COUNCIL OF Brussel, 11 February 2000
THE EUROPEAN UNION
5845/00 ADD 1 LIMITE EUROPOL1
ADDENDUM TO THE NOTE from General Secretariat
to : Europol Working Group
No. prev. doe.: 5845/00 EUROPOL 1, 13370/99 EUROPOL 48
Subject Comments by delegations to the “First reflections concerning the Tampere Conclusions as far as they relate to Europol” as contained in doc. 13370/99 EUROPOL48
Delegations please find in Annex additional comments by Europol to the “First reflections concerning the Tampere Conclusions as far as they relate to Europol” as contained in doc. 13370/99 EUROPOL 48. 5845/00 ADD 1 NB/vj EN
ADDITIONAL COMMENTS BY EUROPOL
1. Recommendation 43
Implementation of the Amsterdam Treaty; Europol’s scenarios for Joint Teams’
1. 1. Introduction
This paper seeks to further outline Europol’s point of view regarding the setting-up of Joint Teams, as part of the implementation of the Action Plan to combat organised crime’ and of Article 30 (ex Article K.2.) of the TEU. 1.2. The need for ‘Joint Teams’ with Europol There are a number of alternatives for establishing ‘Joint Teams’. They can operate in a centralised way at Europol or decentralised within the Member States. Which ever way is used, we consider that the creation of such teams should be as flexible as possible. Flexibility should be the aim when determining the terms of reference for Joint Teams, their mixture of participants, the main targets, the organisation and internal structure, the localisation and any possible links to judicial authorities as well. Consequently, unnecessary preconditions should be avoided.
The term “Joint Team” follows the principles of Tampere and covers more types of cooperation than the term ‘joint investigation teams” as it is defined in the Draft Council Act of Mutual Assistance, Art. 13 · adopted by the Amsterdam European Council on 16-17 June 1997, recommendations 25 a – d and the Action Plan adopted by the Vienna European Council in December 1998, document JAI 4 1.
3 Europol’s contribution to EUROPOL 7, file-nr: 3100-18, Annex 2, page 12:” The decisionmaking mechanisms relating to Joint Teams should be clarified The preconditions will be:
- a request from one or more Member States with respect to an individual case or cases involving two or more Member States;
- acceptance by the Member States of the need for a Joint Team;
- the case(s) must fall within Europol’s mandate, including indications of an organised consuming decision making mechanism within the existing framework.’ The legal basis for Joint Teams is the national legislation of the participating Member States and is considered to be the primary responsibility of the Member States involved’. As far as Europol is involved the Europol Convention has to be respected.’
1.3. Terms and key issues
1. 3. ].Joint Teams
When considering the different scenarios for a Joint Team presented below, the following key terms or issues should be kept in mind:
- multi-agency teams
- multi-national teams
- different areas of expertise of participating specialists
- different competencies of the different participants
- support aimed at operational tasks
- intelligence tasks
- common strategy
centrally and de-centrally organised For instance Joint Teams can be created from the work and results of Europols’ intelligence work (e.g. OC report, AWFS). As it was good practice in the past Joint Teams can be based also on relevant results generated upon the Europol information exchange or on appropriate requests by one or more Member States. criminal structure. The final decision on the setting-up of a Joint Team should be taken in agreement between the Member States involved, Europol/Management Board, and should include a consensus on the role of participants in the team, the internal practical procedures to be followed, and the intended outcome. Any leading or co-ordinating role within such Teams should be decided on for each Team.”
According to the Convention, the role of Europol is to facilitate and support the Member States in their efforts to combat organised crime in specific (mandated) areas. Facilitation, support and co-ordination in this respect relates directly to operational investigations of law enforcement agencies.
Six main types of facilitation, support and co-ordination could be identified when thinking about Joint Teams: · technical, logistical and linguistic support (for instance technical devices and skilled expert, meeting facilities, translations etc.),
- analytical support,
- support with expertise ,
- management support (e.g. to support co-ordination etc.),
- financial support (e.g. as far as resources are available Europol should be able to co-finance common investigations);
- co-ordinating role of Europol depending on common agreement of Joint Teams members; (recognition of Article 13 (3) of the Draft Council Act’ concerning the co-ordination of operational actions in Member States).
1. 3.3. Co-operation and project-based approach
It is suggested that the principles of co-operation as laid down in CRIMORG 167′, including the project-based approach, could usefully be applied within the context of Joint Teams. It goes without saying that a real commitment of all participants and a strong drive towards operational outcomes are crucial.
1. 3.4. Confidentiality
By setting up Joint Teams, there are good grounds for believing that without the guarantee of confidentiality, law enforcement agencies within the Member States will be hesitant to exchange sensitive data, especially from ongoing national investigations.
1. 3.5. Multidisciplinary / Multi-agency
In order to achieve an optimal operational outcome, the Joint Team should include specialists from different disciplines, and in particular investigators with expertise in financial/money laundering aspects (e.g. to identify and seize assets at an early stage of investigations) and appropriate language skills. The different background and experience of the participants is one of the most important requirements of Joint Teams.
A multidisciplinary / multi-agency approach would also be useful in order to make maximum use of the preexisting databases and the different powers of Joint Team members involved (e.g. Customs, Guardia di Finanza, CID officers).
1. 3.6. Co-operation with judicial authorities
There is a common understanding and agreement between the different law enforcement agencies and Europol for the need of an enhanced legal agreement concerning criminal investigations. In this respect Europol welcomes the Draft Council Act’, especially Article 13 (5-8).
However, when focussing on the need of enhancing international police co-operation through the setting up of Joint Teams as soon as possible, it is necessary to work within the existing structures and within the limits of the current legal environment. Examples of international investigations in the past have shown that already now the practical possibilities to involve judicial authorities exist. When including Europol as a facilitating and supportive organisation the co-operation levels of the past would be enhanced. Judicial involvement is always based on the rules of the individual Member State. In this respect account has to be taken of the fact that judicial authorities in the Member States have differing roles and responsibilities in law enforcement investigations. In some Member States the judicial authorities are involved from the beginning of an investigation whereas in other Member States, often they are not concerned until the investigation is finalised. Taking this into consideration and as stated above, Europol is in favour of a flexible approach concerning this issue. It is proposed that decisions on the involvement of judicial authorities in Joint Teams should be taken on a case-by-case basis, also taking account of the different scenarios presented below. Furthermore it has to be recognised when a Joint Team is set up, the Member States involved may in particular agree that requests for mutual assistance relating to the team’s investigations, by way of derogation from Article 6 of the Convention, can be submitted by officials seconded to the team directly to the competent authorities in the States of operation’.
