Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2018/1727 of the European Parliament and the Council, as regards the collection, preservation and analysis of evidence relating to genocide, crimes against humanity and war crimes at Eurojust

EXPLANATORY MEMORANDUM

The proposal contributes to achieving the objective of offering Union citizens an area of freedom, security and justice without internal frontiers, where appropriate measures are taken to prevent and combat crime.

The proposal was adopted in the aftermath of Russia’s aggression against Ukraine as it soon became evident that Eurojust’s current legal framework would need targeted amendments to allow Eurojust to fulfil at its best the objectives to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to core international crimes perpetrated by parties to the conflict.

The proposal follows up on the proposal to amend the Eurojust Regulation and Council Decision 2005/671/JHA as regards the digital information exchange in terrorism cases, which was adopted on 1 December 2021. The two proposals share the same objective to enable Eurojust to fulfil its stronger role envisaged in the Eurojust Regulation in supporting and strengthening the coordination and the cooperation between national authorities investigating and prosecuting serious crime.

The two proposals are complementary as they concern different forms of crime (core international crimes and terrorist offences) and provide for different changes to the Eurojust’s data processing architecture. The proposal on the Counter-Terrorism Register aims at better integrating such a Register in Eurojust’s legal and technical framework so that Eurojust can identify links between simultaneous investigations and prosecutions of terrorist offences. The present proposal intends to allow Eurojust to collect, preserve, analyse and, when necessary and appropriate, exchange evidence of core international crimes by providing for the establishment of an automated data management and storage facility outside the case management system. The negotiations and the text of the proposal on the Counter-Terrorism Register will need to be aligned with the present proposal.

The proposal is based on Article 85 of the Treaty on the Functioning of the European Union (TFEU). Article 85 TFEU is the legal basis for the Eurojust Regulation, which this proposal aims to amend. Article 85 TFEU provides for Eurojust to be governed by a regulation to be adopted in accordance with the ordinary legislative procedure. The Eurojust Regulation lays down the rules on the establishment and functioning of the Eurojust’s case management system.

The area of freedom, security and justice, in the context of which this proposal is adopted, is an area of shared competence between the Union and the Member States in accordance with Article 4(2) TFEU. Therefore, in accordance with the principle of subsidiarity laid down in Article 5(3) of the Treaty on European Union (TEU), action at Union level should only be taken when the aims of the proposed action cannot be sufficiently achieved by Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Core international crimes, even when committed only in one country and outside the Union, have wide implications for the European and global security and stability. In accordance with the principle of complementarity, when a State is unwilling or unable genuinely to carry out the investigation or prosecution of these crimes despite being competent to do so, the International Criminal Court may investigate and prosecute such crimes, provided that it has jurisdiction.

Action at national level alone cannot therefore ensure prosecution of core international crimes effectively. Member States need to work together to investigate and prosecute them and address common challenges. Among the latter, the challenges connected with the collection, preservation and analysis of evidence related to core international crimes are prominent, and so are those concerning the access to and exchange of such evidence by national and international authorities that can investigate and prosecute the crimes at hand. As the Union agency for criminal justice cooperation, Eurojust is a strong expression of this endeavour by the Member States to bring the perpetrators of these heinous crimes to justice by working together. Eurojust is ideally placed to collect, preserve and analyse such evidence and, when necessary and appropriate, enable its exchange or otherwise make it available to the competent national or international judicial authorities, including the International Criminal Court. Such judicial authorities include, in line with the Eurojust Regulation, prosecution services.

There is therefore a specific need for Union action. This proposal envisages measures that have an intrinsic Union dimension. They aim at improving Eurojust’s ability to act and at allowing Eurojust to fulfil its key objective to support and strengthen the coordination and cooperation between national investigating and prosecuting authorities in relation to genocide, crimes against humanity and war crimes. This objective can only be achieved at the Union level, in line with the subsidiarity principle.

