The law embodies the story of a nation's development through many centuries, and cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

This year, we celebrate the 20th anniversary of Eurojust as a success story of an EU agency in the field of judicial cooperation. It is also a celebration of the strength of the Area of Freedom Security and Justice (AFSJ) as well as of the democratisation of the mentioned area in view of the role of the European Parliament (EP) and national parliaments. In that regard, democratisation also means more legitimation of EU prerogatives in the field of judicial cross-border cooperation. Especially in the area of adoption of criminal law, parliamentary decision-making, as well as parliamentary oversight of law enforcement agencies, is essential to guarantee a functioning system of checks and balances and gain the trust of citizens in such a system.

From Maastricht to Lisbon

Initially, the Maastricht Treaty[1] and the amendments in the subsequent Treaty of Amsterdam[2] viewed the Justice and Home Affairs (JHA) area as a purely intergovernmental system with a purely consultative function of the European Parliament[3]. It could state its opinion during a specific time frame. However, during this period, the EP’s voice was like ‘a distant echo’, not necessarily heard by Member States. They only had to wait for the deadline for the EP opinion to pass, and not necessarily take the opinion into account. In the sensitive area of criminal law, such an intergovernmental approach, which limited the adoption of acts to representatives of national executives (governments) only in the framework of the EU Council, led to a certain imbalance between efficiency on the one hand, and fundamental rights protection on the other, as acknowledged in the framework of the five-year Stockholm programme. Nevertheless, several decisions and framework decisions were adopted after Amsterdam covering mutual recognition in all phases of the criminal procedure (for example, the European Arrest Warrant), substantial harmonisation of criminal material law (for example, on trafficking, abuse against children and terrorism), and certain criminal cooperation frameworks were established as well, such as the European Judicial Network and Eurojust.

However, criminal law is not only an effective tool for combating crime (protective role), but it is also a safeguard mechanism for the individual (guarantee role). In that regard, the role of parliaments is essential whereby pros and cons for a certain legislative solution are discussed and assessed in a transparent way in an open debate. As a result, citizens can become aware of what is happening and try to shape criminal law legislation, such as legislation with a significant impact on fundamental rights, through its elected representatives. Only after Lisbon did the European Parliament and its Committee on Civil Liberties, Justice and Home Affairs (LIBE) become fully involved in criminal law legislation based on the new provisions of Chapter 4 of Title V of the Treaty of the Functioning of the European Union (TFEU, Area of Freedom, Security and Justice). The Lisbon Treaty introduced a ‘Copernican’ shift and provided national parliaments with a special procedure on subsidiarity issues[4], and the role of an equal co-legislator in the criminal justice area for the European Parliament[5]. And the Parliament, as well as the LIBE Committee responsible for approximately one-third of the legislative work at the EP committee stage, has used its role wisely and effectively since then.

The added value of the European Parliament as a co-legislator

Over the past 12 years, the European Parliament has co-shaped EU criminal law and judicial cooperation in a substantive way, including the new structure and prerogatives of Eurojust. It has significantly contributed to a high level of protection of victims in criminal proceedings by enhancing the level of protection (see Directive 2012/29/EU), thereby shifting the focus onto victims as well. As regards harmonising the rights of suspects under Article 82(2) TFEU, it has helped to substantially increase the level of protection – for example, regarding the right to information, by insisting that the right to remain silent must be included in the system of warnings given[6]. The Parliament also limited exceptions to the right to a lawyer to a minimum due to the Council’s objection that such an exception exists at all[7]. In the framework of presumption of innocence, it has opposed any reversal of the burden of proof and argued in favour of the right to remain silent and the privilege against self-incrimination to be an absolute category[8]. It has also significantly improved the directive on legal aid, changing it from a provisional system to a proper system of free legal aid[9]. As regards harmonising offences under Article 83 TFEU, it has championed appropriate deterrent sanctions, if necessary, for example regarding human trafficking[10] or combating sexual abuse against children[11]. It has championed the protection of the European Union’s financial interests through the PIF Directive based on Article 83 TFEU (and not 325 TFEU) and including certain VAT offences.[12] It has significantly added to the definition of terrorist offences[13] and the fight against money laundering, for example as regards the issue of predicate offences[14]. As regards mutual recognition in criminal law under Article 82(1) TFEU, it has established a balanced system of mutual recognition, including, inter alia, a fundamental rights non-recognition ground, a reference to proportionality, and stronger provisions on legal remedies regarding the European Investigation[15] Order and freezing and confiscation orders[16], and continues to use this balanced approach with e-evidence[17]. The EP has provided an efficient system of confiscations, including extended confiscations[18]. It has also championed the Lisbonisation of the Eurojust legal framework[19]. It is a strong supporter of the newly established European Public Prosecutor’s Office[20]. In addition, regarding certain broader issues, the foresight of the EP was almost ‘prophetic’. Indeed, the EP already warned in 2012 that rule of law issues in the Member States might have a negative impact on mutual recognition in criminal law, much before the CJEU decision in the LM case (C-216/18)[21]. These are just some examples of the EP’s involvement and its role as a co-legislator in matters of criminal justice since Lisbon.

