port is he steering for, no wind is favourable to him” (Seneca)

Soon to be debated by Coreper (the Member States’ representatives to the EU), the Greek Council Presidency proposals (see here) on the future European Council guidelines on the post-Stockholm Programme in the Area of Freedom, Security and Justice (AFSJ) are quite disappointing , if not even disturbing.
Back in Tampere in 1999, the European Council (the heads of state and government of Member States) succeeded in the double challenge of framing their internal security in a supranational dimension by preserving at the same time the smooth evolution of the EU machinery. That spirit now seems far away.
Quite on the contrary, the perspective proposed by the Council Presidency looks rather surreal, if not disconnected from reality.
This is probably not a coincidence, so we have to consider that such a blindness is a deliberate choice, leading us to wonder , as it happens in any good detective story , to whom the crime will benefit… However what is already clear is that these draft guidelines will hardly be in the interest of the European Union citizens (totally ignored by the text), and not even in the interest of the European Union itself, whose effectiveness will hardly be strengthened.

I – The democratic imperative Continue reading

Data Protection after Lisbon and the Charter : with the “Google” ruling the CJEU deals with possible abuses by private companies…


ORIGINAL TITLE : The CJEU’s Google Spain judgment: failing to balance privacy and freedom of expression
By Steve Peers

The EU’s data protection Directive was adopted in 1995, when the Internet was in its infancy, and most or all Internet household names did not exist. In particular, the first version of the code for Google search engines was first written the following year, and the company was officially founded in September 1998 – shortly before Member States’ deadline to implement the Directive.
Yet, pending the completion of negotiations for a controversial revision of the Directive proposed by the Commission, this legislation remains applicable to the Internet as it has developed since. Many years of controversy as to whether (and if so, how) the Directive applies to key elements of the Web, such as social networks, search engines and cookies have culminated today in the CJEU’s judgment in GoogleSpain, which concerns search engines.

The background to the case, as further explained by Lorna Woods, concerns a Spanish citizen who no longer wanted an old newspaper report on his financial history (concerning social security debts) to be available via Google. Of course, the mere fact that he has brought this legal challenge likely means that that the details of his financial history will become known even more widely – much as many thousands of EU law students have memorised the name of Mr. Stauder, who similarly brought a legal challenge with a view to keeping his financial difficulties private, resulting in the first CJEU judgment on the role of human rights in EU law.

The Court’s judgment Continue reading