Partners against crime: 20 years of judicial and law enforcement cooperation

Catherine De Bolle
Catherine De Bolle Executive Director of Europol

Catherine De Bolle

Executive Director of Europol

From the Luxembourg Council in 1991 to the Tampere Conclusions of 1999, eight years separate the genesis of the ideas of Europol and Eurojust. Far from constituting a generational gap, this age difference was rapidly bridged by the Treaty of Lisbon, which in a way reset the evolution of both Agencies, establishing a convergence of the two key European Union instruments in the area of police and judicial cooperation. Indeed, Eurojust and Europol are singled out in the Lisbon Treaty as the only two Justice and Home Affairs Agencies whose core functions are defined in EU primary law. The Treaty also aligned the legal and institutional development of Europol and Eurojust, foreseeing the organisation of the two Agencies by means of Regulations.

Much has been written about the differences between Europol and Eurojust in terms of their evolution, their nature and functional logic, their organisational structure, and their size and resources. However, in my view, the history of both agencies over the last 20 years is much more about operational convergence than institutional difference. What may have started as a tale of two cities, has now become a tale in a single city, The Hague, where both organisations are located across the street from each other.

Europol and Eurojust have a common mission to support law enforcement and the judiciary in their respective constituencies – to support, but not to substitute, let alone exercise executive powers. In fact, though both are fully fledged EU Agencies, Europol and Eurojust are still imbued with a strong intergovernmental spirit, not least because of the highly delicate subject matter they deal with, involving national sovereignty. In the case of Europol, this is related to its evolution and history. In matters of law enforcement, Europol stood alone, since 1995, as an institutional player within the EU and was the only organisation, within the framework of the third pillar, created on the basis of an intergovernmental convention. For its part, Eurojust was established in 2002 by a Council Decision directly as an EU body.

In their functioning and activities, Europol and Eurojust were and remain equally dependent on Member States’ competent authorities. Both are service providers, which are voluntarily approached by Member States’ judicial or law enforcement authorities. Both Agencies offer competitive products and services, which substantially contribute to Member States’ judicial actions and criminal investigations. However, Member States remain the initiators and owners of such investigations and judicial actions. Competent authorities provide the criminal- or terrorist-related information, which allows Europol to act as the EU criminal information hub. Likewise, national judges or prosecutors opt to use Eurojust as an instrument to enhance international judicial cooperation. Therefore, both agencies need to create a positive dynamic of permanent engagement with national authorities, and they must continuously nurture an environment of trust that makes them relevant and valuable.  

From complementarity to collaboration

Europol and Eurojust are key actors in the EU internal security framework and play an instrumental role in supporting and strengthening cooperation between EU Member States in criminal matters. They both have complementary functions and competences facilitated by their corresponding mandates. This complementarity should not be understood as an exclusive exercise of competences in different and separate jurisdictions or constituencies. On the contrary, over the last 20 years, complementarity between Europol and Eurojust has been about achieving and maintaining a dynamic engagement strategy. Close cooperation between both Agencies is essential to effectively assist national authorities in fighting serious and organised crime and terrorism, from the preliminary police investigation phase up to the judicial stage. There is a continuum between Europol’s police cooperation function and the judicial coordination work carried out by Eurojust. Judicial authorities build on the investigations of law enforcement authorities, transforming the collection and analysis of criminal information into judicial evidence, thus facilitating the formulation of criminal charges.

The Maastricht Treaty confirmed that Eurojust’s task was to support criminal investigations in cases of serious cross-border crime, particularly organised crime, taking account of analyses carried out by Europol. For Europol, the necessity and value of engaging with Eurojust essentially originate from an operational responsibility, rather than from a statutory obligation. This became evident soon after the Europol Convention entered into force on 1 October 1998, in Europol’s start-up phase following the Europol Drugs Unit period (1994-1998). In 1999, the newly created Europol Management Board launched an early debate about Europol’s perspectives and strategic outlook with a view to facilitating its mission of providing assistance to national law enforcement agencies. This led to a ‘Europol vision paper’ adopted in Paris on 4-5 December 2000, which among other recommendations, concluded that a working relationship between Europol and Eurojust should be developed following the establishment of the latter. In the meantime, on 14 December 2000, on the initiative of Belgium, France, Portugal and Sweden, a provisional judicial cooperation unit was formed under the name Pro-Eurojust, operating from the Council building.  

