5 Police and customs cooperation
| (25706)
9903/04
COM(04) 376
| Commission Communication on enhancing police and customs cooperation in the European Union
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| Legal base | — |
| Document originated | 18 May 2004
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| Deposited in Parliament | 3 June 2004
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| Department | Home Office |
| Basis of consideration | EM of 22 June 2004
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 Since 1999, the creation of an area of freedom, security and
justice has been one of the European Union's top priorities.
Key steps towards creating the area were:
- Title VI (Police and Judicial Cooperation in Criminal Matters)
of the Treaty on European Union. This came into effect in May
1999 and incorporated the relevant provisions of the Treaty of
Amsterdam.
- Council commitments to cooperation between Member
States' police forces and customs authorities (the Vienna Action
Plan[14] and Conclusions
40 to 50 of the Tampere European Council).[15]
- The incorporation into Community law of the Convention
Implementing the Schengen Agreement.[16]
(The Schengen acquis abolished checks on the movement
of people at the common borders of the participating States; police
cooperation was seen as one of the necessary complementary measures
to safeguard internal security.)
5.2 Article 29 of the Treaty on European Union (the
EU Treaty) provides (among other things) that the Union's objective
is to provide citizens with a high level of safety in an area
of freedom, security and justice by developing common action between
Member States in the field of police cooperation. The objective
is to be achieved by preventing and combating crime — in
particular, terrorism, trafficking in human beings, offences against
children, illicit trafficking in drugs and arms, corruption and
fraud — through closer cooperation between police and customs
authorities and through Europol.[17]
5.3 Article 30 of the EU Treaty provides that common
action by the Member States includes operational cooperation between
police and customs authorities; collection, storage, analysis
and exchange of information; cooperation in training, exchange
of liaison officers and forensic research; and "the common
evaluation of particular investigative technique in relation to
the detection of serious forms of organised crime". The
Article also requires the Council to promote cooperation through
Europol.
5.4 Article 34 of the EU Treaty provides that, for
the purposes of Title VI of the Treaty, the Council may adopt
common positions, framework decisions, other decisions or conventions,
acting unanimously on the initiative of any Member State or the
Commission.
5.5 Article 135 of the Treaty establishing the European
Community (the EC Treaty) provides for the Council to take measures
to strengthen customs cooperation between Member States and between
them and the Commission.
5.6 The UK is party to only some of the provisions
of the Schengen Convention. Among those to which it is party
are the provisions for police authorities to assist each other
in the prevention or detection of crime (Article 39); surveillance
by police of one Member State in the territory of another (Article
40); and participation in the Schengen Information System (Articles
92-95 and 97 -119).
The document
5.7 The Commission says that it has presented this
Communication because it considers it necessary:
"to provide an overview and analysis of police
and customs cooperation in the EU as it has been evolving since
the entry into force of the Treaty of Amsterdam in 1999. [The
Communication's] aim is to provide clarity as to what measures
are required to make cooperation more effective toward the achievement
of one of the main objectives of the Union, namely '… to
provide citizens with a high level of safety within an area of
freedom, security and justice …'."[18]
Part I of the Communication assesses progress in
achieving the legal obligations and political commitments for
police and customs cooperation in Title VI of the Treaty of the
European Union, the Schengen Convention, the Vienna Action Plan
and the Tampere European Council. Part II contains the Commission's
conclusions and its proposals for measures to improve cooperation.
(The Communication does not deal with matters that relate exclusively
to customs cooperation under Article 135 of the Treaty on European
Union.)
5.8 The Commission prefaces its proposals for improvements
by saying;
"The enforcement of the law and the maintenance
of public order and security by police go to the heart of what
constitutes a sovereign state …. From a national perspective,
it is therefore understandable that countries are reluctant to
participate in international arrangements which encroach on national
sovereignty. Such reluctance on the part of national authorities
is present in particular with relation to arrangements enabling
the police of other countries or representatives of an international
body to perform police functions on their territory, even if,
objectively, their presence is necessary for a more effective
fight against crime."[19]
5.9 The Commission considers that the procedure for
the adoption of legislative and other measures under Title VI
of the EU Treaty has impeded progress in developing police and
customs cooperation over the last few years. Article 34(2) requires
the Council to act by unanimity and gives any Member State, as
well as the Commission, the right to initiate legislation. The
Commission says:
"This situation leads, at best, to long and
slow decision making at all levels in the Council structures ….
At worst, it leads to no decisions being taken at all, or to
instruments being adopted which are not legally binding, such
as Council Conclusions or Recommendations."[20]
The Commision considers that a move to qualified
majority voting on Council Decisions would be beneficial.
5.10 In the light of its analysis of progress since
1999, the Commission makes the following proposals, among others:
i) The introduction of multi-annual work programmes
for police and customs cooperation.
ii) The Council to adopt legally binding legislation
instead of non-binding measures.
iii) Member States to improve their implementation
of Council measures, whether binding or non-binding.
iv) The replacement of the Schengen Convention
— which is difficult to amend and up-date — by a Council
Decision.
v) A study of the feasibility of creating a database
of pending investigations.
vi) Improvement of the statistics on cross-border
crime.
vii) Giving Europol access to the Customs Information
System and the Customs File Identification database.
viii) Consideration of giving Europol "certain
investigative powers". "An appropriate policy area
to start with [our emphasis] would be the fight against
counterfeiting the Euro … The discussion about such an important
development would, of course, have to be accompanied by deliberations
about judicial and parliamentary control over Europol. This is
an important debate for the next few years."[21]
ix) Incorporating the Task Force of EU Police
Chiefs into Council structures, giving it a formal status and
functions.[22]
x) Making the European Police College (CEPOL)
responsible not only for organising training courses, but also
for developing common curricula to be used in national police
training colleges. In the long term, consideration should be
given to extending CEPOL's remit to include customs training.
xi) Article 30(1)(d) of the EU Treaty provides
for "the common evaluation of particular investigative techniques
in relation to the detection of serious forms of organised crime".
