“Lisbonisation” of Europol and Eurojust : an in depth analysis for the European Parliament

The inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

Upon request by the LIBE Committee, the study aims at analysing the current relationship and foreseeable cooperation between several EU agencies and bodies: Europol, Eurojust, the European Anti-Fraud Office, the European Judicial Network and the future European Public Prosecutor’s Office. The study reflects on their cooperation regarding the fight against serious transnational crime and the protection of the European Union’s financial interests. It also identifies good practices and difficulties and suggests possible ways of improvements. AUTHORS Prof. Anne Weyemberg, Université Libre de Bruxelles and Coordinator of the European Criminal Law Academic Network (ECLAN) Mrs Inés Armada, PhD researcher, VUB-ULB, FWO Fellow Mrs Chloé Brière, GEM PhD researcher, ULB – UNIGE

BELOW THE TEXT OF PAGES 8-26. THE FULL STUDY  IS AVAILABLE HERE 

1. INTRODUCTION

1.1. Context of the study

For the time being, there are 9 JHA decentralised agencies: 6 depending from DG Home, namely EUROPOL, CEPOL, FRONTEX, the European Asylum Support Office (EASO), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the EU Agency for large-scale IT systems (Eu-LISA) and 3 depending from DG Justice, namely Eurojust, the European Union Agency for Fundamental Rights (FRA) and the European Institute for Gender Equality (EIGE).

Besides the agencies, some other EU bodies/networks, which do not have the agency status, are to be mentioned, such as the EU Anti-Fraud Office (OLAF), the European judicial network (EJN) or the European judicial training network (EJTN). Others are yet to be established, the main one on its way being the European Public Prosecutor’s Office (EPPO).

Complementarity, consistency and a good articulation between all these bodies is crucial if the purpose is to establish a consistent Area of Freedom, Security and Justice (AFSJ) and effectively implement its three components. A good articulation between the EU bodies is also crucial to develop a multidisciplinary approach in the fight against serious cross-border crime.

This need has been repeatedly underlined, particularly by EU institutions1. A better delineation or a clearer definition of each EU agency/body’s competences and functions has been requested. Overlaps are however inevitable (i.e., grey zones) and may even present advantages. The key issue lies in learning how to manage them in good will and good faith. The key word here must be complementarity, which implies working hand in hand for the realisation of common goals, respect of respective mandates and expertise and good communication and coordination in case of overlap. Establishing such complementarity might prove a difficult task, and this for different reasons:

– The different agencies and bodies have been established at different times, in different contexts and in various decisional frameworks. The current agencies/bodies belong to different generations and are more or less mature, the three oldest being OLAF (ex-UCLAF), Europol and the EJN. Some of them are still under the pressure of figures, still fighting/struggling or feeling they have to fight/struggle to justify their existence and prove their added-value.

– The different agencies and bodies are driven/marked by different philosophies/natures/logics: for instance, OLAF has an EC nature, with real « autonomous »/supranational administrative powers, whereas Europol and Eurojust are still marked by the « intergovernmental third pillar spirit » and constitute « service providers » depending on the final decision taken by national authorities;

– They are also marked by differences in professional cultures, be it administrative, police, or judicial;

– Their structure differs (e.g. very different organisation/structure within Europol and Eurojust);

– The resources/means available to each of them are different. Some agencies/bodies are more powerful than others, including in the field of policy orientation. For instance, the major role played by Europol in the design of the EU Internal Security Strategy (ISS) and in the EU policy cycle must be mentioned.

– The articulation between the EU agencies/bodies must accommodate the differences between the different national criminal justice systems. These include the different distribution of competences/tasks between the administrative/criminal, police/justice and police/intelligence services. The treaty imposes respect to such differences, with the result that the EU agencies/bodies must be able to adapt to all the concerned systems. Thus, there is a need to remain vague in the definition of mandates/tasks and to safeguard flexibility. Such vagueness might however make more difficult a good articulation and relationship between the bodies concerned.

– The abovementioned difficulties result in a lack of a consistent vision of the EU area of criminal justice, which is somehow to be built/organised a posteriori. The fact that the different EU agencies/bodies are dealt with by different DGs within the Commission (that do not always entertain the best relations) and the silo approach taken by the General Secretariat of the Council2 clearly do not improve the situation.

– Against this background, the legislative instruments governing each EU agency/body remain quite vague with regard to cooperation with counterparts. Interagency relations are thus mostly left to the EU agencies/bodies themselves.

– Last but not least, the importance of personal relations must be stressed. Sometimes people understand each other and sometimes they do not…

Generally speaking, an improvement in the relations between the EU agencies/bodies has been witnessed, due to the conclusion/revision of bilateral agreements/memorandum of understandings and to the passage of time and the consequent gain of experience.

Such improvement is also due to other reasons such as the creation of coordination/monitoring mechanisms and the encouragement of inter-agency cooperation in the JHA field.

It has especially taken the form of the JHA contact group and the JHA Heads of Agencies meetings. They annually report to the Standing Committee on operational cooperation on internal security (COSI)3, notably through a scorecard on cooperation, which is annexed to the annual report.