1.4. Constraints and Benefits
The location of a Joint Team is decisive for the success. In many cases Europol is the most appropriate place for a Joint Team. Europol can offer rooms, equipment (e.g. teleconununication facilities), translations etc.
Communication between the different law enforcement agencies within the European Union calls for the need of language skills. Europol is able to arrange communication on a working level in different languages.
Cultural and systemic differences can lead to an unbalanced composition of Joint Teams. Europol, with its experience in dealing with cultural and other differences would be able to minimise this constraint. Recognising the fact that organised crime investigations should be conducted in a confidential manner, it is often the practice of law enforcement agencies not to share information relating to known criminal organisations. This is most important at the early beginning of investigations.
In this respect there is a great need of confidentially within Joint Teams. Europol could provide for this, given both its practical possibilities and its strictly regulated data processing mechanisms. Its co-operation with national counterparts should inspire confidence in the other participants.
National law enforcement agencies are often not very interested in providing information to other countries especially when they do not need them for their own investigations. Therefore from a European view a lot of useful information can be lost. In gathering all available information by the support of the Europol Liaison Officers and by use of open sources, Europol would be in a position to avoid this loss of information without prejudice to national interests (Europol not having investigative power).
Normally regional law enforcement agencies are overloaded with ongoing investigations. Sometimes they are not willing or unable to start new investigations. In the latter case there will be a lack of personnel, technical facilities and/or budget cuts. Europol could provide personnel, logistical help and -an important aspect- co-financing of Joint Team investigations as far as resources are available.
1.5. Scenarios Europol already has a mandate to facilitate, support and encourage the co-ordination and carrying out of specific investigative actions by Member States. As for the role of Europol in operational actions of joint teams comprising representatives of Europol in a support capacity, different scenarios could be considered. No changes to the Europol Convention are needed for scenario 1, however, scenarios 2 and 3 may require changes as well as to the national legislation of several Member States. This relates mainly to the relation between the host state and the lead authority with its authority for specific investigative and operative measures and the independence of the Europol officials.
Article 30 (1) of the Europol Convention stipulates that Europol officials shall not take or seek orders from any govermnent, authority, organisation or person outside Europol, save as otherwise provided in the Europol Convention and without prejudice to Title VI of the Treaty on European Union. Therefore, in general Europol officials are not allowed to be directed by anyone other than the Europol Director. Nevertheless, the Director of Europol can, if necessary, delegate his authority to the co-ordinator of a joint team. This is also supported by the fact that the legal basis for joint teams can be found in Title VI, Article 3 0.2 (a) of the Treaty on European Union.
Joint Teams with Member States representatives having national functions and powers and Europol in a co-ordinating or support role.
This scenario can be centralised or decentralised. The powers of participating officials stay as they are today. There are four ways to initiate a Joint Team foreseeable:
- A case is started in a (leading) Member State and the local law enforcement authority recognises the international dimension at an early stage. This Member State initiates a Joint Team with other Member States involved and requests Europol’s participation’.
- Europol receives information on an international case via information exchange, but none of the Member States law enforcement agencies ask for a Joint Team. However, because of its information position, Europol considers there is the need to create a Joint Team. Europol initiates a Joint Team by inviting’ different Member States. One Member State is willing to lead, or Member States ask Europol to co-ordinate.
- As a final outcome of intelligence work, Europol identifies criminal organisations acting on an international level in different Member States. Europol initiates a Joint Team by asking’ different Member States. One Member States takes the lead, or Member States ask Europol to co-ordinate or
- Europol identifies a serious criminal area arising from ongoing Europol projects and/or expert meetings. Europol asks’ interested Member States to create a Joint Team for more detailed intelligence work. This would be based on the project-based approach according to CRIMORG 167 4as well, budget-oriented and according to a strictly time-table.
During the investigation phase, each member of the Joint Team can investigate in his own country, based on his national competence, but other officials are restricted to a support role only.
In case the Joint Team is located centrally at Europol the leadership is held by the Member States in which the concentration of investigations/criminal areas is detected and /or Europol has the co-ordinating role. Decisions referring to executive measures in the member States are the responsibility of the competent participants of member States.
- Lead authority: Member States or Europol (with Member States agreement)
- Europol officials: support or co-ordinating role.
- Host state law enforcement officials: in support role, having executive powers in their own country and/or a co-ordinating role.
- Sending state law enforcement officials: support role only, but having executive powers in their sending states.
- Sending state prosecutors can also participate in the Joint Team; evidence can only be used in the sending state under the existing legal framework of mutual legal assistance’.
Joint Teams with Europol and Member States representatives with multinational functions and powers.This scenario is possible in a centralised and decentralised way. The Joint Team can be initiated as described in scenario 1.
The role of judicial authorities is as described in scenario 1.
- Lead authorities: primarily with Member States, but this role could with Member States agreement be transferred to Europol.
- Europol officials: support or co-ordination role, possibly with restricted executive powers in the host state’s as stipulated in host state’s legislation.
- Host state law enforcement officials: with executive powers in the host state as stipulated in host state’s legislation, also support or co-ordination role.
- Sending state law enforcement officials: support or co-ordination role, with restricted executive powers in the host state as stipulated in host state’s legislation and in agreement with Joint Team co-ordination agreement and, where applicable, Member State investigation teams. Judicial authorities of the Host State can make direct use of the evidence gathered in the investigation, under the “normal” legislation of the Host State. Sending state prosecutors can only make use of evidence in the sending state under the existing legal framework of mutual legal assistance. This could be enhanced, for instance through providing for a legal basis for requests for mutual assistance relating to the team’s investigations to be submitted by officers seconded to the team directly to the competent authorities in the State of operation’.
This scenario may be possible for some law enforcement agencies in particular member States, but for the large majority of Member States it requires a change in national legislation. As regards the role of Europol officials, it also requires at least a Framework Decision, not only for establishing certain rules and powers for Europol officials, but also for law enforcement officials from other Member States when co-operating in Joint Teams’.
Joint Teams with Europol and Member States representatives with executive functions and powers of their own.There is a common acquis of criminal procedural law in all the member States, giving (European) executive powers of their own to the Joint Team. These European powers can be established taking into consideration already existing powers for law enforcement officials in another Member State, as mentioned in the Schengen Convention, the agreements of the Yugoslavian War Crime Tribunal, bilateral agreements on cross-border co-operation, etc.
It should be borne in mind that Article 17(2) of the Protocol on Privileges and Immunities for Europol staff requires the protocol to be reviewed in case the tasks of Europol as mentioned in Article 3 of the Europol Convention are amended. As set out before, scenario 1 does not need an amendment to article 3 of the Europol Convention and therefore does not require a change in the Protocol on Privileges and Immunities. Scenarios 2 and 3 however, warrant a review of the said protocol. In any case, a review of the Protocol has to take place in July 2001, two years after its entering into force.