The Commission notes that no such evaluation has been made and
proposes that one should begin.
xii) Improving the quality of forensic science
laboratories in Member States by requiring them to introduce internationally
recognised quality assurance systems.
xiii) The Commission notes that:
"Member States' police and intelligence services
often still consider that Europol lacks the capacity to exercise
leadership in [counter-terrorism] and that its system of exchange
of information is too rigid. The intelligence services in particular
remain reluctant to accept Europol as a partner."[23]
The Commission concludes:
"the first step towards improving action in
this field is to improve coordination between all the services
involved in the fight against terrorism within the Council structures.
In a first stage all delegations to the Terrorism Working Group
[of the Council] should include representatives of both the police
and non-police intelligence services. The role of Europol in
EU counter-terrorism should be strengthened by substituting the
information system via the Europol Liaison Officers by a system
of direct relations between Europol's counter-terrorism unit and
the Member States …. In a later stage … Europol should
be transformed into a true centre of counter-terrorism intelligence,
including the creation of a common database on terrorism (persons,
incidents, indications, operations, etc.)."[24]
xiv) Establishing a permanent Customs Operational
Coordination Unit to provide logistical and technical support
for joint customs operations.
xv) Extending the participation of customs authorities
in the meetings of the Heads of Europol National Units and promoting
the deployment of customs liaison officers to Europol by all Member
States. The creation of a specific customs unit within Europol
should be considered.
5.11 The Commission says that it will present "concrete
proposals" after it has discussed the Communication with
the Council and the European Parliament.
The Government's view
5.12 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) tells us that:
"The Government welcomes this Communication
from the Commission. It helpfully summarises the many initiatives
and developments in the field of police and customs cooperation
in the EU since 1999, and draws attention to a number of reasons
why progress has to an extent fallen short of expectations. For
example, the Commission highlights the reluctance of a number
of Member States to share information and intelligence with Europol
(p 15). The Government agrees with the Commission that it is
helpful to take stock of what more needs to be done in this field
to deliver an Area of Freedom, Security and Justice, and notes
that most of what is proposed in this Communication can be accomplished
within the existing EU Treaty provisions.
"The Government is broadly content with the
Commission's proposals, but subject to the financial, legislative,
technical and administrative implications of any detailed initiatives
which may be made arising from the Communication. The Government
notes that the Commission proposes, but does not specify, 'certain
investigative powers' for Europol, and will need to know more
precisely what is envisaged before commenting."
Conclusion
5.13 We recognise the benefits there can be from
police and customs cooperation. But we have quoted the preface
to Part II of the Communication because it draws attention to
the legitimate sensitivity of Member States to proposals which
affect their sovereign rights and responsibilities for policing.
Many of the individual proposals the Commission outlined in Part
II might usefully improve cooperation. But we agree with the
Minister that much more needs to be known about the details before
a view can be taken on the acceptability of the proposals; and
so, subject to one exception, we shall reserve comment until we
see the details.
5.14 The exception concerns the Commission's proposal
that Europol should be given "certain investigative powers".
Europol is a criminal intelligence agency. It was created to
collect and analyse intelligence on international organised crime
and to disseminate the results; and to help improve operational
cooperation between Member States' police authorities. It was
not conceived as an investigative body. The Communication seems
to us to provide no sufficient reason to make a fundamental change
to its nature by giving it investigative powers. We note that
page 44 of the Communication suggests that the fight against counterfeiting
the Euro would be "an appropriate policy area to start with".
The clear implication is that the Commission has in mind more
extensive investigative powers for Europol. The Minister tells
us only that the Government will need to know more precisely what
is envisaged before commenting. At this stage, we are concerned
with the issue of principle. Accordingly, we ask the Minister
to explain the Government's position, in principle, on changing
Europol's character by giving it powers of investigation.
5.15 We shall hold the document under scrutiny
pending the Minister's reply.
14 Action Plan of the Council and the Commission on
how best to implement the provisions of the Treaty of Amsterdam
on an area of freedom, security and justice, OJ No. C 19, 23.1.99,
p.1. Back
15
Tampere European Council, 15/16 October 1999. Back
16
OJ No. L 239, 22.9.2000. Back
17
The European Police Office. It facilitates the exchange of information
between Member States; collects and analyses criminal intelligence
and disseminates the results; and helps coordinate and support
joint investigation teams. It has no powers to investigate or
arrest. Back
18
Commission's Communication, p.5. Back
19
Commission Communication, p.36. Back
20
Commission Communication, p.39. Back
21
Commission Communication, pp.44-45. Back
22
Conclusion 44 of the Tampere European Council called for the creation
of a Task Force of EU Police Chiefs. The Task Force meets once
during each Council Presidency. It promotes coordination and
the exchange of information and plans and starts joint operations. Back
23
Commission Communication, p.27. Back
24
Commission Communication, p.49. Back
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