A brief look at 20 years of Eurojust and EU policies in the field of justice and law enforcement, and a glimpse into the future

Christine Roger
Christine Roger Director-General for Justice and Home Affairs, General Secretariat of the Council of the European Union [1]

Christine Roger

Director-General for Justice and Home Affairs, General Secretariat of the Council of the European Union [1]

This anniversary of the legal basis of Eurojust provides an interesting opportunity to look back at the last two or three decades of EU cooperation in the field of justice and law enforcement and, on that basis, to envisage the future of our common efforts. To do this, this article will begin with considerations of the judicial nature of Eurojust and its implications (1). It will then look at the relation between Eurojust and police cooperation (2), the evolution of judicial cooperation (3) and the challenges brought by digital investigation (4). It will end with a few thoughts on Eurojust in the EU judicial cooperation architecture (5).

The judicial nature of Eurojust and its relationship with the Member States

While the European Judicial Network was set up in a standard way in terms of the type of organisation (a network of Contact Points), Eurojust was conceived from the start as an atypical body. It is a permanent body, but it is not led by an executive director appointed by the Council or a management board, nor does it have a management board where Member States are represented (like Europol or Frontex, for example). Instead, Eurojust is led by a College composed of one National Member designated by each Member State, and the College elects its President. Eurojust’s National Desks are fundamentally different from those at Europol, since they are attached to the National Member who is part of the College, while Europol’s National Desks are more of an extension of the police of the Member State concerned. Eurojust’s collegial nature makes it closer, with regard to its organisation, to the Court of Auditors or the Court of Justice, while its role is very different, since it focuses on coordination.

The atypical structure of Eurojust has never really been questioned[2]. This structure is not so much the result of Eurojust being the product of an initiative by the Member States (so is Europol) but has more to do with its (mostly) judicial nature or composition. The independence of the judiciary does not, in itself, require this collegial nature, but it does contribute to the fact that the judiciary has a less hierarchical structure compared to the police or other administrative bodies. This pushed Member States, more than 20 years ago, to apply a solution where prosecutors in each Member State would have a peer at Eurojust to work with in order to foster trust in the new body.

This has worked really well, and the collegial nature is undoubtedly a key part of the success of Eurojust in concrete cases. Eurojust has gained the trust of national judicial authorities, which was not a given when it was first created. The collegial nature of Eurojust also compensates for the lack of a management board in terms of relations with the Member States themselves.

It is interesting to see that the collegial structure was also favoured by the Member States for the European Public Prosecutor’s Office (EPPO), departing in that crucial aspect from the Commission’s proposal. The EPPO’s structure is not, of course, exactly the same. In particular, EPPO has a Chief Prosecutor, and the EPPO Regulation puts more emphasis on the independence of the European Prosecutors. But the general idea is similar: to make the EPPO and Eurojust work, the diversity of legal systems needs to be reflected, and the national judicial authorities need national peers to embody the action taken by this European body in or with their Member State.

Eurojust and police cooperation

The pre-existence[3] of Europol is one of the main factors that triggered the idea of setting up what would become Eurojust. The growing maturity of the information-sharing component of police cooperation increasingly highlighted the limitations of judicial cooperation. As Europol is based on the necessity to tackle complex organised crime structures operating in several Member States, it became evident that another level of coordination than the European Judicial Network[4] was needed for the criminal proceedings themselves. Coordinated action needed to include, for example, resolving conflicts of jurisdiction or taking simultaneous judicial measures, such as house searches or arrests, in different Member States[5].

The relationship between Eurojust and Europol, and more generally between police cooperation and judicial cooperation, has been important ever since. It would be a mistake to reduce this dynamic to the natural interaction between two bodies operating in the same field but with different roles, where there is the usual combination of a positive drive to cooperate and, from time to time, unavoidable tensions about each other’s role. The interaction between Eurojust and Europol is much more complex and richer.

Almost 15 years ago, the ‘Swedish framework decision’[6] clarified the fact that police cooperation concerns information while judicial cooperation is about evidence[7]. This legal framework is necessary, and its consequences are clear regarding the exchange of specific pieces of information. But when it comes to complex investigations that involve monitoring criminal organisations over the course of several years, police and judicial cooperation becomes very much intertwined. Information analysis, on the one hand, and the collection of evidence and coordination of criminal proceedings, on the other, necessarily overlap in cases that form the ‘raison d’être’ of Europol and Eurojust. In practice, Europol and Eurojust have set up various mechanisms to facilitate their essential cooperation.

