Select Committee on European Scrutiny Second Report



Initiative of the Kingdom of Belgium, the French Republic, the Kingdom of Spain and the United Kingdom for the adoption by the Council of a draft framework decision on joint investigation teams.

Legal base: Articles 31(a) and 34(2)(b) EU; consultation; unanimity
Forwarded to the Council: 19 September 2001
Deposited in Parliament: 20 September 2001
Department: Home Office
Basis of consideration: EM of 1 October 2001
Previous Committee Report: None; but see (21233) 7846/00: HC 23-xix (1999-2000), paragraph 14 (24 May 2000)
To be discussed in Council: 16 October 2001
Committee's assessment: Politically important
Committee's decision: Cleared, but information on progress requested


41.1 Since the Tampere European Council, in October 1999, it has not proved easy to implement its Conclusion that joint investigation teams should be set up without delay, to combat trafficking in drugs and human beings as well as terrorism.[96] The EU Convention on Mutual Assistance in Criminal Matters (which the previous Committee finally cleared in May 2000[97]) contains the necessary provisions but has yet to enter into force in all Member States.

41.2 The current proposal, co-sponsored by Belgium, France, Spain and the UK, was tabled at the meeting of the JHA Council on 20 September which discussed co-ordinated EU responses to the terrorist attacks of 11 September in the United States of America. In its Conclusions, the Council welcomes the draft Framework Decision, and announces its intention of adopting it at its meeting in December. (We understand that provisional agreement may be sought at the meeting on 16 October.)

The document

41.3 The aim of the document is to bring into effect those provisions in the Convention on Mutual Assistance in Criminal Matters which deal with joint investigation teams by presenting them as a Framework Decision. The only significant change is that the application is limited.

41.4 The most substantive part of the Framework Decision is Article 1, which is virtually identical to Article 13 of the Convention, except that the first paragraph limits the application of the current proposal to trafficking in drugs and human beings as well as terrorism. The rest of the Article is concerned with the establishment of teams, the conditions under which they are to operate, the role of "seconded" members (those from Member States other than that in which the team operates), requests for assistance and the sharing and use of information.

41.5 Paragraph 12 of Article 1 allows for "persons other than representatives of the competent authorities of the Member States setting up the joint investigative teams to take part in the activities of the team", although (unless expressly stated in the agreement establishing the team) they will not have the same rights as other members. (Section (viii) of the Preamble lists examples of such persons, including representatives of Europol and OLAF and "in particular representatives of law enforcement authorities of the United States". It states that the agreement establishing the team should "specify issues relating to eventual liability for such representatives".)

41.6 Article 2 of the Framework Decision corresponds to Article 15 of the Convention in providing that seconded members of the team are to be regarded as officials of the Member State of operation with respect to offences committed against, or by, them.

41.7 Article 3 corresponds to Article 16 of the Convention in addressing the issue of liability for damage caused by seconded members during operations.

41.8 Article 4 provides that Member States are to comply with the Framework Decision by 1 July 2002; Article 5 states that the measure shall cease to have effect when the Convention has entered into force in all Member States.

The Government's view

41.9 As a co-sponsor of the proposal, the United Kingdom is clearly committed to it. However, the Parliamentary Under-Secretary of State for anti-drugs co-ordination and organised crime (Mr Bob Ainsworth) tells us that the Government would prefer the Framework Decision to apply to all crimes (as the Convention does) so that joint teams could investigate organised crime groups across the full range of their activities. He says that the Government will negotiate on that basis. The Minister states that the Framework Decision would not confer on Europol officers investigative powers in the Member States, although it may involve additional costs to Europol which will be met by Member State contributions to its budget.

41.10 The Minister undertakes to deposit the explanatory note (promised in the document) as soon as it is received.


41.11 The previous Committee voiced a number of concerns about the provisions in the Convention which dealt with joint investigative teams. In particular, it identified a lack of clarity about the role and liability of Europol officers when participating in teams. In this context, there is some reassurance in the mention of liability in the preamble, and in the Minister's assertion that the current proposal does not confer on Europol investigative powers in the Member States. Nevertheless, paragraph 12 appears to give considerable latitude to those drawing up agreements for the establishment of teams. We therefore ask the Minister for a fuller explanation of his assertion. Is he confident that the provisions of paragraph 12 would not allow representatives of Europol to carry out investigative measures, however the agreement was drafted? Is he also confident that such an agreement could not, without some specific statutory instrument, confer on a seconded member the powers of a police constable?

41.12 As we are conscious that the text of that paragraph and, indeed, of almost all the document is identical with that in the already-agreed Convention, we are content to clear the draft Framework Decision. We still require a response from the Minister, however, as well as the explanatory note. In addition, we ask to be kept informed of progress, especially in relation to negotiations on the application of the proposal.

96  Conclusion 43. Back

97  (21233) 7846/00: see headnote to this paragraph. Back

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