Lecture in Cicero Foundation Great Debate seminar "Justice and Home Affairs - How to Implement the Amsterdam Treaty?", PARIS, 13 - 14 April 2000

Introduction

Any discussion on policing in Europe at this moment in time is both opportune and problematic. Opportune in the sense that we appear to have entered a distinct period in which European governments see real benefits in striving towards enhanced practical police co-operation, both as a response to perceived threats to order and security and as a means of compensating for the removal of border controls. Problematic, since it can be argued at a European level that we are on shifting sands - with highly flexible strategic and tactical alliances and/or conflicts between supranational bodies, individual European Member States, police organisations and their constituencies. Nevertheless, it was expected that international police co-operation in Western Europe would undergo a great deal of change. Hence, the subject of my contribution concerns policing in Europe (and not policing Europe, or the EU), more particularly by studying the (future) role of Europol.

The police are the label and policing the means used by the state when asserting its exclusive title to the use or threat of force against dangers emanating from within its boundaries. This is one of the central questions underpinning the discussions on the forms of police co-operation appropriate to Europe in the nineties, namely that of the nature of the relationships between "Europeanisation" initiatives within the police sector, and forms of integration within the EU.

The police itself should be first analysed at the national level. It is mostly the case that police organisations (centralisation, decentralisation, unification, reorganisation), police legislation, penal law and criminal procedure differ from one country to another, and have often been recently reformed or reform is being discussed. One of the key public rationales for intensified police co-operation as part of policing has been the prospect of the abolition of border controls between Member States of the Union, which, it is argued, will undermine the traditional filter functions of frontiers and remove a major impediment to cross-border criminality. Another identifiable factor is the emphasis that has been placed on the dangers of the growth in illegal immigration. It is obvious, given the concern as regards drug smugglers, immigrants, terrorists and securing internal order, that the objective of Euro-policing is a lively topic of discussion in most of the EU Member States, and different concepts are being discussed. The European policing field is criss-crossed by a multiplicity of initiatives and fora, and the lack of empirical data rules out the assessment of relative performance. Until there is an appropriate supranational EU/EC police function, any evaluation of effectiveness will be confounded by the effect of interaction between cross-national and national (domestic) factors. Therefore it is useful to speculate on how effective alternative configurations of the European policing arrangements may be. While the Treaty on European Union has now assumed a kind of hegemony, there are still other contenders, which will be analysed later on in this contribution.

Before doing so, however, it is interesting to analyse the creation of Europol, having emerged as a new plant in the international law enforcement garden after a long and difficult germination period. With Schengen, this illustrates the intergovernmental approach, which is the most specific characteristic of current police co-operation. Therefore I would like to examine a number of historical, political and practical elements, which, in combination with the growing number of tactical and strategic Europol activities in The Hague, should lead to an acceptable decision. The question then arises as to whether or not Schengen, the Treaty on European Union in general and the Europol Convention are the start of a new wave.

Recent Developments in European Police Co-operation

Leaving aside the examples of bilateral co-operation between nation-states, this contribution is primarily concerned with recent forms of police co-operation in Europe in general, and in the EU in particular. From the perspective of the nineties, European police co-operation is an opaque and complex patchwork of institutions (official or otherwise), agreements and structures, which aim to promote different forms of co-operation. Looking back across the 1970s and the early 1980s, from the perspective of 1993 and the Treaty on European Union, police co-operation emerges as a series of ad hoc developments. The most significant structures for Europe are, without doubt, Interpol, the World Customs Organisation (WCO), Schengen and the European Union intergovernmental Trevi-derived network, this being the Third Pillar in general and Europol in particular. The Lord Scarman Centre for the Study of Public Order presents police co-operation as operating at three interrelated levels:

* a macro-level, concerned with constitutional and international legal agreements and the harmonisation of national laws and regulations

* a meso-level, concerned with police operational structures, practices, procedures and technology

* a micro-level, concerned with the prevention and detection of specific offences and crime problems.

A general study shows that the complexity is a reflection of the organisational reality, best characterised as a 'crowded police space'. European police co-operation can be viewed positively as such a space, with different countries and interest groups, being responsible for placing the emphasis on particular areas of co-operation. In fact, almost all the European countries are member countries of Interpol, the WCO and the United Nations. Some of them are Benelux and Schengen countries, and 15 are EU Member States. With this in mind, Europe can be considered, in policing terms, as being made up of a series of concentric and overlapping circles. The 'map' shows overlapping institutional sources, territorial remits, functional specialisations and strategic emphasis.