Eurojust – a success story

Eurojust as an agency in the field of criminal justice is one of the great European Union success stories. For example, the last annual report showed an impressive number of practical support in more than 10 000 cases covering more than 85 000 suspects and 15.3 billion in damages, 517 cases involving European Arrest Warrants, 4 319 cases involving European Investigation Orders, 254 joint investigation teams (JITs) and 3 312 mutual legal assistance (MLA) cases[22]. The trend through the years shows a continued increase in workload. Furthermore, Eurojust has established contact with a variety of third countries in view of the fact that crime does not stop at the European Union’s borders. Ten Liaison Prosecutors from third countries are stationed at Eurojust, and Eurojust concluded 12 cooperation agreements with third countries such as Ukraine, Serbia and Montenegro. This has all been accomplished on a relatively modest budget of around EUR 44 million.

The European Parliament had a certain share in that success by supporting the above-mentioned Lisbonisation of Eurojust, fighting for Eurojust’s prerogatives, conducting swift procedures to conclude cooperation agreements between Eurojust and third countries, providing appropriate budgetary means for Eurojust, as well as showing a continued interest in Eurojust’s activities by maintaining permanent contact with Eurojust, for example in the framework of annual interparliamentary conferences on Eurojust. Regarding the current Eurojust Regulation (EU) 2018/1727, the EP aimed, during the legislative procedure, inter alia, to achieve the following: a clearer division of competencies between Eurojust and the EPPO; cooperation provisions between Eurojust and other JHA bodies and agencies; the option of writing one’s opinions on refusals or difficulties concerning the execution of requests for judicial cooperation; enhanced powers of National Members; clear provisions on Eurojust’s governing structure, such as the role of the College or the Executive Board; stronger provisions on the national coordination system; strong provisions on informing national members of cross-border cases affecting a certain number of Member States; clear provisions on the response obligations of national authorities; clear provisions on the Case Management System and its access; clear rules on data sharing and close cooperation with Europol and the EPPO, including a ‘hit/no hit’ system; strong rules on international cooperation; and a strong data protection framework based on Regulation (EU) 2018/1725 and certain specific data protection provisions in the Eurojust Regulation as a lex specialis.

The EP conducted its legislative procedure with the utmost diligence in view of the circumstances and close connection with the EPPO proposal. In that regard, the Eurojust regulation had to be closely coordinated with the negotiations and closure on the EPPO file and EU data protection rules. The EP LIBE report on Eurojust was confirmed by the EP plenary in October 2017, and the final agreement between the two co-legislators was confirmed by the EP in October 2018 after intensive negotiations in 2017-2018. There are also additional legislative procedures pending involving Eurojust related to JITs[23] and to the digital exchange of information in terrorism cases[24]. Currently, Eurojust is providing practical and logistical support to the JITs Network and hosting the JITs Secretariat. New provisions will provide an IT platform where JIT participants can share information. In addition, the issue of the European Judicial Counter-Terrorism Register (CTR) and the Eurojust Case Management System (CMS) will be clarified. These developments mean that judicial authorities and Eurojust are being equipped with the latest technology, which is welcome, provided that fundamental rights, especially data protection rights, are fully respected, no prohibited general indiscriminate data retention system is established during the process, and cooperation with third countries is based on the same data protection and fundamental rights values. It should be added that not everything that is technologically possible in a democracy is also legally possible.

However, the EP interest in Eurojust with regard to legislative work is far from over, and there is a constant, regular exchange to understand the work and needs of Eurojust. In that regard, it is necessary to highlight specifically the application of Article 67(3) of the Eurojust Regulation whereby ‘[t]he President of Eurojust shall appear once a year for the joint evaluation of the activities of Eurojust by the European Parliament and national parliaments within the framework of an interparliamentary committee meeting, to discuss Eurojust’s current activities and to present its annual report or other key documents of Eurojust’. So far, two such meetings have been conducted, in 2020 and early 2022 respectively, under the German and French presidencies, and despite logistical difficulties due to the COVID-19 pandemic. In addition, there is also a continuous presentation of the Eurojust Annual Report and certain sectorial reports in the LIBE Committee by Eurojust.

Conclusion

Eurojust has proved that it is possible to be an efficient judicial body, while fully respecting fundamental rights, safeguarding data protection and demonstrating full transparency regarding the democratic process through the European Parliament. Indeed, the establishment of the EPPO in no way makes Eurojust redundant or superfluous, as some feared. On the contrary, Eurojust and the EPPO serve the same goal (to fight crime and end impunity for criminals), but at the same time using two different but complementary paths. The EPPO is a fully fledged prosecutorial agency, a kind of federal prosecutor for certain EU offences, while Eurojust focuses more on providing support and coordination, such as JITs, for a broader set of cross-border offences. Both are needed, now and in the future. In addition, the horrific violations of human rights taking place in Putin’s war against Ukraine clearly show that such a coordination role is necessary not only for EU Member States but also for third countries, especially crimes against peace, war crimes and crimes against humanity. In view of that, Eurojust has a fully functioning system of third country Liaison Prosecutors and Contact Points , whose work also covers crimes against peace, war crimes and crimes against humanity committed in third countries but which fall under universal jurisdiction. Consequently, the European Parliament and the LIBE Committee will continue to provide its full support to Eurojust in its noble fight against crime.