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A leading role for the EU in drafting criminal law powers? Use of the Council of
Europe for policy laundering

Article  in  New Journal of European Criminal Law · April 2019

DOI: 10.1177/2032284419838338

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Editorial NJECL
New Journal of European Criminal Law
2019, Vol. 10(2) 99–106
A leading role for the EU in ª The Author(s) 2019
Article reuse guidelines:

drafting criminal law powers? sagepub.com/journals-permissions

DOI: 10.1177/2032284419838338
njecl.sagepub.com
Use of the Council of Europe
for policy laundering

Abstract
In light of the ongoing story on the regulatory steps towards electronic evidence and
transnational production orders, civil rights organizations have expressed both alarm and
astonishment on the regulatory initiatives in the Council of Europe regarding transnational
production orders. Member states of the European Union (EU) engage actively in soft law
entrepreneurship by allowing themselves to obtain directly from service providers subscriber
and other communications content. This has not only been done domestically through
national laws but likewise on a multilateral level as EU member states are now seen drawn
towards the Council of Europe. Within said Council of Europe, member states are now
enabled to stretch the extraterritorial powers exercised by their law enforcement author-
ities in obtaining electronic evidence through a controversial Guidance Note and soon, a
Second Additional Protocol. Interestingly, throughout these developments, the EU remained
passive but as of late, has come up with proposals for the European Production and Pre-
servation Orders, among others. The mixture of alarm and astonishment among civil liberties
representatives about the decision making procedures at the level of the Council of Europe
can be best understood in a broader regulatory context of policy enterpreneurship, rent-
seeking behaviour and, overall, rational choice institutionalism. Comparing the Council of
Europe with the EU, the structure of the former makes it the more attractive venue for
policy actors such as law enforcement authorities to maximize their benefits at the least
amount of costs. Being competitors in policymaking vis-à-vis cooperation in criminal matters,
the EU can however lose its sociopolitical ascendancy over time as an institutional venue to
discuss cooperation matters. In light of this, one should not forget that two Europes coexist.
These coexisting realities are now being used to the advantage of laundering policies, testing
which forum would maximize benefits the most. These developments should caution us that
there might be a systemic failure in ensuring safeguards in criminal investigations are always
in place.

Keywords
Transnational production orders, Council of Europe, European Union, soft law entrepreneurship,
rational choice institutionalism, policy laundering, Guidance Note on production orders, European
Production and Preservation Orders
100 New Journal of European Criminal Law 10(2)

The hidden race to dismantle global law enforcement due process

and state interest protections
In August 2018, regulatory initiatives in the Council of Europe regarding transnational pro-
duction orders have been intense, but not uncontroversial. Civil rights organizations usually
active with the European Union (EU), published an alarming note at the occasion of a
cybercrime expert meeting organized by the Council of Europe.1 The tone was one of alarm,
but also of astonishment:

Last month, 360 cyber-crime experts from 95 countries gathered in Strasbourg to attend the Octopus
Conference. The event sounds like something from James Bond, and when you look at the attendee list
– which includes senior figures from the United States Department of Justice, national police forces
across the world, and senior figures from companies like Facebook, Microsoft, Apple and Cloudflare –
it’s easy to imagine a covert machination or two.
As it happens, Octopus is one of the more open and transparent elements in the world of global law
enforcement and cybersecurity. Civil society like EFF and EDRI were invited to speak, and this year it
was our primary chance to comment on a new initiative by the event’s organizers, the Council of
Europe – an additional protocol to their Cybercrime Convention (also known as the Budapest Con-
vention on Cybercrime), which will dictate how Parties of the Convention from around the world can
cooperate across borders to fight Internet crime.

The ongoing story on the regulatory steps towards electronic evidence and transnational pro-
duction orders has been interesting. There has been a general push from governments around the
world to speed up and widen access in international criminal investigations to online data.2 On one
hand, there is the proliferation of unilateralism in terms of cross-border criminal matters, wherein
the countries themselves initiate decision and policymaking based on questionable notions while
having no framework that ensures the continuous respect of privacy and fundamental human
rights.3 To illustrate, the fairly recent US Cloud Act now mandates service providers in response
to US law enforcement requests to ‘disclose the contents of a wire or electronic communication
within their possession, custody, or control, regardless of whether such communication is located
within or outside the United States’.4 Belgium acted similarly when its Supreme Court’s second
decision on the Yahoo! Belgium case has in effect given Belgian prosecutors quasi-unlimited
extraterritorial powers of investigation and prosecution as regards service providers situated

