EU law allows MS to provide for civil confiscation proceedings irrespective of a finding to a criminal offence

On 19 March 2020, the ECJ rendered its judgment in the case «AGRO IN 2001» (C-234/18). In essence, the Court was asked to interpret Directive 2014/42 on the freezing and confiscation of instrumentalities and proceeds of crime in the EU, and its compatibility with national legislation providing for civil law proceedings on asset confiscation that are not based on a previous conviction. The case gave the Court the opportunity to interpret for the first time, Directive 2014/42 and Framework Decision 2005/2012/JHA – both EU instruments intended to harmonise Member State rules on confiscation of criminal assets.Continue reading

ESM in the context of the Coronavirus Crisis – a Much Needed Lifejacket or Another Lead Blanket?

Starting as a local outbreak, the COVID-19 has rapidly transformed into a global public health emergency spurring the global economic turndown and facilitating an unpredictable global and EU economic crisis. The reaction from the EU in terms of attempting to mitigate the effects of economic shock was not long in coming – for example, a comprehensive package of monetary policy measures has been recently announced by the ECB, whereas the Commission has already formulated an impressive amount of legislative proposals aiming at addressing economic difficulties experienced within various sectors affected by the COVID-19 pandemic. The current recession has raised questions regarding potential recourse to any funding available for Eurozone Member States, among which is the European Stability Mechanism (ESM). What can the ESM offer under the extreme circumstances of COVID-19 crisis and would the financial assistance under its auspices be desirable?Continue reading

The corona crisis and the overall imperative of precaution

The corona crisis is of a singular character, in particular in terms of its economic and societal implications. The containment measures taken by governments across Europe encounter a significant degree of public acceptance, but have resulted in a standstill of large parts of the economy. Precaution seems to be the essential driver of the current containment strategy and economic emergency measures, and will hopefully enable societies to cope with the exacerbation of the crisis in the days and weeks ahead.

Precaution as a principle is not only guiding policy-makers from a political perspective, but has also its legal underpinnings. In times of uncertainty, such as the current corona crisis, precaution is an essential legal imperative. On the one hand, the precautionary principle is one of the underlying legal concepts for decision-making by those who govern and bear the responsibility to prevent collapse of healthcare systems and – necessarily linked to such a potential scenario – the loss of a significant number of lives (as it happens in certain regions of Italy, for example). On the other hand, for economic crisis management confronted with challenges caused by an exogenous shock such as the coronavirus, one may draw some conclusions from an analogy to the precautionary principle as well-known from legal scholarship in risk regulation. In this regard, the article argues that it has been first and foremost the European Central Bank (ECB) that has proven by precautionary action to be capable of grasping the massive scale of the corona crisis.Continue reading

The Coronavirus Crisis and EU Adequacy Decisions for Data Transfers

The coronavirus crisis has given rise to numerous initiatives by governments around the world to combat the pandemic by gathering, sharing, and transferring data, both personal and anonymized. A great deal of attention has been given to proposals for increased data gathering within the EU, and many statements have been issued about them by European institutions, data protection authorities, and academics. However, less attention has been given to the protection that personal data transferred from the EU receive in countries that have adopted such measures.These measures raise questions both about respect for the rights of privacy and data protection within the EU/EEA, discussed below, and about the protection that personal data transferred from the EU receive in third countries that have been found to provide “adequate protection” based on EU standards, which is the subject of this comment.

Under Article 45 of the EU’s General Data Protection Regulation 2016/679 (GDPR), the European Commission may issue a decision that a third country ensures an adequate level of data protection, which was also possible under Article 25 of the EU Data Protection Directive 95/46 (the “Directive”) that preceded the GDPR. Since adequacy decisions allow for an unimpeded flow of personal data from the EU to the third country involved, they may only be issued when the legal system of such country guarantees a standard of protection that is essentially equivalent to that under EU law (see Recital 104 of the GDPR).

Israel and South Korea are among the countries that have announced plans to use aggressive measures to intensify data collection and data sharing to combat coronavirus, and that either (with regard to Israel) received an EU adequacy decision in the past, or (with regard to South Korea) are currently engaged in ongoing decisions with the European Commission concerning the issuance of one. According to news reports, Israeli Prime Minister Benjamin Netanyahu stated in mid-March that he had been allowed  by the Justice Ministry to use intelligence tracking tools to digitally monitor coronavirus patients without their consent. Other reports state that the Israeli government has approved the use of new technologies to retrace the movements of coronavirus patients and the people with whom they have been in contact. With regard to South Korea, one report states that “government agencies are harnessing surveillance-camera footage, smartphone location data and credit card purchase records to help trace the recent movements of coronavirus patients and establish virus transmission chains”.Continue reading

Mutual recognition in criminal matters and legal remedies: The first CJEU judgment on the European Investigation Order

International instruments on judicial cooperation in criminal matters are designed to facilitate and accelerate the cooperation between enforcement authorities in different countries. The EU legislator pursues these goals by grounding the cooperation system on the principles of mutual trust and mutual recognition. In the field of evidence, the European Investigation Order (Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters) is the most recent and comprehensive instrument. Following the model of mutual recognition instruments, it allows an issuing authority to order the execution of an investigative measure in another Member State, unless the executing authorities in that State invoke one of the expressly-indicated grounds for refusal.

