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On Friday 17 March RENFORCE organized a symposium with the title: From better enforcement to better lawmaking. Speakers included Prof. Gert Jan Veerman (Maastricht University), Dr. Mira Scholten (Utrecht University),  Mr. Rob van de Westelaken (European Parliament), and ms. Anne-Jel Hoelen (Netherlands Authority for Consumers and Markets). The symposium sought to bridge not only lawmaking and enforcement but equally the EU and national levels; academia and practice as well as the political/technocratic divide.

Continue reading “Synthesis: “From better enforcement to better lawmaking?””

On March 10, 2023, prof. John Vervaele has given his farewell speech ‘Towards a European Reassessment of Punitive Enforcement’ at the Aula of Utrecht University. In this blog post, I am discussing the main ideas of his speech and career – Europeanisation of EU law enforcement – and, in this way, I aim at giving my personal gratitude to prof. Vervaele. It has been a great honour and pleasure of working with you, John!

 

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In 2022, dr. Olga Batura, dr. Malgorzata Kozak and dr. Mira Scholten conducted an investigation into the legal and practical aspects of the independence of National Regulatory Authorities (NRAs) in the electronic communications sector commissioned by the Body of European Regulators of Electronic Communications (BEREC). The research combined elements of the ‘law in books’ and ‘law in action’ approaches and consisted of a literature review, comparative legal analysis, expert interviews, a survey of BEREC members, a workshop with NRA experts (including case studies) and focused interviews with selected NRAs. This blog post gives a short overview of the mentioned investigation.

The study argues that full independence should be understood as the unity of practices conducive to de jure and de facto independence, meaning that the NRA is properly established, empowered, resourced, effectively functioning and accountable. The NRA’s independence decreases with each bad practice, meaning that the presence of even one bad practice in any dimension of independence implies that the NRA lacks independence to some degree. A culture of independence needs to be nurtured within NRAs and the government as a whole to support the practice and proper application of EU independence standards.

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On December 15 and 16, the University of Luxembourg commemorated the work of the Doctoral Training Unit on Enforcement in Multi-Level Regulatory Systems (DTU REMS), which culminated with a closing conference and the unveiling of their published joint work, Enforcement Challenges in Multi-Level Regulatory Systems, Revealing Weaknesses and Offering Solutions (Nomos). The conference began with a presentation of the contributing PhD graduates and their supervisors. Afterwards, Dean Katalin Ligeti, coordinator of the program, was joined by the Program Manager of the Luxembourg National Research Fund (FNR), Marie-Claude Marx, and the Vice-Rector for Research of the University of Luxembourg, Professor Jens Kreisel, to share remarks on the project.

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Disclaimer: All opinions in this blog reflect the views of the author, not of the Dutch DPA.

In our digital markets, there are more and more concerns that big tech firms use their dominant position to conduct practices that could potentially be harmful to consumers and competitors. One of these practices is to present the consumer with a take-it-or-leave-it option before he or she is allowed to use a service: if you do not consent to the fact that the firm can combine and cross-use your personal data from the service with data from other services, you will not be allowed to use the service. Where firms use their dominant position to make such practices possible and when this makes the position of these firms even stronger so the market ‘tips’, the regulator could be inclined to prohibit the practice on the basis of competition law or other forms of market regulation. In the following, I introduce this practice (I). Then, I explain that the mainstream way of approaching the aforementioned practice under Article 102 TFEU has raised critique (II). Then I show how this critique could be taken away by another way of applying Article 102 TFEU, namely under the theory of harm of ‘privacy-policy tying’(III). Next, I explain that article 5 (2) of the DMA, which directly deals with the practice at hand, shows many similarities with the criticized approach of Article 102 TFEU (IV). Finally, I argue that the application of this article does not take away the critique that has been raised, which could potentially have negative consequences (V).  

Continue reading “Differences in substantive application of Article 102 TFEU and the DMA concretized: ‘Privacy policy tying’ under Article 102 TFEU or the opt-in rule for data combination and cross use in article 5 (2) of the DMA”

The recent events in Ukraine brought to light once again the difficulties faced by refugees at the beginning and during flight and resettlement. One of the main topics that are creating tension and increased solidarity is the fate and safety of the children separated from their families and parents. In this context, the first-time activation of the (TPD) for Ukrainian refugees sets an unprecedented step forward for the right of unaccompanied minors fleeing war and serious harm to family reunification. This bold political choice also draws attention to the urgent need for revision of the current legislation regulating family reunification for international refugees or beneficiaries of subsidiary protection.