In this scenario, Europol creates a Joint Team and leads and acts centrally. Europol and the Joint Team are given executive power across the European Union. Member States will contribute to the investigation and support Europol with personnel and technical expertise. The role of all Member States officials as well as Europol officials will be comparable.
- Lead authority: Europol
- Europol officials: executive powers
- Host state law enforcement officials: executive powers
- Sending state law enforcement officials: executive powers
- The judicial authorities are or anised permanently and centrally at an independent body in a similar organisation like Europol. They might direct investigations according to a harmonised European legal framework.
Compared to scenario 1, which doesn’t require any change of law, and scenario 2, where mainly a change of national criminal procedural law is needed, this third scenario, which requires to establish criminal procedural law on the European level, is only possible based on a major change in the Europol Convention and in Member States legislation.
From Europol’s point of view it is possible to start already with Joint Teams as described in scenario 1 within the existing legal framework. Art. 3 of the Europol Convention seen in the light of Art. 30 (2) TEU provides the needed legal frame sufficiently. The aim should be to go for the “quick wins”: multi-national investigations for shorter periods of time, aimed at bringing down an organised criminal structure effectively. The common approach should be proven to be successful. Europol is fully convinced that positive, practical results, are the most convincing arguments for this way of working, helping to ease discussions on any theoretical barriers, which might still remain.
Practical, project-based co-operation under the existing legislative and organisational framework, explicitly endorsed and supervised by the fifteen Member States, should pave the way for further far-reaching changes.
These changes are needed to fulfil future expectations of Member States outlined in the scenarios 2 and 3. Therefore either Art. 3 of the Europol Convention has to be extended or an appropriate protocol or annex should be added. 2.
European Police Chiefs operational Task Force (EPC-TF)
“The European Council calls for the establishment of a European Police Chiefs operational Task Force to exchange, in co-operation with Europol, experience, best practice and information on common trends in cross-border crime and contribute to the planning of operative actions “‘
2.1. Relation of the EPC-TF to Europol and other Third Pillar fora
The establishment of the EPC-TF results in a number of structural problems. It is unclear which role this group has in relation with Europol and its organs and bodies (HENUs and Management Board) and with other EU related bodies for example the different Third Pillar Working Groups, the Article 36 Committee, the Commission and OLAF. Additionally, the relationship with the Judicial Network and EUROJUST, another group of judicial authorities and law enforcement officers created by the Tampere Summit, must be clarified, once it will be possible to know what EUROJUST will be. This will be of particular interest when preparing Joint Teams and when Europol is starting to initiate investigations ‘.
Finally it has to be taken into account that decisions and actions of this group may have affect to non-Third Pillar related organs and bodies inside the European Union as well as to Third States and international organisations (e.g. ICPO Interpol).
Two major positions can be identified: · To link the EPC-TF to the Council of the European Union, reporting directly to the Art. 36 Committee or
To link the activities of the EPC-TF directly with Europol by integrating the EPC-TF in the Europol framework in combining the EPC-TF with the Europol Management Board or by reinforcing the concept of a so called ‘HENUs Plus” and to In line with the Member States’ comments, it is evident for Europol to settle a convenient structure and to position the EPC-TF and to identify it’s role and responsibilities by avoiding any duplication of efforts. A combination of the EPC-TF with the Europol Management Board seems to be not appropriate. The function and tasks of the Management Board is to control Europol (budget, respect of the Convention and the different regulations etc.) and to supervise and contribute to important administrative decisions. The Europol Management Board is only in exceptional cases involved in strategic and operational related law enforcement activities. An extension of the mandate of the Europol Management Board to the tasks of the EPC-TF would need a change of profile of some of the Members of the MB and even more important a change of the Convention.
The establishment of the EPC-TF by changing the character and the membership of the HENU-meeting to become a “HENU-plus” seems to be a better solution. However, the fact that the HENUs are limited actually in their scope so that they are representing the customers of Europol and that they are at the same time the advisors to Europol but they are not dealing with matters outside the mandate of Europol. The mandate of the EPC-TF concerning areas of criminality and the main tasks go far beyond the actual mandate of the HENUS. In addition, the HENUs represent only or mainly the Europol National Units whereas the members of the future EPC-TF may represent also national law enforcement agencies outside the Europol National Units (see later).
Therefore , the best solutions seems to be to establish the EPC-TF as a high level Third Pillar Committee reporting via the Art. 36 Committee and COREPER to the JHA Council.
Co-ordination problems and double work may arise in the relation between the EPC-TF and Europol and in the relation between the EPC-TF and other Third Pillar fora (MDG, Police Cooperation WG etc). A way to avoid duplication of efforts concerning the EPC-TF and Europol could be tasks sharing. Strategic decisions and prioritisation of common law enforcement activities by Member States and Europol are taken in the EPC-TF under full participation of Europol. The implementation of these decisions is a matter for the national law enforcement agencies and Europol. Much more difficult is the distribution of tasks between the EPC-TF and the various Third Pillar fora. The EPC-TF should concentrate on law enforcement problems to be solved and law enforcement activities to be undertaken nationally and internationally, on professional advise concerning criminality and crime fighting to the governments and on prioritisation of law enforcement actions and the use of resources.
After a decision on the general role of the EPC-TF is taken we have to define the tasks of this group in more detail on the basis of the Tampere conclusions.
The EPC-TF will have in principle two main tasks, based on the work of Europol and there especially the general situation report and the analytical work to agree on common strategic and operational priorities. The first one concerns the EU level and includes · to advise the JHA Ministers Council in order that the necessary political and legal decisions can be taken and
· to influence the EU-wide fight against international OC, carried out by the different working groups and institutions of the EU including the activities of Europol. The second one is to implement the common decision nationally by their own law enforcement agencies (there will be no effective international co-operation without an effective national co-ordination) so that in several or all European Member States common investigations, operations or other important law enforcement measures are undertaken in an harmonised approach and that co-ordinated actions take place.
As said in the Tampere decision and under 1. 1 the first target of this group is to analyse common trends in cross-border crime in co-operation with Europol by exchanging experience, by exchanging practises and by exchanging information. The purpose of this process is to take the necessary actions on the European Union level. This means that the EPC-TF supported by Europol should give advice to the Council of Ministers for Justice and Home Affairs and even to the European Council. Finally, ways have to be found to involve the EPC-TF in defining and implementing a common European Union position in law enforcement and crime fighting towards Third States and International Organisations. In order to avoid irritation of Third partners negotiations and formal contacts of the EPC-TF should not be undertaken separately from the other competent EU bodies and institutions and vice versa.