However, and in spite of a lot of quite positive official declarations, difficulties remain. Identifying them is the main purpose of this study, in order to suggest, where possible, ways of improvement.

1.2. Scope, methodology and structure of the study

As requested by the LIBE Committee, this study will not cover the relations between all EU agencies/bodies, but will instead concentrate on the relations between Europol, Eurojust, EJN, OLAF and the future EPPO.

Space and time constraints impede an exhaustive analysis of the interactions between the different EU agencies and bodies in the context of this study. Firstly, this study will focus on the « internal » aspects of their relationships, while setting aside data protection issues4.

Their external relations, i.e. their relations with third States and third bodies/organisations will thus not be covered by this study and will only be accessorily addressed.

Secondly, the authors of this study merely aim at highlighting the main points of concern and make some recommendations. Thirdly, assessing interagency relations is quite a difficult task, particularly because public information on the subject is scarce5 and transparency is often lacking. Thus, interviews proved essential to the purpose of our study (see the list of interviews in Annex 4). Interviews with the representatives of the EU agencies/bodies (notably Eurojust, Europol and OLAF) were of course crucial and considerably enriched our study. However, these interviews clearly showed the current climate of tensions linked to the on-going negotiations of the proposals for Regulations on Eurojust, Europol and the EPPO and to the uncertainties resulting from this state of play. The authors of this study endeavour of course to remain scientific, objective and neutral.

This study will be divided into two main parts:

– the first part (2) will concern the interagency/interbody relations in the fight against serious cross-border crime, with a focus on the Europol-Eurojust relationship (2.1.) and the Eurojust-EJN relationship (2.2.);

– the second part (3) will deal with interagency/interbody relations in the specific PIF (protection of the EU financial interests) domain. The relationship between the different agencies/bodies competent in this field, i.e. OLAF, Europol, Eurojust and the future EPPO, will be examined.

(…) 2.1. Cooperation between Europol and Eurojust

2.1.1. Europol and Eurojust are two sisters agencies, both involved in the fight against serious cross-border crime affecting two or more EU Member States

According to the TFEU, Europol’s mission is 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” (Art. 88 (1) TFEU). Europol was set up to gather police and law enforcement information from national authorities and to provide strategic and/or operational analyses on the basis of this information. It has been compared to a ‘mega-search engine’. It also coordinates law enforcement authorities’ actions, and may support operational activities with its mobile office, analysis in real-time of information gathered on actions days, forensic tools, etc.7

According to the TFEU, Eurojust’s mission is 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” (Art. 85 (1) TFEU). Eurojust is a ‘facilitator’ of judicial cooperation, which intervenes to smoothen the effective functioning of judicial cooperation instruments (such as the European Arrest Warrant), to resolve legal issues arising in complex cases (such as ne bis in idem issues or conflicts of jurisdiction) and/or to stimulate the coordination of judicial authorities8. It has been compared to a ‘control tower”, whose members will intervene when they notice the need to investigate in a coordinated manner cross-border and/or complex cases.

2.1.1.1. Main differences

a) History: two agencies of different generations

Meeting in Luxembourg in June 1991, the European Council agreed in the creation of a “central European criminal investigation office” to fight serious crime10. As a result, the Maastricht Treaty included a provision, according to which Member States should regard police cooperation as a matter of common interest “in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol)” 11. Subsequent negotiations resulted in the signature on 26 July 1995 of a Convention on the establishment of a European Police Office12. Europol began operations the 1st July 1999. The disadvantages of the Convention, and in particular the difficulty to amend it rapidly, were soon noticed13. The entry into force of the Amsterdam Treaty (ex Art. 30 TEU) provided the legal basis to change the instrument establishing Europol and to extend its mandate14. On that basis, Council Decision 2009/371/JHA15 was adopted and is still in force.

By contrast, the idea of establishing a judicial cooperation unit was first brought up at the European Council meeting of Tampere16. In 2000 a provisional judicial cooperation unit was formed under the name of Pro-Eurojust17. The 9/11 terrorist attacks served as catalyst, and Council Decision 2002/187/JHA18 formally established Eurojust. In July 2008, Council Decision 2009/426/JHA19 amending the 2002 Council Decision was adopted. Its purpose is to enhance the operational capabilities of Eurojust, increase exchange of information between the interested parties, facilitate and strengthen cooperation between national authorities and Eurojust, and establish relations with partners and third States20.

Finally, Arts. 85 and 88 TFEU foresee the organisation of the two agencies by means of Regulations, adopted in accordance with the ordinary legislative procedure. In March and July 2013 the Commission put forward the two proposals21 that are currently under negotiation.

b) Nature and logic: “police v. judicial”

2.1. Cooperation between Europol and Eurojust

2.1.1. Europol and Eurojust are two sisters agencies, both involved in the fight against serious cross-border crime affecting two or more EU Member States

According to the TFEU, Europol’s mission is 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” (Art. 88 (1) TFEU). Europol was set up to gather police and law enforcement information from national authorities and to provide strategic and/or operational analyses on the basis of this information. It has been compared to a ‘mega-search engine’. It also coordinates law enforcement authorities’ actions, and may support operational activities with its mobile office, analysis in real-time of information gathered on actions days, forensic tools, etc.7

According to the TFEU, Eurojust’s mission is 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” (Art. 85 (1) TFEU). Eurojust is a ‘facilitator’ of judicial cooperation, which intervenes to smoothen the effective functioning of judicial cooperation instruments (such as the European Arrest Warrant), to resolve legal issues arising in complex cases (such as ne bis in idem issues or conflicts of jurisdiction) and/or to stimulate the coordination of judicial authorities8. It has been compared to a ‘control tower”, whose members will intervene when they notice the need to investigate in a coordinated manner cross-border and/or complex cases.

