Agencies, networks and operational frameworks

The current institutional status quo on EU policies directed at fighting OC remains unsatisfactory. It is a multi-actor and multi-fora scene, which poses fundamental challenges for democratic accountability, judicial scrutiny and proper checks and balances against EU rule of law standards and fundamental human rights. The EU has promoted and developed a wide range of Union- coordinated (formal and informal) networks of national actors, experts and representatives, which come mainly from domestic law enforcement communities and engage in informal or flexible exchanges of information, the sharing of ‘promising practices’ and funding of projects. These are often coordinated by EU JHA agencies (Europol and Eurojust) or directly by the European Commission (DG Home Affairs).

The resulting picture makes it extremely complicated to know ‘who does what where’. It also prevents a proper level of scrutiny of these actors similar to that applicable in their domestic arenas. The risk is that EU fora and networks may be used for ‘venue shopping’ by certain actors and experts

159 _{See European Parliament, Report with recommendations to the Commission on the review of the European Arrest Warrant}

(2013/2109(INL)) (2014), op. cit. (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//TEXT+REPORT+A7-2014-0039+0+DOC+XML+V0//EN).

to steer their interests in transnational venues that escape democratic, judicial and administrative controls. Some actors participate in more than one network. The fact that these groups build upon and interact with other pre-existing, supranational expert groups (e.g. the Egmont Group or CARIN) prevents a proper understanding of the added value of EU-driven networks. Furthermore, an overview of existing networks and fora reveals the law enforcement function creep of policing and interior ministry-like actors towards administrative spheres of action (e.g. finance ministries and local and regional authorities) and exchanges of information.

More EU action is needed to ensure legal certainty and proper accountability of this network-based model of EU intervention in the field of OC. A particular difficulty remains the extent to which the activities of these networks and groups comply with the common EU law standards, legal guarantees and the EU Charter of Fundamental Rights in their activities, as well as in their cooperation with third country or other (non-EU) transnational networks involving third country experts. The European Parliament should make sure that the accountability mechanisms applicable to EU JHA agencies include a proper follow-up and assessment of the added value of the functioning of EU networks such as AROs and FIUs.

The predominant focus in various EU arenas is prioritising ‘the needs’ of law enforcement practitioners and leaving aside those of other actors, such as independent judicial authorities and defence lawyers. While some EU JHA agencies like Eurojust or the European Judicial Network have the participation of members from the judiciary, others have actors who mainly come from public prosecutor offices (or investigative judges), which are not impartial, or even from police authorities in some EU Member States.

In light of the above it would be necessary to first carry out an exhaustive mapping exercise, identifying ‘who is who’ among the EU’s national contact points in criminal justice, police and networks. This would allow for a proper understanding of who is doing what and under which rules and conditions/checks and balances (in both the domestic and EU arenas), and the purpose or domain for which are they actually responsible. This should go hand in hand with the setting-up of a new EU forum of defence lawyers, human rights organisations and civil society, specialised in issues related to criminal justice matters. The work of this EU forum could feed into the work of the above-mentioned EU evaluation mechanism on judicial cooperation in criminal matters.

The European Judicial Network should be further developed into a body bringing together a network of representatives solely from national courts with jurisdiction for the purposes of EU law. This network would bring together those judicial actors who are in charge of applying the rule of law and are independent and impartial in nature, with no other interest than applying the rule of law.160 _{CEPOL has developed resources to increase training capabilities for practitioners across EU}

Member States in the field of criminal asset detection, freezing and confiscation.161 _{Further use of}

CEPOL’s training resources should be supported. EU educational materials should continue to be created and further developed in order to enhance a common law enforcement and judicial culture in the field of criminal investigations.

The new powers given to Europol in the currently revised mandate are accompanied by more parliamentary scrutiny (by both national parliaments and the European Parliament) in line with Art.

160 _{See for instance, Case C-54/96 Dorsch and Case C-506/04 Wilson of 19 September 2006, where the CJEU clarified the}

notion of independent judicial authority.

161 _{See the CEPOL website (https://www.cepol.europa.eu/education-training/what-we-teach-}

results?combine=&field_categories_tid=23&field_type_of_training_course_tid=All&field_date_value2[value][date). In its 2014 report, CEPOL referred to two residential courses and two webinars in 2014 in the field of economic crime, in which activities were targeted at law enforcement officers and experts with a background in the investigation and prevention of corruption, organised economic and financial crime issues, money laundering and asset recovery (CEPOL, Annual Report

2014, Luxembourg: Publications Office of the European Union, 2015, https://www.cepol.europa.eu/sites/default/files/annual-report-2014.pdf).

