This article discusses the limits on mutual trust in the context of transfer of sentenced persons following the CJEU’s Aranyosi and Căldăraru judgment. It summarizes the main findings of a recent legal and empirical analysis of mutual recognition cases conducted in five EU Member States: Italy, the Netherlands, Sweden, Romania, and Poland. The research conducted contends that the presumption of mutual trust existing between the EU Member States is a legal fiction. In the context of transfer of a custodial sentence from one country to another based on mutual recognition and mutual trust, failure of the latter can have very negative effects on judicial cooperation and, consequently, on the fight against crime. Non-compliance with individuals’ fundamental rights can undermine the very essence of judicial cooperation and, with it, the European project. Such failure can only be prevented if the EU endeavours to establish and maintain a truly integrated penal policy … Read more

Since the publication of the Corpus Juris – the fundamental study on the protection of the EU’s financial interests, carried out under the supervision of Professor Mireille Delmas-Mary – the French authorities have considered the establishment of a European Public Prosecutor to be a political goal of utmost importance. The French experts actively participated in the four-year negotiation process and contributed to achieving a balanced and ambitious Regulation. A new chapter was heralded by the adoption of Regulation 2017/1939 on 12 October 2017: the 22 participating Member States must now prepare and adapt their national legal systems and legislation to the establishment of the European Public Prosecutor’s Office. At this early stage of its implementation, it appears relevant to concentrate on two main aspects of the process.

The Italian criminal law system, unlike the systems in many other European countries, allows the defense to carry out defensive investigations on behalf of his/her client. In this contribution, the shortcomings of the recent European legislation on the matter are analyzed, as well as the issue of the validity in Italian criminal proceedings of defensive investigations conducted by the defense council abroad. The admissibility in the criminal case of defensive investigations conducted abroad by an Italian defense lawyer was, in fact, already rejected ten years ago by the Italian Court of Cassation. The Court stated that the official state instruments of international mutual legal assistance in criminal matters must be used if investigations are carried out abroad. The authors argue in this contribution that this position cannot be upheld in a unified Europe and deserves fundamental reconsideration. They also advocate a European solution of defensive investigations abroad – a possible … Read more

The Commission’s proposal for a directive amending the fourth AML directive raises numerous issues concerning respect of the rights to privacy and to protection of personal data. The main challenges are related to the creation of central and public registries of beneficial ownership information and to the extension of the powers of the financial intelligence units concerning access to financial data. The latter is of utmost concern, as this new power of access to personal data is not balanced with explicit legal guarantees. Financial data, however, are private data deserving adequate protection.

I. Introduction Nombreux sont les domaines règlementés par le droit de l’Union qui s’appuient sur un double système de contrôle et de sanction. Le parfait exemple est la lutte contre la fraude préjudiciable aux intérêts financiers de l’UE, qui fait l’objet aussi bien d’enquêtes administratives que de poursuites pénales.1 Le développement de ce que la littérature anglophone appelle « double track enforcement systems » présuppose par son essence même la coordination et coopération entre autorités administratives, d’une part, et autorités policières et judiciaires, d’autre part.2 La question s’avère d’autant plus complexe que l’éventail de modèles existants est vaste et varié.... Read more

Where does the protection of human and fundamental rights stand in Europe, particularly in the European Union of the 28 European Member States? Where can the « common heritage of political traditions, ideals, freedom and the rule of law », which is evoked in the preamble of the ECHR, be seen today? The article responds to these questions by arguing first that the European Community (later the European Union) has – from the outset – been in a pursuit race regarding the effective protection of fundamental rights. Effects of this phenomenon are still apparent today. Examples given in the article show that the European Union falls short of the aforementioned common heritage. Regarding asylum rights, for example, the CJEU does not completely follow the ECtHR case law. Regarding the European Arrest Warrant, it was a recent call of the German Federal Constitutional Court that triggered a change of thinking at … Read more