This overlapping situation and the risk of duplication and redundancy is not only a matter of information storage, but mainly a problem of task differentiation and authority. Nowadays, the EU authorities are very much looking for an EU/Schengen framework for keeping police co-operation under full 'political' control. On a theoretical basis, various possibilities are: contacts - liaison - co-ordination - joint action - parallel laws - the harmonisation of penal laws and/or criminal procedure - common law - communitarisation (First Pillar).

It should be stressed that also within the Interpol concept, a regional (European) approach became visible at the moment when new EC developments were initiated. Schengen was created as a forerunner system for Europol, and the Schengen Convention should be read and analysed in this context. Unfortunately, not all the EC Member States joined the Schengen Convention. Thus, the Maastricht logic became partly less ambitious than the Schengen approach, and certainly as far as cross-border operational co-operation is concerned.

In the EU context, for many purposes, including policing, Member States continue to view the European level as a legitimate arena for action and decisions. However, while this function requirement is dated, I should also argue that the Member States are engaged in a process of bargaining within the framework of medium-term strategic goals, from which both the scope of co-operation and the institutional form of co-operation will emerge. Since November 1993, and the entry into force of the Maastricht Treaty, the EU Council of Justice and Home Affairs Ministers has co-ordinated a number of once distinct EC fora, including the Trevi forum, the Customs Mutual Assistance Group (MAG), the Comité Européen de la Lutte Anti-drogue (CELAD), the Horizontal Group and the Ad Hoc Group Immigration. While at one level it can be argued that the Treaty presents a qualitative shift in at least the politics of police co-operation, with a general agreement on the need to pursue co-operation in the fields of Justice and Home Affairs, it may be a mistake to view the shift as non-problematic. One of the problems is that it was never made clear, politically, what the specific role and added value of, for example, Europol and Interpol should be. The same can be said of various European Union institutions. In particular where the Community has developed its own 'policing capacity' against fraud through the establishment of OLAF, the non-determining nature (civil enforcement) of current arrangements within the field of control and law enforcement, in comparison with the future role of Europol, illustrates this situation. In addition, the 1985 Schengen Convention presented a direct challenge, and certainly by the end of 1992, when most of the EU countries had also joined Schengen. Beyond the EU, the other highly significant institution has been, and remains, the Council of Europe, of which all EU Member States are members. Founded in 1949, and having undergone a certain amount of revitalisation since 1989, the question is now whether or not the EU may join the Council of Europe as a single member. Over the last 35 years, this Council has been responsible for a number of measures, covering extradition, mutual legal assistance and, more recently measures to encourage the suppression of terrorism and the confiscation of the proceeds of crime. This situation also illustrates the fact that most of those regulations are not recent decisions and are not always adapted to the specific EU political situation. The same can be said of three relevant international conventions on confiscation: the UN Convention against illicit trafficking in narcotic drugs and psychotropic substances (the Vienna Convention) of 1988; the G-7 report of the Financial Action Task Force on money laundering of 1990; and the Council of Europe's own 1990 Convention on laundering, search, seizure and the confiscation of the proceeds of crime. While, for the most part, national laws have been - and sometimes still have to be - brought into line with these international agreements, it is not always clear as to how this would be put into practice effectively, particularly within the EU Member States.

The History of Europol in Terms of Treaty of Law

Strictly speaking, the idea of a European drugs unit was first brought up long before Maastricht in the Trevi meetings. However, I would like to begin immediately with Article K.1(9) of the Maatricht Treaty. This article forms part of what is termed the Third Pillar, i.e. intergovernmental co-operation in the field of Justice and Home Affairs. The list of common matters of interest is obviously a response to the criticisms concerning the loose nature of Trevi, seeking to give it a more permanent form and link it more closely to the European institutions, however limited the input of these institutions may be. It also incorporates numerous elements from the Palma document, resulting - oddly enough for the Schengen countries - in many instances in a two-track policy due to the fact that internal border controls have yet to be abolished in these countries.

There is now increasing discussion as to whether the pre-Maastricht acquis communautaire regarding law enforcement should be preserved wholly or partly transferred to the Third Pillar. I share the view of Vervaele on this matter, who makes a distinction between administrative law enforcement, which can be implemented by the Commission where it has been expressly authorised to do so (e.g. regarding EC fraud), and criminal law enforcement in the context of the Third Pillar. The Member States are divided over the issue of whether countries can be compelled by Community law to criminalise particular activities and to introduce penalties. This debate has not been made any easier by the introduction of the Third Pillar: the question is that of whether the Third Pillar now has a monopoly in the field of law enforcement and to what extent the First Pillar can continue to operate in this field. Supporters of the acquis communautaire base their claims, and rightly so, on Article C of the Treaty on European Union. Personally, I consider - and this may be strange to some - that the principle of subsidary needs to work in both directions, with explicit priority being given to the Third Pillar as regards criminal law enforcement.