In accordance with the principle of proportionality laid down in Article 5(4) TEU, there is a need to match the nature and intensity of a given measure with the identified problem. The problems addressed in this proposal call for Union-level support for Member States to tackle these problems effectively. The proposal aims to ensure that Eurojust, in addition to its current tasks and powers and without prejudice to them, can also collect, preserve and analyse evidence concerning genocide, crimes against humanity and war crimes and, when necessary and appropriate, exchange it or otherwise make it available to the competent national and international judicial authorities, including the International Criminal Court; hence, it does not touch upon all other forms of serious crime with which Eurojust is competent to deal in accordance with the Eurojust Regulation. Without the amendments suggested by this proposal, Eurojust may not be able to fulfil its key role in supporting and strengthening cooperation between Member States’ national authorities in the investigation and prosecution of core international crimes.

This proposal introduces minimal changes to the Eurojust Regulation which do not overhaul its structure nor alter Eurojust’s functioning. The current powers and tasks of Eurojust remain unaffected. The suggested amendments strengthen Eurojust’s role as already envisaged by the Regulation and take into account the sensitivity of the data to be processed and the need to ensure their protection. Therefore, in line with the principle of proportionality, the proposal does not go beyond what is necessary to achieve this objective.

The Commission urgently adopted this proposal further to several exchanges – on a bilateral basis or in the context of collective meetings – with Eurojust and national authorities involved in the investigations of core international crimes, as well as civil society organisations and other Union entities. All of them pointed out the need for the central storage of evidence as well as the current limitations of the Eurojust’s case management system and their impact on Eurojust’s ability to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to core international crimes, including those that may be committed in the context of the current hostilities in Ukraine.

In addition, an extensive consultation was carried out in 2021 in the context of the preparation of the proposal on digital information exchange in terrorism cases ⁵ , confirming the need to improve the Eurojust’s case management system.

By the date of publication of this proposal, Eurojust has participated in all the six meetings of the Commission’s Freeze and Seize Task Force, which was established at the beginning of March 2022 to ensure coordination among Member States in the enforcement of the Union restrictive measures against Russian and Belarussian listed individuals and companies, and to explore the possible interplay between restrictive measures and criminal law measures.

The Commission took part in the two extraordinary meetings of the Genocide Network – the Secretariat of which is hosted at Eurojust – devoted to the situation in Ukraine (11 March 2022 and 5 April 2022), where the need for central storage of evidence was also voiced, including by the Prosecutor of the International Criminal Court. The same issues were also raised in several meetings of the Eurojust College and Executive Board.

This proposal would have an impact on Eurojust’s budget and its staff needs. Under the legislative financial statement accompanying the proposal, it is estimated that further EUR 15.705 million would be needed for the period 2022-2027 to allow Eurojust to perform the tasks provided for by this proposal. This includes the costs for the setting up and management of the automated data management and storage facility (approximately EUR 500 000 per year) and for the necessary human resources to handle it.

It is estimated that 16 additional posts would be necessary, including judicial cooperation experts, lawyers-linguists, analysts, legal experts, ICT security officers, liaison officers with the International Criminal Court and civil society organisations, and administrative officers. Due to the urgency of the situation, such posts should be filled as soon as possible.

amending Regulation (EU) 2018/1727 of the European Parliament and the Council, as regards the collection, preservation and analysis of evidence relating to genocide, crimes against humanity and war crimes at Eurojust

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 85 thereof,

Having regard to the proposal from the European Commission,

Acting in accordance with the ordinary legislative procedure,

Whereas:

1. Regulation (EU) 2018/1727 of the European Parliament and of the Council ⁸  established Eurojust and sets out its tasks, competence and functions.

2. Eurojust is competent with respect to the forms of serious crime listed in Annex I to Regulation (EU) 2018/1727, which include genocide, crimes against humanity and war crimes. In accordance with Article 3(4) of Regulation (EU) 2018/1727, Eurojust’s competence also covers criminal offences related to the criminal offences listed in Annex I to that Regulation.

3. On 24 February 2022, Russia began a military aggression against Ukraine. There is a reasonable basis to believe that crimes against humanity and war crimes have been and are being committed in Ukraine in the context of the current hostilities.

