Brussels, 23.10.2007

COM(2007) 644 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE

EUROPEAN PARLIAMENT

on the role of Eurojust and the European Judicial Network in the fight against

organised crime and terrorism in the European Union

EN EN

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE

EUROPEAN PARLIAMENT

on the role of Eurojust and the European Judicial Network in the fight against

organised crime and terrorism in the European Union

Eurojust was set up, following the positive experience of Pro-Eurojust, by a Decision of

28 February 2002 ("the Decision")1; since then it has proved effective in bringing about a real

improvement in the operation of law enforcement cooperation between the 27 Member States

and has recorded significant operational successes.

In the Hague Programme2 the European Council asked the Commission to consider Eurojust's

further development. Specialists in judicial cooperation met to discuss the issue in Vienna in

September 20063. The European Judicial Network4 has contributed to the process5. Eurojust

itself has also made a contribution. In conclusions adopted on 13 June last, the Council once

again asked the Commission to present a communication on the role of Eurojust and the

European Judicial Network6.

1. Transposal of the Decision: a qualified success

Leaving aside for a moment the question of progress with the legal transposal of the

Decision7, the Commission would like to stress that Eurojust's operational record is a positive

one. In 2006, 771 operational cases were registered. This represents an increase of 31% over

the year 20058. The quality and speed of the handling of cases are generally recognised. But

the development of Eurojust needs to be accompanied by a clarification and reinforcement of

the powers of the national members and by greater authority for the College. In order to

achieve this objective, the Decision ought to be amended.

Possible improvements

1.1. Giving wider powers to the national members

A reinforcement of cooperation is made more difficult by the fact that there is no consistency

in the powers of the national members. In view of the importance of Eurojust, the

Member States should take measures to spell out the powers of the national members and of

the College. If the national member is to have the proper degree of authority within the

national law enforcement framework and at European level, an administrative decision

designating the national member, describing his or her status and briefly setting out his or her

responsibilities is not enough.

1 OJ L 63, 6.3.2002, p. 1.

2 OJ C 53, 3.3.2005, p. 1.

3 Document 14123/06, 19 October 2006, Eurojust 48, limit.

4 Joint Action of 29 June 1998 (OJ L 191, 7.7.1998, p. 4).

5 Vision Paper, 19 September 2006, document 6053/07 EJN 6.

6 Council conclusions, document 9920/07 COPEN 73.

7 See annexed tables.

8 Eurojust annual reports for 2004, 2005 and 2006.

EN 2

In their dealings with the authorities in their home countries, national members rarely have

power to act with authority themselves. A few Member States do allow their national member

to order an investigation9. Most national members are entitled to suggest the setting up of a

joint investigation team, but very few can negotiate it, and even fewer can order it10. More

than half of the national members continue to hold law enforcement powers in their home

country11. But these powers are rarely exercised12 because of the specific character of

international criminal cooperation and an insufficient presence in the home country.

The information sought in requests for judicial cooperation submitted by the law enforcement

authorities of the Member States is invariably wanted for the purpose of inquiries or legal

proceedings that are under way in the particular Member State. Eurojust's work is not

sufficiently proactive. Access to information is fundamental. The E-POC I and II projects,

financed under the AGIS programme, have seen the installation of a secure internal

communication network. The E-POC III project, currently being tested13, will allow

information to be exchanged on a secure basis. Access to the information in SIS II will make

it easier for national members to perform their function. Every Member State ought to

develop the legal machinery to allow the national members access to the national files on

persons in custody, criminal records, and DNA records14.

Articles 9(4) and 13 of the Eurojust Decision, and Article 2 of the Terrorism Decision15,

require Member States to pass information to the national members as soon as it is known.

Not all Member States comply with this obligation. The Council recently called on national

law enforcement authorities16 to supply information on complex and serious cases to Eurojust

more rapidly17. Some Member States have imposed a requirement that their national

representative be informed of all transnational cases; this enables the representative to take the

initiative and to correlate cases using the Eurojust databank. This practice should be

encouraged by amending the Decision.

Proposals

National members are currently appointed for anything from a year to an unlimited period.

