Directive (EU) 2019/1937 establishes minimum standards for the protection of persons reporting breaches of EU law, including misconduct affecting the EU’s financial interests. Yet the Directive leaves Member States wide discretion in institutional design and enforcement architecture. This raises a constitutional question under Article 325 Treaty on the Functioning of the European Union (TFEU): can whistleblowing serve as an effective instrument for protecting the EU’s financial interests when reporting systems remain institutionally diverse? Adopting a functional comparative methodology, this article examines the post-transposition regimes of Italy, France and Ireland across five dimensions: scope of protection, reporting channels, institutional arrangements, anti-retaliation safeguards and enforcement capacity. The analysis identifies three dominant regulatory logics: a centralised supervisory model (Italy), a compliance-oriented integrity model (France) and a labour protection rights and remedies model (Ireland). While baseline convergence in protective guarantees has been achieved, significant divergences persist in how disclosures are assessed, prioritised and transmitted into administrative and criminal enforcement pathways, including those involving the EU’s Anti-Fraud Office (OLAF) and European Public Prosecutor’s Office (EPPO). Minimum harmonisation of safeguards is necessary, but insufficient on its own to secure the effectiveness requirement under Article 325 TFEU. Whistleblowing becomes a genuinely European instrument only where robust individual protection is complemented by institutional capacity ensuring timely triage, credible follow-up and coordinated escalation in cases affecting EU financial interests.
The term ‘executing judicial authority’ (Article 6(2) FD EAW) responsible for deciding on the execution of EAWs, once the final decision to surrender is reached, has recently sparked a discussion. This particularly pertains to the determination of (exceptional) circumstances for temporary postponement of surrender – force majeure, serious humanitarian reasons and the postponement of surrender for criminal prosecution/execution of a sentence (Articles 23(3) and (4) and 24(1) FD EAW). This article unpacks the meaning of these circumstances and analyses the ECJ’s requirement for ‘necessary independence vis-à-vis the executive’, clarifying who qualifies as an ‘executing judicial authority’. The findings illustrate the difficulty in meeting the requirement by bodies other than a judge/court. Its impact on the Dutch system, leading to a new amendment to the surrender law, is demonstrated. The FD establishes a higher standard than the extradition regime (European Convention on Extradition), which does not necessarily require intervention by a ‘judicial authority’. Nonetheless, it is argued that the ECJ’s stringent criteria for an ‘executing judicial authority’ in decisions on actual surrender ensure a consistent interpretation of the FD EAW and maintain a balance between safeguarding (fundamental) rights and the need for efficiency in the EAW system.
Among other measures, Article 5 of the EU Directive 2024/1385 requires Member States to criminalise the non-consensual sharing of intimate material. This forms part of a broader framework for addressing violence against women. One question that has so far been overlooked is whether Member States may require, when transposing Article 5, that the victim had a legitimate expectation of privacy concerning the material. This question has significant legal consequences. While Article 5 does not mention privacy or the circumstances in which the material was produced, some Member States, such as Italy and Spain, have introduced criminal offences that depend on the existence of a private sphere that is protected by law. If Article 5 does not permit such limitations, these national approaches could undermine the Directive’s objective of minimum harmonisation. This article addresses this issue through a comparative and doctrinal analysis. First, it examines the Italian and Spanish legal frameworks governing the non-consensual distribution of intimate material. It then undertakes a textual, systematic and teleological interpretation of Article 5. The article argues that the EU criminalisation model does not include any privacy requirement. Accordingly, Member States cannot make criminal liability dependent on such an element when transposing Article 5 of the EU Directive 2024/1385.
This article provides a doctrinal and policy-oriented analysis of the Second Additional Protocol to the Budapest Convention, with a particular focus on its mechanisms for law enforcement access to non-content communications data in non-emergency situations. It interrogates whether the Second Protocol addresses the persistent legal and practical barriers faced by law enforcement agencies in accessing electronic evidence stored overseas. Through a close examination of the Second Protocol's substantive provisions and their anticipated implementation in the UK and EU member states, the article argues that the Second Protocol is unlikely to achieve its stated objectives. While it formalises elements of voluntary cooperation and introduces safeguards intended to protect fundamental rights, its utility is constrained by legal fragmentation, potential conflicts with domestic data protection frameworks and the lack of robust enforcement mechanisms. Moreover, the article contends that the Second Protocol may, in some instances, complicate existing informal data-sharing practices unless domestic legal frameworks - particularly in the United Kingdom - are aligned with its requirements. Persistent uncertainty regarding the Second Protocol's compatibility with the EU General Data Protection Regulation and the UK's data protection regime further undermines its effectiveness. Ultimately, the article concludes that although the Second Protocol marks a significant step in multilateral cooperation in criminal matters, it does not obviate the continued need for bilateral frameworks. Substantial challenges remain in achieving a harmonised, rights-compliant and effective regime for cross-border access to electronic evidence.
