On the 25th of January, 2018, I attended the conference “Understanding European Crime and Criminal Justice and its Research: the past 25 years, the present and the future”, which was held at Maastricht University. The conference was organized to celebrate the 25th anniversary of the European Journal of Crime, Criminal Law and Criminal Justice, which aims at presenting an international and comparative viewpoint on crime, criminal law and criminal justice in Europe. As it is argued by the authors of the above-mentioned academic journal, since law offenders in Europe can easily cross borders and flee from the state in which the crime was committed – which is also further facilitated by the cyberspace –  criminal conduct is getting gradually denationalised. Consequently, the issues of crime, criminal law, and criminal justice do not fall exclusively under the scope of national matters anymore. Despite this changing reality and the fact that the current situation demands a different approach than the traditional methods of combating crime, fighting against it and safeguarding the rights of victims are still organised predominantly on a national basis. The status quo follows from the fact that the police and judicial cooperation in criminal matter is a particularly sensitive issue largely connected to close national interests of the Member States (Kaunert 2016). Thus, there is a tension between the Member States’ sovereignty and their will to implement measures promoting police and judicial cooperation in criminal matters. Recognizing this conflict of interests, the organizers of the conference I attended gathered the academics from the field of law to create a panel for fruitful discussions of the most pressing matters in the area of European criminal law.

The conference’s main focus lied on tendencies that are currently present in the contemporary crime in Europe and the newly arising means to combat it. This includes the developing cooperation of stakeholders and the establishment of new institutions that strengthen collaboration within the European Union, such as Eurojust, Europol and the European Public Prosecutor’s Office (EPPO). As indicated by one of the speakers, Prof. Dr. André Klip, the years of the cooperation of EU Member States in that area showed that the sore points for the reforms are crises, which “get things moving”. In the past few years, the European Union has experienced severe crises which undoubtedly left an input on its policies and dynamics. As it was argued by the panellists of the conference, the crises such as terrorist attacks throughout the EU, overwhelming migration, and finally Brexit, have brought into being effective but controversial legal instruments.

The  conference discussed the current situation concerning cooperation in criminal matters among the EU Member States. The speakers outlined that the different scenarios for the future of Europe, as addressed in the Commission’s White Paper (European Commission 2017), are visible in some aspects of the cooperation in the European Criminal Justice Area . Therefore, on the one hand we have some Member States which deem it necessary to strive for intensified cooperation (Those who want more, do more scenario) (European Commission 2017) and bind themselves to mechanisms such as the EPPO. On the other hand, some Member States are not participating in developing the area of freedom, security and justice (AFSJ) as intensively as the others (mirroring the Nothing but the single market approach) (European Commission 2017) as the example of Brexit demonstrates. A highly relevant question asked during the conference was whether this discrepancy in the AFSJ would lead in European criminal matters to the multi-speed Europe. The multi-speed Europe is the idea of a method of differentiated integration whereby common objectives are pursued by a group of EU Member States both able and willing to advance (‘Multi-speed’ Europe (n.d.). The concept implies that the other Member States encouraged by the precursors will follow (‘Multi-speed’ Europe (n.d.)). For instance, if the EPPO, which was established under the mechanism of an enhanced cooperation, turns out to be satisfactorily effective this might pose an incentive for the non-participating EU Member States to join this institution. As a result, a spillover effect might occur (Kaunert 2016).

Finally, at the conference Prof. Dr. André Klip presented an extensive analysis of the legal basis of the EPPO. He furthermore discussed the functioning of the EPPO, which is yet to be seen in practice. The speaker argued that the ratio for establishing the EPPO was the dissatisfaction of the EU institutions regarding how Member States combat EU fraud. Currently, EU funds that are worth several hundred million Euros are fraudulently diverted from their envisioned purpose every year (Davies 2013). In contrast, only a minor fraction is regained (ibid.). The underlying problem here is that offences falling under the scope of the EU fraud are not always detected, investigated and prosecuted by national authorities . Furthermore, the current enforcement systems are fragmented and Member States are quite frequently passive with regard to cases with cross-border elements (Davies 2013). As it was explained during the conference, this issue is caused by several factors such as lack of accurate data, high costs of investigations and considerable time and resources needed to detect the offenders.

Prof. Dr. André Klip concluded during the conference that a potential problem in connection to the functioning of the EPPO is its decentralized structure. It is a European delegated prosecutor located in a Member State, who will be responsible for the conduct of criminal investigations and prosecutions in accordance with the Regulation and legislation of that Member State. Consequently, that prosecutor on the decentralized level of a Member State is the one who must notify the EPPO about the alleged case of fraud. However, the starting point is that currently the Member States do not investigate the EU fraud sufficiently. Therefore, potentially there is still no incentive for the Member States to combat it. In order to find out whether those concerns materialize we will need a couple of years to observe how the EPPO is implemented and enforced on both the decentralized and central levels.

To conclude, this conference was a significant event in the area of criminal matters as it contributed to the general academic discussion regarding the increasing need of cooperation on a European level in combating the contemporary crime. As an excellent overview of the current developments in the European criminal law we can look at the metaphor used by the professor of criminal law of University of Tilburg, C. J. C. F. Fijnaut, who was one of the panelists at the conference. He compared the current state of affairs in that branch of EU law to the Sagrada Família, which is a Roman Catholic church in Barcelona unfinished since 1882. Prof. Dr. Fijnaut thus implied that while certain parts of the European Criminal Justice Area have been completed, others are still under construction and have to evolve; something which will undoubtedly take time.


Magdalena Jacyna is the 2017-18 EST Ambassador to the Netherlands.

 

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