Most are appointed for a term of three years, renewable once18. In order to give the

organisation a measure of stability, national members should be appointed to Eurojust for a

harmonised term of at least three years. They should not be removable. Article 9(1) should be

amended accordingly.

9 Bulgaria, Lithuania, Malta, Portugal, Slovenia, Slovakia, Finland and Sweden.

10 The Czech Republic, Germany, Malta and Sweden.

11 Bulgaria, the Czech Republic, Estonia, Ireland, Cyprus, Latvia, Lithuania, Malta, Poland, Romania,

Slovenia, Slovakia, Finland, Sweden and the United Kingdom (in the UK, only in urgent cases where

the proper authority is unable to act).

12 Information supplied by Eurojust, 1 June 2007.

13 Between Italy, France, Poland, Romania and Slovenia.

14 Council Resolution of 9 June 1997 on the exchange of DNA analysis results (OJ C 193, 24.6.1997,

p. 2).

15 Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation

concerning terrorist offences (OJ L 253, 29.9.2005, p. 22).

16 Council conclusions on the fifth Eurojust annual report.

17 Conclusions,

point

18 Bulgaria, the Czech Republic, Germany, Ireland, Greece, Spain, France, Lithuania, Hungary, Portugal

and Romania.

EN 3

It is also important that the national member should be assigned to Eurojust on a full-time

basis, and should have one or more deputies who can take his or her place, so as to ensure

regular representation and full participation in the work of the College. The reinforcement of

the national offices will be crucial, because Eurojust's operational capacity depends on it.

Article 2(2) should be amended accordingly. The Commission also encourages Eurojust and

the Member States to make use of the services of national experts. Article 30(2) already

makes provision for this.

There ought to be a shared base of minimum powers. It is not the role of the national members

to take the place of the administrative or court staff who handle requests for international

mutual assistance on a day-to-day basis. The function of the national members is rather to

take action at operational, legal or technical level, making use of their practical experience to

improve the effectiveness of mutual assistance and other forms of cooperation. The

Commission would therefore encourage Member States to develop their practice in this

direction.

They might consider the following:

Together with the domestic law enforcement authorities, the national member should be

able:

where necessary or urgent, to accept and forward requests from national

authorities and to ensure that they are properly followed up

These tasks are provided for in Articles 6(a)(v) and 6(g). The only thing that needs to be

added is "monitoring the follow-up to requests".

where there are difficulties with follow-up, to ask the law enforcement

authority concerned, via the appropriate national member, to take further

follow-up measures and to suggest additional investigations or inquiries

Article 6(a)(i) already allows the national member to ask his or her own authorities to

undertake an investigation; the scope of this provision should be extended.

to suggest that the prosecutor, judge or court dealing with a case take special

investigation measures relating to specific facts

This possibility ought to be provided for in Article 6.

to be informed before a decision is taken to set up a joint investigation team

The possibility of setting up a joint investigation team is provided for in Article 6(a)(iv).

Informing Eurojust in advance whenever a joint investigation team is to be set up would allow

Eurojust to ask the national authorities to be allowed to play a role in joint investigation teams

that might be of interest, thus avoiding the problems that can arise later.

to be informed to the extent necessary, where two other Member States are

involved, of the organisation of a controlled delivery, an infiltration or an

undercover investigation and to have responsibility for monitoring it

EN 4

to receive automatic, early, complete and continuous information on all

criminal cases involving three Member States or more, or two Member States

or more where the offence is particularly serious (terrorism or human

trafficking) in so far as necessary for the performance of Eurojust's functions

This is a request that the Commission put forward in its 2000 communication.

to forward this information to the national member of a Member State which

has not been informed but which is involved de facto

This task is referred to in Article 13(2), which should be amended to include a Member State

which has not been informed but which is involved de facto.

to receive from national law enforcement authorities all judgments in

transnational cases of money laundering, organised crime, human trafficking

and terrorism in so far as necessary for the performance of Eurojust's tasks

The provision of information of this kind is already within the scope of Article 6(a)(v), which

needs to be clarified.

For all of these tasks it is important that requests for information submitted by a

national member should not go unanswered. The fact that an inquiry may be confidential does

not justify a refusal to send information to the national member of the Member State

concerned. The level of protection of personal data provided for in Articles 14 to 25 of the

Decision is sufficient.