2.3. Operational actions
As the members of the future EPC-TF consist of the highest law enforcement officers of the Member States they are in the unique situation to implement the common decision on European Union-wide investigations and operations in their own Member States. If for example the EPC-TF agrees upon concentrating investigations and analysis on a specific important international criminal organisation, on a new area of criminality or on a new modus operandi the EPC-TF members should be able to undertake the necessary actions in the framework of their national authority and competence. The decision on the installation of ‘Joint Teams’ should be the responsibility of the EPC-TF.
2.4. 1. Annual Threat Assessment on Organised Crime affecting the EU
Each Member State submits annually a report on organised crime in their country. Those reports are condensed by Europol into a single document, the European Union OC-Report, for presentation to the European Council which not only highlights the actions member states have taken but also the emerging threats of organised crime to the EU. There are recommendations included, which result from discussions in the MDG as well as from Europol’s internal reflections. It would be useful if these recommendations are discussed and, if necessary amended by the EPC-TF (see later).
2.4.2. Identification ofprinciple threats to the EU
The emerging threats could be demonstrated in some matrix form showing which threat is pertinent to which country e.g. Turkish heroin may be seen as a threat to countries A, B & C whilst organised counterfeiting of credit cards may be a threat to countries B, E & G. The threat might also involve some countries outside the EU as well as Member States. This would then be the basis for the prioritisation of operational activities, involving MS and Europol and consequently, will also form the basis for risk analysis.
2.4.3. Agree priorities
EPC-TF The EPC-TF would meet in plenary to study and discuss the identified threats put forward by Europol and agree priorities. They would also need to broadly agree common processes, to which the sub-groups would work, perhaps using an agreed operational agreement template (similar to that contained within the NCS/HMCE Protocol). It may be appropriate to meet in plenary at six monthly intervals, to receive general (as opposed to detailed) reports from subgroups, which should identify examples of good practice and/or impediments to successful Joint working. It would also be appropriate to review the agreed priorities based on Member States’ experience over the preceding 6 months. Finally, the EPC-TF may agree on recommendations included in or added to the European Union OC-report.
2.4.4. Identifcation of specific targets
Those Member States with a common threat would form a sub-group(s) and, using the matrix information supplied by Europol, task their respective national intelligence services in collaboration with their operational resources to supply more detailed intelligence that identifies targets, their associates etc. The analysis of that more detailed intelligence, undertaken by Europol, may identify common targets or at least common links between the targets in each country. It may also identify a non-member state(s) who was also linked to the threat and from whom additional intelligence could be sought. EPC-TF members of the specific sub-group would then agree their specific domestic targets.
2.4.5. Set and agree objectives, milestone reviews etc.
Having agreed specific targets EPC-TF members of the sub-group would agree and sign up to objectives and review milestones relative to the joint operation they have agreed to progress. They would furnish each other with the details of identified Senior Investigating Officer and designated NCIS member in each country, accepting that these individuals will need to have an on-going dialogue, and possibly face-to-face meetings, with each other. Europol would also need to identify a designated point of contact.
2.4.6. Agree to commit resources domestically ·
A principal reason for the presence of Police Chiefs within EPC-TF is that they come with the ability to agree to commit operational resources in their own country. Every member of EPCTF must have that authority.
2.4.7. Operational action with on-going intelligence into Europol
There must be an agreement to pass intelligence resultant from domestic activity back to Europol where it can be continually analysed and disseminated to (and only to) the relevant sub-group members. In this way Europol would have an up-to-date and composite picture of all relevant intelligence in respect of the sub-group’s activity.
2.4.8. Review progress
The EPC-TF sub-group members and the Europol senior representative must agree to meet at regular intervals to review the progress (or not) of the agreed joint operation to endorse its continuance are agree to cease operational activity if there is no progress.
2.4.9. Outcome – extent ofsuccess, costs incurred and any impediments identified
At the end of a Joint operation, whether it was successfully concluded or halted due to lack of progress, the sub-group would agree on the content of a report for the information of the JHA on the successes achieved and its costs, any good practices identified, and/or any impediments which prevented the progress of the joint operation. Also close co-operation will be needed with all appropriate Brussels groups (e.g. MDG).
A common EU approach in the fight against criminality can only be reached when all law enforcement agencies are involved. In order to exclude as far as possible contra-productive quarrels in respect of the implementation of common EPC-TF decisions at national level, it would be beneficial to have a multidisciplinary composition of the EPC-TF.
Each EU country should be limited to very few (2 or 3) representatives at EPC-TF, comprising top-level law enforcement officers from relevant national agencies. Additionally: · Europol Directorate representation in the meetings
· EPC-TF will split into bi-, tri-, or multi-lateral sub-groups to operationally progress common threat
· sub-groups will report on progress to plenary (detail dependent on ‘need-to know’)
· chairmanship for 3 years
· Secretariat of the EPC-TF at Europol in particular as far as operational matters are concerned, and at the General Secretariat as the organisation of the meetings and other administrative matters are concerned. 3. Recommendation 45 3.1. Support and Resources Support and resources are essential when developing and implementing new policies.
In principle this is the responsibility of Member States. Additional funding mechanisms are put in place as well in the framework of the first (e.g. Falcone budget) as the third pillar. Common funding mechanisms get more and more the attention of all authorities, although not so much progress was made so far.
The creation of the European Police Chiefs operational Task Force will facilitate the decision making process related to the availability of additional support and resources.
Europol is part of the third pillar approach. As a general point, it is worth mentioning that in the past Europol’s mandate was at more or less short term extended with new crime areas as well as with new functions (e.g. the Centres of Excellence). To be able to fulfil these new tasks, Europol cannot simply change priorities and/or take away resources from other important assignments. For the extension of its mandate and functions Europol will in the future need increased resources – human resources, but also technical and financial resources. Also, not only the resources of Europol, but also those of the Europol National Units should be increased, because without their capacity to deal with ever more tasks and functions, Europol can not be successful.
Already in May 1998 the Council of the European Union decided on 50 new posts for Europol per year. The necessity to provide Europol with needed support and resources was now reiterated by the Tampere Conclusions. These two declarations for a well-equipped Europol should also be taken into consideration by the national competent authorities concerning the yearly establishment of the Europol Budget and the provision of the funding of their contribution to that budget in their national budgets and budget planning. It has clearly to be understood that the building up new organisation Europol will still need in the next three to four years a yearly sensitive increase of its resources in manpower and in equipment and that the Europol budget increases shall not at all be comparable to the national budget increase percentages.
Concerning Europol’s resources it might be the opportunity to mention the since longer time ongoing discussion about the sharing of seizure assets between the MS and the possible option to have the assets which are not attributable to one or more MS could be attributed to Europol. This of course not at all to increase Europol’s budget means but simply to be brought in reduction of the MS contributions to the approved budget.
