EUROJUST reform – Article 85 EUROJUST reform – Article 85 TFEUTFEU

Practical Case AnalysisPractical Case Analysis

Carlos ZEYENCarlos ZEYENMember CTT and FECTMember CTT and FECT

National Member for LuxembourgNational Member for Luxembourg

• Romanian organised crime group with ‘expertiseRomanian organised crime group with ‘expertise

developed’ in stealing informatic equipments fromdeveloped’ in stealing informatic equipments from

brand new buildings before their openingbrand new buildings before their opening• Taking advantage of lack or very low security inTaking advantage of lack or very low security in

place during that time frameplace during that time frame• Buildings located in industrial zones, very close toBuildings located in industrial zones, very close to

highwayshighways• Stolen equipments stored in garages rented inStolen equipments stored in garages rented in

GermanyGermany• Stolen equipments sold and proceeds of crimeStolen equipments sold and proceeds of crime

laundered in Romanialaundered in Romania

The facts

• Countries involved: LU, DE, RO, FR, BE, NL, AT Countries involved: LU, DE, RO, FR, BE, NL, AT

• Victims in: LU, FR, BE, NL (possibly also in UK andVictims in: LU, FR, BE, NL (possibly also in UK and DK) DK)

• Suspects arrested in: LU, FR, NL, BESuspects arrested in: LU, FR, NL, BE

• Involvement of Europol in the caseInvolvement of Europol in the case

The case

• Arrested people in France were about to be releasedArrested people in France were about to be released • House search conducted in their premises beforeHouse search conducted in their premises before arriving home in DE Level 2 between LU and DE arriving home in DE Level 2 between LU and DE

• Successful house search: Successful house search: Rental contracts of garages foundRental contracts of garages found Stolen equipments hidden in garages foundStolen equipments hidden in garages found

A first successful intervention at Eurojust

• Countries attending the coordination meeting:Countries attending the coordination meeting: LU, RO, FR, DE, BE, AT, NL, and EuropolLU, RO, FR, DE, BE, AT, NL, and Europol

• Proposals made by the LU investigating judge: Proposals made by the LU investigating judge:

Setting up a common database on stolen and recuperated Setting up a common database on stolen and recuperated equipments in all countries involved with a view to equipments in all countries involved with a view to (eventually) restituting victims/insurance companies (eventually) restituting victims/insurance companies

Setting up a common database on DNA profiles with a view to Setting up a common database on DNA profiles with a view to

identifying possible matches between arrested and material identifying possible matches between arrested and material on equipmenton equipment

Temporary surrender of persons within EAWsTemporary surrender of persons within EAWs

Coordination meeting at Eurojust (1)

• Proposals made by the LU investigating judgeProposals made by the LU investigating judge (continued):(continued):

Conflicts of jurisdiction and transfer of proceedings to a Conflicts of jurisdiction and transfer of proceedings to a Member StateMember State

Setting up a Joint Investigation Team (JIT) Setting up a Joint Investigation Team (JIT)

For one country start an investigationFor one country start an investigation

• Result of the coordinating meeting: no agreementResult of the coordinating meeting: no agreementreached on the issues discussedreached on the issues discussed

Coordination meeting at Eurojust (2)

• Setting up a common database on stolen andSetting up a common database on stolen and

recuperated equipments - Article 6(1)(a)(vii)recuperated equipments - Article 6(1)(a)(vii)

• Setting up a common database on DNA profiles – Setting up a common database on DNA profiles –

Article 6(1)(a)(vii)Article 6(1)(a)(vii)

• Temporary transfer of persons - Article 6(1)(a)(iii)Temporary transfer of persons - Article 6(1)(a)(iii)

• Resolution of conflicts of jurisdiction and transfer ofResolution of conflicts of jurisdiction and transfer of

proceedings to a Member State - Article 6(1)(a)(ii)proceedings to a Member State - Article 6(1)(a)(ii)

and Article 7(2)and Article 7(2)

Follow-up to requests under the new Decision (1)

• Setting up a Joint Investigation Team (JIT) – Setting up a Joint Investigation Team (JIT) –

Article 6(1)(a)(iv)Article 6(1)(a)(iv)

• Undertake an investigation - Article 6(1)(a)(v)Undertake an investigation - Article 6(1)(a)(v)

