Abstract
The Regulation on the EPPO foresees different scenarios which demand the exchange of information between national authorities and the EPPO. These situations require setting up a robust, efficient and effective as well as secure, fast and automated mechanism for the transmission and management of such information. The information flow between national authorities and the EPPO must be understood as a very comprehensive concept, since the Regulation describes diverse situations where information can be transferred in different moments, in a bi-directional way, and by distinct national authorities (any having competence according to the applicable domestic law).
The topic of exchange and processing of information spins around a number of fundamental questions, e.g. which types of information should be transmitted to the EPPO or which model of Case Management System will the EPPO adopt to process the information received from national authorities.
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Notes
- 1.
Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.
- 2.
Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime.
- 3.
Document of the Presidency 12677/17, of 2 October 2017 (Article 21).
- 4.
According to the 2015 Eurojust Annual Report, the number of notifications was 273; the number of notifications dropped dramatically in 2016 where, pursuant to the 2016 Eurojust Annual Report, only 176 situations were notified. With regard to notifications related to conflicts of jurisdiction the 2015 Eurojust Annual Report states that “even though the number of notifications on the basis of Article 13(7)(a) of the Eurojust Council Decision has increased since 2011, the actual number of notifications in 2015, namely 35, remains low” (p. 57).
- 5.
In its Conclusions on the Eurojust Annual Report 2014, the Council “recommends that Eurojust acknowledges receipt of any notifications under Article 13 and provides systematic feedback to the Member State concerned”.
- 6.
A new more user-friendly template was one of the key recommendations to Eurojust as a result of the Sixth Round of Mutual Evaluations on the practical implementation and operation of the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime and of the Council Decision 2008/976/JHA on the European Judicial Network in criminal matters.
- 7.
Information provided in the 2016 Eurojust Annual Report.
- 8.
The use of the EPPO CMS instead of the national CMSs has many advantages, among them, being an option when the EPPO decides to reallocate a case to another EDP (Article 28(3)) in the same Member States, because if the option was that EDPs worked in national CMSs, the new EDP might be working in a national CMS different to the national CMS used by the first EDP.
- 9.
A double-hatted EDP exercises his or her functions as national prosecutor simultaneously as EDP, a possibility provided for in Article 13(3).
- 10.
This concern has also been highlighted by the Eurojust Joint Supervisory Body (JSB) in Council document 7150/16 on the opinion of the JSB about the protection of personal data in the EPPO Regulation Proposal.
- 11.
At some point in the negotiations of the Eurojust Regulation (Document of the Presidency 12677/17, of 2 October 2017), it was stated that Eurojust should take the appropriate measures to enable the European Public Prosecutor’s Office to have indirect access to information in its case management system on the basis of a hit/no-hit system (Article 45(5) in fine).
- 12.
In the context of the Eurojust CMS, the Index is accessible to all National Members and TWFs are accessible by the National Member that has opened it; all information inserted by a National Member goes initially to the local part of TWF and then the National Member owner of the case decides how and to which extent the information is shared with other National Members and which data go to the Index.
- 13.
Aspects related to the storage of information related to closed cases are not analyzed in this article.
- 14.
In the course of the negotiations this Article 45(1), second paragraph, at some point read: “The case file shall contain all the information available to the European Delegated Prosecutor, including evidence, related to an investigation or prosecution by the European Public Prosecutor’s Office”. In our opinion this former drafting is more correct than the one of the final drafting, because in the final wording “information” and “evidence” seem to be opposed and they are not: evidence gathered by the EDPs is nothing less than that part of the “information” related to an investigation.
- 15.
As for Eurojust capacities to establish coincidences, the structure of Eurojust CMS remains practically the same in the COM Eurojust Regulation Proposal as in the Eurojust Decision. Eurojust demanded the inclusion of an analytical work tool that could support analysis by finding links between cases and entities. Pursuant to Council document 8488/14, Eurojust written contribution to the COPEN on the Eurojust Regulation Proposal “the architecture of the Eurojust CMS remains identical (Article 24 of the Proposal). The definition of the CMS in the Proposal as temporary work files and index is still limiting and would, as currently drafted, not allow for a global system (including, for instance, an analytical work tool). Rather than being merely composed of temporary work files and of an index, the definition of the CMS could be reviewed in order to ensure that the CMS is rather understood as a comprehensive system for data processing, not as a single database. The system could be composed of several connected tools that would include the pure registration of cases, but that could also support basic analysis by finding links between cases and entities, and include an advanced search tool and an easy tool dedicated to statistics”. The current wording of Article 24 in the Document of the Presidency 12677/17, of 2 October 2017 is significantly the same as in the COM Eurojust Regulation Proposal.
- 16.
The wording “case related personal data” is the same as in the Eurojust Decision; the new wording “operational personal data” included in the COM Eurojust Regulation Proposal has not been adopted in the COM EPPO Proposal.
- 17.
Such interoperability needs to be in place only with national CMSs of national authorities with competence to conduct investigations, not with those national authorities with just reporting obligations under Article 24(1).
- 18.
These systems are not interoperable among themselves but via the Support Unit at the Prosecutor General’s Office.
- 19.
In the case of Spain, prosecutors and investigative judges may have direct access to a number of public registers such as Real Estate Register, Companies Register, Vehicles Register, Criminal Records, Treasury, etc. via the so called “Neutral Point”. In addition, the Financial Ownership File has recently been created for the purpose of fighting against money laundering and terrorism financing; access to this powerful tool should be granted to EDPs whenever investigating money laundering offences where the predicate offence is a PIF crime.
- 20.
Information on this particular. Article 13 notification channel can be obtained in the “fiches suedoises”.
- 21.
The number of PIF crimes opened by Eurojust in 2016 is extremely low (41) in comparison with the total number of cases opened in the year (2.306)—Eurojust Annual Report 2016—even lower than in 2015, where from the total number of cases (2.214), 69 were related to PIF crimes.
- 22.
Recital 59 provides some guidance to the EPPO and to national authorities as to which situations should be considered as having repercussions at EU level: “a particular case should be considered to have repercussions at Union level, inter alia, where a criminal offence has a transnational nature and scale, where such an offence involves a criminal organization, or where the specific type of offence could pose a serious threat to the Union’s financial interests or the Union institutions’ credit and Union citizens’ confidence”.
- 23.
According to some versions of the draft Regulation, minor cases where the conduct had caused or is likely to cause damage to the Union’s financial interests of less than EUR 10,000 where there were no grounds to assume that the EPPO would exercise its right of evocation (because of the case has no repercussion at Union level or because the crime has not been committed by officials or other servants of the EU or members of the Institutions), the reporting obligation could be fulfilled through a “summary report”. This “summary report” included a more limited set of data but, as an additional guarantee, it had to be reiterated or updated periodically (every 3 or 6 months). Minor cases under the threshold of EUR 1000 didn’t need to be reported.
- 24.
2016 Eurojust Annual Report does not include any information with regard to hits found in the cross matching process and feedback provided to national authorities pursuant to Article 13a.
- 25.
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.
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Pérez Enciso, P. (2018). Exchange and Processing of Information Between the European Public Prosecutor’s Office and National Authorities. The Case Management System. In: Bachmaier Winter, L. (eds) The European Public Prosecutor's Office. Legal Studies in International, European and Comparative Criminal Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-93916-2_13
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