2.1.1.1. Main differences

a) History: two agencies of different generations

Meeting in Luxembourg in June 1991, the European Council agreed in the creation of a “central European criminal investigation office” to fight serious crime10. As a result, the Maastricht Treaty included a provision, according to which Member States should regard police cooperation as a matter of common interest “in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol)” 11. Subsequent negotiations resulted in the signature on 26 July 1995 of a Convention on the establishment of a European Police Office12. Europol began operations the 1st July 1999. The disadvantages of the Convention, and in particular the difficulty to amend it rapidly, were soon noticed13. The entry into force of the Amsterdam Treaty (ex Art. 30 TEU) provided the legal basis to change the instrument establishing Europol and to extend its mandate14. On that basis, Council Decision 2009/371/JHA15 was adopted and is still in force.

By contrast, the idea of establishing a judicial cooperation unit was first brought up at the European Council meeting of Tampere16. In 2000 a provisional judicial cooperation unit was formed under the name of Pro-Eurojust17. The 9/11 terrorist attacks served as catalyst, and Council Decision 2002/187/JHA18 formally established Eurojust. In July 2008, Council Decision 2009/426/JHA19 amending the 2002 Council Decision was adopted. Its purpose is to enhance the operational capabilities of Eurojust, increase exchange of information between the interested parties, facilitate and strengthen cooperation between national authorities and Eurojust, and establish relations with partners and third States20.

Finally, Arts. 85 and 88 TFEU foresee the organisation of the two agencies by means of Regulations, adopted in accordance with the ordinary legislative procedure. In March and July 2013 the Commission put forward the two proposals21 that are currently under negotiation.

b) Nature and logic: “police v. judicial”

Whereas Europol provides support and coordination to national police officers and other law enforcement services, Eurojust supports and coordinates national investigating and prosecuting authorities. Since theoretically at least their services target different audiences, their activities are driven by different logics and concerns. In general terms, Europol’s activities are marked by efficiency/proactiveness and pragmatism, which is characteristic of the law enforcement mentality, whereas Eurojust is marked by formalism and law-compliance, typical of the judicial philosophy.

Mirroring the distinction that is often made at national level between law enforcement and judiciary and their attachment to the Ministry of Interior and the Ministry of Justice respectively, Europol and Eurojust depend of different DGs within the Commission. While Europol is attached to DG Home Affairs, Eurojust is attached to DG Justice.

c) Structure and resources

Europol’s structure is hierarchical. The agency is headed by a Director, appointed for a four-year period, and assisted by three Deputy Directors, also appointed for four years. They are notably responsible for the performance of the tasks assigned to Europol.22 The current director is Robert Wainwright, who was appointed in 2009. The Director has extensive powers, for instance he is competent to open Analysis Working Files (AWFs)23 and to intervene to solve disagreements concerning access to AWFs by liaison officers24.

By contrast, Eurojust has a collegial structure. The College, composed of the 28 National Members, is responsible for the organisation and operation of Eurojust25. The College has important operational powers26. The elected President and Vice-presidents exercise their duties on behalf of the College and under its authority. Their functions are detailed in the Rules of Procedure27 and include the representation of Eurojust, the organisation and presidency of the College’s meetings, etc.

Turning now to the two agencies’ resources, important differences also exist. Whereas they are both funded by the EU budget, as opposed to Member States’ contributions28, the amounts they receive and the staff they employ are not comparable29. Nevertheless, both agencies face the challenge to “do more with less”.30 Their tasks and activities are increasing, because of the new responsibilities allocated to them and/or because of the increased recourse national authorities make to their services, whereas this increase in their workload is not reflected in their respective budgets.

2.1.1.2. Main common features

Both agencies are still marked by an “intergovernmental third pillar spirit”. For instance, and in spite of the improvement brought about by Eurojust’s 2008 Council Decision, the limited approximation of the standing and powers of Eurojust’s National Members is a good example of Eurojust’s intergovernmental nature31.

Neither Europol nor Eurojust are intended to replace national authorities, but rather assist them mainly in transnational cases32. Europol has no vocation of being a European FBI and has never received operational powers enabling its members to perform investigative acts on the ground. Similarly, Eurojust has no vocation of becoming a European prosecutor, and cannot directly perform investigative or prosecution acts.

They may both address requests to national authorities but their requests do not bind national authorities. On the one hand, national authorities shall “deal with any request by Europol” and give them “due consideration”33. On the other hand, Eurojust, acting through its National Members or as a College34, can address requests to national authorities. In both cases, if the competent national authorities decide not to comply with the request, they must inform Europol or Eurojust of their decision and state their reasons thereof35.

