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Exchange of Information between Member States and EU Agencies Within the Framework of EU Judicial Cooperation in Criminal Matters


Introduction


The advancing and increasingly pervasive technological progress make information a key element in the functioning of state authorities and in fulfilling the obligations imposed on them. It appears that these trends will not abate; on the contrary, they are likely to accelerate as we move through successive stages of the Fourth Industrial Revolution, characterized by feedback loops among automation, data processing and exchange, and modern manufacturing techniques.

From a scientific perspective, the term “Fourth Industrial Revolution” describes the organization, techniques, and principles of the value chain that collectively employ or utilize cyber-physical systems, the Internet of Things, and cloud computing. It is worth noting that there is no consensus in the scientific community on whether the invention of artificial intelligence should be viewed as the culmination of the Fourth Industrial Revolution or the onset of a new, fifth revolution[1].

Setting aside such theoretical considerations, it must be emphasized that the processes underway influence nearly all aspects of social and public life. A striking example of this is the exchange of information between Member States and EU agencies within the framework of EU judicial cooperation in criminal matters.


The International Aspect


The cooperation of European Union Member States in criminal matters finds its legal foundation in Articles 82–86 of the Treaty on the Functioning of the European Union (TFEU). These provisions aim to address cross-border crime effectively. Consequently, the Area of Freedom, Security, and Justice includes measures to support judicial cooperation in criminal matters between Member States. The principle of mutual recognition serves as the cornerstone of this framework. Specific measures have been adopted to combat international crime and terrorism, while also safeguarding the rights of victims, suspects, and prisoners across the EU[2].

Furthermore, these provisions outline the procedures for adopting regulations that enable the integration of actions in areas such as combating terrorism, corruption, cybercrime, fraud, and money laundering, as well as protecting victims and facilitating information exchange between Member States and EU agencies. In these areas, numerous legislative acts have been adopted under the ordinary legislative procedure, significantly enhancing the integration of cooperation between Member States and agencies in criminal matters.

Despite certain reservations, the body of regulations should be regarded positively, as it provides law enforcement with the necessary tools to prevent and counter crimes of a transnational nature.

The issue of information exchange between Member States and EU agencies is of particular significance, as in the practice of criminal law enforcement, information forms the basis for responses and the potential prevention or mitigation of specific criminal events. At the EU level, the following regulations address these aspects:

1. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters;

2. Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA);

3. Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters;

4. Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726; this regulation is connected to Directive (EU) 2019/884 of 17 April 2019 amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third-country nationals and as regards the European Criminal Records Information System (ECRIS);

5.  Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration;

6. Directive (EU) 2023/977 of the European Parliament and of the Council of 10 May 2023 on the exchange of information between the law enforcement authorities of Member States and repealing Council Framework Decision 2006/960/JHA;

7. Regulation (EU) 2023/1543 of the European Parliament and of the Council of 12 July 2023 on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings;

8. Directive (EU) 2023/1544 of the European Parliament and of the Council of 12 July 2023 laying down harmonised rules on the designation of designated establishments and the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings[3].

The aforementioned provisions have a crucial impact on the shape of national legislation and cooperation between Member States. In some cases, it is solely through these mechanisms that authorities are able to take reactive measures against criminal activity. Nevertheless, beyond the normative framework, practical cooperation between authorities from different Member States is equally significant. Such cooperation invariably relies on the human element and the quality of collaboration between individual states and their respective services. However, this aspect is not influenced by any legislative solutions.


The National Aspect


In the context of the exchange of information between Member States and EU agencies within the framework of EU judicial cooperation in criminal matters, a shift to the national perspective—exemplified by the Republic of Poland—necessitates a focus on police cooperation, although this is not the sole direction of legislative activity.

The processing and collection of data by national authorities is regulated by the Act of July 6, 2001, on the Processing of Criminal Information, which until February 2019 was titled "on the Collection, Processing, and Transmission of Criminal Information."[4] In its current version, the Act establishes the principles for handling criminal information to detect and prosecute offenders, as well as to prevent and combat crime, and specifies the entities responsible for such tasks[5].

However, in the context of this discussion, particular attention should be given to the Act of September 16, 2011, on the Exchange of Information with Law Enforcement Authorities of EU Member States, Third Countries, EU Agencies, and International Organizations. This regulation aims to define the principles and conditions for information exchange in the areas of identifying, detecting, or combating crimes or fiscal offenses, including threats to public security and order, preventing such offenses and threats, and prosecuting offenders of crimes or fiscal offenses. It also identifies entities authorized to participate in such information exchange.

The central intermediary in Poland's legal framework is the General Police Headquarters, which hosts a contact point facilitating the exchange of information between Polish authorities and those of other EU Member States. The contact point plays a pivotal role, influencing cooperation across all criminal justice services[6].