Following the 9/11 terrorist attacks in the United States, the EU further intensified its initiatives in justice and home affairs, giving additional impetus to the development of relations between Europol and Eurojust. On 20 September 2001, an extraordinary Council meeting entrusted the Article 36 Committee, which handled police and judicial cooperation in criminal matters, with the task of ensuring the closest possible coordination between Europol, Pro-Eurojust and the EU Police Chiefs Task Force.

The 20th anniversary of the foundation of Eurojust also marks the coming of age of the formalisation of the relationship between Europol and Eurojust. Despite the operational necessity and political priorities, reaching a formal agreement between both agencies took some time. The Council Decision 2002/187/JHA, which created Eurojust as a judicial coordination unit, required both agencies to establish and maintain close cooperation avoiding duplication of efforts and to do so through an agreement to be negotiated by the two parties and approved by the Council. A similar requirement was included in a third amending protocol to the Europol Convention on 27 November 2003. Eventually, Europol and Eurojust would sign their first cooperation agreement in 2004. However, it soon became evident that the arrangement was insufficient to ensure an effective exchange of information. Indeed, the Justice and Home Affairs Council Statement of 5-6 June 2008 called for a new agreement between Europol and Eurojust to enhance cooperation in order to make the investigation and prosecution of crimes as efficient as possible through a proper exchange of personal data.  

Since then, the mandates of both Agencies have regulated their bilateral cooperation, underlining its relevance for the fulfilment of their respective missions and for achieving the overall goals of EU action in the area of justice and home affairs. Europol and Eurojust negotiated and concluded a new cooperation agreement, which entered into force in January 2010, to increase both Agencies’ effectiveness in combating serious forms of international crime.

The cooperation agreement solidified efforts to foster closer cooperation between the Agencies, in particular by increasing information exchange and improving strategic and operational cooperation. It also facilitated mutual participation in strategic and operational coordination meetings and the possibility of temporarily posting representatives of one or both agencies on the other’s premises, as well as the obligation to inform each other about participation in joint investigation teams (JITs).

Eurojust and Europol also concluded agreements for the temporary placement of Eurojust representatives in Europol’s operational centres, namely the European Cybercrime Centre (EC3) and the European Counter Terrorism Centre (ECTC). Eurojust’s seconded national expert posted at EC3 promotes the early involvement of judicial authorities in cross-border cyber investigations and facilitating the exchange of information. This ensures Eurojust’s contribution to relevant cyber-related investigations in the context of Europol’s Analysis Projects (APs), as well as its regular and active participation in the EC3 Programme Board, the EU Cybercrime Task Force, the Europol Joint Cybercrime Action Task Force or the European Cybercrime Training and Education Group. For its part, the Eurojust prosecutor posted at ECTC has decisively contributed to the enhancement of cooperation with Eurojust in counter-terrorism matters.

Eurojust is associated with almost 30 Europol APs. Meetings between AP managers and Eurojust Contact Points provide a useful platform for discussing practical issues related to the further strengthening of operational cooperation. Eurojust Contact Points act as facilitators between Europol APs and Eurojust National Desks. Both Agencies have intensified expert-level contact in dedicated crime areas, for example between financial intelligence experts at Europol and Eurojust’s Economic Crimes Team to discuss asset recovery or in the area of intellectual property rights.

The requirements for closer cooperation have led to a multitude of operational meetings between both Agencies on an almost daily basis. In addition to this intense and smooth interaction, Eurojust and Europol have established a Steering Committee, which normally meets four times a year in two different formats – covering strategic and operational matters – as a dedicated forum to address issues of common interest or concern for their mutual cooperation.

From exchanging to accessing information

Since its establishment, Europol’s core task has been to conduct operational analysis of criminal information and intelligence. Europol’s function is to collect, store, process, analyse and exchange information and intelligence and to notify the competent authorities of the Member States of information concerning them and of any connections identified between criminal offences. Over the years, Europol has established extensive and recognised analytical capabilities and continuously improves and reinforces its analytical tools.

