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  • First reflections concerning the Tampere Conclusions as far as they relate to Europol

    COUNCIL OF THE EUROPEAN UNION

    Brussels, 25 November 1999

    13370/99

    LIMITE

    EUROPOL 48

    NOTE from Presidency to Europol Working Party

    No. prev. doc.: 6245/99 EUROPOL 7

    Subject: First reflections concerning the Tampere Conclusions as far as they relate to Europol

    1. Introduction

    Article 30 (ex Article K.2.) of the TEU sets out the framework under which Europol should be further developed. It lists elements of a common action of Member States in the field of police co-operation and provides for a series of measures that should be undertaken by the Council within a period of five years after the entry into force of the Treaty of Amsterdam (five years after 1 May 1999)

    The Presidency invites the Member States, the Commission and Europol to further reflect on the necessary or desirable changes that are required in the Europol Convention after the entry into force of the Treaty of Amsterdam in light of the Tampere conclusions. This document provides some elements that could be considered.

    This note primarily relates to the tasks of Article 30 of the Treaty of the European Union as defined by the Tampere Summit where Europol is explicitly mentioned. Nevertheless, other provisions of Title VI of the Treaty of the European Union will also have an impact on Europol.

    2. First reflections concerning the Tampere Conclusions as far as they relate to Europol

    i) Rec. 43 (reference to recital 43 of the Tampere Conclusions)

    In view of the urgency to set up joint investigation teams a solution should be found that does not require the draft Convention on mutual assistance in criminal matters [1] to be ratified by at least half of the Member States. This implies also excluding opting for a solution which requires amending the Europol Convention. A framework decision under the TEU could provide for an adequate solution. Such a decision should cover joint teams in general and must ensure the participation of Europol. Such participation is possible without any amendments to the Europol Convention if it would be set up along the lines as mentioned in the Annex to this document.

    ii) Rec. 44

    The main question in relation to the setting up of a European Police Chiefs operational Task Force to be answered is in which framework should this Task Force operate. Recital 44 of the Tampere conclusions reads as follows: “The European Council calls for the establishment of a European Police Chiefs operational Task Force to exchange, in co-operation with Europol, experience, best practices and information on current trends in cross-border crime and contribute to the planning of operative actions. ” It is thus for the Task Force to promote practical co-operation in the fight against cross-border organised crime. Therefore a natural link exists between the Task Force and the tasks of Europol as set out in the Europol Convention.

    In case Europol would be chosen as institutional framework, the Heads of national Units as mentioned in Article 4, paragraph 7, of the Europol Convention could be used as a framework for such a Task Force. It could also be set up as a working party of the Management Board. The creation of a formal legal basis to set up the Task Force as a permanent body requires, however, an amendment to the Europol Convention or an act of Council in which such a Task Force would formally be set up in the Europol framework (it has to be checked whether this would be legally possible, given that the Europol Convention at first glance does not provide for a legal basis for such an act).

    For setting up such a Task Force in the Council framework, a decision of Coreper is sufficient, given that Coreper is responsible for the setting up of working parties.

    iii) Rec. 45

    Necessary support and resources:



    a) resources: to be decided in the framework of the Europol budget procedure and dependent on the tasks that are given to Europol (including the new tasks as listed in the Amsterdam Treaty and the Tampere Conclusions)

    b) support: the council should ensure that the framework created by the Europol Convention is used effectively by all Member States.

    Receiving operational data:

    This point raises some serious questions. At first glance, no rule in the Europol Convention prevents at this moment Europol from receiving operational data already in case three conditions are met:

    – the data should be needed for analysis work

    – the data needs to be provided through the National Units

    – Europol itself can take no operational measures.

    Any action above or beyond these conditions requires an amendment of the Europol Convention and other Europol rules (e.g. rules on analysis files, protocols on privileges and immunities). It needs therefore to be clarified for which purpose, by whom and why Europol would need to receive operational data. It should to be underlined again that already today Europol can use and receive operational data under the aforementioned conditions.