To be mentioned are important changes, concerning the JHA issues and the corresponding sharing of institutional responsibilities: the areas of visa, asylum, immigration and other policies related to the free movement of persons, like for instance judicial co-operation in civil matters, were transferred from the EU's Third Pillar to its First Pillar, albeit not all of the First Pillar procedures are applicable, whereas provisions on police and judicial co-operation in criminal matters in the new title VI of TEU have remained within the EU's Third Pillar.

This also an appropriate juncture at which to ask ourselves what concrete results have been achieved after some years of the Third Pillar. Flore has discussed the new situation at length, highlighting its innovative aspects but also the unwieldliness of the apparatus in practice. Putting the Third Pillar in place was proving to be a slow and painstaking task. There are a number of possible explanations for this, such as the principle of sovereignty, national (often different) penal laws and the fact that provisions for international co-operation originate mainly from the 1950s. Nevertheless, although it is still too early to form a proper opinion, it has had an undeniable effect on the dynamism of Europol, a subject which I shall return to later.

The approach also necessitates adequate democratic control over the decisions taken and some way of enforcing compliance or imposing penalties if a Member State fails to co-operate, which, formally, is at present lacking. Public and political interest is currently most concentrated around the field of police and judicial co-operation, which is directed essentially at combating the growth in organised crime and dealing with the formidable and acute immigration problem. Decision-making in these areas tends to be based on conventions, which is a long haul, given the need for unanimity. Intergovernmental attitudes dominate the Community approach and hinder a more spontaneous form of harmonising criminal law and procedure. Many people believe that active Community responsibilities must be rooted in administrative law enforcement. Some of the more extensive treaty provisions of the past (letters of rogatory, legal assistance, the transfer of sentenced persons, extradition) have been substituted, initially by inter-police co-operation and now by intergovernmental police co-operation (Schengen, Maastricht, Amsterdam). As a direct consequence of this, a two-speed system has emerged, giving rise to feelings of surprise, frustration (e.g. when criminal proceedings are not instituted following police co-operation), legal uncertainty and powerlessness. What is more, there is no overall logic to intergovernmental law enforcement or to intergovernmental action by administrative law enforcement agencies. Typically, there are problems in the field of proactive police intelligence, due chiefly to differences between police regulations and police practices. The dangers of unlawful and inadmissible evidence are often all too close to comfort, particularly when two or more countries work together closely. These circumstances can only be beneficial to criminals.

Article K.1(9) of the Maastricht Treaty provided for the establishment of Europol. This is the first organisation to be created within the Third Pillar, in which the police, and, if necessary, customs can co-operate for the purposes of preventing and combating crime in fields such as terrorism, drugs trafficking and other serious forms of international crime, chiefly through the central exchange and analysis of information and intelligence. This certainly does not extend to executive powers by a long shot, although the supplementary declaration appended to the Treaty refers to support, analysis of national prevention programmes, training and research and development. What this actually entails in practical terms is now defined by the Europol Convention (signed July 1995, and entered into force October 1998), which also defines in concrete terms the parameters of Europol's competences. Europol officials and analysts and liaison officers from the various Member States will perform the tasks listed. Data will be stored centrally in the Europol data bank. It has been decided who should have access to what information, both 'hard' and 'soft', and which restrictions based on the 'need to know' and 'right to use' principles and/or other criteria have to be respected. The liaison officers will also provide co-operation support and co-ordinate activities (Article 5). Every country is obliged to set up a national intelligence service (the Europol National Unit). While this does not pose any problems for the United Kingdom and the Netherlands, which already have a National Crime Intelligence Division, it may create difficulties for other EU Member States

A great deal of thought was also given to defining Europol's mandate (now including terrorism), data protection, political accountability (to the ministers via the management board), democratic control, budgetary control and judicial control. The Cannes European Council (26 and 27 June 1995) reached agreement on the Convention establishing Europol. The Convention has been signed and ratified (October 1998), including a protocol which allows the Member States to opt in with respect to the jurisdiction of the European Court of Justice. Data protection arrangements, intelligence standards and regulations, and analytical regulations are now ready for implementation and Europol took up its activities, the 1st of July 1999.