4. In view of the gravity of the situation, the Union should take all the necessary measures, as a matter of urgency, to ensure that those who committed those crimes in Ukraine are held responsible.

5. Prosecution services in several Member States as well as in Ukraine have started investigations concerning the events in Ukraine, when appropriate relying on the support of Eurojust. Eurojust concluded an agreement on cooperation with Ukraine on 27 June 2016. In accordance with this agreement, a Ukrainian liaison prosecutor is posted to Eurojust to facilitate the cooperation between Eurojust and Ukraine.  

6. In accordance with the Rome Statute ⁹ , the International Criminal Court has the power to exercise its jurisdiction over individuals responsible for the most serious crimes of international concern, as referred to in the Rome Statute. The jurisdiction of the International Criminal Court is complementary to national criminal jurisdictions. The Office of the Prosecutor of the International Criminal Court announced it has proceeded to open an investigation into the situation in Ukraine.

7. Due to the application of the principle of universal jurisdiction in several Member States and the complementary nature of the International Criminal Court’s jurisdiction, coordination and exchange of evidence between national investigating and prosecuting authorities in different jurisdictions as well as with the International Criminal Court, or other court, tribunal or mechanism established for that purpose, is important to ensure the effectiveness of investigations and prosecutions of genocide, crimes against humanity and war crimes and related offences, including those that may be committed in Ukraine in the context of the current hostilities.

8. To ensure that evidence and best practices relating to the prosecution of genocide, crimes against humanity and war crimes are shared with national and international judicial authorities, Eurojust should enhance its cooperation with criminal courts, tribunals and mechanisms established to address breaches of international law. For that purpose, Eurojust should establish close cooperation with the International Criminal Court and any other court, tribunal or mechanism that aims at addressing crimes affecting the international peace and safety. Accordingly, Eurojust should also facilitate the execution of judicial cooperation requests from the International Criminal Court or special criminal courts, tribunals or mechanisms concerning evidence related to genocide, crimes against humanity, war crimes and related criminal offences.

9. Evidence related to genocide, crimes against humanity and war crimes cannot be safely stored on the territory where the hostilities take place, as is the case with the evidence connected with the ongoing hostilities in Ukraine. Therefore, a central storage is necessary. Evidence collected by Union agencies and bodies and international authorities or third parties such as civil society organisations may also require a central storage place so as to be accessible to competent judicial authorities.

10. Eurojust has the expertise and experience to support the investigations and prosecutions of cross-border crimes, including genocide, crimes against humanity, war crimes and related criminal offences. This includes preservation, analysis and storage of evidence as far as its admissibility before courts and reliability are concerned.

11. By collecting, preserving and analysing evidence related to core international crimes, as well as, when necessary and appropriate, enabling its exchange, Eurojust can support case building in national and international investigations and provide additional support to the competent national and international authorities. Such evidence may be especially valuable to ascertain the reliability of witness testimonies.

12. A new temporary storage facility allowing for such storage, analysis and preservation should be set up. As the need to store such evidence is urgent, it is necessary for Eurojust to store it in an automated data management and storage facility outside the case management system, until the new case management system is fully functional. The general rules of the distinct Chapter of Regulation (EU) 2018/1725 of the European Parliament and of the Council on the processing of operational personal data should apply without prejudice to the specific data protection rules of Regulation (EU) 2018/1727. The automated data management and storage facility should be integrated into the new case management system, which is expected to be established under the proposal for a Regulation on the digital information exchange in terrorism cases ¹⁰ .

13. The storage, analysis and preservation of evidence in relation to genocide, crimes against humanity, war crimes and related criminal offences in the automated data management and storage facility, as well as their accessibility by the competent judicial authorities whenever necessary and appropriate, should comply with the highest standards of cyber security and data protection, in accordance with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

14. Satellite images, photographs, videos and audio recordings can be useful to demonstrate the commission of genocide, crimes against humanity, war crimes and related criminal offences. Therefore, Eurojust should be able to process and store such data in relation to this purpose. 