1. See K. Rodriguez, D. O’Brian and M. Fernandez, ‘Behind the Octopus: The Hidden Race to Dismantle Global Law
Enforcement Privacy Protections’, (2018). Available at: https://www.eff.org/deeplinks/2018/08/behind-octopus-hidden-
race-dismantle-global-law-enforcement-privacy-protections (accessed 01 August 2018).
2. Op. cit.
3. See C. Burchard, ‘Der grenzüberschreitende Zugriff auf Clouddaten im Lichte der Fundamental-prinzipien der inter-
nationalen Zusammenarbeit in Strafsachen–Teil 1’, Zeitschrift für die internationale Strafrechtsdogmatik 52(7) (2018),
p. 191; P. de Hert and M. Kopcheva, ‘International Mutual Legal Assistance in Criminal Law Made Redundant: A
Comment on the Belgian Yahoo! Case’, Computer Law & Security Review 27 (2011), pp. 291–297; P. de Hert, C. Parlar
and J. Thumfart, ‘Legal Arguments Used in Courts Regarding Territoriality and Cross-Border Production Orders: From
Yahoo Belgium to Microsoft Ireland’, New Journal of European Criminal Law 9 (2018), pp. 326–352.
4. D. Callaway and L. Determann, ‘The New US Cloud Act – History, Rules, and Effects’, The Computer & Internet
Lawyer 35 (2018), p. 4.
Editorial 101

abroad.5 More recently, the Philippine Supreme Court issued Rules on Cybercrime Warrants that
allow law enforcement officers to apply for the issuance of said warrants for either the ‘preserva-
tion, disclosure, interception, search, seizure, and/or examination, custody, and destruction of
computer data’ in relation to the country’s Cybercrime Act, which shall be enforceable within
and outside Philippine jurisdiction and without necessarily the obligation of notifying the affected
party, suspect, or accused.6 Other than the aforementioned, there are countries like Russia and
Vietnam, which move for ‘data nationalism’, that is, wherein governments demand service pro-
viders to localize data found abroad.7
These manifestations of unilateralism occur likewise on a multilateral level as we see EU member
states engaging in soft law entrepreneurship to allow themselves to obtain from service providers
subscriber and other communications content. As quoted above, EU member states are flocking
towards the Council of Europe, which is the progenitor of the 2001 Cybercrime Convention. Said
Convention, which was drawn up with the active participation of the Council of Europe’s observer
states such as Canada, Japan, Philippines, South Africa and the United States, only marginally
discussed possible infringements of sovereignty by way of transborder criminal investigations
through the Internet. Through a controversial Guidance Note elaborated by the Cybercrime Con-
vention Committee however, boundaries of extraterritorial powers exercised by law enforcement
authorities are now being stretched. This is to be soon made official by a Second Additional Protocol
to the Cybercrime Convention, which is also being drafted within the Council of Europe. Interest-
ingly, throughout this entire historical development the EU has remained passive but as of late, has
come up with plans of having the European Production and Preservation Orders, among others.
This story will be unravelled in other contributions. In this editorial, we would like to pause and
reflect about the justified astonishment of the civil liberties representatives that apparently were
more acclimated to decision-making within the EU, and now were surprised to see the other
Europe – this being the Council of Europe – in action. Why are all these law enforcement people
driving and flying to Strasbourg, home of the Council of Europe? What is the significance of this
Council of Europe, which is an international organization that grew out of a post-World War II
initiative to integrate human rights into European decision-making? Time to look critically at the
two Europes again.

Explaining the two Europes

Two Europes exist in terms of policy and decision-making in the region. On one hand, there is the
Council of Europe. Originally composed of Belgium, Denmark, France, Ireland, Italy, Luxem-
bourg, the Netherlands, Norway, Sweden and the United Kingdom, the Council of Europe was
fuelled by Winston Churchill’s idea of a ‘United States of Europe’ post-Second World War and
represents a ‘regional international organization in its traditional sense’ or intergovernmentalism.8