In the context of criminal matters, "information" is defined as data, including personal data, which authorized entities may process to fulfill their statutory duties under separate legal provisions. This means that each service may consider information relevant if it originates from or is related to operational and investigative activities. Moreover, even if the entity providing data specifies a retention period (after which the data must be deleted or verified), the receiving entity is not obliged to adhere to such a period if it deems the information necessary for ongoing operational or investigative activities aimed at detecting and prosecuting offenders or preventing and combating crime. On the other hand, the entity must consider any restrictions imposed by the national laws of the data-providing state[7].

Entities authorized to exchange information include:

  1. The Internal Security Agency[8];

  2. The Central Anti-Corruption Bureau[9];

  3. The Internal Oversight Bureau[10];

  4. The Internal Inspectorate of the Prison Service[11];

  5. The Police[12];

  6. The National Revenue Administration[13];

  7. The Border Guard[14];

  8. The Military Gendarmerie[15].

Although these entities transmit (and receive) information stored in databases either automatically or at the request of analogous points in other countries, Interpol, Europol, or SIRENE bureaus, they may condition such transmission on, for example, receiving additional information about the matter for which the request was made or being informed of how the information will be used. Furthermore, they may refuse to share information with the law enforcement authority of an EU Member State if circumstances suggest that disclosure could threaten the security of the Republic of Poland; could impede criminal proceedings, operational and investigative activities, or other proceedings concerning crimes or fiscal offenses, or endanger individuals involved; would be disproportionate to the goal for which the request was made; or concerns a crime or fiscal offense punishable in Poland by a term of imprisonment of up to one year or a lesser penalty, or when such a penalty has been imposed.[16]


Summary


As can be seen, the issue at hand is extremely important due to the need to ensure appropriate procedures that strengthen public safety on one hand, while on the other, significantly infringe upon rights and freedoms. The assessment of such solutions will always depend on the values held by the evaluator and their point of view. A discussion on this matter is necessary because only through the possibility of presenting one’s position without constraint can we develop solutions that reconcile conflicting values.

The level of integration and interconnection of the systems of the Member States is high. It should be noted that sometimes it is excessively high. However, certain matters, such as the exchange of information, seem necessary to ensure safety and an appropriate response from authorities.

It must be borne in mind that the machinery creating new provisions of European substantive and procedural criminal law increasingly forgets about individual rights and freedoms. Therefore, when creating regulations, we should consider individuals who are not involved in the matter at hand but may accidentally be harmed due to the strong interference with their privacy and a range of other guaranteed rights.

Furthermore, the sovereignty of the Member States should be taken into account. Some countries view the integration of criminal law systems positively, while others remain more reserved. Here, freedom should be ensured, and sceptical countries should be encouraged with good and proven solutions, while respecting their sovereignty and fundamental rights.


[1] K. Zamorska, Pięć rewolucji przemysłowych – przyczyny, przebieg i skutki (ujęcie historyczno-analityczne), „Studia Biura Analiz Sejmowycj”, 3(63) 2020, s. 7-23.

[2] Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal of the European Union, C 202, 7 June 2016.

[4] The Act of July 6, 2001, on the Processing of Criminal Information, consolidated text: Journal of Laws of 2024, item 376.

[5] J. Bielasiński, Krajowe Centrum Informacji Kryminalnej, „Wojskowy Przegląd Prawniczy” 2002, nr 2, s. 23.

[6] T. M. Miłkowski, Czynności operacyjno-rozpoznawcze a prawa i wolności jednostki, Warszawa 2020.

[7] T. M. Miłkowski, Czynności operacyjno-rozpoznawcze a prawa i wolności jednostki, Warszawa 2020.

[8] The Act of May 24, 2002, on the Internal Security Agency and the Intelligence Agency, consolidated text: Journal of Laws of 2024, items 812, 1222, 1562, 1684.

[9] Act of 9 June 2006 on the Central Anti-Corruption Bureau, consolidated text: Journal of Laws of 2024, item 184, 1222.

[10] Act of 21 June 1996 on Specific Forms of Supervision Exercised by the Minister Competent for Internal Affairs, Journal of Laws of 2024, items 309, 1222

[11] Act of 9 April 2010 on the Prison Service, Journal of Laws of 2023, items 1683, 1860, and of 2024, item 1222

[12] Act of 6 April 1990 on the Police, Journal of Laws of 2024, items 145, 1006, 1089, 1222, 1248, 1473, 1562, 1688, 1717

[13] Act of 16 November 2016 on the National Tax Administration, Journal of Laws of 2023, items 615, 556, 588, 641, 658, 760, 996, 1059, 1193, 1195, 1234, 1598, 1723, 1860, and of 2024, items 850, 863, 879, 1222, 1685, 1721

[14] Act of 12 October 1990 on the Border Guard, Journal of Laws of 2024, items 915, 1089, 1222, 1248, 1473, 1562, 1688, 1717

[15] Act of 24 August 2001 on the Military Gendarmerie and Military Law Enforcement Authorities, Journal of Laws of 2023, items 1266, 1860, and of 2024, items 1222, 1248

[16] T. M. Miłkowski, Czynności operacyjno-rozpoznawcze a prawa i wolności jednostki, Warszawa 2020.

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