One of the crucial issues in the field of international cooperation has always been the position of individuals vis-à-vis the authorities of two or more cooperating States. By nature, the defence encounters several difficulties when facing international cooperation of judicial and investigative authorities, due for example to differences between national systems, or simply to practical difficulties (language, procedures, costs, etc.). Therefore, although international cooperation has developed in the first place to meet the needs of prosecution, and not to facilitate the exercise of defence rights, EU and international instruments normally address key questions like: where, how, and when can individuals exercise their defence rights and seek legal remedy against decisions that affect their fundamental rights?

Recently, the CJEU had the chance to interpret for the first time some provisions of Directive 2014/41/EU and provide some clarification on the level of safeguards that needs to be provided ‘in practice’ (C-324/17, Gavanozov, 24 October 2019). Although it is a brief judgment that ultimately deals only with the interpretation of the form contained in an Annex to the Directive, the questions it raises touch upon broader and more fundamental issues of transnational enforcement.Continue reading

Overcoming regional competition in the Eurasian region

The European Union (EU) does not maintain formal trade relations with the Eurasian Economic Union (EAEU or Eurasian Union). At the same time, the EU attempts to develop interregional free trade agreements with the Southern Common Market (Mercosur) and the Association of Southeast Asian Nations (ASEAN). The different approach taken in relation to Eurasian regional organisations has given rise to zero-sum politics that have carved up the neighbourhood, of which the Ukraine crisis is a prominent example. Regional competition between the EU and the EAEU has sandwiched states in the Eurasian region and forces them to express a clear preference. As a consequence, the European Neighbourhood Policy (ENP), developed in the years following the EU Eastern Enlargement, produced exactly what it sought to prevent: new dividing lines.Continue reading

In Support of the EU Rule of Law and Advocate General Eleanor Sharpston – An Open Letter

We live in uncertain times, in times when the rule of law cannot be taken for granted anymore. Rather, to the contrary, numerous events in Europe and beyond challenge a fundamental principle of our legal culture, a milestone of the civilized world. It is therefore of the utmost importance to look after one of the most successful achievements of our modern society: the rule of law.

The EU in particular has experienced that the rule of law is under serious threat in several of its Member States. For years, the European Union (EU) has been struggling with this situation, aiming for the compliance of EU Member States with existing legal rules as a minimum requirement. Changing essential rules on the appointment of judges and undermining their independence by formal and informal practices happens far too often and is very difficult to deal with. The EU has seen first-hand how difficult it can be to achieve an improvement of the situation in Member States such as Hungary and Poland. The Court of Justice of the European Union (CJEU) has contributed, and has pushed ahead quite far, in order to protect the rule of law in EU Member States.

In order to be fully credible, a necessary condition is that the rule of law is respected on the EU level, above all by the CJEU. This credibility is at stake in cases where the Member States have to find Brexit-related solutions for the composition of the CJEU, which could interfere with the independence of the institution in general and given from the nature of the specific situation also in the mandate of Advocate General Eleanor Sharpston in particular. As Daniel Halberstam has pointed out clearly, the recent declaration of EU Member States on Brexit, which foresees the removal of AG Sharpston from office (“The ongoing mandates of members of institutions, bodies, offices and agencies of the Union nominated, appointed or elected in relation to the United Kingdom’s membership of the Union will therefore automatically end as soon as the Treaties cease to apply to the United Kingdom, that is, on the date of the withdrawal.”) lacks an undisputed legal basis.Continue reading

A First Cruise in Judicially Uncharted Waters – Mutual Recognition of Probation Measures at the CJEU

The second case filed at the CJEU in 2019 was not one to make headlines. Although “A.P.” (C-02/19,) takes place in the field of criminal law, it does not concern blood and thunder. Although Mr A.P. is convicted, he is not in prison. On the contrary: the case only arose because A.P. is not imprisoned.

Notwithstanding all of this, the A.P. case may have notable practical impact. The reason for this is that it concerns the Framework Decision 2008/947/JHA on the mutual recognition of probation measures and alternative sanctions (FDPAS). The FDPAS is one of the lesser used mutual recognition instruments in European criminal law. Therefore, a CJEU judgment could per se raise some awareness of the instrument among practitioners. Moreover, no case regarding the FDPAS has ever reached the CJEU before, making it an area of judicially uncharted waters with much space for clarifications by the CJEU. Just over a year after the case has been filed, AG Bobek has now issued his opinion on the matter.Continue reading

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