3.2. Receiving of data
3.2. 1. The current situation
Recommendation 45 of the Tampere conclusions stipulates the need to strengthen the role of Europol by means of receiving operational data from the Member States. Europol is already giving support to ongoing investigations in the Member States, and for this reason while doing so it is receiving operational data from the Law Enforcement agencies. This is done in two different frameworks, both of them fully compatible under the existing Convention: Europol Analysis Workfiles;
Member State Operational Projects with Europol Support; The two scenarios, whose details are exhaustively described in the Europol Intelligence Model documents, give a particular emphasis to the role of the Europol National Units and the Europol Liaison Officers. In both the Analysis Workfiles and Member State Operational Projects with Europol Support, the Europol Liaison Officers are the primary link in the chain of subjects entitled to provide data to Europol. Europol officers are consequently denied to acquire operational data directly, without the previous agreement of the Head of the Europol National Units and the Europol Liaison Officers.
To a certain extent the Europol Liaison Officers are also responsible for the sending of operational data originated from third countries and third organisations, when the data are acquired by a Member State who has bilateral agreements with the originating authority outside the EU.
The Europol National Units are then responsible to ensure that the flow of operational data from the investigative units and databases in the Member States to the Europol Liaison Officers takes place. A proper flow of information from the investigative units in the Member states and the National Units calls for a widespread awareness about Europol and the operational projects which are undertaken with its assistance.
The recent start of the Analysis Workfiles identified many problems, which are crucial to the successful conclusion of the ongoing projects. The Analysis Workfiles currently opened are in fact not being supplied with the amount and quality of operational data, which was initially expected. In the current situation the quantity of data sent by Member States does not reflect the commitment promised when the decisions to open the Analysis Workfiles were taken in the competent fora. The lack of input from the Member States may be due to a series of reasons, amongst them: Lack of awareness on the roles, responsibilities, procedures and services offered by Europol. The lack of awareness has been identified both at a local and at a higher level, in the law enforcement agencies of the Member States; Initial reluctance by those who are responsible for sending the operational data to the Europol National Units, due to the novelty of the organisation and to the fact that its efficiency has not been sufficiently tested; · Concern on the handling of data protection issues by Europol. This is partly linked to the lack of awareness but also to the lack of confidence, which is part of the law enforcement culture when data have to be shared with new, external and foreign organisations.
Concern on whom has access to the operational data. This is partly related to the problem of awareness on rules and procedures; · Actual data may not exist
3.2.3. How to improve the situation
All the reasons that may explain the lack of data supplied by Member States, can be addressed by the Europol National Units, with the support of Europol Liaison Officers and Europol. Reluctance by Member States, data protection issues or issues related to the subjects who have access to the data are in fact mainly due to an insufficient knowledge of the existing Europol’s legal framework, and of the already existing solutions to the problems, as a result of a long process of close consultation and negotiation under the Third Pillar system.
The lack of awareness in the Member states calls for a more proactive awareness policy. This responsibility lies both with Europol and the Europol National Units, with an active role of the Europol Liaison Officers.
There are many possible ways in which a better awareness policy can be implemented. As for Europol’s responsibility, it can be envisaged for example that the sending of analysts to the Member States with the previous agreement of the National Units will allow a better interaction with the operational units who hold the operational data, at an early stage of the data collection process. Such change of approach requires an even closer consultation with the Heads of the Europol National Units. The Europol Liaison Officers can also assist in this process, providing periodically a short evaluation and statistical reports, that can be beneficial for the monitoring of the situation and identifying where the problems are.
In general terms it should be undertaken a common process that leads to the trust, confidentiality and willingness to co-operate which are the inevitable platform for success.
3.3. Right to initiate investigations
3.3. 1. Introduction
This paper shall provide the Council Working Group on Europol with the most important issues based on Europol’s practical experience during the last year since the Europol Convention came into force.
As laid down in the Europol Convention and the Intelligence Model’ there are well-defined channels of communication between Europol and the Member States. Under the provisions of the present Convention Europol already is able to make requests to the Member States via ENU’S. However, these requests for initiating investigations are not suddenly on the table. They are developed in close co-operation with the Member States mostly upon their request for intelligence services. It should be kept in mind that Member States are heavily involved via e.g. information exchange, expert meetings and their contributions to various analytical work files usually from the very beginning of the whole process. For this practical reasons a formal request is normally not needed because Member States already are initiating investigations based on Europol’s findings.
Furthermore it should be mentioned that these requests to conduct or co-ordinate an investigation could of course lead to the establishment of a Joint Team as described in Europol’s document on ‘Joint Teams’ and the attached scenarios.’
3.3.3. Member States legalposition2 It seems quite clear from the wording of Article 30 (2) b TEU that there will only be a right for Europol to ask the competent authorities’ in the Member States to conduct and co-ordinate their investigations in specific cases. This would imply that a legally binding obligation’ for the Member States to act on such a request is not contained within this provision. Member States, which would not react on formal Europol requests to start investigations could only forced to do so after a major change of the Europol Convention based on a Council decision and Member States agreements. Direct contacts between Europol and prosecuting authorities have to be discussed further. They should be further developed as laid down in Art. 30 (2) TEU. It has to be recognised that these contacts couldn’t be established formally before a change of the Europol Convention is agreed’.
3.3.4. Follow-up Member States which have been asked by Europol to start investigations will be invited to communicate their decisions, explaining whether or not they are able to conduct investigations. It would be helpful to have a certain procedure in place, detailing the motivation, timing, handling and responsible law enforcement agency.
3.3.5. Conclusions Europol can ask Member States to start investigations. This is based on the Europol Convention, Art. 2 (4) and Art. 4 (2). Any amendments or protocols are not needed. Europol welcomes the Member States positive comments in that respect. Under certain circumstances there could be the need of a Council Framework Decision in order to avoid any misunderstandings. This could of course lead to a strengthened future role of Europol based on well-described legal rules. Such a Framework Decision could very well ensure the harmonisation of the Europol convention, the Implementation of Art. 30 (2) TEU and Member States’ national law. It will provide Europol with a much more solid basis in these procedures and keeping Europol fit for future activities. 4. Recommendation 46 Europol’s relation to EuroJust 4.1. Introduction Conclusion 46 of the Presidency Conclusions of the Tampere European Council (1 5 -16 October 1999) reads as follows:
“To reinforce the fight against serious organised crime, the European Council has agreed that a unit (EUROJUST) should be set up composed of national prosecutors, magistrates, or police officers of equivalent competence, detached from each Member State according to its legal system. EUROJUST should have the task of facilitating the proper co-ordination of national prosecuting authorities and of supporting criminal investigations in organised crime cases, notably based on Europol’s analysis, as well as of co-operating closely with the European Judicial Network, in particular in order to simplify the execution of letters rogatory. The European Council requests the Council to adopt the necessary legal instruments by the end of 2001 “.