Their involvement in specific cases depends of the goodwill of national authorities. The EU agencies remain `service providers’36, which can only advertise and offer their support and assistance. National authorities remain the ‘masters’ of the investigations and/or prosecutions.

The two agencies must therefore gain the trust of national authorities and convince them of their added value37.

2.1.1.3. Strong complementarity of their tasks

Close cooperation between these 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. Indeed they both pursue the same objective, but “Eurojust’s role is mainly to help prosecute and ensure the judicial follow of police results »38.

The judicial follow-up of investigations carried out by law enforcement authorities is necessary39, notably to ensure that the information collected can at a later stage become admissible evidence. Similarly, judicial authorities rely extensively on law enforcement authorities to carry out investigation acts and to gather the information necessary to the formulation of criminal charges.

Judicial co-ordination and co-operation activities are complementary to the criminal analysis and police co-operation activities carried out by Europol, as is well illustrated by the Skanderberg, Koala and Baghdad operations. In these cases, Europol’s criminal analyses allowed the identification of targets and the links among them. On this basis, Eurojust acted in a proactive way by inviting the involved judicial and police authorities to co-ordination meetings. During these meetings, the involved authorities could safely exchange information; identify the best place to prosecute and where to collect evidence. Finally, an action plan was tabled and discussed, which led to the simultaneous execution of European arrest warrants, the retrieval of evidence and the dismantling of cross-border criminal networks40.

2.1.2. Evolution of their cooperation framework

2.1.2.1. Past and present

The 1995 Europol Convention obviously made no reference to their cooperation since Eurojust was not yet in place. However, the 2002 Eurojust Council Decision contained a provision41 requiring both agencies to “establish and maintain close cooperation, (&) taking into account the need to avoid duplication of efforts”. The elements of such cooperation were to be determined by an agreement to be negotiated by the two parties and approved by the Council. A mirroring provision was then inserted in the Europol Convention through the Third Protocol of 27 Nov. 200342.

A first cooperation agreement between Europol and Eurojust was signed in 2004 and bilateral meetings were organised from 2006 onwards. However, because of the limited impact of such arrangements43, the Council’s conclusions adopted in June 2008 urged Europol and Eurojust to prepare amendments to their cooperation agreements by the end of 2008 (dealing especially with exchange of information). A Task Force was then set up to assist the two agencies in this task.

In the meanwhile, two new Council Decisions were adopted: one replacing the 1995 Europol Convention44 and the other amending the Eurojust 2002 Council decision45. They both contain a general provision on their mutual cooperation46, which slightly differ from the previous texts47. These provisions provide the legal bases giving the possibility to each agency to cooperate with its partners and sign agreements to that effect. References to each other can be found in other provisions. For instance, in the 2008 Eurojust Council Decision, Eurojust is invited to give assistance to improve cooperation between competent national authorities “in particular on the basis of Europol’s analysis”48 and Eurojust is also invited to assist Europol, “in particular by providing it with opinions based on analyses carried out by Europol”49. Finally a special task is entrusted to the Eurojust National Coordination System (ENCS), which shall facilitate the carrying out of the tasks of Eurojust especially by “maintaining close relations with the Europol National Unit” within each Member State50. Similarly, Europol’s Council Decision provides that Europol shall inform Eurojust when making a request for the initiation of criminal investigations51. The adoption of these two instruments and the provisions contained therein illustrate the will of the EU legislator to strengthen the interactions between the two agencies.

A new cooperation agreement between Europol and Eurojust was negotiated and concluded in 2010, which replaced the former agreement. Its purpose is to establish and maintain close cooperation between the parties, in order to increase their effectiveness in combating serious forms of international crime, which will be achieved through the exchange of operational, strategic and technical information, as well as by the coordination of their activities52. Art. 3 provides for regular consultations between the heads of agencies (Director of Europol and President of the College of Eurojust)53. Detailed elements of their general cooperation are set out in Art. 4, and cover for instance the coordination of requests addressed to the national authorities or the conclusion of practical arrangements concerning their attendance to their respective meetings. Art. 6 in turn deals with Joint Investigations Teams (JIT), and provides that the parties shall inform each other of their participation in a JIT at the earliest opportunity.

Exchange of information between the two agencies is then addressed. Europol must inform Eurojust on its own motion of its findings in general and strategic analysis. On its own motion or upon request, Europol will provide Eurojust with its analysis when information provided by Eurojust matches information stored in Europol’s databases54. A parallel obligation is imposed on Eurojust55. Both agencies may be associated to the activities of its counterpart: Eurojust to Europol’s Analysis Working Files (AWF)56 and Europol to Eurojust’s strategic and coordination meetings57. The following chapters cover processing of information, confidentiality, liability and dispute settlement. Art. 22 sets out the parties’ obligation to report annually to the Council and the Commission on their cooperation. Besides this formal mechanism, a Steering Committee and a Task force monitor and improve when necessary the implementation of the cooperation agreement.58

The analysis of the provisions contained in the Europol and Eurojust Council Decisions reveal that the EU legislator left the agencies a wide margin of manoeuvre to define the modalities of their cooperation. The assessment of this flexibility is different within each agency: whereas Europol is satisfied with the situation, Eurojust would rather have a clearer legal cooperation framework.