5. See Burchard, ‘Der grenzüberschreitende Zugriff auf Clouddaten . . . ’, p. 191; de Hert and Kopcheva, ‘International
Mutual Legal Assistance in Criminal Law Made Redundant . . . ’, p. 291; de Hert, Parlar and Thumfart, ‘Legal Argu-
ments Used in Courts Regarding Territoriality and Cross-Border Production Orders . . . ’, p. 326.
6. A.M. No. 17-11-03-SC, Rule on Cybercrime Warrants, 15 August 2018.
7. Burchard, ‘Der grenzüberschreitende Zugriff auf Clouddaten . . . ’, p. 191.
8. Z. Horváth, Handbook on the European Union (HVG-ORAC Publishing House, 2005), p. 26; D. Messenger, ‘Dividing
Europe: The Cold War and European Integration’, in D. Dinan, ed., Origins and Evolution of the European Union. 2nd
ed. (Oxford Publishing House, 2014), p. 43.
102 New Journal of European Criminal Law 10(2)

On the other hand, we can find the EU, which is predominantly supranational in nature. Having
its origins in the European Coal and Steel Community, the EU historically developed with an
ongoing tension to either be an intergovernmental or a completely supranational entity, or a
mixture of both.9 Thus, there was a fluid shift of different competencies on different policy areas
from being exclusively belonging to the member states’ respective governments to being com-
pletely acceded to the Union.10 With the Lisbon Treaty however, the most distinguishable and
identifiable character of the EU became clearer. It is a supranational organization that can exist
separately and distinctly from its member states.11 Even if there are still areas of policy and
decision-making the Union shares with its member states, or a handful left exclusively to the
competency of the member states, there are now several areas of policy and decision-making
where the Union has exclusive competence.12 The Union’s scope and power to make decisions
and set policies ensure the fruition of the Union’s objectives and this does not necessarily require
the unanimous conformity of its member states.13
Additionally, the different institutions within and of the EU act under different constitutional
and fundamental principles, including the principle of institutional balance, which provides the
needed checks and balance mechanism within the organization. Said principle ensures that the
institutions act within the bounds of their mandate and define the institutional structure each
institution must follow, and of which they are not allowed to overstretch their powers to the
detriment of others.14
As regards the member states on the other hand, they are expected under the principle of sincere
cooperation to cooperate with the Union by complying with the Treaty on the Functioning of the
European Union and the Treaty on the European Union, including its provisions on upholding and
protecting human rights.15 The European Commission has the mandate of being the Union’s
watchdog.16 It ensures compliance by the member states. In the event of any infringement, the

9. See for example, Horváth, Handbook on the European Union, p. 37.

10. See for illustration the shifting of competencies as regards the Justice and Home Affairs to the European Union and
development of an Area of Freedom, Security and Justice, L. Klimek, European Arrest Warrant (Springer, 2016),
p. 16; S. Peers, ‘EU Justice and Home Affairs Law (Non-Civil)’, in P. Craig and G. De Burca, eds., The Evolution of EU
Law (Oxford Publishing House, 2011), p. 272; G. Vermeulen and W. De Bondt, Justice, Home Affairs, and Security:
European and International Institutional and Policy Development (Maklu, 2015), p. 118. Another example is the
application of first pillar principles to third pillar policy areas by virtue of the Nice Treaty. See Peers, ‘EU Justice and
Home Affairs Law . . . ’, p. 274.
11. D.M. Curtin and I.F. Dekker, ‘The European Union from Maastricht to Lisbon: Institutional and Legal Unity Out of the
Shadows’, in P. Craig and G. De Burca, eds., The Evolution of EU Law (Oxford Publishing House, 2011), p. 165;
T. Hartley, European Union Law in a Global Context: Text, Cases and Materials (Cambridge University Press, 2005),
p. 1.
12. See Treaty on Functioning of the European Union, Arts 2–6; L. Woods and P. Watson, Steiner and Woods EU Law.
12th ed. (Oxford University Press, 2012), p. 50.
13. There are areas of policy and decision-making wherein it suffices to have a qualitative majority voting among the
member states. See Hartley, European Union Law in a Global Context, p. 1.
14. J.P. Jacqué, ‘The Principle of Institutional Balance’, Common Market Law Review 41 (2004), p. 383; Woods and
Watson, Steiner and Woods EU Law, p. 159. Being likewise imperative to decision-making and intra-institutional
practice, the principle of institutional balance ensures a rightful scrutiny of whether an institution has acted with legal
basis, wherein a particular institution’s actions depend on the different areas of competence and also provide how their
different competences should interact and interplay with one another.
15. See Treaty on European Union, Art. 4(3).
16. P. Craig and G. de Búrca, EU Law: Text, Cases, and Materials. 6th ed. (Oxford Publishing Press, 2015), p. 37.
Editorial 103