88 TFEU.162 _{The new mandate foresees a Joint Parliamentary Scrutiny Group (JPSG) with members}

from national parliaments and the Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament (new Art. 53 of the mandate). Special attention will need to be paid to ensuring the effectiveness of Art. 53.2 of the mandate, which states that “[t]he JPSG shall politically monitor Europol’s activities in fulfilling its mission, including as regards their impact on the fundamental rights and freedoms of natural persons”.163 _{Furthermore, the deal involves a much more active role}

of the Data Protection Supervisor, who will be responsible for checking if anything goes wrong with internal standards set up by Europol’s own Data Protection Officer.164 _{The European Parliament}

should be particularly cautious that the new deal on Europol’s mandate allows for the following aspects: first, more scrutiny of Europol’s activities, including the resources mobilised and activities carried out by its ‘informal and formal networks’ that function without proper legal basis (the CARIN network); second, better oversight of the database developed by Europol; and third, better oversight of data exchanged with third countries.

These aspects are all critical to ensuring that, while improving cooperation capabilities, EU citizens’ rights are guaranteed. Similar checks and balances should be ensured when it comes to the work and mandate of Eurojust. Particularly relevant will be the effective implementation of the new Art. 54 of Europol mandate, which deals with ‘sensitive non-classified information’. It is regrettable that this provision does not apply to ‘EU classified information’ as well. Further efforts should be made to ensure that proper democratic accountability and scrutiny by the European Ombudsman of Europol’s classification and de-classification powers meet the necessity and proportionality principles.

The JITs model for cross-border operational cooperation should be given a clear priority and be further developed. This should be done by bringing JITs closer to EU rule of law and common legal standards on criminal investigation as laid down in the EIO benchmark. A practical way to overcome current deficits and dilemmas in their operation would be by revising the current rules applicable to the JITs Model Agreement in light of the innovations and latest EU law developments since the Lisbon Treaty.

The current JITs Model Agreement does not provide a fully comprehensive and complete overview dealing with all the relevant legal, responsibility and accountability criteria necessary to ensure that any joint investigation is in accordance with EU law, general principles and the EU Charter. Particular attention should be paid in this revision to include an obligation to set clear rules regarding leadership, responsibility, accountability and liability issues (including for EU JHA agencies), as well as proper reporting mechanisms on how the operational action plan has been implemented and precisely which results have been achieved. This could go along with further simplification and transparency of current procedures for the setting-up and development of JITs. The Model Agreement should also be more specific concerning practical arrangements and operational plans, as well as the safeguards and compatibility of the JIT with fundamental rights obligations. The Model Agreement should also prevent the possibility for ‘fishing expeditions’ in the search for information while disregarding national legal standards. Bilateral or supplementary

162 _{Art. 88 TFEU states that “[t]hese regulations shall also lay down the procedures for scrutiny of Europol’s activities by}

the European Parliament, together with national parliaments”.

163 _{Europol will need to share with the JPSG threat assessments, strategic analyses and general situation reports relating to}

Europol’s objective, the results of studies and evaluations commissioned by Europol, administrative arrangements, etc. The JPSG will draft “summary conclusions on the political monitoring of Europol's activities and submit those conclusions to the European Parliament and national parliaments”.

164 _{See also Art. 53.2 of the mandate, which states,}

(b) the European Data Protection Supervisor shall appear before the JPSG at its request and at least once per year to discuss general matters relating to the protection of fundamental rights and freedoms of natural persons, and in particular the protection of personal data, with regard to Europol's activities, taking into account the obligations of discretion and confidentiality.

national agreements in the context of JITs should be limited and subject to proper review as regards their compatibility with the EU Model Agreement. The Model Agreement and the report resulting from the JIT could also be submitted to the above-mentioned JPSG.

More coordination and training meetings could be also helpful here. CEPOL, in cooperation with a new European Judicial Network (see above), could also play a more active role in the training dimension of JITs. Training is still rather uneven across the EU Member States. CEPOL regularly conducts seminars on JITs, which attract high interest because of their focus on practical issues arising from real case studies. These seminars are aimed at creating synergies and at reinforcing mutual trust and cooperation among prosecutors, judges and senior police officers involved in leading/operating JITs.165 _{CEPOL should be encouraged to create further educational tools for JITs,}

as well as to expand its use of e-learning multilingual materials that could be used by law enforcement officials. Member States should be encouraged to subscribe to and make more use of CEPOL’s Learning Management System. Moreover, the cooperation between the JITs Network and CEPOL in organising seminars on JITs for judges and prosecutors should be expanded to JITs in the context of cooperation with third countries.