The provisions in the Treaty of Amsterdam reflect the increased attention the last years for organised crime. Several Articles of the Treaty deal specifically with this phenomenon. Article 29 of the Treaty contains the provision that the objective of the Union shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial co-operation in criminal matters and by preventing and combating racism and xenophobia. That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud (...). The Article seems not to have been drafted by lawyers. The Third Pillar contains much more than topics on police and judicial co-operation stricto sensu and the examples chosen seem to be a choice of a political nature, one year it is fraud, the other year it is endangered species or illicit trafficking in nuclear materials which merits attention.

Two other new articles draw attention, because they are drafted taking into account the fight against organised crime. Article 30 deals with Europol and enlarges the tasks of Europol in comparison with the Treaty of Maastricht. Europol may support investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity. In other words, Europol gets the possibility to join operational actions of Member States and the Member States are obliged to accept the participation of Europol. Probably this needs some extra regulation because the question arises under which regime Europol personnel falls when performing this function, especially if this means they could support for example search and questioning of suspects.

Next to this Europol may ask the Member States to conduct and co-ordinate their investigations in specific cases. Member States are not obliged to comply with the request, which is logical, because there is no political body to which Europol is responsible for questions relating to a policy conducting investigations in one field of crime or another or individual cases.

Article 31(e) provides for the adoption of measures by the Council to establish minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. This concerns approximation/harmonisation of laws, which in practice also happened under the Treaty of Maastricht (f.e. Convention and protocols on the Protection of the financial interests of the EC).

The Council also recently decided (JAI 41) to implement the Amsterdam strategy, following a step by step approach. These initiatives are also subject to the so-called European strategy for the beginning of the new millennium (CRIMORG 36), mainly based on the conclusions of the TAMPERE Summit.

As far as EUROPOL is concerned the following initiatives are agreed:

Measures to be Taken Within Two Years

A) Improve Europol co-operation in the following areas:

I) Examine the feasibility of setting up a database of pending investigations, within the framework of the provisions of the Europol Convention, allowing to avoid any overlap between investigations and to involve several European competent authorities in the same investigation, thus combining their knowledge and expertise.

II) Direct Europol's documentary work towards operational activity. Wherever possible, its analyses should lead to operational conclusions.

III) Make the fight against illegal immigration networks one of the priorities of operational co-operation, particularly by using the national units as a network of national contact points responsible for dealing with them.

IV) Combat terrorism: reinforce exchanges of information and the co-ordination of competent authorities of Member States in the fight against crimes committed or likely to be committed in the course of terrorist activities, using Europol in particular.

V) Extend the competencies of Europol to other activities, as necessary

B) Draw up an adequate legal instrument extending Europol's powers to the activities referred to in Article 30(2) TEU and focusing Europol's work on operational co-operation. An important subject is the place and the role of judicial authorities in their relations with Europol. One of the priorities stated by the Treaty is to determine the nature and scope of the operational powers of Europol, which will have to be able to "ask the competent authorities of the Member States to conduct and co-ordinate [their] investigations" and also to act within the framework of "operational actions of joint teams".

C) Examine Europol access to SIS or EIS investigation data.

D) Develop the role for Europol concerning the exchange of information in order to implement the Pre-Accession Pact on organised crime.

Measures to be Taken Within Five Years

I) Promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close co-operation with Europol (Article 30(2)(c), TEU).

II) Establish a research and documentation network on cross-border crime (Article (30)(2)(d), TEU).

III) Improve the statistics on cross-border crime (Article (30)(2)(d), TEU).

IV) Set up a system for the exchange of information and analysis on money laundering.

V) Examine whether and how Europol could have access to the Customs Information System.

VI) In co-operation with Europol, elaborate and implement an information strategy in order to make the work and powers of Europol known to the public.

VII) Study the possibility of setting up a system of exchange fingerprints electronically between Member States.

The TAMPERE European Council noted that it was deeply committed to reinforce the fight against serious organised and transnational crime.

The role of the First Pillar is becoming more and more important, especially when creating legal instruments to combat organised crime in connection with fiscal fraud (rec. 4), the preparation of a comprehensive prevention strategy (rec. 6), reviewing and improving legislation as well as control and regulatory policies at the national and the EU levels (rec. 1 and 8), to develop measures to implement the principle of mutual recognition of judicial decisions to criminal cases (rec. 22). Also Europol's role has to be strengthened and the Council is requested to draw up and adopt, as soon as possible, a legal instrument concerning the establishment Eurojust, specifying its structures, sphere of competencies, powers and responsibilities. Particular attention should be given to determining the general framework of the new body's relations with national prosecuting authorities, Europol, Commission (OLAF) and the European Judicial Network. Worthwhile to be mentioned is also the Convention on mutual legal assistance in criminal matters, including in its Art. 13 the creation of joint teams. Unfortunately this convention could not be accepted at last JHA Council although agreement can be expected in the near future.