    The question of Europol’s access to data held in the SIS needs to be further discussed. There is a clear operational need for Europol to have access to the data stored in the SIS and the CIS [2]. Whether this necessitates granting Europol direct access to the system or whether it is achieved via the ELOs transmitting the relevant information to Europol needs to be determined. It should be borne in mind that the Schengen Convention would have to be amended to entitle Europol to directly retrieve data from the SIS.

    Europol to ask Member States to start investigations:

    With reference to Article 2 (4) of the Europol Convention it can be taken that Europol may address all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences. According to Article 4 (2) of the Europol Convention all requests of Europol to Member States will be transmitted via the Europol National Units.

    Under the provisions of the present Convention Europol already is able to make requests to the Europol National Units. It should however be considered, paying attention to the new provision contained in Article 30.2 (b) TEU, which possibilities of response competent authorities in Member States would have under the new article when they are “asked” by Europol to conduct or co-ordinate an investigation. There are Member States where an obligation exists to pursue matters with enough probability of being a criminal act. For these Member States this should not be regarded as a major problem, although there might be discussions on priority compared with national operations and on how to inform Europol on the measures undertaken and the results. For legal systems where public prosecution offices do not have an obligation to pursue the matter, it should be considered what obligations competent authorities have vis-a-vis requests made by Europol. At first view, it should be said to which extent the request should be fulfilled. If this is not the case, several possibilities could be considered, such as absence of any obligation to respond, absence of any obligation to motivate a negative response, obligation “to give due consideration”, or finally, an obligation to motivate a negative response.

    It seems appropriate that, if Member States consider that a response has to be given by national competent authorities when they are “asked” by Europol to conduct or co-ordinate an investigation, special provisions need to be introduced in the Europol Convention which, if necessary, may lead to appropriate implementation in the Member States.

    As a general point, however, it should not be forgotten that there will be different types of requests made by Europol. Requests for information on strategic projects will have to be dealt with differently from those for more urgent operational needs.

    Furthermore, it should be considered whether the changes to be made will require a further clarification of the role of the judicial authorities in the relationship with Europol and which role the European Judicial Network could have in this.

    If Europol asks a national authority to conduct or co-ordinate an investigation this could of course lead to the establishment of a joint team as mentioned in paragraph 2.1.2

    iv) Rec. 46

    The main question to be answered concerns the relation between EUROJUST and Europol. The setting up of formal relations would most likely require an amendment to the Europol Convention.

    v) Rec. 51



    Should Europol play a role as far as the transfer and analysis of operational data in relation to tracing, freezing, seizure and confiscation of proceeds of crime (money laundering) are concerned ?

    vi) Rec. 56

    At present Europol is only competent in the field of money laundering, if the money laundering is linked to one of the specific forms of crime which fall within the Europol remit. Providing Europol with a general competence in the field of money laundering requires an amendment of the Europol Convention.

    Annex

    Scenario for Joint Teams

    This Annex outlines a scenario for Joint Teams. The main criteria for the success of a Joint Team operation are firstly the skills and origin of the officials participating in it, secondly their powers in the operation as such and, finally, the capacity to utilise the evidence gathered during the operation. Around these three criteria a scenario was drafted.

    For a better understanding of the ideas expressed in this document some explanation of some of the terminology used in the text might be useful:

    Operational” in this context consists of all actions that form part of the operation as such, based on the normal role of law enforcement organisations. This is e.g. information exchange, collating and analysing of information and intelligence, etc.

    Executive actions” are understood as actions pursued by law enforcement officers in order to facilitate an investigation where specific powers have been granted by national law, such as surveillance, interviewing suspects, searching, arrests, etc. Executive actions may have a direct impact on constitutional rights of individuals.