This very general statement seems to be a political expression of good willing and deserves a lot of work in order to come to concrete results. The European integration process has already seen similar experiences; the building up of Europol is perhaps the best example of that. The implementation of Conclusion 46 is expected by end of 2001 but – based on the experiences mentioned above – it is rather realistic to foresee a longer “period of gestation” before having a fully fledged Eurojust. Conclusion 46 must be read in close conjunction with some aspects of Conclusion 45, which is the following:
“Europol has a key role in supporting unionwide crime prevention, analyses and investigation. The European council calls on the Council to provide Europol with the necessary support and resources. In the nearfuture its role should be strengthened by means of receiving operational datafrom Member States and authorising it to ask Member States to initiate, conduct or co-ordinate investigations or to create joint investigative teams in certain areas of crime, while respecting systems ofjudicial control in Member States
A number of issues arise from the cross reading of both Conclusions: The role of Eurojust in the framework of the current legal situation both at national and international level The relations between the future Eurojust and the existing European Judicial Network (EJN) The creation of a European Prosecutor
· The composition of Eurojust
· The relations between Europol and judicial authorities including EJN a The relations between Eurojust and Europol.
In the light of the current debate, to give an answer to these questions is not an easy task. Reflection started at national level and it is unclear which the different positions will be. The current version of the document CRIMORG 80′ is of no great assistance in identifying an EU strategy in this context. Recommendation 23 simply lays down that as soon as possible (target date: 31 December 2001) a binding legal instrument is established in order to set up Eurojust, its structure, sphere of competence, powers and responsibilities. It is expected a fundamental contribution by the Portuguese Presidency who intends to present soon a working paper on Euro . ust. Undoubtedly the national positions will be dramatically influenced by the differences in the various domestic legal systems, having special regard to the constitutional principles of the Member States. The following thoughts partially cover the above mentioned questions as far as Europol’s interests are directly involved.
4.2. The role of Eurojust in the framework of the current legal situation both at national and international level
At the moment there is no common opinion about the nature and the role of the future Eurojust. No indication is given about the boundaries of its “jurisdiction” (areas of crime, criteria establishing seriousness of crimes/cases, etc). Eurojust can be defined as ajoint structure of investigative magistrates (and investigators?) from the EU Member States, responsible for collecting information and co-ordinating transnational criminal enquiries. However, opinions differ between two extremes as to the final nature of such a body: one country does not see Euroj ust going beyond simple judicial co-operation whereas another goes so far as to advocate the creation of a European Public Prosecutor (see also point 4.4). Moreover, the relations between Eurojust and the jurisdiction of each Member State are to be fully explored; the subsidiarity principle should apply.
Interesting items are also: the production of a situation report (crimes prosecuted); prioritisation mechanisms and issues; participation in project having judicial impact without a direct link to concrete cases.
4.3. The relations between the future Euroiust and the existing European Judicial Network
The JAI Council of 2 December 1999 adopted the first report on the functioning of the EJN. In this context it was said that the next network report will feature details of conclusions the EU Summit in Tampere draw about Eurojust “of which the network is supposed to be the forerunner “. If so, we can assume that in respect to the future Eurojust the current ESN will be very nearly in the same position as the former EDU vis-A-vis of Europol. But there are views willing to maintain in the future both organisations with different tasks. For instance, Recommendation 24 of the mentioned Council document CRIMORG 80 supports a further enhancement of EJN’. Also the idea already expressed in MDG of a common Secretariat for both bodies seems to assume that EJN will continue in parallel with the development of Eurojust. In this case, there will be problems of compatibility of the respective roles, duplication of work and complementarity of activities: in particular, should Eurojust have a certain prominence on the EJN or vice versa?
Due to the so many differences between the national legal systems, a theoretical approach could perhaps be too time-consuming. Following the EDU/Europol example, a pragmatic start of an original nucleus (be it EJN or an embryonic Eurojust based on a de facto co-operation among national personnel seconded in one place) could prove itself more effective. In this case Europol could provide this pragmatic exercise with the added value of its own experience in developing structures.
4.4. The creation of a European prosecutor
Eurojust has been seen also as the embryonic European public prosecutor office. Under point 4.2 the opinion of a national delegation has been reported on the links between Eurojust and the future office of a European prosecutor. From an Europol point of view, it is quite difficult, maybe impossible to have a really functioning office of a European public prosecutor without a European legal framework covering both the substantial and procedural aspects of criminal law. The so-called “Corpus Juris” is a first attempt for a European criminal code but from an operational perspective the Corpus is still to be considered only as a good starting point for further in-depth studies. Having regard to the (sometimes deep) differences among the various national laws and regulations, a viable suggestion could be to create a special European public prosecutor office within the package of measures to be established in order to protect the Euro currency. Fighting against the Euro counterfeit is a totally new challenge for law enforcement agencies; linked to the Europol’s action in this new area of crime, such a prosecutor office could be established as a pilot project for a more general European public prosecutor.
4.5. The composition of Eurojust
Eurojust will be composed by national prosecutors, magistrates or police officers of equivalent competence, detached from each Member States according to its legal system. The pragmatic approach followed in establishing EDU/Europol seems to be used also in this case. One can argue that seconding personnel on the basis of each domestic legal system could have a negative impact on the sound functioning of the new body. As a matter of fact, there is a risk that the different powers given to each prosecutor, magistrate or police officer by its own national law, will bring to a substantial internal unbalance of Eurojust, together with a consequent lack of clarity and stability in its external action. The different acceptance in the Member States of the law enforcement activities carried out by some national prosecutors working in the framework of the former UCLAF should be kept in mind.
It is rather clear that the Tampere Summit intention was to establish in the field of the mutual legal assistance a judicial ‘pendant’ (or counterpart) of Europol, which in turn is supposed to cover the needs of the police and customs co-operation. The presence at Eurojust of “police officers of equivalent competence” seems mainly due to the need of taking into account the very special situation of United Kingdom and to embark in the organisation UK police officers dealing with prosecution. In some other countries, the concept of “equivalent competence” could be interpreted as the possibility to second by Eurojust national police officers carrying out their special duties given by law in the framework of the international legal assistance (e.g. exchanging of rogatory letters). This can give rise to an extended interpretation of Conclusion 46, which could include – for countries of Napoleonic law – “policejudiciaire” officers. Obviously, such broad interpretation will have an impact on the balance between the “judicial” element and the 4 police” element within Eurojust. At this stage the very nature of the new body should be defined: a) Is Eurojust a new Europol reinforced through the presence of magistrates and prosecutors? b) Would be it rather preferable to amend the Europol convention and to “inject” a number of prosecutors and/or some more lawyers in the existing Europol structure?