Europol’s analytical function requires the processing of data that is obviously relevant to law enforcement agencies during the criminal investigative stage, but which can also be relevant to judicial authorities during the prosecution and trial phases. The new Europol and Eurojust Regulations have mirroring provisions to grant each other indirect access to data, which will require a number of technical enablers for their implementation. While Eurojust already has a SIENA connection – Europol’s secure information-exchange network application – both Agencies are working to make the indirect access to information possible, including by developing new technical solutions, such as web-based functionalities facilitating reciprocal access.   

The exchange of information has been a regular practice between both Agencies since the signing of the Cooperation Agreement in 2010. In fact, both parties had already agreed to use their contacts with national authorities to ensure the early and complete acquisition by both Agencies of information necessary to fulfil their tasks. In this regard, the Europol and Eurojust Regulations of 2016 and 2018 respectively codify previous business practices in terms of information exchange. One common practice now enshrined in the Eurojust Regulation is that if, while information is being processed regarding an individual investigation, Eurojust or a Member State identifies the need for coordination, cooperation or support in accordance with Europol’s mandate, Eurojust shall notify Europol and initiate the procedure for sharing the information. It will be important to take advantage of the new possibilities offered by the respective Regulations, while preserving the good practices already consolidated through regular engagement, mutual trust-building and operational cooperation.  

A crucial nexus for judicial and law enforcement cooperation

Europol and Eurojust share an essential responsibility in facilitating police and judicial cooperation in criminal matters. This requires close cooperation and a continued commitment to engage in matters of joint concern, in particular to respond quickly to any request for operational support. JITs have become a well-established, efficient and effective international cooperation tool among national investigative agencies to facilitate the coordination of criminal investigations and prosecutions conducted in parallel across several states.

In many ways, JITs are the central nexus of the Europol-Eurojust cooperation for a number of reasons. JITs can bring together the respective competent authorities from both the judicial (judges, prosecutors and investigative judges) and law enforcement domains. They facilitate cooperation between two or more Member States. They are established for the specific purpose of carrying out criminal investigations in one or more of the involved states. JITs have clear added value compared to traditional forms of police and judicial cooperation, in that they enable the direct gathering and exchange of information and evidence without the need, for example, of using complex channels of mutual legal assistance. Information and evidence are collected in accordance with the legislation of the state in which the team operates and can be shared on the basis of the JIT agreement. JITs facilitate the engagement of team members as they become entitled to be present and take part in investigative measures conducted outside their state of origin, within the limits foreseen by national legislation or specified in the JIT agreement.

Eurojust and Europol have played an instrumental role in the development of JITs as one of the most advanced tools used in international cooperation in criminal matters. To further strengthen the supportive role played by Eurojust and Europol in financially supporting JITs, in June 2018, both Agencies signed a Memorandum of Understanding (MoU) on the joint establishment of rules and conditions for financial support to JIT activities. Among other points, the MoU underlines the need for the Agencies to efficiently exchange information, including on applications for JIT funding, in order to prevent duplication of efforts, including double funding for JITs. More generally, the MoU emphasised the Agencies’ commitment to close cooperation and continued cooperation in matters of joint concern, which is also a requirement of the Eurojust and Europol Regulations.

Europol supports the JITs Network Secretariat established at Eurojust. Both agencies work towards improving the communication of the conclusions of JIT meetings to the Commission and Council. They also review the JIT training programme to better reflect the needs of various target groups. Stronger links have been established between the Liaison Bureaux at Europol and the JIT national experts to continuously improve this crucial tool for judicial and law enforcement cooperation, which has underpinned some of the most decisive international criminal investigations in recent years.

A common platform for mutual engagement 

The European Multidisciplinary Platform Against Criminal Threats offers an integrated approach to EU internal security and an operational platform for inter-agency cooperation, with measures ranging from police, customs and judicial cooperation to information management, innovation, training, prevention and the external dimension of internal security. This facilitates cooperation between various national law enforcement and judicial authorities, bringing together Europol and Eurojust in a dedicated operational environment.

Throughout the different policy cycles, Eurojust and Europol have jointly participated in most if not all Operational Action Plans, and Eurojust has co-led Operational Actions for example in the areas of cyberattacks against information systems, cyber-non-cash payment fraud or migrant smuggling. Europol and Eurojust have also cooperated in joint action days by being available 24/7 to ensure, upon request, transmission of information, guidance and coordination on legal and practical aspects of international judicial cooperation. The judicial dimension of joint action days is a key aspect of the multi-disciplinary approach and multi-agency cooperation. The early involvement of judicial authorities in the support and coordination of joint action days is beneficial in situations where legal or practical problems in international cooperation need to be addressed at the judicial level. Furthermore, cross-border criminal cases initiated in the context of activities carried out during joint action days often require judicial follow-up. Therefore, the cooperation between Europol and Eurojust during joint action days is another clear example of value added to national law enforcement and judicial authorities.