The role of prosecution will have to be defined in the framework of Eurojust. Theoretically, one could distinguish seven models for future developments at international level (in addition to national initiatives):
* status quo (not to be considered as a new development)
* restructuring and qualitative improvement of the existing judicial framework, taking into account specific needs in order to facilitate an integrated and interactive police/prosecution department approach
* liaison magistrates
* national or contact magistrates, active within a European Union network
* a formal European Union (Third Pillar) structure for improved co-operation between leading prosecution authorities in the Member States
* integration of judicial authorities within the EU frameworks (UCLAF, Europol)
* the creation of an EU prosecution department, as proposed by Mr.De Angelis of the European Commission, making additional use of a network of specialised prosecution authorities in the Member States (Community fraud)
* a genuine European Union prosecution department.

The first five proposals appear particularly interesting and include ad hoc participation of the magistrate into international (e.g. at Europol) initiatives for improved case related co-ordination of investigation. The creation of any real European structures is premature at this stage, although in 1996-1997, a number of experts convened by the European Commission , has elaborated a proposal for a more effective system to fight EU fraud, that would also safeguard the human rights of suspects. The proposal leaves the national court systems intact, but introduces a European Public Prosecution where jurisdiction would extend to the whole territory of the Union.

The actual concrete plans are less ambitious, especially within the framework of the Third Pillar. Awaiting further clarification of the role of the European judicial network with Europol, first one should also support the idea that all of the principles and implementing measures for international co-operation in criminal matters should undergo fundamental reconsideration . Shorter and more direct lines of communication, including those leading from the public prosecution department via the national and liaison public prosecutors, should be more firmly established in international agreements that determine whether and where pursuit is permitted and by which authorities. Agreements containing well-defined conditions could serve to simplify a good number of the complex procedures resulting from such police actions (transfer, extradition, etc.) However, a real European public prosecution department could not be effective or even necessary until a legal system, and possibly a law enforcement agency with executive powers, is put into operation at the European level and European criminal law and criminal procedures are accepted.

Concerning the place and the role of judicial authorities in their relation with Europol, in step with the widening of its mandate and in view of its operative powers to work together with national authorities: as was already mentioned (art. 31, Treaty of Amsterdam) the Council of the EU would - within a period of five years after the date of entry into force of the revised Treaty - establish a "liaison arrangement between prosecuting/investigating officials, specialising in the fight against organised crime in close co-operation with Europol". Also the relation between the judicial network in establishment and Europol has to be clarified within a period of three years. The question here remains open whether the relation is technical and/or operational. In this respect it should be recalled that the High Level Group suggested that, if the experience of a network would prove to be positive, it could in the future be examined whether in the long run the network should be transformed into a more permanent structure which could become an important interlocutor of Europol .

A centralised network, consisting of liaison magistrates or officials, posted in The Hague, with a view to closely co-operation with Europol, is to be rejected A better solution is to maintain the decentralised network, and to represent their interests within the ENUs.

This is more compatible within the global Europol concept, creating a possible need for improved co-operation with judicial authorities also at EU level.

This shouldn't exclude that the network will make use of the Europol secured network for the channelling of especially to be secured information.

A similar exercise on the possible involvement (not only technical) with OLAF (UCLAF) merits a separate study, taking into account that OLAF is part of the First Pillar.

Conclusions

The EU is highly sensitive to organised crime. The EU has no power to enact directly applicable legislation in the field of criminal law, except where such legislation aims at administrative control of criminal behaviour. It has, however, other instruments at its disposal that addresses the issue, including treaties (subject to ratification by Member States).

Europol is NOT an FBI and not intended to become a comparable instrument of the EU. All co-operation is based on intergovernmental co-operation and its role is limited to intelligence handling, support and co-ordination, even by supporting joint teams, and a new right of initiative.

The introduction of the Euro, in the beginning of 2002, will help us to judge how far such co-operation is reaching, also based on close relationship with Eurojust in establishment.

OLAF is developing more top down and subject of real internationalisation, but its competence is limited to administrative policing.

Additionally, it is interesting to reflect on the difference in policing war crimes and organised crime. The future will help us to acknowledge if and when non similarity is acceptable within the EU framework.

Top of page