ROADMAP

Roadmaps aim to inform citizens and stakeholders about the Commission's work in order to allow them to provide feedback and to participate effectively in future consultation activities. Citizens and stakeholders are in particular invited to provide views on the Commission's understanding of the problem and possible solutions and to make available any relevant information that they may have.

Title of the initiative

Digital information exchange on cross-border terrorism cases

Lead DG – responsible unit

DG JUST - B1

Likely Type of initiative

Proposal for a Regulation amending Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust) 1 and amending Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences.

Indicative Planning

Q4 2021

Additional Information

For the Digital Criminal Justice study, please see https://op.europa.eu/en/publication-detail/-/publication/e38795b5-f633-11ea-991b-01aa75ed71a1. Also, reference to this initiative is made in Communication COM(2020) 710 final – Digitalisation of Justice in the European Union - A toolbox of opportunities.

This Roadmap is provided for information purposes only and its content might change. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. All elements of the initiative described by the Roadmap, including its timing, are subject to change.

A. Context, Problem definition and Subsidiarity Check

Context

The fight against terrorist crime continues to be a major challenge for law enforcement and prosecution authorities in the Member States, requiring further efforts to strengthen collaboration between them and with third countries. 2 These efforts are supported by Europol and Eurojust. Eurojust’s most recent Counter-terrorism report 3 confirms its important role in this area. 

One of the key elements of this work has been the creation of the European Judicial Counter-Terrorism Register (CTR) in September 2019. 4  The CTR centralises information about ongoing and concluded national criminal investigations and judicial proceedings in counter-terrorism cases to identify potential cross-border links. It also supports the national authorities of the Member States regarding possible cross-border coordination needs in relation to these.

The Digital Criminal Justice study 5 examined how Eurojust could optimise its interaction with the Member States, including in the field of counter-terrorism. The Commission Communication on Digitalisation of Justice 6 refers to the present proposal, which is also included in the Commission’s Work Programme for 2021. 

Problem the initiative aims to tackle

The initiative aims to tackle three problems regarding the CTR and Eurojust’s data processing environment:

Firstly, Eurojust does not receive timely and well-structured information regarding ongoing and concluded terrorism cases. The obligation of the Member States to share information on terrorism cases is currently solely based on Council Decision 2005/671/JHA on the exchange of information and cooperation concerning terrorist offences. This instrument does not regulate precisely enough when information on terrorism offences should be transmitted by Member States to Eurojust, and which information should be provided. Consequently, Eurojust receives heterogeneous information at different stages of the national procedure, which makes the detection of links between cases more difficult or even random, and may in some cases lead to not all information being shared, or information being shared too late in the procedure, reducing effectiveness in sharing this information.

Secondly, the current data processing environment at Eurojust is neither technically nor legally designed to host the CTR. The detection of links between cases/investigations in different jurisdictions and providing feedback to national authorities is already an important task of Eurojust under Article 22 of Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust Regulation). However, Eurojust’s current Case Management System and Eurojust’s legal framework were conceived and agreed before the CTR was established. The CTR is therefore not regulated in the Eurojust Regulation. The existing data processing environment was constructed for Eurojust to open and follow-up specific cases between identified Member States, supported by so-called Temporary Work Files. The Eurojust Regulation only provides for the legal framework to operate such Temporary Work Files, and is thus not well suited for dealing with more permanent databases, such as the CTR. When processing information received in accordance with Council Decision 2005/671/JHA and the Eurojust Regulation, currently Eurojust only has the possibility to include this information in one or several Temporary Work Files, as processing of personal data in other databases is prohibited by the Eurojust Regulation (Art. 23(6)). This is a limitation, as Temporary Work Files in the Case Management System are not suitable for dealing with more static information, such as information on terrorism convictions.

Thirdly, cooperation with third country Liaison Prosecutors is not as effective as needed, since only National Members can open Temporary Work Files.

The current disconnect between Eurojust’s casework and the information received through the CTR prevents Eurojust from providing timely and proactive feedback to national authorities in cross-border terrorism cases, missing potential connections and the identification of duplicate investigations and prosecutions that should be connected. Such disconnect may also hamper Eurojust’s efforts to prevent jurisdiction conflicts and ne bis in idem cases.