Continue reading “EU law enforcement of the right to family reunification for unaccompanied minors fleeing conflict”

By Sonia, Shermane and Sandy

Positive conflicts of jurisdiction occur when two or more member states (MS) posses the right to investigate and prosecute the same alleged criminal offence. Within the context of the European Union, Eurojust aims to provide coordination among MSs when a conflict of jurisdiction emerges. In 2003 (updated in 2016), Eurojust issued guidelines to aid decision-making in the MS with the most competent jurisdiction. In 2005, the Commission launched the Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings. The Framework Decision 2009/948/JHA on prevention and settlement of disputes of exercise of jurisdiction in criminal proceedings appears to be the one legal instrument that covers this area, but what about the principle of legality? Neither the guidelines nor the Green Paper tackles the derogation of this principle when an individual is subject to multiple jurisdictions, resulting from parallel cross-border prosecutions. This post shows the limited role of the legality principle in parallel cross-border investigations and elaborates on the solutions that have been proposed so far. Finally, it looks at the most feasible way Eurojust could overcome the current shortcomings.

What is the role of the legality principle in parallel cross-border investigations?

Parallel proceedings are where two or more states claim criminal jurisdiction of the same suspicious criminal conduct. Parallel proceedings can involve parallel investigations or parallel prosecutions, or both. In its communication on a new EU framework to strengthen the rule of law, the Commission included the principle of legality as one of the main principles expressing the core meaning of the rule of law. Ever since, the concept has been further developed. The relevance of the principle is reiterated in the Commissions 2019 communication as an essential element of the rule of law. The principle of legality has also been described as an “umbrella” principle, as it covers multiple other principles. However, this post focuses on the foreseeability of laws (legal certainty), which is understood as a requirement of predictability and accessibility of the law so that a subject of law can reasonably foresee the consequences of its actions. This is ascertained by sufficiently precise formulation of laws.

In case a crime affects different states, parallel proceedings may emerge, as, in principle, each state possesses jurisdiction (see infographic). Jurisdiction may arise from jurisdiction ratione loci or jurisdiction ratione personae. The latter includes whether active personality or passive personality jurisdiction. The individual may be the subject of parallel proceedings, each following different substantive and procedural rules. In addition, it could also be possible that no Member States want to investigate or prosecute, which would entail a negative conflict of jurisdiction

For instance, in a case of an assault taking place in Belgium. Where the perpetrator is a French national residing in Belgium, the victim is a Dutch national having a permanent habitual residence in Germany. Consequently, several states may possess jurisdiction. Conversely, Belgium may start proceedings based on jurisdiction ratione loci. On the other hand, the Netherlands may start parallel proceedings based on jurisdiction ratione personae, more precisely by the passive personality principle. Finally, France possesses jurisdiction ratione personae, specifically passive personality jurisdiction.

Consequently, the violation of the ne bis in idem principle is at risk, which refers to the notion that a person shall not be punished multiple times or be subject to various proceedings for the same conduct. Furthermore, arbitrariness may appear, ultimately resulting in forum shopping. Forum shopping in this context is understood as when the Member States choose a particular jurisdiction for the case to be heard because it is more likely to provide a favourable outcome. For example, where the conduct is more severely punished.

Eurojust to the rescue? The Competence of Eurojust to enforce the principle of legality in parallel investigations.

Art. 4(1) c and 4(2)b of Regulation (EU) 2018/1727 states that Eurojust is competent to assist the competent authorities of the Member States (MS) in ensuring the best possible coordination of investigations and prosecutions. Moreover, Eurojust may issue a written opinion to indicate that the MS is most competent to prosecute. Hence, Eurojust is more suited to tackle this issue both in the early stages of the investigation through assistance and cooperation and ultimately recommending competent jurisdiction. For instance, there is a growing number of parallel proceedings detected by Eurojust via Article 13(7)(a), from 10 notifications received by Eurojust to 49 in 2017. This increase shows that dialogue and mutual trust are the main elements that Member States value to find a standard solution. Thanks to Eurojust, relevant details can be brought to the attention of the competent national authorities, which may decide to open an investigation. In complex cases, Eurojust proposes the creation of a JIT, which facilitates and coordinates further studies.

In 2017, the European Law Institute published a Draft Legislative Proposals aiming to prevent parallel proceedings and resolve conflicts of jurisdiction, thereby ensuring the protection of the above-mentioned ne bis in idem principle. The focus was drawn on guaranteeing legal certainty and foreseeability to achieve this. The reports include substantive legality as a relevant aspect of Article 47 CFR, which provides, among other things, that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. We consider that the last part “concerning the tribunal established by law” renders problematic in parallel investigations and prosecutions because the jurisdiction in which a suspect is to be prosecuted is unclear and may remain undecided for an unacceptably period.  Moreover, it enshrines the principles of legality and proportionality. Some legal scholars, such as Luchtman, already predicted in many articles this shortcoming. He relates the substantive legality principle, foreseeability and choice of forum. He argues that insofar as the specific jurisdiction determines the applicability of different national substantive provisions, a new framework to provide for that choice would support the foreseeability of the law for the individual.