In the longer term the Commission will examine the possibility of a new legal basis

which would substantially reinforce the powers of the national members and which

might in particular give them a greater role in the following:

the initiation of criminal cases, especially those involving offences prejudicial to

the financial interests of the Union;

the setting up of a joint investigation team, and participation in it;

the taking of specific investigative measures.

1.2. The powers of the College

The College has the same powers as the national members and has some additional tasks of its

own.

Registration of new cases in the case management system19, at the request of Member States,

is an important step in the gathering and transmission of information. In deciding to accept a

case, the College states its criminal policy and the direction it would like the case to take.

19 In 2004, as part of an AGIS programme (EPOC), Eurojust set up an automated data processing system

known as the case management system (CMS), whose development is continuing with the aid of that

programme. Technical solutions are currently being explored with a view to establishing secure

connections with the Member States.

EN 5

Like the national member, the College can rule on conflicts of jurisdiction (Article 7(a)(ii))

and on competing arrest warrants20. The few rulings made so far have all been accepted, but

the College's decisions are not legally binding on the Member States.

The reason why Article 7 has been used so little may be that Member States felt that there was

no need to refer a matter to the College or that the Member States managed to resolve any

differences without needing to seek the College's opinion. But Member States are frequently

unaware of the real scale of the case because information has not been assembled at European

level, even though registration of information in the Eurojust database is now possible and

encouraged.

The role of the College in the setting up of joint investigation teams is limited, because

Member States still involve Eurojust in the establishment and supervision of such teams only

rarely. So far, of 18 joint investigation teams set up21, Eurojust has played a role in only three.

The low level of involvement of the College in operational cases is due to the fact that the

College does not initiate such cases itself: cases are referred to the College only where

Member States disagree on the course to be taken. But if Eurojust had fuller information, the

College could take on these tasks, as provided in the Decision, not only in response to

requests under Article 7 but also in any other cases brought before it.

Proposals

The College should also have wider powers. The coordination and management of mutual

assistance in criminal matters is primarily a matter for the national member, but the College

could become a channel for the settlement of disagreements between Member States. The

College should be able to strengthen its role as a mediator in order to prevent and help to

resolve conflicts of jurisdiction between Member States.

In the longer term, in the context of a possible new legal basis, the Commission will

consider conditions and machinery by which the College could:

settle conflicts of jurisdiction between Member States and conflicts regarding the

working of the mutual recognition instruments;

initiate inquiries in a Member State and propose prosecution there, and play a role

in specific investigation measures;

initiate criminal inquiries at European level, especially regarding offences

prejudicial to the financial interests of the Union.

1.3. Changes to the structure of Eurojust

Article 29(1) should be amended to allow the Administrative Director of Eurojust to be

appointed not by all of the members of the College unanimously but by a two-thirds majority.

It should also provide that the selection board should include a member of the Commission. .

20 Article 16(2) of the Framework Decision on the European arrest warrant (OJ L 190, 18.7.2002).

21 Figures at 15 May 2007. Teams set up by Spain, France, Belgium, the Netherlands, the United

Kingdom, Germany and Sweden.

EN 6

2. Eurojust and the other players in judicial cooperation in criminal

matters

Eurojust's relations with its partners should be clarified and simplified.

2.1. Relations with the European Judicial Network and the liaison magistrates

2.1.1. The European Judicial Network

As a result of its cross-cutting flexible structure, the European Judicial Network has facilitated

judicial cooperation between the Member States. It has proved a useful tool: its Internet site

on the systems of justice in Europe deserves special mention.

The differences in the organisation of the network in different Member States, linguistic

difficulties, legal difficulties in international cooperation and frequent overlaps with the field

of responsibility of Eurojust all justify a reorganisation of the network.

In order to strengthen and improve cooperation between Eurojust and the European Judicial

Network, the Commission envisages the following structure.