    Restricted executive powers” mean actions pursued during an investigation that do not have an essential impact on constitutional rights of individuals, such as interviewing suspects, examination of files, etc. The exact definition of”Restricted executive powers” needs to be discussed in detail. However, it is obvious even today that some actions will not be included, such as arrests.

    Members of the operation:

    Participating Member States: Member States participating in a Joint Team investigation (operation).

    Lead authority: Europol or an organisation or body from one of the participating Member States that takes the lead or co-ordination function of a Joint Team investigation.

    Member States participating in executive actions resulting from the operation:

    Host state: Member State where executive actions resulting from the Joint Team investigation take place (a host state is defined for every single executive action; in most cases a Joint Team will act in more than one host state).

    Sending state: Member States involved in the Joint Team investigation that are not the host state and therefore do not have executive powers in the host state.

    A centralised investigation will be based at and co-ordinated from Europol.

    Decentralised investigations are based at and co-ordinated from locations other than Europol.

    In the scenario outlined in this Annex, the Joint Team consists of investigation officials in accordance with the multidisciplinary approach [3]. Law enforcement officials of Third States and Bodies can be members of the Joint Team, although their powers will be limited.

    The role of the judicial authorities as regards their control function, as stipulated in the national legislation of several Member States, was not examined in this document. Where there is a need for a judicial authority to control the investigation, the responsibility can be found in the relevant criminal procedural law of the Member State concerned.

    Scenario for 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 two ways to initiate a Joint Team foreseeable:

    a) 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 [4], or 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 then initiates a Joint Team by asking [5] different Member States. One Member State is willing to lead, or Member States ask Europol to co-ordinate.

    b) The second option would be that 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 [6] different Member States. One Member State 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 [7] 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 [8]. This approach would be budget-oriented and according to a strict timetable. This kind of a Joint Team could develop into an operational Joint Team.

    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.

    Europol can provide assistance with:

    * Information- exchange

    * Collection and Analysis of Information/Intelligence

    * Technical, logistical and linguistic expertise, for instance by providing specific tools and skilled technicians.

    In case the Joint Team is located centrally at Europol the leadership is held by the Member State in which the concentration of investigations/criminal areas is detected and/or Europol has the coordinating role.

    Decisions referring to executive measures in the Member States are the responsibility of the competent participants of Member States.

    Generally the Joint Team acts together. Each member of the Joint Team investigates throughout his own country with national competence.

    Lead authority: Member State or Europol (with Member States agreement)

    Europol officials: support or co-ordinating role

    Host state law enforcement officials: also in support role, having executive powers in their own country

    Sending state law enforcement officials: support role only

    Use of evidence gathered during the investigation: members of judicial authorities of the host states can participate in the Joint Team. They can make direct use of the evidence gathered in the investigation, under the “normal” legislation of the host state. 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.

    This scenario is possible within the present legal framework

    A further element for reflection in this respect is the validity, under the different legal systems, of evidence gathered by joint teams. It should be ensured that – under certain conditions- information lawfully obtained by an official while part of a joint investigation team which is not otherwise available to the competent authorities of the Member States concerned may be used for the purposes for which the joint investigation team has been set up as well other well defined purposes for which the use of the information is needed.

    Footnotes:

    1. Document 12867/99 COPEN 56 (Article 13)

    2. SIS stands for Schengen Information System

    CIS stands for Customs Information System

    3. Which covers for instance members of external international organisations and fora

    4. Pre-conditions for the involvement of Europol according to Art. 2 Europol-Convention are: crimes within the mandate, factual indications of an organised criminal structure, two or more Member States involved.

    5. From Europol’s point of view this is covered by the Art. 30 Treaty of Amsterdam

    6. From Europol’s point of view this is covered by the Art. 30 Treaty of Amsterdam

    7. From Europol’s point of view this is covered by the Art. 30 Treaty of Amsterdam

    8. European Union The Council, Austrian Presidency, “Framework for co-ordinated law enforcement action against transnational organised crime”, doc. 12512/98 CRIMORG 167, Brussels 30 October 1998