Commission seeks the same out and brings an end to it, through either bringing the matter to the
European Court of Justice for adjudication, or acting as investigator or initial judge to determine
whether a violation has been committed.17
The most salient feature of the reform, at least from our perspective, has to do with the criminal
law competences of the Union. Substantive and procedural changes ensure and guarantee now a
more traditional ‘constitutional framework’ for decision-making in the area of Area of Freedom,
Security and Justice–an area that covers, among others, criminal law and criminal procedure.18 This
broad area (formerly governed by ‘third pillar architecture’) now became subject to the supranational
powers of the Union, with a leading role for the Commission regarding agenda setting, a legislative
role for the European Parliament to be shared with the Council where unanimity was replaced by
qualified majority voting and more scrutiny by the Court of Justice.19 The whole architecture was a
relief in terms of transparency, accountability, and participation. No more last-minute agenda setting
by member states in search of quick European successes. No more voting by a Council that is deaf to
all proposed amendments of the Parliament. Rather, there was a focus on transparent and democratic
policymaking outside and (to a certain degree) inside the European Council.20

Rent-seeking at the level of the Council of Europe

After the Lisbon Treaty, still with a policy of EU enlargement, the discussion was about the future
of the Council of Europe, and not about the future of the newly arranged Union. The latter seemed
to be without any discussion, in view of its new constitutional setting.
Compared to the EU, the Council of Europe, which as mentioned earlier, adopts an intergo-
vernmental nature, has not espoused the constitutional and fundamental framework the EU is now
grounded on.21 The principles of institutional balance and of sincere cooperation also do not apply.
There is neither an overarching authority that could dictate to the member states of the Council of
Europe what to do and what not to do, nor is there a compliance mechanism that would keep them
in check. At most, there is a Secretary-General who is responsible for strategic and budget
planning, as well as representing the organization, and the Council’s main bodies: the Committee
of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of
Europe, Commissioner for Human Rights and the Conference of INGOs.22

17. Treaty on the Functioning of the European Union, Art. 258; A. Alesina and R. Perotti, ‘The European Union: a
Politically Incorrect View’, Journal of Economic Perspectives 18 (2004), pp. 27, 30; Woods and Watson, Steiner and
Woods EU Law, p. 39. See also for example Craig and de Búrca, EU Law, p. 38.
18. See Woods and Watson, Steiner and Woods EU Law, p. 15.
19. See P. Craig, ‘Institutions, Power, and Institutional Balance’, in P. Craig and G. Burca, eds., The Evolution of EU Law
(Oxford Publishing House, 2011), p. 74; B. Hecker, ‘The EU and the Fight Against Organized Crime’, in P. Hauck and
S. Peterke, International Law and Transnational Organized Crime (Oxford University Press, 2016), p. 67; Woods and
Watson, Steiner and Woods EU Law, p. 15; J. Öberg, ‘EU Criminal Law, Democratic Legitimacy and Judicial Review
of Union Criminal Law Legislation in the Wake of the Lisbon Treaty’, Tilburg Law Review 16 (2011), pp. 60–82. See
for the regime before Lisbon and its lack of constitutional features, P. de Hert, ‘Division of Competencies Between
National and European Levels with Regard to Justice & Home Affairs’, in J. Apap, ed., Justice and Home Affairs in the
EU Liberty and Security Issues after Enlargement (Edward Elgar Publishing Limited, 2004), pp. 55–99.
20. See for applicable legislative procedure and involvement of both the European Parliament and Council on proposals
from the Commission, Craig and de Búrca, EU Law, p. 54; Woods and Watson, Steiner and Woods EU Law, p. 28.
21. M. Hailbronner, ‘Beyond Legitimacy: Europe’s Crisis of Constitutional Democracy’, in M. Graber, S. Levinson and M.
Tushnet, eds., Constitutional Democracy in Crisis? (Oxford U Press, 2018), p. 292.
22. See M. Breuer and S. Schmahl, The Council of Europe: Its Laws and Policies (Oxford University Press, 2017).
104 New Journal of European Criminal Law 10(2)