2.1.2.2. Future

The two proposals presented by the Commission for two Regulations based respectively on Art. 85 TFEU (Eurojust) and Art. 88 TFEU (Europol) represent a change in the approach towards cooperation between the two agencies. Both texts are indeed more detailed in that regard, establishing a more precise framework for their cooperation: besides a general provision dealing with cooperation with their partners59, a specific Art. deals with EuropolEurojust cooperation60. These provisions mainly concern access to the information processed and stored by the other agency, as well as information exchange (see infra). Their impact should not be under-estimated.

If compared with the instruments currently in force, the increase and/or the more detailed provisions dealing with the other agency is to be noted. On the one hand, Europol shall not only continue to inform Eurojust of the requests it makes to national authorities for the initiation of criminal investigations, but shall also inform Eurojust of the consequent decision of the national authorities61. A novelty has been introduced: Europol shall support Member States’ investigations in the context of JITs, “where appropriate in liaison with Eurojust”62.

On the other hand, the Eurojust proposal does not substantially amend the previous regime. Eurojust shall continue to assist national authorities to improve their cooperation “in particular on the basis of Europol’s analysis” and to provide Europol with opinions based on analysis carried out by Europol63. The proposal also maintains the role of the ENCS in maintaining close relations with the Europol National Unit64.

2.1.3.   State of their cooperation and points of concern

As evidenced by their respective annual reports65, as well as by the recent elaboration of joint annual reports to the Council and the Commission, cooperation between Europol and Eurojust has developed and improved over time. It takes place at various levels and is of a different nature:

– Strategic cooperation:

• Meetings: bilateral meetings are held between the heads of the two agencies (Presidency of Eurojust, and Director of Europol) and senior multilateral meetings are also held with the participation of the Administrative Director of Eurojust66. Europol-Eurojust’s Steering Committee and Task force also meet regularly. Informal meetings are also organised for instance to discuss the legislative process on the two proposals for Regulations or to share experience and best practices between analysts.
• Eurojust contributes to the elaboration of Europol’s Strategic analysis reports on terrorism and serious and organised crime. It is moreover involved in the Serious and Organised Crime Threat Assessment (SOCTA) evaluation process.
• An exchange program for post holders of the two agencies is also in place67.

– Operational cooperation:

• Eurojust’s National Desks and Case Analysis Unit have access to SIENA, the secure communication channel developed by Europol, which is used to exchange messages, many of which are shared with Europol.
• Eurojust is associated to most of Europol’s Focal Points, and is informed of (and may eventually attend) operational meetings held by Europol in relation to them. Similarly, Europol is informed of forthcoming coordination meetings held by Eurojust and sometimes attends them.
• JITs: the two bodies jointly organised the annual meeting of JITs national experts, participate in training programs and regularly exchange information on the JITs they support. They have also jointly elaborated a JIT Manual68.
• EC3: Whereas the EC3 is hosted by Europol, Eurojust has nominated one representative to the Program Board and has seconded a staff member69.

In addition to the cooperation between the two bodies and their staff, the cooperation taking place between Eurojust’s national desks and Europol’s national units must be mentioned. The country reports of the 6th round of mutual evaluations reveal the existence of frequent and close contacts between them70. These informal exchanges are sometimes formalised, like in Belgium where a Memorandum of Understanding has been signed: a Europol liaison officer is in charge of relations with Eurojust and is invited to its coordination meetings. Europol informs Eurojust of “any Europol meetings involving Belgium. When a meeting is of judicial interest, the Belgian desk at Eurojust will be attending”71.

Whereas it is evident that both agencies cooperate regularly, several problems have been identified, namely their respective roles on the coordination of criminal investigations, the funding of JITs, and the exchange and analysis of information.

2.1.3.1. Coordination of judicial authorities

On paper, the tasks of each agency are clearly defined. Eurojust is in charge with the coordination of judicial authorities. Its tasks include various activities, from the facilitation of the exchange of information, the implementation of instruments based on the principle of mutual recognition or the execution of mutual legal assistance (MLA) requests, to the provision of legal advice and logistical support. Coordination takes place through the organisation of coordination meetings and coordination centres72.

In turn, Europol is competent for the coordination of police and other law enforcement authorities. Their coordination task is implemented through the organisation of operational meetings, in which action days may be planned. In addition to the performance of synchronised and coordinated investigative acts, such as house searches or arrests, Europol provides assistance through the setting up of operational centres. These centres are essential to assess the incoming data, to crosscheck it with the information stored by Europol and to elaborate strategic analysis on the spot73.