4.6. The relations between Europol and judicial authorities including EJNI
Europol doesn’t have direct formal relations with judicial authorities in the Member States. Despite this, in several cases national prosecutors and magistrates made use of the possibilities offered by Europol in facilitating the information exchange and related operations carried out by national law enforcement agencies within a criminal procedure. This was made possible thanks to the Europol Liaison Officers (EL0s). They are the representatives of their seconding authorities; while working at Europol Headquarters, they are still under their respective national law and seek the orders of they hierarchical lines according to the organisation of their national structures. The EL0s play a fundamental role in the coordination of operational activities (e.g. controlled deliveries) and their action proved to be as a key factor for important successful operations under the control of national judicial authorities. National investigations carried out in the framework of a criminal procedure got also the advantage of the Europol analytical support. The opening of operational Analytical Work Files will certainly increase the added value our Analytical Unit can provide to the national competent authorities. Obviously, the role of an Europol analyst in a national procedure is to be well established and no inappropriate dissemination of analytical products should be made possible by rules ensuring the defendant the access to the documentation included in the criminal procedure. As far as the relations with EJN are involved, for the time being it doesn’t seem that they can go beyond a co-operation aiming to identify best procedures and most effective technicalities to be exploited in a criminal international investigation.
4.7. The relations between Euroiust and Europol
Our current understanding of Eurojust is that its main tasks will be to enhance the implementation of the already existing possibilities for Mutual Legal Assistance, and also play a role in Joint Team efforts. This obviously calls for a close co-operation, wherever necessary, between Europol and Eurojust, especially – as stated in Conclusion 46 – in the area of support through analyses. Following the example of the informal co-operation established between Europol and Interpol, mutual participation in meetings is envisaged in order to exchange views and experiences, avoid duplication of efforts, synchronise as much as possible calendars and projects, etc.
For this reason, we do not see Eurojust as a controlling or supervisory body towards Europol, but as a parallel effort to improve international investigations and prosecutions. The Convention on Europol established several forms of control (through Management Board, Council, European Parliament, Financial Controller, Joint Audit Committee, National Supervisory Authorities, Joint Supervisory Body; the legality of national aspects of each investigation carried out throughout the Europol system being controlled by the competent national prosecutors and/or magistrates). It would be counterproductive to add a second legality check on cases within the full competence and control of the national judicial authorities. Moreover, which the criteria for such a second check by Eurojust would be? Would the second check also be extended to the merit of a case? Accordingly, we consider as premature and dangerous the opinion already expressed by someone pleading for close controls by Eurojust, including a certain competence in discipline matters against those Europol officers violating the rules of professional ethics.
Given the uncertainty of the specific tasks and powers of Eurojust, it is almost impossible to determine whether or not the Europol Convention would need to be amended because of the relation between Eurojust and Europol. In line with Recommendation 24 of the mentioned document CRIMORG 80 REV 3 it is conceivable to lay down the tasks and powers of Eurojust in a separate legal instrument (in the Europol opinion this would be a Convention, not a Framework Decision) which would not require amendment of the Europol Convention. Also, any proposals to amend the Europol Convention in relation to this topic could be discussed when discussing Eurojust and laid down in that new Convention. For this reason we welcome the intention of the Portuguese Presidency that discussions in the Council on Europol and Eurojust take place in parallel.
5. Recommendation 47
European Police College
“A European Police College for the training of senior law enforcement officials should he established. It should start as a network of existing national training- institutes. It should also be open to the authorities of candidate countries. “
5.1.Europol has a community law enforcement (LE) training task Considering document CATS 37 of 13 December 1999, Europol wants to remind its role in the training of senior LE officials in the Member States. The Europol Convention stipulates in article 3:
“…In order to improve the co-operation and effectiveness of the competent (LE) authorities in the MS … Europol shall furthermore have the following tasks: to develop specialist knowledge of the investigative procedures of the competent authorities in the MS … assist MS through advice and research in the following areas: 1) training of members of their competent (LE) authorities During 1999 two Strategic Intelligence and Analysis Training courses were held at Europol. A total of 43 senior officials from 14 Member States, the International Crime Tribunal for the Former Republic of Yugoslavia (ICTY) and Europol successfully completed the workshops. Operational analysis courses were run at their request for the Danish Police in Denmark. In addition, as part of the UNDCP/Phare programme, a Senior Managers Seminar on analysis was held, followed by an Operational Analysis Course for senior law enforcement personnel from Bulgaria, Romania and the Former Yugoslav Republic of Macedonia. Europol was actively involved in a seminar organised by the Direzione Centrale per i Servizi Antidroga in Italy under the OISIN programme in respect of Criminal Intelligence Analysis. Europol assisted to a operational analysis training course and seminar in Portugal. In September 1999, Europol’s first training course on Best Practice in dealing with Trafficking in Human Beings was held. Europol, in co-operation with Member States’ experts, organised a European Union training course for trainers on the combating of illicit synthetic drugs laboratories. Europol organised a training seminar for money laundering experts and contributed to training courses in the framework of Phare and the Baltic Sea Region.
5.2. Europol’s possible co-operation to the PCN Different possibilities may be envisaged concerning the engagement of Europol in the planning and realisation of a European Police College (PC): 0 First a possible co-ordinating role of Europol with its existing structure and network has repeatedly been mentioned by experts, e.g. establishing a co-ordination secretariat of the PC network within Europol.
Europol could be included in the network as a site where common specialised training courses could be organised for the senior LE officers studying in the different European Pcs. Europol experts could deliver in the PCs’ network specific training courses in matters of community procedures and LE investigation techniques.
The above mentioned considerations lead to the conclusion that Europol, – the only law enforcement co-operation structure in the Third Pillar and assuming already training for LE senior officials-, should be actively engaged in the planning and building up process of the European Police College decided by the Tampere summit.
6. Recommendation 51 Europol’s role regarding the tracing, freezing, seizure and confiscation of the proceeds of crime
6.1. Introduction During their meeting in Tampere on 15 & 16 October 1999, the European Council made the following statement (nr 51): “Money laundering is at the very heart of organised crime. It should be rooted out wherever it occurs. The European Council is determined to ensure that concrete steps are taken to trace, freeze, seize and confiscate the proceeds of crime.”
