Abstract
This Chapter analyses the changing scenario of information technology cooperation for law enforcement purposes in the EU. It proposes a taxonomy of existing information cooperation tools, based on two criteria: the cooperation techniques and the institutional settings governing information exchange. On this basis, the analysis briefly addresses the increasing involvement of private (economic) actors in contributing to cooperation in criminal matters and the quest for a higher degree of interoperability among various information systems. While highlighting the risks connected to prioritizing security concerns, the Chapter also underscores the integrative potential of information cooperation in a common European space without internal borders.
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Notes
- 1.
See, inter alia, Boehm (2012).
- 2.
Fletcher et al. (2008), p. 46.
- 3.
The expanding legislation concerning data and law enforcement has been imaginatively compared to the growth of “mushrooms after a rainy Autumn day”. Cf. Gutiérrez Zarza (2015), p. 2.
- 4.
This connection has been repeatedly stressed by both European institutions and scholars. Cf. in particular Blasi Casagran (2017), p. 16.
- 5.
Council of Europe, Convention of 20 April 1959 on mutual assistance in criminal matters.
- 6.
Convention of 29 May 2000 on mutual assistance in criminal matters between the Member States of the European Union, in OJ C 197 of 12 July 2000, p. 1.
- 7.
Vermeulen (2006).
- 8.
Prüm Treaty of 27 May 2005 on the stepping up of cross-border cooperation, particularly on combating terrorism, cross-border crime and illegal migration, signed between Belgium, Germany, Spain, France, Luxembourg, The Netherlands and Austria.
- 9.
Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, in OJ L 210 of 6 August 2008, p. 1; Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, in OJ L 210 of 6 August 2008, p. 12; Council Framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities, in OJ L 322of 9 December 2009, p. 14.
- 10.
Council Framework Decision 2009/315/JHA of 26 February 2009 on the exchange of information extracted from criminal records, in OJ L 93 of 7 April 2009, p. 23, and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA, in OJ L 93 of 7 April 2009, p. 33. Cf. Stefanou and Xanthaki (2008).
- 11.
At the same time, information through ECRIS may be exchanged for any other purpose according to national law, such as recruitment, naturalization, asylum, fire arms licensing, child adoption procedures, etc. In particular, information must be exchanged if requested for recruitment procedures with regard to posts involving direct and regular contact with children, as required by Art. 10 of the Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating sexual abuse and sexual exploitation of children, and child pornography, in OJ L 335 of 17 December 2011, p. 1.
- 12.
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, in OJ L 130 of 1 May 2014, p. 1.
- 13.
Interestingly enough, its adoption was proposed by a group of Member States pursuant to Article 76(2) TFEU. The proponents’ idea was precisely to address the shortcomings of previous intergovernmental tools for judicial cooperation in the field of criminal evidence.
- 14.
Directive 2014/41/EU applies to any kind of data, including DNA and banking information. It has also updated mechanisms to technological advances, in particular in relation to tapping tools and digital evidence.
- 15.
Directive 2014/41/EU does not solve all problems related to the complexity of the supranational legal scenario. For instance, specific provisions apply to common investigation teams and some provisions of the Brussels Convention of 2000 on mutual legal assistance have not been replaced. For an analysis of the legal scenario following the expiry of the deadline for implementing Directive 2014/41/EU at the national level, see Montaldo (2017).
- 16.
Mitsilegas (2017), p. 10.
- 17.
Regulation (EC) 766/2008 of the European Parliament and of the Council of 9 July 2008 amending Council Regulation (EC) 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters, in OJ L 218 of 13 August 2008, p. 48.
- 18.
Council Decision 2009/917/JHA of 30 November 2009 on the use of information technology for customs purposes, in OJ L 323of 10 December 2009, p. 20.
- 19.