Alternative solutions

The European Law Institute distinguishes three alternative approaches that would provide the principle of legality the granted role in the CFR in parallel cross-border investigations.

1. The so-called horizontal mechanism, in which the conflicts of jurisdiction and parallel investigations are solved via consultation between MS, shall eventuate in an agreement.
2. The vertical mechanism is characterised by a binding supranational decision (issued by Eurojust) in cases where coordination between the national criminal justice authorities has failed.
3. The model for the allocation of criminal jurisdiction in the AFSJ aims to prevent the emergence of conflict of jurisdictions by establishing uniform European rules on the allocation of the exercise of criminal jurisdiction in the AFSJ.

From the three choices, we consider the second one the most suitable. On the one hand, the horizontal mechanism, the current practice between MS, has proven non-efficient. This is because there is no uniform procedure that would allow the individual to foresee the consequences of their conduct or which law, they are subject to.  On the other hand, a complete regulatory mechanism that would force MS to accept which jurisdiction is better suited would render it too complex to enforce. This complexity derives from the fact that there are too many factors to assess, which have to be considered in all three models to decide which jurisdiction is more suitable. For example, the nationality and current location of the suspect, the place where most evidence is located, the interest and protection of victims and witnesses etc. Depending on the specific circumstances of the case at hand, these factors make it challenging to establish that one is more important than the other; therefore, each case needs a particular assessment.

So, what can be done now?

Currently, the legal certainty problems that derive from parallel investigations should be acknowledged, taking Eurojust as an example. Eurojust tackles in its reports the importance of detecting parallel investigations at the earliest possible stage.

There is the need to acknowledge more significant the legal certainty problems that derive from parallel investigations, and Eurojust should be an example. Currently, Eurojust considers that parallel proceedings can be beneficial in combating crime if they are performed in a coordinated manner. They assess questions regarding parallel investigations in their plenary meetings and tackle the issue in the yearly coordination meetings. Indeed, this is a positive attempt for these issues to be addressed in coordination meetings and strategic seminars solely to tackle parallel investigations and their consequences for individuals as it increases understanding regarding the issues related to legality that may arise in parallel investigations and prosecutions. The gentle mandate of Eurojust to support cooperation and coordination between the Member States is without doubt, enhanced in such a way even without the use of punitive sanctions to achieve compliance. To conclude, policy documents as guidelines on coordinated and safeguarded parallel investigations would significantly benefit Eurojust.

By Ana, Natalie and Marceau

Both the Office Européen de Lutte Antifraude (OLAF) and the European Public Prosecutor’s Office (EPPO) share the goal of enforcing the European Union (EU) anti-fraud agenda. Although OLAF is an administrative agency and the EPPO falls more under the field of criminal law, they both act against offences affecting the financial interests of the Union. Hence, the substantive scope covered by the two is in essence the same. However, although the objectives of the two agencies are strikingly close, the approach they use to fight fraud differs. In that sense, one can look at the two as complementing each other at work. While previous research on OLAF and the EPPO focused on the working of the agencies separately (e.g. the issue of the EPPO’s ‘forum shopping’ and OLAF’s accountability), in this blog post we aim to view the two together.

In the following we show both how they may be viewed as complementary to one another as well as what gaps and issues still remain in fighting fraud efficiently with the two enforcement agencies. To fight fraud, two steps have to take place: first, the authorities need to investigate the case, and second, if they find the case fraudulent, the perpetrators need to be prosecuted. Additionally, an effective infrastructure has to be put in place on the EU as well as the Member State’s level to prevent future fraud from occurring in the first place. In the following we discuss those issues in view of the EPPO and OLAF complementarity.

If you are unfamiliar with the roles of OLAF and the EPPO, you can familiarize yourself with their work by watching the above videos.

COMPLEMENTARITY IN INVESTIGATIONS AND GATHERED EVIDENCE

When it comes to investigation, OLAF has strong investigatory powers to gather evidence on cases involving potential fraud. It conducts the so-called ‘internal’ and ‘external’ investigations, overviewing the use (or misuse) of EU funds by the EU as well as its Member States respectively. While in the internal investigations OLAF enjoys a great deal of independence (e.g. it has the right to immediate and unannounced access to information), when investigating potential fraud in the Member State’s context, it is dependent in law and in practice on the Member State concerned. However, Member States are obliged to cooperate with OLAF, ensuring that OLAF has access to relevant information (e.g. databases) under the same conditions as national authorities. In order for OLAF to be effective and efficient in conducting, for example, its ‘on-the-spot’ checks in Member States, such cooperation is essential.