In this statement, the European Council express the view that the process of tracing, freezing, seizure and confiscation of the proceeds of crime forms an integrated element of their antimoney laundering strategy. Europol’s approach is in line with this view. The seizure and subsequent confiscation of assets forms in fact an essential feature of the fight against money laundering. Although there is hardly any respective statistical information available at national level in Member States, there seems to be a general awareness that the results of seizures and confiscation are limited. This notwithstanding the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1 990) and the national legislation that Member States have introduced for this specific area. Several reasons can be identified, such as:
- in criminal investigations the focus on the financial aspects should be considerably be enhanced;
- when international aspects are involved there seems to be a generally negative assessment regarding the possibility of having assets seized/confiscated abroad;
- the seizure and confiscation of assets often require special forms of expertise (such as civil law, company law, tax law), with which those who are involved in the criminal investigations are not always familiar;
- specialist expertise is also necessary for the management of seized assets and the execution of confiscation orders, and this is not widely available;
- member States encounter problems in proving, beyond a reasonable doubt, that assets have been derived from crime.
These problems become, for practical and technical reasons, almost impossible to solve if those assets are owned by (legal) persons who have their domicile in offshore centres. Europol detected already at an early stage deficits in that area, coming up in 1995 with a project plan’ to improve matters and lately drafting in copartnership with the Council Secretariat a study’ on the effectiveness of ML investigations, resulting in concrete proposals.
- Member States are invited to designate one central body’ with sufficient resources and expertise to deal with the specific aspects related to: – seizure, confiscation and execution of assets derived from criminal activity;
- management of seized assets,
- legal advice for law enforcement and public prosecutors in matters concerning criminal assets,
- international co-operation in this area. · The European Council made it quite clear that it is of prime importance for society that Member States enhance their efforts to deprive criminals of the proceeds of their criminal activity. For that reason, Member States should consider adopting measures, but only in specifically described circumstances, which will enable the Court to confiscate those assets unless the owner of the assets shows, to the satisfaction of the Court and within a reasonable period of time, that they have been legally acquired. This rebuttable presumption should be adopted in conformity with the so called Salabiaku case in the European Court of Human Rights (7.10.88)
- When speaking about the proceeds of (serious) crime, one should realise that (international) fraud is one of the biggest, if not the biggest source of illegal income. Europol should be enabled to support Member States in their efforts to trace, freeze, seize and confiscate criminal proceeds in the area, where probably the biggest criminal proceeds are realised. For that reason it should be considered to extend Europol’s mandate with the different forms of fraud, as mentioned in the Annex referred to in Article 2 of the Europol Convention. In this respect first priority should be given to ‘Swindling and Fraud’. 6.3. Consequences for Europol · Europol’s mandate should be extended to include forms of international fraud;
- In case of approval, flanking measures should be taken, in order to provide Europol not only with the competence in this area of criminality, but with the necessary resources as well;
- Europol will continue to offer and further promote basic services as foreseen in the Europol Convention, like information exchange via the liaison officer network and analytical work;
- In order to further develop direct and indirect operational support it will be necessary to overcome problems to gather national data on asset seizures and on-going investigations and to establish close direct contacts with operational units;
- Europol envisages an active role in respect of asset seizure; Within the framework of the Europol Convention and Article 30 (2) of the TEU it will stimulate the international cooperation between Member States;
- In the area of training, special attention will be given to activities related to asset seizure issues;
- The idea of creating centres of excellence on national (and possibly European) level has to be further promoted;
- In this context it is essential that Europol as a central EU body endeavors to identify best practice especially in countries’ with expertise in that area like UK, USA and Canada;
- The manual on asset seizure, covering the European Union and presently being developed by the Netherlands, should be translated into all EU languages and disseminated by Europol. 7. Recommendation 56 Extension of Europol’s mandate in the area of Money Laundering 7.1. Introduction At present, Europol’s mandate in the area of money laundering is limited to specific predidate offences (Europol’s mandated areas). This precondition cripples Europol’s possibilities to support the Member States in this area of crime.
In order to give Europol more effective tools to fight money laundering, the European Council, during their meeting in Tampere, made the following recommendation (nr 56):
“The European Council invites the Council to extend the competence of Europol to money laundering in general, regardless of the type of offence from which the laundered proceeds originate.”
The need to reinforce Europol’s possibilities to support the Member States in their fight against money laundering was also laid down in Article 30, paragraph 1, section b) of the Treaty of Amsterdam (TEU), where Europol’s role regarding the exchange of information on reports on suspicious financial transactions, held by law enforcement services was stipulated.
A similar suggestion was made in Recommendation 26 a) of the Action Plan of the High Level Group on Organised Crime (JAI 14), where it was pointed out that for this purpose the Europol Convention should be supplemented.
7.2. Europols proposals
Recommendation 56 of ‘the Conclusions of Tampere’, together with the implications of Article 30, 1 b) of the TEU, form the reasons for Europol to invite the Europol Working Group to consider the following proposals:
1 . Support the initiative to extend Europol’s mandate in the area of money laundering (to include money laundering in general) as soon as possible. The provisions required for this procedure are laid down in Article 43, paragraph 1 of the Europol Convention. According to these provisions, a Member State should bring a proposal forward, after consulting the Management Board.
2. For a text proposal Europol refers to the attached Annex. It is suggested to indicate that flanking measures should be taken, in order to provide Europol not only with the competence in this essential area of criminality, but with the necessary resources as well. Appendix 1
Council Act ot.. amending the Convention based on Article K.3 of the Treaty on European
Union, on the establishment of a European Police Office (Europol Convention)’
The Council of the European Union,
Having regard to the Europol Convention, and in particular Article 43 (1) thereof,
Having regard to Article 34 (2) sub d, of the Treaty on European Union;
Having regard to the initiative of (Member State);
Having regard to the opinion of the Management Board;
Whereas the European Council at its meeting in Tainpere invited the Council to extend the competence of Europol to money laundering in general, regardless of the type of offence from which the laundered proceeds originate;
The Europol Convention is amended as follows:
The first sentence of the second paragraph of Article 2 shall read as follows: 2. In order to achieve progressively the objective mentioned in paragraph 1, Europol shall initially act to prevent and combat unlawful drug trafficking, illegal money laundering activities, trafficking in nuclear and radioactive substances, illegal immigrant smuggling, trade in human beings and motor vehicle crime.
The first sentence of the third paragraph of Article 2 shall read as follows:
3. Europol’s competence as regards a form of crime or specific manifestations thereof shall cover also related criminal offences. Article 111
In the Annex to the Europol Convention referred to in Article 2, the sentence beginning with “In addition, in accordance with Article 2 (2)…… shall read as follows:
In addition, in accordance with Article 2 (2) , the act of instructing Europol to deal with one of the forms of crime listed above implies that it is also competent to deal with the related criminal offences.
Recommends that this amendment be adopted by the Member States in accordance with their respective constitutional requirements.
For the Council