Addressing the root causes and challenges of organised crime

Beyond their casework, Eurojust and Europol cooperate closely to raise awareness about serious and organised crime and to develop common responses to new developments in cross-border crime, including in the fields of terrorism and cybercrime. As part of these joint efforts, the Agencies regularly co-author and disseminate joint publications on topics such as encryption or cybercrime. Both agencies closely collaborate on strategic topics of common interest, such as data retention, e-evidence and asset recovery. Eurojust is regularly involved in the preparation of Europol’s key strategic products, the EU Serious and Organised Crime Threat Assessment (EU SOCTA), the Terrorism Situation and Trend Report (TE-SAT) and the Internet Organised Crime Threat Assessment (IOCTA). In particular, Eurojust is a permanent member of the SOCTA Advisory Group to develop the methodology and review the draft report. Eurojust participates in the TE-SAT Advisory Board and contributes data on convictions and penalties for terrorist offences to be included in the TE-SAT. Eurojust also provides feedback and comments on the draft IOCTA every year.

A partnership for the next 20 years

Over the last decade, the European security ecosystem has been profoundly reshaped by an ongoing series of crises – economic and social, migration and health-related. In particular, the COVID-19 pandemic has changed our notion of safety and security and challenged policies and response measures in the law enforcement and judicial spheres. The war in Ukraine is likely to have significant implications for organised crime and terrorism in the EU in much the same way as the Balkan wars of the 1990s had a deep impact on organised crime in Europe for many years after the conflicts in the region ended. This builds on an already complex and entrenched pre-existing organised crime landscape. Criminal groups and networks continue to take advantage of the possibilities offered by cross-border movement and interconnectivity; they exploit the blurring of the boundaries between the physical and digital world; and they abuse vulnerable groups as well as social and economic divergences.

There are many challenges and risks ahead, including unknown ones, but also many opportunities and gateways to explore new avenues to further increase cooperation between both Agencies. First, Europol and Eurojust will need to make the most of the information exchange provisions in their new Regulations with all the necessary safeguards in terms of data protection and fundamental rights. Timely and relevant information is key to the fight against organised crime and terrorism. Second, it will be important to systematically seek complementarity and interoperability of information-exchange tools, systems and collaboration platforms, not just to avoid data gaps and operational fragmentation, but to facilitate the work of law enforcement and judicial authorities. Third, Europol and Eurojust must continue to work together in innovation and research, identifying new technologies and tools to help law enforcement and judicial actors. Europol and Eurojust have already established an observatory function to engage in a forward-looking analysis with respect to encryption, which should facilitate informed decision-making on this complex matter from a law enforcement and judicial perspective. Both agencies should continue to engage on strategic topics of common interest, building on work already done regarding data retention, e-evidence or asset recovery. Fourth, both agencies can further intensify their operational coordination and cooperation techniques and approaches, in particular with respect to JITs, improving the common intelligence picture and operational analysis. The pooling of operational efforts is essential to multiply the effectiveness of law enforcement and judicial actions, but also to overcome resource shortcomings. One obvious area for operational collaboration is war crimes, where the coordination role of a JIT can effectively combine with the investigative activities of Europol’s Analysis Project on Core International Crimes.

In a particularly complicated and fragmented environment, Europol and Eurojust will need to maximise their engagement and reinforce the interaction between law enforcement cooperation and judicial cooperation. Not only to advance the fight against organised crime and terrorism but also to enhance the overall strategic coherence of the justice and home affairs area in the EU. The proximity of Eurojust and Europol’s headquarters in The Hague (literally across the street from each other), the existing complementarity between respective actions, tested and well-established forms of structured cooperation, effective operational coordination practices and techniques, and new legal provisions constitute a solid basis to build the partnership between Europol and Eurojust for the next 20 years. As Executive Director of Europol, I remain fully committed to this goal.

Catherine De Bolle
Catherine De Bolle Executive Director of Europol