• OCCOCC

• Importance of new Article 8: Should nationalImportance of new Article 8: Should national

authorities decide not to comply with a request orauthorities decide not to comply with a request or

opinion, they shall inform Eurojust of their decisionopinion, they shall inform Eurojust of their decision

and of the and of the reasonsreasons for it for it

Follow-up to requests under the new Decision (2)

• The powers referred to in Article 9c may be The powers referred to in Article 9c may be exercised in agreement with a competent nationalexercised in agreement with a competent national authority, or at its request and on a case-by-case authority, or at its request and on a case-by-case basisbasis

Setting up a common database on stolen and Setting up a common database on stolen and recuperated equipments - Article 9c(c)recuperated equipments - Article 9c(c)

Setting up a common database on DNA profiles - Setting up a common database on DNA profiles - Article 9c(c).Article 9c(c).

Temporary transfer of persons - Article 9c(a)Temporary transfer of persons - Article 9c(a) Resolution of conflicts of jurisdiction and transfer of Resolution of conflicts of jurisdiction and transfer of

proceedings to a Member State – Article 9c(a)proceedings to a Member State – Article 9c(a) Setting up a Joint Investigation Team (JIT) - Article Setting up a Joint Investigation Team (JIT) - Article

9f9f Undertake an investigation – Article 9cUndertake an investigation – Article 9c

(Insufficient/limited) powers to carry out tasks under the new Decision

• Initiation of criminal investigations andInitiation of criminal investigations and

proposing the initiations of prosecutionproposing the initiations of prosecution

• Coordination of investigations and prosecutionsCoordination of investigations and prosecutions

• Resolution of conflicts of jurisdictionResolution of conflicts of jurisdiction

Article 85 TFEU

• Would the implementation of Article 85 TFEU helpWould the implementation of Article 85 TFEU help

solving cases such as the one described above?solving cases such as the one described above?

Would the “quality change” resulting from the new Treaty – Would the “quality change” resulting from the new Treaty –

i.e. the granting of direct operational powers – be enough?i.e. the granting of direct operational powers – be enough? Effective follow-up to initiation is crucialEffective follow-up to initiation is crucial

• How would EUROJUST practically “initiate” How would EUROJUST practically “initiate”

investigations?investigations?

Through its NMs or via a decision of the College? Through its NMs or via a decision of the College? In the case described above, what if NMs for NL, ES and FR haveIn the case described above, what if NMs for NL, ES and FR have

different views?different views?

Perspectives offered by Article 85 TFEUQuestions without answers… (1)

• Respective roles of Eurojust /national authoritiesRespective roles of Eurojust /national authorities

during the “life” of the case:during the “life” of the case:

Possibility to propose prosecutionsPossibility to propose prosecutions

Reinforcement of the role of coordination (Article 85(1)(b) Reinforcement of the role of coordination (Article 85(1)(b)

Limit of Article 85(2): formal acts performed by competent nationalLimit of Article 85(2): formal acts performed by competent national

officials. Intervention of NMs as “national officials”?officials. Intervention of NMs as “national officials”?

Perspectives offered by Article 85 TFEUQuestions without answers… (2)

• Operational issuesOperational issues

• Structural issuesStructural issues

• Parliamentary Control issuesParliamentary Control issues

GHK Study (1)

• Minimalist ScenarioMinimalist Scenario

• Intermediate ScenarioIntermediate Scenario

• Maximalist ScenarioMaximalist Scenario

GHK Study (2)

• Initiation Initiation NMs participation under the lead of MS, others NMs participation under the lead of MS, others

than their own, in investigation and prosecutionthan their own, in investigation and prosecution Eurojust to order investigative measuresEurojust to order investigative measures Autonomous investigative power as EurojustAutonomous investigative power as Eurojust

•Coordination and cooperationCoordination and cooperation Systematic follow-up of coordination meetingsSystematic follow-up of coordination meetings

•Conflicts of jurisdictionConflicts of jurisdiction Jurisdiction to investigate and to prosecuteJurisdiction to investigate and to prosecute

Positive conflictsPositive conflicts Negative conflictsNegative conflicts

Develop and apply legally binding concepts, Develop and apply legally binding concepts, criteria and procedure for examining and criteria and procedure for examining and resolving conflicts of jurisdictionresolving conflicts of jurisdiction

Maximalist Policy Options

Thank you for your attention!Thank you for your attention!