The national contact point referred to in the Joint Action would also be the national

correspondent of the Eurojust national member, who is referred to in Article 12 of the

Decision. This national correspondent, working in the Member State, would be a member of

the Eurojust national member's team. In collaboration with the national law enforcement

authorities, he or she would manage the different points of contact in the country and would

act as a link for Eurojust's policy of communication there. He or she would be the contact

points' national representative for all dealings with the Eurojust secretariat. These national

contact points would assist the other contact points in their Member State in case of difficulty.

The national contact point would be the Eurojust national member's primary contact in the

home country, but, of course, the national member would continue to be in direct

communication with the law enforcement authorities of the country, a feature that is

fundamental to the effectiveness of the system. The structure described already exists in some

countries and has demonstrated its effectiveness; the Commission is accordingly proposing

that it be generalised.

The proposal would require the amendment of Articles 26(2) and 12. The role of a national

coordinator of this kind would be systematically to forward to the Eurojust national member

any multilateral cases of which he or she might be aware and any complex bilateral cases that

had not been resolved properly or promptly by the contact points. As a member of the

national member's team, he or she would immediately forward all cases falling with the

competence of Eurojust to the national member.

The Commission feels that the Eurojust secretariat ought to host not just the secretariat of the

European Judicial Network but also the secretariats of operational networks in the law

enforcement sphere such as the network of terrorism contact points, the CARIN network and

the genocide network22.

22 Council Decision of 13 June 2002 (OJ L 167, 26.6.2002).

EN 7

2.1.2. The liaison magistrates

The appointment of liaison magistrates to improve bilateral cooperation has been handled

differently in different Member States. This channel of communication is provided for in a

joint action of 199623, but it is used in different ways24. In fact, only a minority of

Member States have liaison magistrates at all25, and yet liaison magistrates have a useful role

to play in international law enforcement cooperation. In the future, Eurojust might itself

designate liaison magistrates in countries outside the EU so as to facilitate cooperation

between the Member States and the country in which they were to be appointed. Their

functions would be similar to those of the Norwegian and United States liaison magistrates

currently at Eurojust.

2.2. Stepping up cooperation with Europol

Since it signed a cooperation agreement with Europol26, Eurojust has constantly improved its

links with that organisation. It is worth drawing attention to the quality of the work done by

these partners in organising expert meetings on joint investigation teams27. On 7 June 2007 a

Memorandum of Understanding was signed on the setting up of a secure communications

network. This will increase the exchange of information between Eurojust and Europol.

The entry into force on 18 April 2007 of the Protocol of 27 November 2003 amending the

Europol Convention28 will facilitate access to Europol's analytical work files (AWFs) and

wider participation in those analyses.

Cooperation between Eurojust and the various Europol national liaison offices is still uneven.

The links should be strengthened systematically, and exchanges of information with these

offices should be improved.

Development of cooperation between Eurojust and Europol in this fashion does not require

amendment of Article 26, in so far as the rules on the protection of data permit Eurojust to

exchange information in a satisfactory manner.

2.3. Stepping up cooperation with the Commission (OLAF)

Cooperation between Eurojust and OLAF29 is governed by a Memorandum of

Understanding30, which should be modified by a cooperation agreement. The fields of

responsibility of OLAF and Eurojust are separate31. In order to secure all of the potential

benefit of cooperation between OLAF, as a specialised agency investigating Community

fraud, and Eurojust, as a law enforcement cooperation agency, there is a need for exchange of

information, both operational and strategic. The Commission takes the view, therefore, that

23 Joint Action 96/277/EC of 22 April 1996 (OJ L 105, 27.4.1996).

24 For example, France has 11 liaison magistrates, while some Member States have none.

25 Germany, Estonia, Spain, France, Italy, the Netherlands, Finland and the United Kingdom.

26 9

June

2004.

27 Eurojust Annual Report 2006, p. 17.

28 Council Act of 27 November 2003 (OJ C 2, 6.1.2004, p. 1).

29 Set up by Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 (OJ L 136, 31.5.1999,

p. 20).

30 Signed on 14 April 2003, not published.

31 The objectives and tasks of OLAF are set out in Council Regulation (EC) No 1073/1999 (OJ L 136,

31.5.1999, p. 1), and in Regulation (Euratom) No 1074/1999 (OJ L 136, 31.5.1999, p. 8).