Cf. Article 1(2) of the Decision. The notion of national laws is clarified by Article 2(1) and refers to the laws or regulations of a Member State, in application of which the national customs administration has competence, concerning the movement of goods subject to measures of prohibition, control or restriction; measures to control cash movements within the EU; and the transfer, conversion, concealment, or disguise of property or proceeds acquired or obtained directly or indirectly through illicit conducts, such as international drug trafficking or tax evasion.
- 20.
Council Regulation (EC) 2725/2000 of 11 December 2000 concerning the establishment of Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention, in OJ L 315 of 15 December 2000, p. 1.
- 21.
Regulation (EU) 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of “Eurodac” for the comparison of fingerprints for the effective application of Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, in OJ L 180 of 29 June 2013, p. 1; Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, in OJ L 180 of 29 June 2013, p. 31.
- 22.
See Recital 8 highlighting the strategic importance of up-to-date information in the area of law enforcement, in particular in relation to terrorist offences, the most deeply rooted and powerful drivers of the evolution of EU information cooperation tools. Recital 13 manifestly acknowledges that this reform brings about a “change of the original purpose of EURODAC, which interferes with the fundamental right to respect for the private life of individuals whose personal data are processed in EURODAC”. By virtue of this, the Regulation establishes strict conditions and limits for the use of EURODAC data for law enforcement purposes.
- 23.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, in OJ L 190 of 18 July 2002, p. 1. Article 2(2) of this Framework Decision lists the serious offences for which double criminality is not required for an Arrest Warrant to be issued and executed. The list represents a benchmark for all subsequent EU legislation implementing the principle of mutual recognition to national judicial decisions in criminal matters. Despite some inconsistencies in its implementation at the national level, the list referred to by the new EURODAC Regulation has received a general consensus among Member States and this is an essential element for the self-containment of the extended use of the data collected in it.
- 24.
Suominen (2014).
- 25.
Interestingly enough, the Commission is trying to upgrade ECRIS’s current structure, in order to partially supplement this horizontal instrument with a common EU database, at least in relation to convictions handed down against third-country nationals. Cf. Communication from the Commission (2017)344 final of 29 June 2017, Proposal for a regulation establishing a centralized system for the identification of Member States holding conviction information on third-country nationals and stateless persons to supplement and support ECRIS.
- 26.
European Council (2009), p. 20.
- 27.
Vermeulen and Wills (2011).
- 28.
Council (2014).
- 29.
Regulation (EU) 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, in OJ L 286 of 1 November 2011, p. 1.
- 30.
Bures and Carrapico (2018).
- 31.
Court of Justice, judgment of 30 May 2004, joined cases C-317/04 and C-318/04, European Commission and European Parliament v. Council.
- 32.
Council Decision 2012/472/EU of 26 April 2012 on the conclusion of the agreement between the United States of America and the European Union on the use and transfer of Passenger Name Records to the United States Department of Homeland Security, in OJ L 215 of 11 August 2012, p. 4.
- 33.
See, amongst others, Santos Vara (2014).
- 34.
From this point of view, this new generation of instruments departs from previous forms of responsabilization of commercial actors, such as those provided by anti-money laundering legislation, where specific suspicions are needed for law enforcement authorities to access relevant data. See Mitsilegas (2016), p. 159.
- 35.
Court of Justice, Opinion 1/15 of 26 July 2017 pursuant to Article 218(11) TFEU.
- 36.
Court of Justice, judgment of 8 April 2014, Joined Cases C-293/12 and C-594/12, Digital Rights Ireland; judgment of 6 October 2015, Case C-362/14, Schrems; judgment of 21 December 2016, Joined Cases C-203/15 and C-698/15, Tele2 and Watson.
- 37.
Cf. para. 99 of the judgment.
- 38.
Cf. para. 109 of the judgment.
- 39.
See, amongst others, the decision to harmonize national laws regarding the minimum rules on criminalization of terrorist financing: Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism, in OJ L 88 of 31 March 2017, p. 6.
- 40.