Both roles are essential to ensure the success of a case/operation. They are often performed alongside, and Europol and Eurojust often participate to the meetings organised by their counterpart. For instance, in 2013 Eurojust participated in 31 out of the 214 operational meetings held at Europol and Europol attended 75 out of 206 coordination meetings held by Eurojust74. In practice however the allocation of tasks, particularly in the investigation stage, is complex. One of the reasons for this complexity is the difference between national criminal justice systems75 and the fact that acts that would in country A be performed by a judicial authority may in country B be performed by the judicial police76. Since respect for national diversity is an obligation under the TFEU77, a certain flexibility is required both with regard to the definition of their respective tasks as well as in relation to the competent authorities attending Eurojust or Europol’s meetings. Indeed, national authorities have a discretionary power to decide who will attend such meetings and if they so wish, they may also exclude the participation of the other agency78.

Nonetheless, it is the need for flexibility that creates a grey zone, which in occasions leads to tensions between the two agencies. For instance, it has been brought to our attention that Eurojust is concerned that the participation of judicial authorities to Europol’s meetings results in judicial issues being discussed without the involvement of Eurojust. Eurojust’s concern has increased in the light of the Council’s General Approach on the proposal for a Europol Regulation, according to which Europol shall assist Member States’ “competent authorities”. These would include police authorities, law enforcement authorities as well as other authorities in general79.

Two approaches can be taken in relation to this issue.

The first would be ‘formal’ and aim at a clear, strict division of competences and tasks between the two agencies.

The second would be to favour flexibility, and thus maintain the statu quo which guarantees a certain margin of discretion. Whereas ideally the solution would lie in finding a combination of both (i.e. a better clarification of the respective mandates without losing flexibility) this seems impossible to achieve in practice. It must be kept in mind that a too rigid delineation could create new legal problems and have unexpected results.

In our view, the best approach is thus to maintain flexibility, but with due regard to the treaties. In this respect, it should be recalled that Art. 88 TFEU refers to “police authorities and other law enforcement services”. Since the grey zone with regard to the definition of their respective tasks is both unavoidable and desirable, emphasis must be placed in 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 ‘raison d’être’. To this end, it would be advisable to include a provision reflecting this duty in each of their Regulations, or at least a recital in the preambles. 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 oppose. In the later event, an obligation to inform the other party of the reasons given by the national authority should apply.

2.1.3.2. Joint Investigation Teams

The possibility of having police and judicial authorities of different Member States working together in the territory of a Member State was first introduced in the Treaty of Amsterdam (ex Art. 32 TEU). The 2000 MLA Convention80 dedicated a provision to joint investigation teams81, which was then developed in a specific instrument, namely Council Decision 2002/465/JHA of 13 June 200282.

A joint investigation team is a group of competent authorities from two or more Member States who cooperate for a specific purpose and a limited period to carry out criminal investigations in one or more of the Member States setting up the team83. It is to be noted that the two EU secondary law texts covering JITs are instruments of judicial cooperation. Nonetheless, a glance at the TFEU reveals that the former Art. 32 TEU, now Art. 89 TFEU, is placed under Chapter 5 of Title V of Part III of the Treaty, dedicated to police cooperation. This evidences the mixed nature of JITs. Moreover, Art. 89 TFEU refers to the participation of both law enforcement and judicial authorities in JITs.

Both Europol84 and Eurojust85 received competences dealing with JITs, but their scope differ slightly.

Under the 2008 Council Decision, Eurojust’s powers86 in relation to JITs are the following:

– Firstly, Eurojust, either through its National Members or through the College, may request the competent authorities in EU Member States to set up a JIT87

– Secondly, 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 88. Furthermore, National Members shall be informed whenever national authorities set up a JIT89.

– Finally, the Secretariat of the JIT network is created and based at Eurojust90; national contact points of the JIT Network are part of the ENCS91.

In practice, the role of Eurojust in facilitating the establishment and operation of JITs is generally considered a success. It is clear that for Eurojust support of JITs was and remains a strategic area in which the agency the agency has become a key player and centre of expertise. Eurojust helped overcoming national authorities’ initial reluctance to setting up JITs, notably through the provision and the administration of financial support92.

For this, Eurojust obtained two grants from the Commission93, and now funds JITs on the basis of its own budget94. Eurojust covers expenses for travel, accommodation, translation and interpretation, as well as the loan of equipment95. In 2013, Eurojust provided financial support through its funding program to 34 JITs96. The development of funding support for JITs had a clear impact on the success of this instrument, as testified by the ever growing number of applications for funding97, proving the significant importance of funding capacity for an effective application of JITs98.

Europol is also competent with regard to JITs. Europol’s powers pursuant to the 2009 Council Decision are:

– Europol can suggest the setting up of JITs in specific cases99

– Europol may participate in JITs in a supporting capacity in so far as those teams are investigating criminal offences in respect of which Europol is competent100.

– Europol staff may liaise directly with members of a JIT and provide members and seconded members information from any of the components of its information processing systems101.

Europol provides financial support to JITs via the provision of financial support for operational meetings102. Europol’s financial support may cover the costs incurred by the organisation of operational meetings (travel, accommodation) as well as the costs associated to the technical equipment it offers (mobile offices, forensic support, etc)103.

The 2010 cooperation agreement provides a clear division of their respective tasks104, 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 cooperation between the two agencies:

– Both agencies co-organise the JITs’ experts annual meeting105 and participate in training programs and seminars relating to JITs;

– They conducted together a joint JITs project, which led to the adoption of the “JITs Manual”106.