The Council of Europe is mainly dialogue-based and concerns itself with harmonizing national
laws to one degree or another, as its ‘vast legislative output’ makes plain.23 Conventions, treaties
and agreements that could harmonize policy and law among member states are normally done
through treaty making and indeed, the Council of Europe has become a popular forum for inter-
national agreements among European states and non-European states alike.24 There has also been
occasions in the Council of Europe wherein harmonization was more effectively pursued through
recommendations from its Council of Ministers to governments, or alternatively, by allowing
discussion of national laws at the drafting stage.25
Arguably then, any check and balance mechanism in the Council of Europe happens through a
deliberative and concurring process among the member states. It is rather informal and admittedly
flexible due to a want of transparency and constitutional guarantees. This apparent difference
between the policy and decision-making processes of the Council of Europe and EU are now, at
least in the discussion on digital law enforcement, being used to the advantage of law enforcement
authorities. Although countries like EU member states individually promote unilateralism, there is
correspondingly the acknowledgement that interests cannot be solely pursued by changing and/or
defending policies unilaterally; policy actors know that ‘collaboration may be the best means of
extending the Pareto boundary to mutual advantage’.26 Thus, law enforcement agents pursue
collaboration wittingly and willingly by engaging in rent-seeking behaviour. This seems to have
been better realized through the lesser transparent forum within the Council of Europe wherein
policies and mechanisms can be enacted vis-à-vis criminal investigations and evidence gathering,
without necessarily being confronted with the tedious and laborious legislative process within the
EU.27 Admittedly however, such rent-seeking behaviour might guarantee a quick win, but runs the
risk of foregoing protective mechanisms, which ensure that human rights and privacy are still
respected – all in the name of efficiency in criminal investigations.
With the fact that law enforcement authorities favour primarily the Council of Europe as a forum,
one would naturally expect that the EU would not stand passively and tolerate said rent-seeking
behaviour because of the different constitutional principles and protection of human rights it avowed
to promote, protect, respect, and defend. Ideally, one can expect that the EU would actively act out,
take matters into its own hands while enforcing in its member states the importance of protective
mechanisms and dissuading them altogether from compromising its long-established rudiment of
protecting human rights among other things. However, this has surprisingly not been the case. The
EU apparently condones such rent-seeking behaviour from law enforcement agencies by letting them
have their forum at the Council of Europe. What it should have opposed, it tolerates.
It seems that the EU has been known to look into the unilateral behaviour of its member states as
well as the developments within the Council of Europe to test out policies and decisions it has in

23. F. Benoı̂t-Rohmer and H. Klebes, Council of Europe Law: Towards a Pan-European Legal Area (Council of Europe,
2005), p. 13.
24. Op. cit.; See Rodriguez, O’Brian and Fernandez, ‘Behind the Octopus . . . ’.
25. Benoı̂t-Rohmer and Klebes, Council of Europe Law, p. 13.
26. M. Rhinard, ‘Public Policy Approaches and the Study of European Union Justice and Home Affairs’, in A. Ripoll
Servent and F. Trauner, eds., The Routledge Handbook of Justice and Home Affairs Research (Routledge, 2017), p. 43.
27. Rent-seeking behaviour is a concept common in applied economic studies wherein one attempts to obtain profit/gain or
economic rent by manipulating political and social institutions where these gains occur, rather than creating new
wealth. It creates a moral hazard one way or another as it is ‘profiteering’ by using social institutions, such as the power
of the state, to redistribute wealth among different groups without creating new wealth.
Editorial 105

mind. Stating otherwise, unilateral actions of member states and whatever approved decisions within
the Council of Europe are precedents fait accompli. To some degree, the subsequent actions taken by
the EU through the proposed European Production and Preservation Orders punch holes in the
Council of Europe’s proposals and actions through the integration of protective mechanisms that
make the former’s proposals more human rights-friendly. Nevertheless, the proposed EU instruments
and actions would remain more or less problematic as it still positively reinforces the action taken by
member states and the Council of Europe, which it should have not allowed at the outset (like trends
to bypass mutual legal assistance agreements for any cross-border exchange with unilateral actions).