15. Eurojust and Europol should closely cooperate in the context of their respective mandates, in particular as regards the processing and analysis of information in the context of Europol’s existing and dedicated system (called analysis project) on international crimes, to support competent authorities in investigating and prosecuting genocide, crimes against humanity, war crimes and related criminal offences. Therefore, Eurojust may refer to Europol information that it has received in the performance of its functions in accordance with Article 4(1)(j) of Regulation (EU) 2018/1727. The cooperation should include a regular joint evaluation of operational and technical issues.

16. [In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.] OR [In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified its wish to take part in the adoption and application of this Regulation.]

17. In accordance with Articles 1 and 2 of Protocol No 22 on the Position of Denmark annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

18. The European Data Protection Supervisor was consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and delivered an opinion on XX/XX/20XX,

HAVE ADOPTED THIS REGULATION:

Article 1

Amendments to Regulation (EU) 2018/1727

Regulation (EU) 2018/1727 is amended as follows:

1. in Article 4(1), the following point (j) is added:

“(j) support Member States’ action in combating genocide, crimes against humanity, war crimes and related criminal offences, including by collecting, preserving and analysing evidence related to these criminal offences, as well as, where necessary and appropriate, enabling its exchange or otherwise making it directly available to the competent national and international judicial authorities, in particular the International Criminal Court”

2. in Article 80, the following paragraph 8 is added:

“(8) By way of derogation from Article 23(6), Eurojust may process operational personal data for the performance of the tasks referred to in Article 4(1), point (j), in an automated data management and storage facility outside the case management system. The automated data management and storage facility shall comply with the highest standards of cyber security. The operation of the automated data management and storage facility shall be subject to prior consultation of the EDPS. The EDPS shall deliver his or her opinion within two months following the receipt of a notification from the Data Protection Officer.

The notification from the Data Protection Officer shall contain at least the following elements:

(a) a general description of the envisaged processing operations;

(b) an assessment of the risks to the rights and freedoms of data subjects;

(c) the measures envisaged to address those risks;

(d) safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation, taking into account the rights and legitimate interests of the data subjects and other persons concerned.

The data protection provisions of this Regulation shall apply to the processing of data in the automated data management and storage facility as far as they do not directly relate to the technical set-up of the case management system in accordance with Article 23(1) of this Regulation. Access right and time limits for the data stored in the automated data management and storage facility shall be linked to the access to the temporary work files, in support of which the data is stored.

The derogation provided for in this paragraph shall end at the time when the new case management system is in place. The Commission shall determine the date at which the new case management system is in place by a decision that shall be published in the Official Journal of the European Union.”

3. Annex II is amended as follows:

1. point 1(n) is replaced by the following:

“(n) DNA profiles established from the non-coding part of DNA, photographs and fingerprints and, in relation to the criminal offences referred to in Article 4(1)(j), videos and audio recordings.”

2. point 2(f) is replaced by the following:

“(f) the description and nature of the offences involving the person concerned, the date and location on which the offences were committed, the criminal category of the offences, and, in relation to the criminal offences referred to in Article 4(1)(j), information relating to criminal conduct, including audio recordings, videos, satellite images and photographs and to the progress of the investigations;”

Article 2

Entry into force

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at Brussels,

LEGISLATIVE FINANCIAL STATEMENT 'AGENCIES'

TABLE OF CONTENTS

FRAMEWORK OF THE PROPOSAL/INITIATIVE 16

Title of the proposal/initiative16

Policy area(s) concerned16

The proposal relates to 16

Objective(s)16

General objective(s) 16

Specific objective(s) 17

Expected result(s) and impact17

Indicators of performance 17

Grounds for the proposal/initiative 17

Requirement(s) to be met in the short or long term including a detailed timeline for roll-out of the implementation of the initiative17

Added value of Union involvement (it may result from different factors, e.g. coordination gains, legal certainty, greater effectiveness or complementarities). For the purposes of this point 'added value of Union involvement' is the value resulting from Union intervention which is additional to the value that would have been otherwise created by Member States alone.17

Lessons learned from similar experiences in the past18

Compatibility with the Multiannual Financial Framework and possible synergies with other appropriate instruments19

