The 20th ‘birthday’ of Eurojust offers a great opportunity to reflect on the role Eurojust plays or could play in the field of international judicial cooperation in criminal matters. I would like to attempt at such reflection from the perspective closest to me, being a national judicial authority of a Member State of the European Union, which is a partner of Eurojust and in a sense also a ‘user of its services’.

Although Eurojust is an agency of the European Union, which can sometimes be seen by the Member States as something distant and at times not overly friendly, as something taking away their competences, I dare say that Eurojust has never been perceived in this way, and for the judicial authorities of the Member States of the European Union, Eurojust is, on the contrary, a close friend to whom they can turn with confidence.

Eurojust was established within the legal framework of the former third pillar of the European Union as a structural measure at the European Union level to facilitate the optimal coordination of action for investigations and prosecutions covering the territory of more than one Member State[1]. The coordinating and cooperative nature of the powers of Eurojust as such, whether acting as the College[2] or through its National Members[3], corresponded to the intergovernmental nature of the former third pillar of the European Union, and in addition the Member States of the European Union were given the option to endow the National Member with certain operative powers[4]. Neither the amending Decision 2009/426/SVV of 16 December 2008, nor the Regulation (EU) 2018/1727 of 14 November 2018 have changed much about the coordinating and cooperative nature of the Eurojust's powers, meaning that Eurojust as such continues to have, in particular, the power to assist, to cooperate, to support, to request certain measures and to issue written opinions[5], although it should be acknowledged that the ability of the Member States of the European Union not to comply with Eurojust's requests or to refuse to comply with its written opinions has been substantially limited[6]. While the possibilities to grant operative powers to the National Members of Eurojust have been extended[7], these possibilities have been left to the individual Member States of the European Union, when setting the minimum mandatory standard, and under their responsibility[8].

This brief excursus on the origin of Eurojust and its powers may lead to the conclusion that Eurojust is a mere relic of a former intergovernmental era of judicial cooperation in criminal matters between Member States of the European Union, whose concept and powers do not correspond to the present-day reality, where international judicial cooperation in criminal matters between Member States of the European Union is regulated by the community method and with much greater dynamics.

However, this conclusion would be profoundly wrong. Coordinating action for investigations and prosecutions between the Member States of the European Union, which is in the DNA of Eurojust, is necessary regardless of whether international judicial cooperation in criminal matters between the Member States of the European Union takes the form of traditional request-based institutions (e.g. transfer/takeover of criminal proceedings or joint investigation teams) or in the form of mutual recognition-based institutions (e.g. European Arrest Warrant or European Investigation Order). As long as the multiplicity of criminal jurisdictions persists within the European Union, or as long as the individual Member States of the European Union exercise their own criminal jurisdictions, the necessity for such coordination will remain as well. So far, though not all of them yet, the Member States of the European Union have allowed the institutions of the European Union to participate in the exercise of their criminal jurisdiction only to a limited extent, both in terms of the type of authority involved in criminal proceedings and the type of criminal activity[9]. Even the creation of this specific body of the European Union – the European Public Prosecutor's Office (EPPO) – has not diminished the importance and purpose of Eurojust. Whereas the EPPO replaces the operation of national authorities[10] in the (relatively narrow) scope of its competence[11], Eurojust exists primarily to assist national authorities in the exercise of their powers[12] in a wide range of cases[13], and it can also provide assistance to the EPPO[14].

The powers of Eurojust as such, with respect to the Member States of the European Union, are indeed not very strong, and the extent of the operational powers of individual National Members depends mainly on the ‘generosity’ of their home Member States. However, it can hardly be otherwise as long as the Member States of the European Union remain responsible for exercising their criminal jurisdiction (except in cases dealt with by the EPPO), and when Eurojust is not subject to judicial control at the European Union level. The requirement of judicial control has been strongly emphasised, in particular recently, by the Court of Justice of the European Union in relation to the European Arrest Warrant[15] and European Investigation Order[16].

The less Eurojust can rely on strong powers, the more it needs an informal authority based on the quality of work and trust of national judicial authorities, stemming from its proven ability to help where needed. I have no doubt that Eurojust has such informal authority and that it has succeeded in making itself indispensable to national judicial authorities in a number of respects. The key to this is the day-to-day casework, in particular dealing with requests from various judicial authorities of the Member States of the European Union, which is the real focus of Eurojust’s work. From the perspective of national judicial authorities, Eurojust’s professional, logistical and financial support in organising coordination meetings and setting up and operating joint investigation teams should be particularly appreciated. It is safe to say that while Eurojust did not invent coordination meetings or joint investigations teams, it certainly has facilitated their use, significantly contributed to their widespread use and elevated them to a much higher level. Informative materials such as overviews of case law on ne bis in idem or on European Arrest Warrants[17] or analytical materials containing recommendations[18] are especially useful for practice. Particularly important is the contribution of Eurojust in connection with the European Judicial Network to resolve practical issues raised by the not-always-perfect legislation of the European Union[19] or the surprising and suddenly emerging case law of the Court of Justice of the European Union[20]. This makes Eurojust and the European Judicial Network an important voice of practice that is much needed at the European Union level. Last but not least, as a representative of the supreme body of the prosecution system, I must also acknowledge the work of Eurojust in organising the Consultative Forum for Prosecutors General of Member States of the European Union. As such, if Eurojust appears to have a brilliant present, one needs to ask the question: what will its future hold (beyond maintaining and developing its strengths, as described in this paragraph)?