Basis for EU intervention (legal basis and subsidiarity check)

The legal basis for the proposed amendments to the Eurojust Regulation is Article 85 TFEU. According to Article 85 TFEU, Eurojust’s structure, operation, field of action and tasks are to be determined by a regulation. The changes to Council Decision 2005/671/JHA are based on Article 82(1)(d) TFEU. In accordance with Article 82 (1)(d) TFEU, the EU has the competence to adopt measures to facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters.

Creating a more appropriate legal framework for the functioning of the CTR and amending Decision 2005/671/JHA cannot be undertaken by the Member States acting alone, since they lack the legal power to establish the legally binding instruments to achieve these results.

B. What does the initiative aim to achieve and how

The general objective is to enable Eurojust to fulfil its stronger, more pro-active role in supporting the Member States in their investigations into cases of terrorism, in accordance with Eurojust’s mission to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime.

More specifically, the initiative aims at ensuring that the judicial authorities of the Member States know exactly at which stage of the national proceedings what kind of information they should transmit to Eurojust. The obligation of the Member States to share information with Eurojust in cases of counter-terrorism investigations and prosecutions, which is currently based on Council Decision 2005/671/JHA, should be set out more clearly. It should indicate precisely at what stage of the national proceeding which information is to be transmitted to Eurojust. The obligation to transmit information should be included in the Eurojust Regulation, in order to ensure that Eurojust’s current legal framework and its data processing rules are fully applicable.

The proposal further aims at a better integration of the CTR in Eurojust’s legal framework and its data processing environment. In particular, the data processing environment of the Eurojust Regulation needs to be rendered more flexible, so that it is no longer limited to processing operational personal data solely in Temporary Work Files, but can also include data processing connected to a more permanent database such as the CTR. In particular, it will be important to clarify the purpose of and the conditions under which cross-checking of information processed at Eurojust can take place.

By creating a more flexible data processing environment, Eurojust will be able to detect links between cases more efficiently. This will enhance Eurojust’s ability to find links between cases reported by Member States, to follow up on detected links and to get more pro-actively involved in supporting investigations and prosecutions from the Member States, thus also helping them prevent jurisdiction conflicts and ne bis in idem cases.

Finally, the conditions for cooperating with third country Liaison Prosecutors stationed at Eurojust need to be clarified in order to increase the efficiency of exchanging information with third countries.

C. Better regulation

Consultation of citizens and stakeholders

The main objective of the consultations is to gather views and experiences concerning the sharing of information between competent national authorities and Eurojust. The main stakeholders are Member States competent authorities (law enforcement, prosecutors and judges), national terrorism coordinators and Eurojust, which have an obligation to apply Council Decision 2005/671/JHA and the Eurojust Regulation. The following actions are foreseen:

·Bilateral meeting(s) with Eurojust (incl. Liaison Prosecutors)

·Bilateral meeting(s) with DG HOME

·(Bilateral) meeting(s) with the Member States

·EU survey for practitioners - law enforcement, prosecutors, national terrorism coordinators and judges - in the Member States

·Meeting of the Digital Criminal Justice Expert Group

·Meeting of the Expert Group for EU criminal policy

Within this context, the views of the EDPS and the Fundamental Rights Agency will also be sought.

Evidence base and data collection

The Digital Criminal Justice Study 7 reviewed the functionality of the Case Management System. Among other findings, it was concluded that the CTR should be one of the five main logical components of the redesigned Eurojust Case Management System. How Eurojust is addressing practical challenges is analysed in the Eurojust Counter-Terrorism Action Plan. In addition, Eurojust has identified several issues with respect to the functioning of the CTR in an initial evaluation of its implementation from September 2019 to February 2020. Eurojust has also published a summary of the discussions on the Counter-Terrorism Register, which took place in a video conference that was held in October 2020. Further information will be collected through the consultation efforts indicated above. An Impact Assessment derogation has been granted in view of the limited options and limited impacts. Instead, an analytical supporting document (Staff Working Document), looking at options and impacts will accompany the proposal.