EXTRACTED TEXT FROM:
COUNCIL OF THE EUROPEAN UNION
8 February 2000
NOTE from General Secretariat to Europol Working Party
No. prev. doc.: 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 EUROPOL 48
RESPONSE BY THE EUROPOL DELEGATION
As it was pointed out in the former Finnish Presidency’s paper, the Tampere Conclusions as well as the provisions of Article 30 paragraph 2 of the Treaty of the European Union delineate the next steps forward in the development of European law enforcement co-operation. As far as the role of Europol is concerned, it will be important to find the right balance between supporting the consolidation of the European police office within the existing structure and, on the other hand, preparing the implementation of new means to improve law enforcement co-operation at the European level. From Europol’s point of view it would be advantageous if the discussion on the implementation of the Tampere conclusions and Article 30 paragraph 2 TEU would commence with a prioritisation of issues to be discussed. This is of special interest given that the Treaty of the European Union foresees in Article 30 time limits for the implementation of new measures concerning Europol. In addition, the Action Plan of the Council and the Commission dating from 4 December 1998 foresees the drawing up of an adequate legal instrument extending Europol’s powers to the activities referred to in Article 30 (2) TEU within two years. (Details of the timeframe are included in the annex attached to this document.) Within this context it might also be worthwhile to take into consideration the first deliberations on the implementation of Article 30 of the Treaty of the European Union that were held under the German Presidency. (1)
This note aims to indicate shortly Europol’s considerations on the questions that were raised in the former Finish Presidency’s paper on the conclusions of Tampere as far as they relate to Europol. Generally, a distinction was made between issues that could be accomplished without changing the legal background and, on the other hand, areas of co-operation where new legal instruments might need to be implemented.
ad 2 i) Joint teams
As regards the establishment of Joint Teams, from Europol’s perspective two topics have to be considered separately. Firstly, the actual hindrances in the work of law enforcement officials from different Member States that come together for individual investigations could be addressed. This form of Joint Team co-operation is taking place on a nearly day to day basis, with or without participation of Europol officials. Different obstacles in their work were registered by the people involved. For example, the exact role and powers of the members of a Joint Team are not always clearly defined. It might be useful to regularly exchange experiences on what is actually possible within the limits of national law. Another topic that is raised by practitioners is the involvement of public prosecutors or other members of judicial bodies in the course of a joint investigation. Depending on the procedural law of the Member States involved, a form of participation of members of the judicial authorities that might lead to an uncomplicated way of exchanging evidence gained in the investigation might be feasible. Furthermore, the decision making process within a Joint Team investigation could be addressed – it could be discussed whether it might be beneficial to formalise the working procedures of a Joint Team investigation. An issue to be kept in mind are the rights and obligations (privileges and immunities) for the members of the joint teams (including the supporting Europol officials) when acting in the European Union Member States. Last but not least, budget related issues that have to be solved in the course of a common investigation, including the role that Europol could play in this respect, might be an issue for further consideration. Europol would like to propose an initial meeting with officials from the Member States and Europol who were already involved in Joint Team investigations to discuss procedural questions and identify cases where concrete projects could be set up.
From Europol’s point of view, the aim should be to go for the “quick wins” that are within reach within the existing legal framework: multi-national investigations for shorter periods of time, striving to bring down an organised criminal structure effectively. Europol is fully convinced that positive, practical results, are the most convincing arguments for this way of working and are as well helping to reveal obstacles which still remain.
Looking a little bit further into the future, the experiences gained in the first phase should be used as a basis for discussions on, firstly, the goals to be achieved via changing the legal framework, and secondly, the kind of legal instruments that could facilitate further co-operation. This could for instance be a framework decision to harmonise national legislation and to standardise the role and powers of the members of Joint Teams in all Member States, or a Council decision to define procedures in the setting-up and carrying out of a Joint Team investigation.