On the other hand, in gathering evidence for prosecution, the EPPO relies on the work of the European Delegated Prosecutors (EDPs) who represent the European Prosecutor of every participating Member State. Upon the instruction by the EPPO’s Permanent Chamber, the relevant EDP may initiate investigations to gather evidence for prosecution. Having the same investigatory powers as their national counterparts, EDPs may, for example, tap phones, search premises and request for information to build up a file. Similarly to OLAF, the EPPO should ALSO be aided by the national authorities when investigating a case

Considering the powers of both agencies, the investigative powers seem to overlap. However, instead of disqualifying one because the other may conduct similar investigations, the two can be viewed as complementing or enhancing the role of one another. With OLAF fighting fraud in the EU for over two decades, the agency has a lot of relevant know-how as well as legitimacy to gather evidence on a case. That evidence may subsequently be used by the EPPO, with OLAF becoming the main investigative body of the EPPO. In fact, such cooperation has recently been put into law, namely by amending the OLAF Regulation. Because of this change, OLAF is obliged to submit its report on any criminal conduct to the EPPO without delay. At the same time, while the EPPO might enhance the role of OLAF by making it its main investigative body, the role of OLAF may be viewed as subdued to that of the EPPO. That is exemplified by the fact that OLAF can no longer continue its investigations once it has handed the file to the EPPO and the EPPO opened its own investigations of the case. On a different note, when the EPPO itself lacks competence to act on a case it considers potentially illegal, it has the duty to report the case to OLAF. In that sense, it is obliged to present OLAF with the information it gathered too, enhancing its role in some cases.

COMPLEMENTARITY IN FURTHER ACTION – RECOMMENDATIONS AND PROSECUTION

While in the investigation phase more overlaps can be found between OLAF and the EPPO, the possible subsequent steps differ. That is so mostly because OLAF is in essence an administrative agency while the EPPO is primarily a prosecution body.

OLAF’s main outputs following an investigation are drawing up a report presenting evidence and issuing recommendations suggesting further action by other EU or Member States’ authorities. However, as the recommendations are not legally binding, the enforcement powers of OLAF in this regard are quite weak. At the same time, recommendations carry political weight which make the authorities take them into account. The actions recommended may vary from disciplinary and administrative actions to financial and judicial ones, aiming to deter the future misuse of EU funds and remedy the ones that already took place.

Differently from OLAF, the task of the EPPO after the investigation is to prosecute. When the EPPO comes to consider that an allegation of an offence is supported by evidence, and when the case falls under its competence, the EPPO can open a trial before a national court. Because the mandates of the two are so different, it is hard to say that the two complement each other’s work directly. However, in the overall picture of fighting the misuse of EU funds, OLAF’s substantiated recommendations (backed up with evidence from the report) and the EPPO’s prosecution powers jointly contribute to two different fields of law addressing the issue of fraud. With the EPPO’s power to prosecute in front of a judicial body, there is also a possibility that the court will recognize the case as criminal also judicially, issuing a decision that is legally binding.  

The fact that both enjoy some powers following-up an investigation phase is important, particularly because the two cover different territories when enforcing their anti-fraud agenda. It is important to note that while the EPPO is established on the basis of enhanced cooperation, meaning that it only applies to the 22 participating Member States, OLAF can act in all 27 Member States of the EU. While the limited scope of the EPPO’s enforcement might be an issue in a territorial sense, the situation can be remedied by the presence of OLAF. Namely, OLAF can step in with its investigations and recommendations where the EPPO has no territorial jurisdiction to do so. In that sense, OLAF and the EPPO may again be viewed as complementary.

At the same time, because the EPPO with more coercive prosecution powers may only operate in certain Member States and not just everywhere, anti-fraud enforcement across the EU may differ in the intensity. This might affect the extent to which fraud is addressed in different Member States, creating differences in policing the use of funds which may lead to abuse (e.g. cross border fraud). While this issue goes beyond the scope of this blog post, it would be a relevant topic for future research.

Lastly, it is important to state that OLAF also functions as an advisory body, developing anti-fraud policies and “fraud proofing” legislation which contributes to the fight against fraud also ex-ante. In that way it contributes to the anti-fraud agenda of the EU in a preventative way.

CONCLUDING REMARKS

In conclusion, we summarize the points made above in the table below. By outlining the different powers held by OLAF and the EPPO, we showed how and why they may be viewed as complementary. Overall, the authors believe that with the current system in place, OLAF and the EPPO can fight fraud and abuse of EU funds effectively together. However, some gaps still remain and could be addressed by strengthening the competences and the scope of both OLAF’s and the EPPO. Who would be hurt by stronger common anti-fraud fighting anyways?

The table shows the complementarity of OLAF and the EPPO in the fight against the misuse of EU funds by the two agencies.