– Both agencies can participate in JITs, separately as well as jointly, and examples of their cooperation can be found in their annual reports107.

– They also regularly exchange information on the JITs they support throughout the year108.

While their respective roles in JITs have proved effective, they are amended in the two proposals under negotiation. Particularly with regard to their supporting capacities, the following provisions are inserted:

– Art. 4 (1) (h) of the Council’s General Approach on the proposal for a Europol  Regulation: “possibility to support (&- JITs, including by providing operational,  technical and financial support” [part underlined added by the Council]

– Art. 4 (1) (e) of the proposal for a Eurojust Regulation: “possibility to provide operational, technical and financial support to Member States’ cross-border operations and investigations, including JITs”.

Beyond the practical problems to which the use of the exact same wording may lead to in practice, the mention of funding of JITs in both Regulations has created tensions. It has been criticised by some, and welcomed by others.

Among the arguments against it, the risk of duplication (i.e., double requests for funding) and the increase in competition between the two agencies are to be mentioned. In this regard, France has for instance expressed reservations on Art. 4 of the Eurojust Proposal “until the mandate of Eurojust and Europol regarding JITs is clarified”109. Among the arguments in favour, some authorities and officials consider that the increase of funding channels will lead to an increase in JITs which is to be welcomed for instance in the field of terrorism. JITs are proving to be extremely useful in the fight against crime but are expensive tools. In the context of economic crisis we are in, it seems national authorities strongly depend on EU funding.

In any event, the establishment of a mechanism ensuring that there is no risk of double funding of JITs should be introduced. Such system could consist for instance in mutual information and consultations, to be introduced in both Regulations through mirroring provisions. An alternative option would consist in the establishment of a centralised service that would channel the requests to the most appropriate agency. Some have suggested that the JIT Secretariat, having an important expertise in the field, would be ideally placed to play this role. Nonetheless, it should be recalled that the JIT Secretariat is located within Eurojust, which makes this a sensitive issue.

It is to be noticed that this tension intervenes in a context of imbalance with regard to the funding resources of the two agencies. Whereas both may fund JITs through their own budget110, Europol is about to conclude a budgetary delegation agreement with DG Home, which would empower Europol to implement the part of the budget relating to operational actions (including JITs) falling within the EMPACT priorities111. Even though the delegation agreement shall include an obligation for Europol to systematically inform Eurojust about its support to JITs112, if Eurojust is not granted similar funding possibilties, this will end in a true and potentially dangerous imbalance. Indeed, the risk is that Europol’s increased funding power leads to a marginalisation of judicial authorities (and Eurojust) in JITs. This would be to the detriment of the superior interest of criminal justice.

2.1.3.3. Exchange of information

Information exchange between the agencies takes place for different purposes, namely for operational purposes and for policy-making or broader purposes.

Operational information exchange takes place in different contexts: firstly, it concerns information sharing concerning the meetings each agency organises. In particular, on the basis of an agreement reached between the two agencies, Europol began in 2012 to inform Eurojust of operational meetings that are financially supported by Europol. This responds to a need to ensure reciprocity in relation to the existing practice of Eurojust to provide information to Europol on forthcoming coordination meetings.

Secondly, exchange of information takes place ‘on the ground’, in the context of coordination/operational meetings in which both agencies participate113, as well as other joint operational activities such as JITs. As to the latter, when for instance both agencies take part in a JIT, Europol may transfer to Eurojust the analytical reports it prepared on the basis of the information and intelligence gathered by the JIT114.

Thirdly, an exchange of information takes place in the context of Europol’s analysis working files (AWF)115 and Focal Points. By virtue of Art. 11 of Europol-Eurojust’s cooperation agreement, Europol may invite experts from Eurojust to be associated with the activities of a specific analysis group, subject to an association agreement concluded between Europol and Eurojust. Eurojust can also request to be associated with the activities of a specific analysis group. Being associated to an AWF has important practical consequences as it allows Eurojust to attend analysis group meetings and to be informed on the development of the AWF116. Their cooperation in this respect is very effective: in 2013, Eurojust was associated with 20 out of 23 Focal Points117, the latest associations concerning the Focal Points on Italian Organised Crime, Motorcycle gangs and East European Organised Crime118. In addition, since 2013 most of Eurojust’s National Desks and the Case Analysis Unit have access to SIENA, allowing them to securely communicate, including with Europol National Units and with Europol itself119.

Finally, and with a policy-making objective, Eurojust contributes to SOCTA and to the Serious and Terrorism Situation and Trend Report (TE-SAT), providing relevant information and analysis (see infra)120. For instance, Eurojust contributes to Europol’s TE-SAT by providing quantitative and qualitative analysis of terrorism-related court decisions, which reflect the number of convictions and the level of penalties pronounced by national courts over the last twelve months121. Eurojust also provided an overview of the amendments of terrorism related legislation in the Member States122.

It must be noted that in the field of information exchange, interagency relations has not always been smooth123. One of the basic principles in the field is known as ‘the owner principle’, which implies that information sharing can only go as far as Member States allow it. Indeed, the information provider remains the owner of the information, and is therefore entitled to refuse any further transmission.