All relevant actors are aware of the importance of ensuring smooth and efficient cooperation between Europol and Eurojust and, in general, interaction between police and judicial cooperation. But maintaining a clear vision is challenging. Both police and judicial cooperation have seen their legal and operational frameworks ramify and become more complex. It has become difficult to find experts working in law enforcement, the judiciary or policymaking at national or EU level, who have a global view of at least one of the two worlds, let alone experts who understand both of them. Most academics, practitioners or policymakers who have developed expertise in judicial cooperation have a simplistic or limited view of police cooperation and vice versa. I myself cover both sectors, and I am convinced that the development of our law enforcement policies will require increasing efforts to maintain a horizontal understanding and strategy, beyond the division of competences between national ministries of justice and home affairs or administrative divisions in the EU institutions.

The cooperation between Eurojust and Europol will not only be an interesting barometer of the success of these efforts. Its evolution will also be crucial concerning the possible transformations discussed in this contribution.

The evolution of judicial cooperation

This anniversary is also an opportunity to reflect on Eurojust’s work and evolution in parallel with the evolution of the EU rules on judicial cooperation in criminal matters.

The creation of the European Judicial Network can easily be linked with the negotiation of what would lead to the 2000 MLA Convention, which formalises the principle of direct contact between local judicial authorities (rather than channelling cooperation via central authorities, usually ministries of justice).

Looking at the timing, it may seem straightforward to link Eurojust with the next step and therefore with the principle of mutual recognition. After all, the political endorsement of the creation of Eurojust coincided with the endorsement of the principle of mutual recognition. Both were explicitly formulated in the Tampere conclusions (1999). And the first Eurojust Decision was finalised together with the Framework Decision on the European Arrest Warrant (December 2001). However, Eurojust’s activities are at least as important in the early stages of criminal proceedings, where it is important to coordinate the launch of criminal proceedings and the gathering of evidence. It was not until the application of the European Investigation Order (EIO), in 2017, that mutual recognition was applicable to the main areas of evidence collection (such as searching a house, seizing a computer or hearing a witness).

Of course, the creation and the work of Eurojust cannot be dissociated from the spirit, if not the actual implementation, of mutual recognition. The general trend was mutual trust and ‘judicialisation’. Even if the 2000 MLA Convention does not explicitly prevent Member States from subjecting the execution of a letter rogatory to a governmental decision, such a requirement will progressively disappear, and judicial cooperation will fall exclusively to judicial authorities.

However, judicialisation and decentralisation do not themselves justify setting up a permanent body at EU level. The need to tackle complex and long investigations, particularly with regard to organised crime, is the most important factor. In that sense, more than the European Arrest Warrant or the definition of terrorism, which were adopted together with the Eurojust Decision as part of the post-9/11 package, the legal framework for joint investigation teams (JITs) is maybe the closest to Eurojust in terms of objective. Although JITs can operate without Eurojust’s support, and although Eurojust’s involvement in cases that give rise to a JIT represents just a small fraction of the cases where Eurojust intervenes, there is a close link between the two tools. Knowing that it took some time for the first JITs to be used and to increase in number, it is interesting to see that Eurojust has now been involved in as many as 254 JITs.

The innovative aspects of the legal framework of the JITs are often underestimated. Setting up a JIT creates a legal space in which evidence can be shared and later used in court proceedings in each participating state, irrespective of where the evidence has been collected. The initial phase is cumbersome, precisely because the consequences are far-reaching from a legal point of view. It is an appropriate tool for the types of investigations that form the core of what motivated the setting up of Eurojust.

Twenty years after Eurojust was set up, along with the launch of mutual recognition and the JITs, what lies ahead of us?