Part of the answer is provided by the current proposal to amend the Regulation (EU) 2018/1727[21]. Above all, this proposal makes it clear that the European Commission wants to make Eurojust a focal point for the coordination of the fight against terrorism at the judicial level and, to this end, to optimise the functioning of the European Judicial Counter-Terrorism Register, so Eurojust can identify potential links between criminal proceedings and possible coordination needs on the basis of continuously updated information from the Member States of the European Union. So, if anyone is called upon to coordinate international judicial cooperation in criminal matters (in particular) between the Member States of the European Union, it is Eurojust and a functioning counter-terrorism register that can facilitate the necessary coordination. However, the Area of Freedom, Security and Justice, in which inter alia the principle of ne bis in idem also applies in relation to the decisions of other Member States of the European Union and States associated with the implementation of the Schengen acquis, would long ago have been served well by a single register of prosecuted persons (which is not to say that it should be Eurojust who maintains such a register).

Another issue addressed by the current proposal to amend the Regulation (EU) 2018/1727 is improving the cooperation with liaison prosecutors from third countries. This brings me to a more general reflection on the role of Eurojust in relation to third countries. In its 2020 Annual Report, Eurojust presented the results of its work on the expansion of its interconnected international network built mainly on cooperation agreements, Liaison Prosecutors from third countries seconded to Eurojust and Eurojust Contact Points in third countries, which it proudly described as ‘a gateway to 55 jurisdictions worldwide’[22]. I believe that from the perspective of national authorities, this supportive network of informal communication with third countries is decidedly welcome, as it can make an important contribution to finding the will to cooperate on the part of third countries, which is at least as important a prerequisite for good cooperation, as a sound legal basis. This, however, does not mean that Eurojust should replace the operation of national central authorities for international judicial cooperation in criminal matters and play the role of the European Union's central authority for international judicial cooperation in criminal matters, since the official communication of the individual Member States of the European Union with third countries takes place on different legal bases and the interests of the individual Member States of the European Union in relation to third countries can vary greatly, as can the level of cooperation.

When reflecting on the future functioning of Eurojust, it is also impossible not to assess whether the COVID-19 pandemic, which has put the whole of society to a severe test, has also provided any lessons or inspiration for the future. According to the 2020 Annual Report, Eurojust maintained full continuity of operations during the pandemic, which is certainly admirable, especially considering that most contact during the pandemic was conducted ‘remotely’, i.e. electronically (so much so that 232 out of 286 coordination meetings were held via videoconference)[23]. This extent of the digitalisation of communication within Eurojust at the time of the COVID-19 pandemic raises the question: to what extent can Eurojust's activities be transferred to a virtual environment? This question is made more pressing by the unmistakable trend of moving our daily lives to a virtual environment, which also applies to criminal activity. I may be accused of basing my assessment of this issue on the fact that I do not come from a generation that grew up surrounded by virtual environments and to whom these environments come naturally, but I believe that even though Eurojust was able to function to a significant extent in a virtual environment during the COVID-19 pandemic, its ‘physical’ existence continues to be indispensable. It is my understanding that Eurojust's main mission is to coordinate action for investigations and prosecutions between two or more States. One certainly can exchange information via videoconferencing or agree on solutions to minor problems. However, in my view, videoconferencing, where people talk at each other rather than with each other, is not sufficient for real coordination, which involves discussion, finding consensus on solutions to larger problems or reconciling various conflicting interests. True coordination still requires personal contact, which the Eurojust model, based on the permanent presence of national representations in The Hague, coordination meetings, etcetera, provides excellently. The COVID-19 pandemic can therefore be seen as a temporary exception which, while it may have shown that some things can be solved by videoconferencing, does not lead to a change in the proven model of Eurojust's functioning. I am afraid that a remotely connected Eurojust, or a home office-based Eurojust, would quite quickly turn into something strikingly reminiscent of the European Judicial Network. The latter is also undeniably very useful, but its working methods are somewhat different.

In conclusion, what started out as a group of enthusiasts has evolved into a strong and respected institution. For this institution to remain viable in the future, it needs above all to maintain the spark of the initial enthusiasm, the connection to everyday practice, and an open and humane approach to national judicial authorities and other partners and to problem solving. It is said that at one of the first conferences devoted to Eurojust, held at the Academy of European Law in Trier on 21 and 22 March 2002, the contemporary Belgian National Member (and later President) of Eurojust, Michele Coninsx, captured the ‘spirit’ of Eurojust with a statement that can be paraphrased as follows: We need to be not only experts in international judicial cooperation, but also good people, so that we are able to agree and always find the best solution[24]. I am certain that Eurojust is succeeding in pursuing this goal, and I wish that it continues to do so.