ad 2 ii) European Police Chiefs operational Task Force
Europol welcomes the European Council’s call 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. Europol sees two principal tasks for this Task Force: firstly to develop and co-ordinate strategies and priorities at the international level and to advise insofar also the political decision makers, and secondly to ensure that these priorities are implemented at the national level. Clearly there should be a close co-operation between the Task Force and Europol, as already indicated in the Tampere conclusions. Europol holds specialist knowledge on operational co-operation in combating crossborder crime. In addition, resulting from its strategic reports, threat assessments and risk analysis, Europol is capable to support the European Police Chiefs in their different tasks. Europol would also be ideally placed not only to be a competent member of this committee but also to assume the role of Secretariat to the Task Force. Our preference would be that the Task Force is established within the framework of Europol. One possible option could be to combine the tasks and functions of the Europol Management Board with the European Police Chiefs Task Force. But it seems to us that the role and tasks of the two bodies are not similar enough and probably even not compatible with each other. Another alternative could be to establish the European Police Chiefs Task Force as a permanent “HENU plus” working group and so to take up former ideas and proposals. However, the relation between the actual HENU meeting and such a “HENU plus” meeting may become difficult. In addition, this solution would also exclude the chiefs of national
law enforcement agencies which do not host the Europol National Unit. Therefore, it would be preferable to establish a group sui generis, which would, following the Europol multi agency-approach, enable the Heads of all law enforcement agencies in the Member States to participate in the Task Force. It should be stressed that there is no need at all to amend the Europol Convention for this to be possible.
ad 2 iii) Resources / operational data / Europol to ask Member States to start investigations
As a general point, it is worth mentioning that in the past Europol’s mandate was extended with new crime areas as well as with new functions (e.g. the Centres of Excellence). To be able to fulfil its tasks, Europol cannot change priorities and 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 evaluation team that will perform its tasks in the next few months.
As regards receiving of operational data, it has to be highlighted that already Article 4 of the Europol Convention states that it is the task of the National Units to supply Europol with the information and intelligence necessary for it to carry out its tasks and to respond to Europol’s requests for information, intelligence and advice. It follows from this provision that Member States should ensure that organisational preconditions for their Europol National Units to fulfil their tasks are met. Also, it is their responsibility to alleviate, wherever possible, legal hindrances to the supply of information. The significance of the tasks of the Member States was now confirmed by the European Council in Tampere. As a final point, it should be stressed that it is possible to follow the European Council’s conclusions within the limits of the existing Convention.
As to the issue of asking Member States to start investigations, the document provides some interesting ideas on possible Member States’ obligations in this respect. Although the paper does not suggest this, a Framework Decision could very well ensure that this issue is harmonised. Given the fact that such Framework Decisions need to be implemented in national law, this could give Europol a much more solid basis in these procedures. This could be well-combined with the Framework decision mentioned under point 1, since these issues are obviously related.
Ad 2 iv) Relation between Europol and Eurojust
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. 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. This obviously calls for a close co-operation, wherever necessary, between Europol and Eurojust, especially in the area of support through analyses. Mutual participation in meetings is envisaged.
Given the uncertainty of the specific tasks 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.
ad 2 v) Europol’s role regarding financial crime
The question raised in the Presidency paper has to be answered with a clear “yes”. Tracing, freezing, seizure and confiscation of proceeds of crime and all other aspects of money laundering are of pivotal interest for an effective strategy to fight organised crime on the European level. Therefore, within the context of the discussions on the extension of Europol’s task related to Money Laundering, it should be clarified that these powers also relate to co-operation relating to tracing, freezing seizure and confiscation.
ad 2 vi) General competence in the field of money laundering
As stated above, there is a clear practical need to equip Europol with the required powers to be able to tackle proceeds of crime on a general basis. This is also supported by Article 30 (1) of the Treaty on the European Union where it is stated that the collection, storage, processing, analysis and exchange of information held by law enforcement services on reports on suspicious financial transaction shall be a field of common action in the area of European police co-operation. The European Council at its meeting in Tampere was also very clear in its invitation to 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. Taking into account the practical need as well as the request of the European Council high priority should be given to amending the mandate of Europol with a general competence in the field money laundering. Such an amendment of the Convention would also provide for an appropriate legal basis for a database on suspicious transactions within Europol.
An alternative solution could be sought on the basis of Article 43 (3) of the Convention (amplifying, amending, supplementing or introducing of new definitions of forms of crime as already included in Annex II), but our current position is that this would not be the best way of proceeding, given that the introduction of Money Laundering in general on the list is not a new definition of a form of crime already included, but the introduction of a new form of crime in the Annex.