The tale of two Europes, Gause’s Law at play: Complete

competitors cannot coexist
As announced, we will tell the more technical story about developments at the level of the Council
of Europe and the EU with regard to seeking cross-border evidence via production orders in a
separate contribution. The fact that we want to highlight here is that two Europes play and have
played their part, with the Council of Europe surprisingly taking the lead.
Different forms of duality of realities presently occur in a single continent. Here one finds two
regional institutions, with similar avowed commitments to the protection, promotion, and respect of
privacy and human rights. Yet there is the perceptible reality that both have the propensity to
disregard these commitments in favour of questionable shortcuts, wherein the difference only lies
on which institution possesses the strongest propensity. While the Council of Europe took the lead in
broadening extraterritorial powers of law enforcement authorities in terms of transnational evidence
gathering, the EU initially lazed around but later espoused an instrument with the same theme, albeit
with improvements on human rights provisions. The proposals coming from the two Europes illus-
trate a rational choice decision to pursue policymaking in a collective manner that could maximize
the gains sought. Nonetheless, a closer look would show that more proposals are being pushed
through within the Council of Europe given the Guidance Note and Second Additional Protocol.
This ‘reality’ should be understood in a context of policy entrepreneurship, of rent-seeking
behaviour and, generally, rational choice institutionalism, wherein policy actors would seek the best
venue that would maximize their gains. Given the proposals involve lesser considerations of privacy
and fundamental rights, it would not be surprising that in the present social ecology, there might
come a time when the EU will lose to the Council of Europe as a venue for policymaking on issues of
cooperation in criminal matters. This becomes more plausible when it involves electronic evidence
and the Second Additional Protocol is implemented. Following again the rudiments of rational
choice institutionalism that one way or another promotes venue-shopping, policy actors are expected
to choose strategically the Council of Europe over the EU, given the former’s general lack of
accountability mechanism that maximizes benefits with the least cost. In such an event, the EU over
time can lose its sociopolitical ascendancy as an institutional venue to discuss cooperation matters.
This is in line with Gause’s Law or otherwise known as the competitive exclusion principle,
which states that two species competing for the same limited resource cannot coexist at constant
population values.28 When one species has even the slightest advantage over another, the one with
the advantage will dominate in the long term. This lead either to the extinction of the weaker

28. J. Savage, ‘The Concept of Ecologic Niche, with Reference to the Theory of Natural Coexistence’, Evolution 12
(1958), pp. 111-121.
106 New Journal of European Criminal Law 10(2)

competitor or to an evolutionary or behavioural shift towards a different ecological niche. Stating it

simply, complete competitors cannot coexist.
Applying the same to the Council of Europe and the EU, both are institutions wherein policies
on international cooperation in criminal matters are made. As regional institutions existing in one
continent, both cater to the same audience more or less, with the majority of its membership
composed of European states. However, the Council of Europe has a comparative advantage
nowadays for global law enforcement given that it does not have the same kind of constitutional
framework as well as the accountability mechanism the EU possesses. Further, its treaty-based
mechanism makes it possible for contracting parties to discuss and decide on matters without
exactly following a legislative procedure the EU espouses. Stumbling blocks are also at a bare
minimum given that if no agreement or consensus is reached within the Council of Europe, there is
no authority that would impose something otherwise. Alternatively, the contracting or negotiating
party would not be compelled to comply against its will, which, on the contrary, occurs with the
EU. As a supranational authority, there are areas of decision and policymaking within the exclusive
competence of the Union, to which member states ought to comply under the principle of sincere
cooperation, while ensuring the protection of fundamental human rights.
With the success rate that law enforcement authorities are gaining within the Council of Europe,
it is more attractive. It makes more sense on a rational choice point of view for law enforcement
authorities to lobby within the Council of Europe given that compliance is easier but the gains are
maximized. Although lobbying for collaboration equally occurs within the EU, the Council of
Europe would always serve as an apt fallback mechanism if matters get difficult or complicated.
This is especially the case because not only are the EU member states already part of the Council of
Europe, but the Council of Europe agreements also involve parties such as the United States, for
example, which are not necessarily European states. If this continues in the long run, the EU would
lose any advantage, or even parity, as regards transnational criminal matters.
Indeed, it is easier to fixate solely on the existence of the EU as the lead normative power and
policymaker in Europe. We can remain impressed with its constitutional architecture and the
positive changes it has made possible so far. Nonetheless, we should not lose sight that what we
actually have are two Europes with coexisting realities. These coexisting realities are now being
used as the playing field wherein policy changes are laundered or being manoeuvred from one
forum to another like a policy ping-pong game, while testing which forum would maximize
benefits the most. Rent-seeking behaviour, policy entrepreneurship, and rational choice institu-
tionalism have not been better illustrated in terms of international cooperation until now. And
although we will not be quick to judge that this might be an omen of bad things to come as regards
criminal law policymaking in the future, we believe that this development ought not to be rejoiced.
It signals that there might be a systemic failure in terms of ensuring needed safeguards in criminal
investigations are always in place. As the present developments illustrate, the risk of falling back to
archaic times of opacity and lack of accountability in criminal matters has become real and
tangible in the name of gaining ground, or making oneself more appealable than the other.

Paul De Hert
Vrije Universiteit Brussel, Belgium
Angela Aguinaldo
Max Planck Institute for Foreign and International Criminal Law, Germany

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