Assessment of the different available financing options, including scope for redeployment19

Duration and financial impact of the proposal/initiative20

Management mode(s) planned 20

MANAGEMENT MEASURES 21

Monitoring and reporting rules 21

Management and control system(s) 21

Justification of the management mode(s), the funding implementation mechanism(s), the payment modalities and the control strategy proposed21

Information concerning the risks identified and the internal control system(s) set up to mitigate them22

Estimation and justification of the cost-effectiveness of the controls (ratio of "control costs ÷ value of the related funds managed"), and assessment of the expected levels of risk of error (at payment & at closure) 22

Measures to prevent fraud and irregularities 22

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE 23

Heading(s) of the multiannual financial framework and expenditure budget line(s) affected 23

Estimated impact on expenditure 24

Summary of estimated impact on expenditure 25

Estimated impact on [body]'s appropriations 26

Estimated impact on [body]'s human resources 27

Compatibility with the current multiannual financial framework 32

Third-party contributions 32

Estimated impact on revenue 33

☑ a new action

◻ a new action following a pilot project/preparatory action ¹¹  

◻ the extension of an existing action 

◻ a merger of one or more actions towards another/a new action 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.

Specify the indicators for monitoring progress and achievements.

◻ limited duration

• ◻    Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY

• ◻    Financial impact from YYYY to YYYY

☑ unlimited duration

• Implementation with a start-up period from YYYY to YYYY,

• followed by full-scale operation.

◻ Direct management by the Commission through

• ◻    executive agencies

◻ Shared management with the Member States

☑ Indirect management by entrusting budget implementation tasks to:

◻ international organisations and their agencies (to be specified);

◻the EIB and the European Investment Fund;

☑ bodies referred to in Articles 70 and 71;

◻ public law bodies;

◻ bodies governed by private law with a public service mission to the extent that they provide adequate financial guarantees;

◻ bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that provide adequate financial guarantees;

◻ persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

Comments

Specify frequency and conditions.

Specify existing or envisaged prevention and protection measures, e.g. from the Anti-Fraud Strategy.

• Existing budget lines

In order of multiannual financial framework headings and budget lines.

• New budget lines requested

In order of multiannual financial framework headings and budget lines.

EUR million (to three decimal places)

EUR million (to three decimal places)

EUR million (to three decimal places)

• ◻    The proposal/initiative does not require the use of operational appropriations

• ☑    The proposal/initiative requires the use of operational appropriations, as explained below:

Commitment appropriations in EUR million (to three decimal places)

• ◻    The proposal/initiative does not require the use of appropriations of an administrative nature

• ☑    The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:

EUR million (to three decimal places)

Staff requirements (FTE):

Recruitement dates are planned in 2022 at mid-year. No assumptions have been made for the correction coefficient applicable to the Netherlands, and only a potential increase of 2% for the salary indexation.

Details of staff increase:

• ☑    The proposal/initiative does not require the use of human resources.

• ◻    The proposal/initiative requires the use of human resources, as explained below:

Estimate to be expressed in full amounts (or at most to one decimal place)

The human resources required will be met by staff from the DG who are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.

Description of tasks to be carried out:

Description of the calculation of cost for FTE units should be included in the Annex V, section 3.

• ◻    The proposal/initiative is compatible the current multiannual financial framework.

• ☑    The proposal/initiative will entail reprogramming of the relevant heading in the multiannual financial framework.

• ◻    The proposal/initiative requires application of the flexibility instrument or revision of the multiannual financial framework ²³ .

• ☑ The proposal/initiative does not provide for co-financing by third parties.

• The proposal/initiative provides for the co-financing estimated below:

EUR million (to three decimal places)

• ☑    The proposal/initiative has no financial impact on revenue.

• ◻    The proposal/initiative has the following financial impact:

  • on own resources

  • on other revenue

  • please indicate, if the revenue is assigned to expenditure lines

EUR million (to three decimal places)

For miscellaneous ‘assigned’ revenue, specify the budget expenditure line(s) affected.

Specify the method for calculating the impact on revenue.