ANNEX TO THE RESPONSE BY THE EUROPOL DELEGATION
The following table lists the tasks related to Europol which are defined in doc. JAI 41, doc. CRIMORG 80 and Art. 30 TEU :
Tasks Target dates Sources Database on pending investigations
JAI 41 para. 43 (a)(I)
CRIMORG 80, rec. 30 Documentary work towards operational activity
JAI 41 para. 43 (a)(ii)
CRIMORG 80, rec. 32 Illegal immigration network – operational co-operation
JAI 41 para. 43 (a)(iii)
CRIMORG 80, rec. 26 Reinforce exchange of information in combating terrorism
JAI 41 para. 43 (a)(iv)
CRIMORG 80, rec. 33 Extend competencies of Europol
JAI 41 para. 43 (a)(v)
CRIMORG 80, rec. 34 Draw up a legal instrument for implementation of Art. 30(2)TEU
JAI 41 para. 43 (b)
CRIMORG 80, rec. 35 Access SIS
JAI 41 para. 43 (c)
CRIMORG 80, rec. 36 Develop role of Europol conc. exchange of information with PAPEG countries
JAI 41 para. 43 (d)
CRIMORG 80, rec. 65 Common evaluation of particular investigative techniques
JAI 41 para. 44 (a)
CRIMORG 80, rec. 24
Art. 30 (1)(d)TEU Consideration under which law enforcement agencies could operate in the territory of another Member State 31.12.00
JAI 41 para. 44 (b)
Art. 32 TEU
Operational and technical co-operation; Europol = serve as a back-up for future initiatives;
Standards for investigations
JAI 41 para. 44 (c)
CRIMORG 80, rec. 27 Organised Crime Situation Report; harmonising of analysis parameters; identifying emerging trends
JAI 41 para. 44 (d)
CRIMORG 80, rec. 1 CIS and Naples II implementation 31.12.00 JAI 41 para. 44 (e) Promote liaison arrangements between prosecutor and investigations officials
JAI 41 para. 48 (a)(I)
CRIMORG 80, rec. 50
Develop a research and documentation network
JAI 41 para. 48 (a)(ii)
CRIMORG 80, rec. 32
Art. 30(2)(d)TEU Improve statistics on cross-border-crime
JAI 41 para. 48 (a)(iii)
CRIMORG 80, rec. 2
Art. 30(2)(d)TEU Setup a system for information and analysis on money laundering
JAI 41 para. 48 (a)(iv)
CRIMORG 80, rec. 41 CIS access 01.10.03 JAI 41 para. 48 (a)(v) Media information strategy
JAI 41 para. 48 (a)(vi)
CRIMORG 80, rec. 37 Exchange of fingerprints electronically
JAI 41 para. 48 (a)(vii)
CRIMORG 80, rec. 38 Proposal for benchmarking of the effectiveness of OC-investigations, adjudication and prosecution 31.12.04 CRIMORG 80, rec. 3 Prevention: Co-operate in the preparation of a comprehensive report 31.12.00
JAI 41 para. 51 (b)
CRIMORG 80, rec. 10 Prevention: Study on application of the opportunity reductive approach of specific forms of OC (organized economic crime) 31.12.00 CRIMORG 80, rec. 11 Prevention: Study on “successful approaches on best practices” 31.12.00 CRIMORG 80, rec. 12 Rapid exchange of information on trends in specific crime areas 31.12.00 CRIMORG 80, rec. 15 Mutual evaluation 31.12.00 CRIMORG 80, rec. 20 Review of the possibilities of greater flexibility in the use of EU-funds to support joint investigations teams 31.12.01 CRIMORG 80, rec. 23 Training of law enforcement personnel 31.12.03
JAI 41 para. 48 (b)(iii)
CRIMORG 80, rec. 29 Study of the possible role of Europol in co-ordinating international investigations and task forces to combat criminal organisations 31.07.01 CRIMORG 80, rec. 31 Role and place of judicial authorities in the framework of the development of Europol 31.07.01
JAI 41 para. 45 (g)
CRIMORG 80, rec. 63 Integration of applicant countries into the annual Situation Report on OC Ongoing act. CRIMORG 80, rec. 66 Closer co-operation with Third States and international organisations and bodies Ongoing act. CRIMORG 80, rec. 71
1. Council document 6245/99 EUROPOL 7 (26 February 1999); Europol doc. 3100-18 (26 April 1999)
Source of this document: SEMDOC database
Statewatch European Monitoring and Documentation Centre