DRAFT Eurojust: de jure toothless, de facto lion?

By Arianna, Armanda, Julia and Maria

The EU Agency for Criminal Justice Cooperation, also known as Eurojust, is often perceived as ”the lightest” Agency belonging to the Area of Freedom, Security and Justice (AFSJ). It has also been describes as a ”toothless lion” which may have strong normative powers, but no effective means of enforcing them. The Agency has not been granted any binding powers and thus limits itself to assisting Member States (MSs) in cooperation matters. Moreover, Eurojust helps in resolving conflicts of jurisdiction – a situation arising when several states affected either intend to prosecute the same offenses or perpetrators (positive conflicts) or refuse to do so (negative convicts). Real-life cases, such as Operation Emma 95, demonstrate the importance and necessity of including Eurojust in cross-border cases. An analysis of the operation shows that Eurojust is effectively  able to prevent and resolve conflicts of jurisdictions. It can do so by convening meetings and discussions amongst relevant authorities and issuing opinions regarding which MS is better placed to prosecute an individual. Being under a duty to cooperate, MSs should follow these opinions, save in exceptional circumstances granted under the Eurojust Regulation. Practice thus shows, that Eurojust plays a vital role in enforcing EU law by requiring MSs to adhere to its opinions. The agency should thus no longer be perceived as a ”toothless” agency, i.e. without enforcement powers, but should, instead, be recognized having a strong influence (the lion) in bringing criminals to justice in transborder cases.

Operation Emma 95/Lemont

(Picture from L’enquête EncroChat en France)

Operation Emma 95, also referred to as ”Lemont” by the Dutch authorities, represents one of the Eurojust’s most successful investigations in the area of cybercrime, lasting from 2017 to June 2020. French and Dutch law enforcement and judicial authorities investigated a case of abuse of encrypted communication services provided by EncroChat. This is one of the largest providers of encrypted digital communication, developed in Spain with technical infrastructure located in France and Canada. The company was selling encrypted phones with untraceable hardware to facilitate money laundering and drug trafficking of cocaine and cannabis.

Main issue: which jurisdiction should prosecute?

Operation Emma involved several MSs, since many of these investigations were connected with international drug trafficking and violent criminal activities. It was important to establish which state the perpetrators should be prosecuted in.

There was a need for strategic approach to de-conflicting investigations and a mutual understanding on prosecuting jurisdictions. To prevent a conflict of jurisdiction, the authorities involved had to ensure that those matters are settled. This would avoid infringing on fundamental rights awarded to the accused persons, such as the right not be prosecuted twice for the same crime (ne bis in idem principle). Moreover, the requirement of double criminality was fundamental with regards to requesting international judicial cooperation and to be begin a criminal investigation in another jurisdiction.

How did Eurojust prevent a conflict of jurisdiction?

Eurojust helpedsetting up a Joint Investigation Team (JIT) to bring all involved parties together in a secure environment, identify parallel or linked investigations, decide on the most suitable framework for cooperation and solve potential conflicts of jurisdiction. Eurojust also created six coordination meetings to facilitate executions of coordinated actions to make simultaneous arrests and searches. The discussion held during these meetings assisted the French and Dutch authorities in carrying out parallel investigations and exchanging information and thus prevented conflicts of jurisdiction from arising.

Most importantly, the information obtained from this investigation has been used for several ongoing investigations and was essential for a large number of new investigations of organized crime both across Europe and beyond.

The role of Eurojust in promoting mutual trust?

Operation Emma 95 is only one of the cases in which Eurojust has intervened and successfully prevented conflicts of jurisdiction. As can be observed from this operation, Eurojust assisted the communication between the MSs and identified linked investigations. Based on the information communicated, Eurojust decided which framework for cooperation was most suitable to solve the case and provided MSs with opinions on where prosecutions should take place. Eurojust intensively facilitated the judicial cooperation, during the extensive use of European judicial cooperation instruments such as European Investigation Orders (EIO).

Hence, the Agency can be seen to play an important role in promoting mutual trust and confidence. This is done by putting together different national legal systems and standards and building an environment of mutual understanding and maximizing effective cooperation between authorities of different MSs.

Eurojust’s powers go beyond merely facilitating a forum for discussion and cooperation. The EU body can set up JITs and carry out investigative measures. By issuing written opinions it can advise MSs on how to act during investigations involving conflicts of jurisdiction. For example, by following Eurojust’s suggestions, Operation Emma turned out to be a succes.

Does Eurojust’s posssess de jure and/or de facto powers?

The above case is demonstrative of the ongoing debate between Eurojust’s explicit (de jure) and implicit (de facto) powers. The Eurojust Regulation, in Recital 14, expressly states that its opinions are not binding. From a purely legal point of view (de jure) Eurojust thus does not have any enforcement powers. However, contrary to Recital 14, Article 4(6) of the Regulation mentions that states are only allowed to derogate from Eurojust opinions in three situations. These are: if complying with them would (i) harm national security interests, (ii) jeopardise ongoing investigations or (iii) jeopardize an individual’s safety. Where none of these exceptions apply, a state cannot simply disregard a Eurojust decision concerning where an individual should be prosecuted. As the refusal grounds for MSs to comply are strictly limited, it shows that Eurojust has, in fact, an implied (de facto) binding power regarding decisions on the resolution of conflicts of jurisdiction. Should a MS choose to disregard this binding opinion nevertheless, Eurojust can sanction that respective MS in the form of ”naming and shaming”.

Recognizing this power thus elevates Eurojust from being a mere cooperation Agency to actually being able to directly enforce the powers conferred upon it. This significantly strengthens the importance given to the Agency, which should be recognized as having the same value as other EU bodies equipped with explicit/de jure powers. Let us no longer refer to Eurojust as a ”light” or ”weak” Agency, but instead as a strong and capable body able to take direct decisions on the prevention of conflicts of jurisdictions, without the option for MSs to opt out, save in the circumstances described above.

Author: Student posts

This blog post is written by Master students at Utrecht University.

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