We first need to take into account the evolution of the legal framework of the cornerstone of judicial cooperation that is mutual recognition. The legislative pace has slowed down significantly. During the first 10 years of implementation of the mutual recognition principle in EU legal instruments, there was one instrument adopted every year (between 2001 and 2011). The last decade has seen only two new instruments adopted. Since the EIO was proposed in 2010 and adopted in 2014, mutual recognition has mostly evolved through CJEU case law[8]. There are several reasons why we have not had new mutual recognition instruments. First, mutual recognition brought so many important changes that the adoption of legal instruments was naturally followed by a long phase of adjustment. Second, with the EIO, all the main types of judicial decisions are now covered[9]. But it is also true that the evolutions around the rule of law do not provide any incentives to make further steps towards a purer translation of the principle of mutual recognition in the legal framework. It is striking to compare the complexity of the rules contained in the EIO Regulation of 2014 with the pure application of mutual recognition, before that was its name, in the cross-border application of the ne bis in idem principle adopted more than 25 years earlier (Art. 54 of the 1990 Convention Implementing the Schengen Agreement).

With mutual recognition as we know it – with a radical improvement compared to classical judicial cooperation but, nevertheless, with relatively important checks allowed in the executing state – the role of Eurojust remains essential. We need a forum and an actor for coordination, a place where mutual trust between the authorities can be fostered, where differences between the legal systems can be discussed and where prosecutors and investigative judges building cases can hold discussions to avoid difficulties down the road which could lead to obstacles in the mutual recognition phase, because those obstacles will continue to exist.

While we might not be able to reduce grounds for refusal or checks needed in the executing state, a lot of progress can be made in the digitalisation of procedures, with possible ways of reducing the workload and the length of judicial cooperation. Eurojust has been a driving force in this regard. Major legislative work is ongoing, based on Commission proposals. As always in digitalisation efforts, integrating the different strands will pose a challenge. It is essential to bring together what could be called the ‘e-justice’ community and the ‘criminal law cooperation’ community. There are, for example, links between the development of e-Codex (being applied to the transmission of EIOs), the Atlas developed by the European Judicial Network (EJN) to identify the judicial authority that is locally competent to receive an EIO, the JIT platforms where evidence can be stored and shared, and Eurojust’s Case Management System. There are, of course, experts already working on those links, but we need the awareness and knowledge to spread further. The digitalisation of justice may have been slower than in other sectors, but that can be transformed into an opportunity if we manage to fit the different pieces of the puzzle together from the start. Eurojust’s role in these efforts is already and will remain crucial.

Digital investigations

If we need more digitalisation of criminal justice, we also need more criminal justice in the digital world. This includes the collection of digital evidence (including evidence of crimes committed in the physical sphere), prosecuting crimes committed via the digital world (such as hate crimes committed via internet-based social networks) and prosecuting crimes against computer systems (such as ransomware cyberattacks).

Efforts are ongoing and have been for a long time. Eurojust is already playing an important role, including by hosting the Secretariat of the European Judicial Cybercrime Network. Efforts include applying existing tools to digital investigations, helping national authorities in this regard and accompanying legislative efforts at EU level.

This digital world is evolving quickly, and we are having trouble keeping up at a legislative level. Three issues are by now well-known and reflect the hesitations and obstacles: (1) data retention, (2) the e-evidence legal framework and (3) the issue of access to encrypted communications. These issues have highlighted the tensions.

But national authorities and EU agencies are confronted with many other complex and sensitive legal issues, such as searching in a computer system located in another state but accessible from the state where the prosecution is taking place, targeted access to smartphones to circumvent the obstacle of encrypted communications, or the use of fake identities by investigators to enter a closed digital group (such as a closed Facebook group) composed of people from all around the world.

These issues are not only delicate in terms of finding a balance between fundamental rights and the requirements of criminal investigations. They also raise difficult questions in terms of territoriality and conflicts of law, both within the European Union and with non-EU countries. There is no solution to these questions on the horizon.

The timeline for the e-evidence package is not reassuring on the possibility of bringing rapid EU answers: the Ministers of Justice started discussing the need for a common framework in 2015. Despite the enormous efforts put into the negotiations, it seems unlikely that the EU instruments will be applicable in practice before 2024. Furthermore, conflicts of law will only be resolved once an EU-US agreement has entered into force, and that will only concern situations where the provider is based in the United States, and not in another third country.

Europol is providing essential support on all these issues. The EC3 (European Cybercrime Centre) and the innovation lab are essential tools for thinking ahead, mutualising resources and finding creative solutions. The judicial aspect is, of course, also crucial. Eurojust will need to continue playing an essential role in helping prosecutors keep up, collectively, with all the evolutions, while making sure that the solutions found hold up in court and that digital investigations are well coordinated.