EN 8

the Decision should make provision for the regular exchange of information at a sufficiently

early stage. Compatible rules on the protection of data should play a part in the development

of closer cooperation.

The designation of contact points and the establishment of regular meetings for the exchange

of information and training should continue.

2.4. Stepping up cooperation with Frontex

The protection of the EU's external borders on land or sea is a question that arises in

connection not just with clandestine immigration but also with organised crime such as drug

trafficking and human trafficking.

In the absence of legal obstacles, the signing of a cooperation agreement between Eurojust

and Frontex is to be encouraged.

2.5. Cooperation with non-EU countries

Eurojust has developed contacts with non-EU countries with a view to facilitating and

intensifying cooperation between law enforcement authorities.

On the basis of Article 27, Eurojust has concluded cooperation agreements permitting the

exchange of information and personal data in operational cases and participation in

coordination meetings32. These agreements are reflected in the sending of liaison officers to

Eurojust by Norway and the United Stats. Negotiations are in progress on similar agreements

with other countries33. When a cooperation agreement cannot be negotiated, Eurojust seeks to

develop a network of contact points; this has happened most notably in the Mediterranean34

and with the IBER-RED network.

Conclusion

Amending the Decision so that the steps described can be taken would enable Eurojust to

develop its potential for cooperation and to establish itself further as a vital player in the fight

against organised crime and terrorism in Europe.

Eurojust needs to become a stronger structure acknowledged by all the Member States, who

should consolidate the powers of their national members and of the College by transposing

the Decision fully into their own law and expanding the powers conferred on them. This will

permit progress in the fight against cross-border crime and the establishment of an area of

justice, freedom and security in Europe.

32 On 15 June 2007 the countries concerned were Iceland, Norway and the United States.

33 On 15 June 2007 these were Croatia, Russia, Switzerland and Ukraine.

34 Algeria, Egypt, Jordan, Morocco and Tunisia .

EN 9

Transposal of the Eurojust Decision and status of the national member

BE BG CZ DK DE EE IE EL ES EN IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

Eurojust Decision yes yes yes yes yes yes yes yes yes yes

transposed

Transposal in

X X X X X

progress

Administrative X X X

decision

No decision X X X X X X X X X X X X X X

National member's P P P P P/J P P P/J P/J P P/J P P P P/J P P P P/J P P P P P/J P/O P P

status

Term of office 5R 3 3R U 3R 4R 3R 3R 3R 3R 4R 2R 5R 3 4R 3R U U 1R U 3R 3R 4R 4R 2R U U

P: prosecutor J: judge O: police officer

Figure +R: term of office, renewable U: open-ended

EN 10

Powers of the Eurojust national members (Article 6)

BE BG CZ DK DE EE IE EL ES EN IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

To ask his or yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes

her

Member State

to undertake

investigation

or a

prosecution in

a specific

case

To accept a no no no no no no no no no no no no no no no no yes no no no no no yes no yes no no

Eurojust

decision on a

conflict of

jurisdiction or

prosecution

To manage yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes

coordination

To request yes yes yes yes yes no no no yes yes no yes yes yes yes yes yes yes no yes yes yes yes yes yes yes yes

and intervene

in the setting

up of a joint

investigation

team

To provide all yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes

useful

EN 11

information

for the

performance

of its tasks

To consult

yes yes yes no yes yes no no yes yes no yes yes yes yes no no no yes yes no yes no yes yes yes no

criminal

records direct

To make

yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes no yes yes no yes yes yes yes yes yes

direct contact

with the

competent

authorities

II. Further related powers not formally provided for in the Eurojust Decision

BE BG CZ DK DE EE IE EL ES EN IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

Law no yes yes no no yes yes no no no no yes yes yes no no yes no no yes no yes yes yes yes yes yes

enforcement or

operational

powers retained

in home country

To make a no yes no no no no no no no no no no no yes no no yes no no no yes no no yes yes yes yes

request for

mutual

assistance

To order an no yes no no no no no no no no no no no yes no no yes no no no yes no yes yes yes yes no

investigation and

EN 12

prosecution

To authorise the no no yes no yes no no no no no no no no no no no yes no no no no no no no no yes no

setting up of a

joint

investigation

team

EN 13