This principle explains for instance that Eurojust (as Frontex) only receives the third party version of the SOCTA; this is meant to preserve the confidentiality of Member States’ information124. It also explains why Eurojust still is not involved in certain AWFs, such as those on terrorism or domestic extremism: Member States’ are sometimes reluctant to share this sensitive information with the judiciary125.

The situation has however gradually improved over time. For instance, an increase in the participation of Eurojust to Europol’s AWFs is clear. Moreover, information exchange is expectedly going to improve with the adoption of the new Regulations.

Indeed, the two proposals innovate with the inclusion of mirroring provisions whereby a new system is established126: each agency must grant its counterpart the right to have, within its mandate, indirect access on the basis of a hit/no hit system to the information it possesses, without prejudice to any restriction indicated by the ‘owner’.

In case of a hit, the agency shall initiate the procedure so that the information may be shared in accordance with the owner’s decision. Two limitations exist: on the one hand, searches can be made only for the purpose of identifying a hit, and on the other hand, only the staff members specifically authorised may perform them. Moreover, if in the course of information processing activities, Eurojust identifies a need for Europol’s intervention, it shall notify Europol and initiate the procedure for sharing the information. This provision is reciprocal.

This new system will clearly not suppress the ‘owner principle’. The Member States, or any other information provider maintains its power to oppose the sharing of information127. However, this mechanism should improve the exchange of information between the two agencies for a series of reasons. Firstly, the provision on information exchange is transferred from the cooperation agreement to the Regulation, which is crucial both in terms of visibility and enforceability. Secondly, a comparison of the current and foreseen systems shows that a stage is eliminated of the process: a request is no longer needed to find out whether the other agency has information on the matter of the request. Finally, it reflects the evolution of mentalities and the decreased mistrust of national authorities with regard to information sharing.

2.1.3.4. Analysis of information

Both agencies analyse the information they obtain. Broadly speaking, analysis can be divided into two categories: operational and strategic analysis.

Analysis has always been at the core of Europol’s mandate128. Its expertise is well established129 and the existence of specific devices enabling national authorities to load data automatically enhances even further its analytical capacities130. For Eurojust, analysis of information is a more recent activity. Even though the transmission of data from national authorities to Eurojust is not fully ensured131, the agency is now fed by a sufficient amount of information132. It gradually establishes its own analytical capacities133.

This recent evolution, together with confusion created by the terminology employed, may give the impression of an overlap between Europol and Eurojust’s analytical activities. Some have criticised Eurojust for investing in analysis of information, arguing that they duplicate Europol’s tasks without even having the required resources or expertise134. A real overlap, should indeed lead to criticism. However, a closer look at the content and purpose of the analysis carried out by the two agencies reveals their differences:

– Europol’s analysis135

Operational analysis: focused on a specific operation à this type of analysis is of a short term nature, and aims at providing the investigative team of a specific case with hypotheses and interferences concerning for instance the modus operandi of a criminal network, individuals potentially involved in unlawful activities, etc.136 It traditionally involves the information and evidence gathered during an investigation, which is then analysed in the context of AWFs. Information gaps can be identified leading to more targeted information gathering. Europol can disseminate analytical reports containing assembled intelligence (description of criminal organisation, links between criminals, etc.)137

Strategic analysis: this type of analysis focuses more on the long-term aims and objectives of law enforcement services. It reviews current and emerging trends to illuminate changes in the crime environment and emerging threats to public order, in order to identify opportunities for action and likely avenues for changing policies, programs and legislation138. In this framework, Europol elaborates, with the collaboration of other JHA agencies, threats assessments, notably Serious and Organised Crime Threat Assessment (SOCTA), and Terrorism Situation and Trend Report (TE-SAT). SOCTAs play an important role in the EU policy cycle for organised and serious international crime139, which embodies a more rational, efficient and accountable policy-making in the field of security140. They indeed constitute the basis on which to reflect on policy developments, as they provide a complete picture of criminal threats impacting the EU141.

– Eurojust’s analysis

Operational analysis: case-oriented and generally aimed at preparing coordination meetings, i.e., identifying connections between judicial investigations and prosecutions, both on factual and possible legal issues, based on requests for MLA and depending on the request made by the national authorities to the relevant Eurojust National Desk.

Strategic analysis: it aimes at identifying recurring judicial cooperation issues and possible solutions in the prosecution of criminal networks operating cross-border. An example of Eurojust’s strategic analysis can be found in the strategic project on Trafficking in Human Beings142. The analysis carried out allowed to identify recurrent problems and best practices in judicial cooperation among 29 selected THB cases dealt with by Eurojust143. Eurojust’s contribution to the TE-SAT144 is another good example of Eurojust’s strategic analytical activities.

Eurojust’s analysis thus appears to be judicially-oriented, and this is a type of analysis in which Europol is not active. A pedagogical effort seems necessary to solve the existing confusion with regard to analysis of information. This confusion not only affects EU actors but extends to national authorities, who are often unaware of the judicially-oriented information needs of Eurojust.

MORE HERE ….

NOTES