Eurojust judicial review – a cat-and-mouse game between the rights of the suspect and conflicts of jurisdiction DRAFT

By Lisa, Jasper and Sophine

Eurojust opinions may jeopardize the rights of suspects and nothing can be done to hold Eurojust accountable. Member States of the EU (MS) prefer to follow the opinion of Eurojust on choices of jurisdiction and this has implications for the fundamental rights protection of suspects.

For this reason, this blog post addresses the problematic nature of the lack of judicial review of opinions on jurisdiction issues by Eurojust.

Eurojust – who again?

Eurojust is a European Union (EU) agency. Eurojust aims to allow effective cooperation among the MS and ensure that cross-border crimes are properly addressed. Eurojust is a network of public prosecutors of the MS who can support each other in obtaining mutual cooperation in criminal matters and can take joint decisions on the most suitable place for prosecution.

‘On paper’ the documents produced by Eurojust are non-binding and therefore not subject to judicial review. However, to what extent is this true? After the new 2018 Regulation, Eurojust’s powers got stronger and more influential, to the point in which they can be de facto and de jure binding. As will be highlighted, Eurojust opinions are often followed. Furthermore, Eurojust has soft law mechanisms to ensure compliance with its opinions (naming and shaming). Although the powers of Eurojust got stronger, there is still a lack of judicial review regarding its written opinions. Since there is no judicial review of these opinions on jurisdiction there is no way for a suspect to challenge these decisions. This leaves the suspect defenceless regarding forum choices.

Are States like sheep and is Eurojust their shepherd?

As a starting point, when analyzing the influence of Eurojust on matters concerning conflicts of jurisdiction, it is necessary to understand what we are dealing with. Conflicts of jurisdiction can be either positive or negative. The first refers to situations in which MS have an “overlap” meaning that more than one MS has the opportunity or intends to exercise jurisdiction over a crime. In the second scenario, no MS wants to exercise its jurisdiction over a crime, which risks impunity. Both situations are not ideal and should be addressed.

Within its powers, Eurojust has the ability to issue opinions either on the basis of a MS’s request or autonomously to assist national authorities struggling with conflicts of jurisdiction. Eurojust can provide insightful recommendations and opinions regarding the most suitable and effective MS to exercise jurisdiction. By doing so it prevents impunity and preserves the rule of law.

Something important to remember is that on paper Eurojust does not have powers to issue binding decisions. However, this official lack of binding powers does not seem to apply in concreto, since Eurojust can indirectly pressure MS into complying with their requests.

In fact, Eurojust has been successful in pressuring MS to cooperate through the ‘naming and shaming’ of non-cooperative MS. These MS can be mentioned by Eurojust in their annual report or MS’s decision of non-compliance can be brought up to the Council’s attention. This could be enough to keep the MS on their toes. In the recent publication by Eurojust, one can notice that MSs practically always follow the guidelines set out by the agency. This report shows that since 2016, all solutions proposed by Eurojust have been followed by national authorities, except in one case.

This shows how Eurojust influences and sometimes dictates the decisions of the MS on conflicts of jurisdiction through their written opinions and recommendations. The issue which arises from this is that, on paper, Eurojust cannot issue binding decisions on the MSs, therefore there is no possibility of having a Eurojust act reviewed. When it comes to the choice of forum, the decision on the matter is significant since it affects the entire criminal proceedings. For this reason, the importance of judicial review will be highlighted in the next paragraph.

Eurojust slips through the cracks of judicial review

The problematic nature of the lack of judicial review of Eurojust’s opinions can be illustrated with the following examples.

First of all, the European Union is based on the rule of law, which means that individuals must have the right to challenge the legality of acts before the national courts. Therefore, this means that all acts of the Union should be open to judicial review. Direct review is only possible by and before the Court of Justice of the EU (CJEU) and indirect review is possible through the prejudicial ruling procedure. However, Eurojust’s written opinions and decisions are not considered acts because they are not legally binding as is decided in the ESMA Shortselling case. Therefore, they cannot be subjected to judicial review by the CJEU.

Secondly, it may be the case that Eurojust has to write an opinion on two MS from which one has an evidently higher observance of fundamental rights than the other. This may lead to forum shopping because prosecutors may choose the jurisdiction based on its lower standards, which is detrimental to the interests of the suspect. The Eurojust written guidelines on choices of jurisdiction address this problem. However, these are not binding and therefore, judicial accountability is not engaged when they are not adhered to.

Thirdly, although non-binding, the written opinions and decisions of Eurojust can influence both the protection of the fundamental rights of the suspect and the position of the defence. The opinions issued by Eurojust influence where a person faces their final prosecution. There is sadly still divergence in the level of protection of fundamental rights between Member States. Therefore, the choice of forum is important to accused persons. However, since the opinions of Eurojust are non-binding this leaves the accused defenceless against forum choices based on Eurojust’s opinions.

In sum, de facto or de jure binding, does it matter? No, because although Eurojust’s opinions affect the interests of suspects, they still slip through the cracks of judicial review.