This paper examines the relationship between Directive (EU) 2024/1385 on violence against women, which criminalises the non-consensual sharing of intimate or manipulated material (NCSIMM), and Directive 2011/93/EU on combating child sexual abuse and exploitation, together with its proposed Recast, which addresses child sexual abuse material (CSAM). Although rooted in distinct policy rationales, gender equality on the one hand, and child protection on the other, both instruments adopt a structurally similar approach, linking criminalisation to platform governance, and enhancing victim support and judicial cooperation. Nonetheless, their coordination remains limited, particularly in cases involving minors above the age of sexual consent. Overlapping provisions risk creating ambiguity in interpretation, enforcement and victim protection. As a result, the paper tries to offer legal clarification and policy-oriented guidance. It argues that the scope of CSAM-related offences is significantly broader and more future-oriented than that of NCSIMM, reflecting the persistent framing of children as inherently vulnerable and in need of heightened protection. However, where the boundaries between these offences become blurred, especially in relation to teenagers, the interpretation and enforcement of the law must be guided by respect for sexual autonomy and consent - principles essential to ensuring coherence, proportionality and rights-based protection across the EU framework.
Pre-trial detention has been at the centre of the European Union's policy debate in the last few years. Suggestions to adopt a set of harmonised rules on pre-trial detention within the EU, so far, have been met with resistance. This article begins with an analysis of the existing body of norms set by the EU procedural rights Directives, suggesting how they could enhance the rights of pre-trial detainees. It is argued that this current piecemeal approach to pre-trial detention in the EU remains deeply dissatisfying. The article then moves on to dissect the limits of EU competences to legislate on this field with a view, in particular, to reduce pre-trial detention. It is suggested that the scope of the Union's normative intervention can be either functional (instrumental to judicial cooperation and mutual trust) or principled (focused on the rights of persons detained, irrespective of its relevance for inter-state cooperation). The article goes on to analyse the recently adopted European Commission's Recommendation on pre-trial detention. In doing so, it tests the ability of this text to incorporate ECtHR's case law into EU law and suggests that the Court of Justice may be nudged to develop a bolder interpretation of secondary legislation in accordance with some guidelines included in the Recommendation. The contribution conclusively reflects on the possible way forward, by discussing the constitutional constraints deriving from a strict reading of Article 82 Treaty on the Functioning of the EU and the strategies to get around the main 'roadblocks' in the path towards harmonisation and greater protection of fundamental rights behind bars.
The integration of artificial intelligence (AI) into the area of Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) marks an essential shift in how financial institutions and regulators approach the fight against financial crime. In the EU, in 2024, two major regulatory projects reached key milestones: the revision of the AML/CFT framework and the adoption of the AI Act. Although these legislative efforts progressed in parallel, there appears to have been limited coordination between the drafters, resulting in considerable inconsistencies and areas of ambiguity. Even such seemingly basic - yet crucial - issues as the consistent application of the definition of an AI system, the determination of risks possibly entailed by such a system, or the terminology concerning human oversight give rise to concerns. The present article has two primary objectives: first, to provide an in-depth analysis of the interplay between the AI-relevant provisions of the revised AML/CFT framework and the AI Act, highlighting instances of conceptual confusion and practical challenges that those implementing AI in the AML/CFT area may have to face; and second, to identify and examine the areas where the problematic interplay between the two regimes may negatively affect the scope and availability of the protective human rights standards enshrined in the AI Act.