Two issues illustrate the challenges ahead. The first, online child sexual abuse material, is already currently plaguing the digital world. The other, the metaverse, is an issue for the future, but it raises questions that need to be explored now.

The staggering figures regarding child sexual abuse material detected by private companies (for example by Meta/Facebook) may lead us to adapt our model of law enforcement cooperation. The Commission is expected to table a legislative proposal soon, which might include an obligation for internet platforms to report child sexual abuse material and the setting up of a European Centre to fight and prevent child sexual abuse[10]. The future solutions will have to deal with a situation where it is not possible or efficient for the platforms to dispatch every detected image or video to the Member State concerned to enable criminal proceedings. Some sort of centralisation, as an intermediary step before national authorities launch their proceedings, may be needed[11]. What exactly will be the role of the new European Centre and what will Europol do in this framework remains to be seen. Again, it is also important to reflect on the judicial aspect. Issues such as prioritisation of cases, given the sheer volume of material involved, can be dealt with once cases arrive at national level but could also be prepared at a more European level.

The metaverse opens up further considerations on the future European law enforcement and judicial architecture with regard to the digital world. Whether or not it will actually materialise (in the sense of combining both a massive number of users and a fundamental transformation of the user's experience compared to the current web 2.0), is open for debate. At any rate, it is an opportunity to look at what we are currently doing and to check whether the framework we are developing will resist one of the possible evolutions that could – but might not – happen within the next 10 to 20 years.

From a legal point of view, the metaverse will not necessarily raise questions that are significantly different from those we are looking at now. It will still involve investigations covering data managed by private companies often located outside the EU, with uncertainty about where they are stored, concerning unknown and non-located users that are of interest for criminal investigations in an EU Member State, in situations where it becomes increasingly difficult to determine where the offence was committed or, for that matter, where it was not committed (for example, hate crime visible on the internet throughout the world). It is also possible that the metaverse will push all of these difficult issues to a breaking point where we will need to change our approach, for example, concerning territoriality and conflicts of law.

If the digital world becomes an alternate reality, avatars will develop a growing range of behaviours. Issues such as whether sexual violence as a criminal offence can be committed in virtual worlds are already being discussed. They will become more and more significant. The metaverse will not only raise questions of substantive criminal law but also questions about whether and how to ‘patrol’ and police these spaces, how to investigate and where to prosecute. This will also raise questions about the current law enforcement and judicial architecture.

There is always the possibility of a centralisation model at EU level, but, even if that option is chosen at some point, it is unlikely to be the next step. It is more likely that we will see, at least in an initial stage, Europol and Eurojust diversifying their roles while retaining their supportive function towards national authorities.

Eurojust in the EU judicial cooperation architecture

Looking at the existing models – liaison magistrates, the European Judicial Network, Eurojust and the EPPO – we can see that the emergence of one player does not mean the gradual replacement of others. They simply pursue different objectives in different ways, are intended to tackle different types of cases and are all building blocks in a common judicial area.

The remit of the EPPO might evolve at some point. Proposals have already been made to extend its remit to cases of terrorism and environmental crime[12]. What seems clear is that, at least for some time, the EPPO’s field of activity will remain extremely limited compared to the much wider scope of competence of Eurojust.

Even with the EPPO’s limited scope of competence, there will be frequent overlap, because not all Member States participate in the EPPO and because the world of fraud against the EU’s financial interests is not separate in practice from other criminal activities, in particular when organised crime is involved. The coming years will be very interesting as we will gradually be able to assess, based on the EPPO’s first years of operational activities, how the EPPO, Eurojust and Europol cooperate and what can be improved. It is difficult to anticipate all aspects of their future cooperation. A JIT has already been set up involving both the EPPO and a non-participating Member State, with the support of Eurojust. More complex situations will arise. It is not far-fetched to imagine a JIT supported by Eurojust involving non-EU States, EPPO participating and non-participating Member States and, within the EPPO participating Member States, both national authorities and the EPPO playing a role because a case has different dimensions.

The legislator will need to step in at some point. Despite the amount of time and effort put into the preparation and negotiation of the EPPO Regulation, it is impossible to anticipate all of the challenges this new structure will be faced with. And most of the solutions will come from practical cooperation. The human factor will be important. A lot will depend on good cooperation, for each participating Member State, between the relevant actors, including the European Prosecutor, the European Delegated Prosecutors and the National Member of Eurojust, as well as with the key prosecutors in the Member State concerned. There already is and there will continue to be a lot of sitting around in physical or virtual meetings to discuss how to overcome unexpected obstacles.