See de Hert and de Schutter (2008). Millions of financial transactions were scrutinized every day and the relevant information was stored for 124 days.
- 41.
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in OJ L 281 of 23 November 1995, p. 31.
- 42.
Curtin (2013).
- 43.
Mitsilegas (2016), p. 156.
- 44.
Cf. Article 18(1) of the PNR bilateral agreement.
- 45.
See Commission communication COM(2013)842 final of 27 November 2013, a European terrorist finance tracking system (EU TFTS), building on COM(2011) 429 final of 13 July 2011, a European terrorist finance tracking system: Available options.
- 46.
Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds and repealing Regulation (EC) No 1781/2006, in OJ L 141 of 5 June 2015, p. 1.
- 47.
Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, in OJ L 119 of 4 May 2016, p. 132. The Directive was to be implemented by the end of May 2018.
- 48.
Member States can inform the Commission of their intention to extend its scope to intra-EU flights. Every flight taking off from a Member State and landing outside the EU and vice versa must be considered an extra-EU flight.
- 49.
The relevant serious crimes are listed in Annex II of the Directive. The Annex is slightly different from the traditional list provided for by Framework Decision 2002/584/JHA on the European Arrest Warrant. For instance, it includes industrial espionage and trafficking in stolen vehicles.
- 50.
Cf. Article 7.
- 51.
European Union Agency for Fundamental Rights (2017).
- 52.
Council (2016).
- 53.
Communication from the Commission COM(2016) 205 final of 6 April 2016, Stronger and smarter information systems for borders and security.
- 54.
Communication from the Commission COM(2017) 134 final of 23 March 2017, European interoperability network. Implementation strategy.
- 55.
The high-level expert group included experts from Member States, Schengen associated third countries, and some EU institutions and agencies. It met for the first time in June 2016 and issued its final report in May 2017. The report and all other documents concerning the group’s meetings and activities are available at: http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3435.
- 56.
The Commission has established the National Interoperability Framework Observatory (NIFO), which collects and shares all relevant national practices and policies in this domain. Several country reports and eGovernment factsheets are available on the Observatory website: https://joinup.ec.europa.eu/collection/national-interoperability-framework-observatory-nifo.
- 57.
European Union Agency for Fundamental Rights (2017).
- 58.
de Hert and Guthwirth (2006). In a 2005 Communication, the Commission took a different stance and emphasized that interoperability “is disconnected from the question of whether the data exchange is legally or politically possible or required”. Cf. Communication from the Commission COM(2005) 597 final of 24 November 2005. Improved effectiveness, enhanced interoperability and synergies among the European databases in the Justice and Home Affairs area, p. 3.
- 59.
Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2011 on the European Union Agency for Law Enforcement Cooperation (Europol), in OJ L 135 of 24 May 2016, p. 53.
- 60.
European Union Agency for Fundamental Rights (2017), p. 29.
- 61.
Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States, determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011, in OJ L 327 of 9 December 2017, p. 20.
- 62.
For instance, Directive 2011/82/EU of the European Parliament and of the Council of 25 October 2011 facilitating the cross-border exchange of information on road safety related traffic offences, in OJ L 288 of 5 November 2011, p. 1. The legal basis of the Directive refers to the EU policy on transportation.
- 63.
Argomaniz (2012), p. 72.
- 64.
Kreissl (2017), p. 96.
- 65.
Communication from the Commission COM(2012) 735 final of 7 December 2012, Strengthening law enforcement cooperation in the EU: The European Information Exchange Model (EXIM).
- 66.
Cf. footnote No. 62.
- 67.
Hallinan et al. (2012).
- 68.
Morgan (2003), p. 143.
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Montaldo, S. (2019). Swords Shielding Security? The Use of Databases in Criminal Cooperation within the European Union: Challenges and Prospects. In: Carpanelli, E., Lazzerini, N. (eds) Use and Misuse of New Technologies. Springer, Cham. https://doi.org/10.1007/978-3-030-05648-3_2
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