This article examines the underexplored intersection between youth justice procedures in the Member States and the evolving scope of EU criminal law in the context of mutual recognition and procedural rights instruments. It highlights the persistent ambiguity surrounding the definition of 'criminal proceedings' and 'criminal responsibility' under EU law, an ambiguity that becomes acutely problematic when applied to the diverse and often non-criminal classifications of juvenile justice across national legal systems. Departing from the premise that such notions require autonomous interpretation by the Court of Justice of the European Union, as previously exemplified in Bonda and aligned with Directive 2016/800 and the Framework Decision on the European Arrest Warrant, the article advances a contextually and teleologically grounded approach to the interpretation of these autonomous concepts. Building on doctrinal and jurisprudential foundations, it proposes a material scope-based test, echoing the Engel criteria, to determine the applicability of EU instruments to youth justice procedures. The analysis demonstrates that this approach not only reinforces legal coherence and mutual trust among Member States but is indispensable to the effective protection of minors' procedural rights. It argues that failing to interpret EU criminal law instruments substantively risks legal fragmentation, facilitates rights evasion through national semantic classifications and undermines the effectiveness of the Area of Freedom, Security and Justice. Ultimately, the article makes the normative claim that a material, child-focused understanding of 'criminal matters' is essential to uphold the principle of the best interests of the child and to preserve the integrity of EU criminal justice cooperation.
In recent years, non-conviction based confiscation (NCBC) schemes, which enable confiscation without a conviction (or sometimes prosecution) of a criminal offence, have proliferated in Europe, and worldwide. These schemes expand the reach of confiscation but have largely been found compliant with the European Convention of Human Rights (ECHR). In some recent cases, the European Court of Human Rights (ECtHR) has scrutinised NCBC schemes through the presumption of innocence under Article 6(2) ECHR, but not in its most common form, but in its second reputational aspect. Where the defendant has been acquitted in previous criminal proceedings, or where those proceedings have been discontinued, the reputational aspect of the presumption of innocence requires that the subsequent proceedings must not impute criminal liability on the individual. This article analyses the relationship between the second aspect of the presumption of innocence under Article 6(2) ECHR and NCBC. It is suggested, inter alia, that a distinction should be made between NCBC proceedings in which the assets can be linked to a specific offence and cases where this is not the case.
The legal framework governing the functioning of the European Public Prosecutor's Office (EPPO) is founded on the integration of Regulation (EU) 2017/1939 (the so-called EPPO Regulation) with the domestic legal systems of EU Member States. The EPPO Regulation is far from self-sufficient and, in several respects, explicitly refers to national law. This hybrid architecture gives rise to previously uncharted challenges in the field of judicial cooperation in criminal matters within the EU, especially considering that the establishment of a European prosecutor has long been viewed as a step towards vertical integration in criminal justice - a goal that remains only partially achieved. This contribution examines some critical issues arising from the EPPO legal framework. Specifically, it first considers the criminalisation of offences falling within the EPPO's material competence (the so-called PIF offences), to assess compliance with the obligations imposed by the PIF Directive. It then addresses the mechanisms of domestic scrutiny - judicial in a broad sense - over the EPPO's exercise of competence during investigations. Finally, it analyses the functioning of transnational investigations under the Regulation.
Deprivation of citizenship has become a widespread measure of combatting terrorism in Western Europe. Its extensive use raises the question of the level of necessary guarantees and safeguards, and the answer is contingent on whether deprivation of citizenship can be considered punishment within the meaning of the European Convention on Human Rights (ECHR). The author analyses the leading case of Ghoumid and Others v. France, which stated that deprivation of citizenship was not punishment. This judgement is criticised from the standpoint of the internal perspective of ECHR (previous case law, especially concerning the Engel criteria, ECHR interpretation techniques) and theoretical analysis of the concept of punishment. The author concludes that deprivation of citizenship is indeed punishment, and therefore the guarantees of Articles 6 and 7 ECHR, as well as Articles 2 and 4 of Protocol no 7 to ECHR, must be applied to such measures. As there might be doubts as to whether these standards are complied with by countries of the Council of Europe, the author proposes that such a measure be imposed by a criminal court in the same proceeding as criminal punishment for an act of terrorism.
The article discusses the approach of the European Court of Human Rights (ECtHR) to searches and seizures in criminal cases. It focuses on the general principles concerning these investigative measures developed in the ECtHR's case law. The aim is to determine whether these principles can influence lawmakers and authorities applying the law at the domestic level in providing effective protection of the rights of individuals. The judgements from the last fifteen years are discussed, also to verify whether the approach of the ECtHR has evolved. The author claims that the holistic and case-by-case approach developed by the ECtHR has very little potential to influence domestic legal systems, even in general terms. The main reason is that no clear message is being sent to the national stakeholders as to how the legal texts and practice should be shaped. What can be observed is that even if confronted with the new digital reality influencing searches, the ECtHR has not made even a partial departure from the adopted holistic assessment of the interferences with the right to privacy. In such a reality, the burden of protecting the rights of the individual must be borne by the domestic authorities empowered to oversee searches.