Solving this sort of problem by bringing people together and finding creative solutions is what Eurojust has been doing for 20 years. It is part of its DNA and the culture of cooperation will (have to) prevail.

When Eurojust emerged, the system that was being developed to implement the criminal law aspects in the Area of Freedom, Security and Justice was relatively simple. Quite a few people could claim to have a horizontal view of all of the important dimensions. Twenty years later, the picture is considerably more complex. Legislative instruments, tools, players and important case law have multiplied. New approaches have been launched that were not anticipated in 2002, such as the approximation of procedural safeguards, mutual direct access to national databases (the ‘Prüm’ framework), access to electronic evidence and, of course, the setting up of the EPPO.

These changes have made Eurojust more necessary. The College of Eurojust and its successive National Members have developed the anticipated hands-on approach and they have earned the trust of national authorities. Eurojust’s building has become an essential forum for prosecutors to come together, discuss and take decisions. Prefigured by a group of 15 individuals working from the building in Brussels where the present article is written, Eurojust has become a robust agency composed of more than 300 people.

Reflecting on these 20 years of Eurojust’s development in the context of the wider evolutions that are affecting law enforcement and judicial cooperation is a good starting point for looking into the future. Eurojust is ideally placed to support not only national judicial authorities in specific cases, but also EU policymakers in developing a vision and a strategy for this increasingly complex law enforcement and judicial architecture. Eurojust is indeed a regular guest in Council working parties, Committees and ministerial meetings. There is also excellent cooperation at a more informal level. I look forward to continuing these discussions and reflections, which will help all of us, collectively, to design EU policies capable of tackling the numerous challenges ahead of us in this constant endeavour to create an Area of Freedom, Security and Justice.

Christine Roger
Christine Roger Director-General for Justice and Home Affairs, General Secretariat of the Council of the European Union [1]

[1] The views expressed are those of the author and in no way reflect the views of the Council or the European Council.

[2] With the exception of the ‘lighter’ version of Eurojust proposed at the very beginning of the negotiations (OJ C 206, 19.07.2000, pp. 1-2).

[3] Europol's legal basis, the Europol Convention, was adopted more than 10 years before the Eurojust Decision of 2002. Although the entry into force of the Europol Convention took some time, Europol was up and running by the end of the 1990s. In 1999, Europol staff already totalled more than 200. The main objective of Europol, which is to allow Member States to share and jointly analyse information, had already been implemented for a few years.

[4] The European Judicial Network, formally established in 1998, focuses primarily on facilitating bilateral contacts between judicial authorities located in the Member States.

[5] There was also concern in some circles that the focus on police cooperation reflected the bigger role given to the police in criminal proceedings in common law countries, which formed a minority of the then 15 Member States.

[6] Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, OJ L 386, 29.12.2006, pp. 89–100.

[7] If you exchange information via police cooperation, typically at a stage where you need to focus the investigation and ‘close some doors’, and the information later needs to be used as evidence, that will require going through the formal channels of judicial cooperation, now known as the European Investigation Order framework.

[8] With the exception of Regulation 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders, OJ L 303, 28.11.2018, p. 1.

[9] The main area that is missing concerns the transfer of proceedings and the issue of conflicts of jurisdiction, but, while this is intrinsically linked to mutual recognition, it might not be resolved by a mutual recognition instrument. The European Commission has announced a legislative initiative on transfer of proceedings in its work programme for 2022.

[10] See Commissioner Ylva Johansson's speech at the We Protect Global Alliance Webinar “Prioritising Children in Online Safety Laws” (available on the European Commission's website).

[11] The main internet platforms are already cooperating in the United States with the National Center for Missing and Exploited Children.

[12] These two proposals are interesting in that they raise the question of the criteria, beyond the requirement of the Treaty, to task the EPPO with a new field of criminal activities. Does this concern the seriousness of the impact on the European Union as a whole, even if that seriousness actually translates into the highest level of priority in the Member States and efficient judicial cooperation between them? Or, on the contrary, is it the need to make sure that a specific form of crime is given the necessary priority because of its impact on the EU as a whole?