31. REQUESTS MADE BY EUROPOL TO INITIATE
INVESTIGATIONS
Letter from Barbara Roche MP, Minister
of State, Home Office, to Lord Tordoff, Chairman of the Committee
You wrote to me on 16 May enclosing a copy of
a report in European Voice on the Portuguese Presidency's
ideas of expediting agreement on joint investigation teams. In
the light of the report, you asked for further information on
document EUROPOL 5, 7369/00.
I have today sent to you two further Explanatory
Memoranda having a bearing on joint investigation teams. One of
these is on EUROPOL 5 REV 1, 7369/1/00. It effectively replaces
the EM relating to EUROPOL 5 and contains additional information.
The other is on EUROPOL 6, 7370/00 which includes a Presidency
suggestion that there should be a Council Declaration inviting
the Europol Management Board to describe the modalities of participation
by Europol officials in joint investigation teams within the existing
limits of the Europol Convention.
Briefly, the EM on EUROPOL 6 explains that the
Portuguese Presidency initially had it in mind to take forward
Tampere conclusion No 43, on the setting up of joint teams without
delay, by promoting a new legal instrument modelled on Article
13 and associated provisions on joint investigation teams in the
Convention on Mutual Legal Assistance in Criminal Matters. But
the suggestion was not widely supported among the Member States
partly because there were doubts that the legislation which some
Member States would have to introduce to give effect to the new
legal instrument could in practice be promoted any more quickly
than the legislation which would be needed to give effect to the
mutual legal assistance Convention.
The Presidency has now adopted an alternative
approach which concentrates for the time being on what is feasible
within the existing domestic and EU legal framework. This approach
takes into account that, notwithstanding the Tampere conclusion
No 45, on asking Member States to undertake investigations, there
is no impediment to Europol requesting Member States already to
initiate, conduct or co-ordinate investigations, which might,
or might not, be joint investigations and might, or might not,
involve the participation of Europol. The approach also acknowledges
that although a number of Member States may not be able to establish
joint investigation teams until the mutual legal assistance Convention
comes into effect, other Member States, including the United Kingdom,
are not similarly constrained. The purpose in asking the Europol
Management Board to consider the practicalities of Europol's involvement
in joint teams under existing law, as suggested in EUROPOL 6,
is to assist Europol and these other Member States in identifying
and overcoming obstacles to establishing joint teams so that they
can if necessary be set up quickly in fast moving situations with
Europol's participation in a support capacity if appropriate.
The opinions of the Board are also likely to be helpful in the
longer term in considering what further rules and procedures might
be appropriate to ensure that Tampere conclusion No 43 is implemented
in full. The Government supports the suggestion that the Europol
Management Board should be asked for advice, bearing in mind that
the Board is well-placed to take account of the relevant practical
considerations as well as the resource implications for Europol.
The opinions of the Board would not be binding and would be without
prejudice to the Government's position that to give Europol officers
the sort of operational powers which police officers in this country
have is neither necessary nor desirable.
The Presidency's approach also takes into account
that although Europol may already invite Member States to initiate,
conduct or co-ordinate investigations, which as I have said need
not be joint investigations, there is no obligation on Member
States to respond to such requests. The principal purpose of the
draft Recommendation in EUROPOL 5 and EUROPOL 5 REV 1 is to encourage
Member States to give such requests due consideration, to inform
Europol of the outcome of the request and to give Europol reasons
if the request is refused. The Government is in principle content
with the Recommendation. It imposes no obligations on the United
Kingdom, but in general competent authorities in the United Kingdom
already adhere to the principles in the Recommendation in dealing
with requests from Europol received through the Europol National
Unit. Although it will not always be appropriate for a Member
State to give reasons for refusing a request, we consider that
it would be good practice to do so wherever possible, so that
for example Europol can take account of the reasons when submitting
future requests.
I hope that this letter will be helpful in putting
the report in European Voice in context and in explaining
the inter-relationship of EUROPOL 5 REV 1 and EUROPOL 6 in taking
forward the implementation of Tampere conclusions Nos 43 and 45.
2 June 2000
Letter from Lord Tordoff, Chairman of
the Committee, to Barbara Roche MP, Minister of State, Home Office
Thank you for your letter of 2 June describing
the background to the Presidency's latest two proposals. Sub-committee
E (Law and Institutions) has also considered your Explanatory
Memoranda on the draft Council Recommendation (Europol 5 Rev 1)
and Declaration (Europol 6). I understand that the purpose of
these proposals is to take forward two of the recommendations
of the Tampere European Council without, at this stage, creating
any new legally binding instruments. I am grateful for your explanation
of the relationship between the two documents. I would, however,
welcome clarification of a number of points.
EUROPOL 5, REV
1
The draft Council Recommendation is based on
Article 30(2)b TEU. Under this provision, the Council shall "adopt
measures allowing Europol to ask the competent authorities of
the Member States to conduct and co-ordinate their investigations
in specific cases and to develop specific expertise which may
be put at the disposal of Member States to assist them in investigating
cases of organised crime".
The first recital, referring to recommendation
45 of the Tampere Conclusions, states that the European Council
"instructs the Council to allow Europol to ask Member States
to initiate, conduct or co-ordinate investigations in specific
cases, while respecting systems of judicial control in Member
States". The actual language of recommendation 45 is somewhat
different. It uses the term "authorise" rather than
"allow" and such authorisation extends to requests by
Europol "to create joint investigative teams in certain areas
of crime".
Your Explanatory Memorandum states that "the
draft recommendation is about investigations which might, but
would not necessarily or possibly even usually, involve the setting
up of joint investigation teams". You emphasise that it would
not impose any obligations on Member States but would establish
principles of "good practice" to enable Europol to exercise
its support functions effectively and efficiently. However, the
use of the term "authorise" in recommendation 45 might
suggest an intention to confer some additional power on Europol
which it does not, at present, enjoy. I would be grateful if you
could clarify what significance, if any, attaches to the use of
the term "authorise" in the Tampere recommendation,
and the choice of the term "allow" in Article 30(2)(b)
TEU and recital 1 of the draft Recommendation. It would also be
helpful if you could confirm that requests by Europol would be
limited to those areas of crime for which Europol itself has competence
and which affect two or more Member States (in accordance with
Article 2 of the Europol convention).
Sub-Committee E noted that recital 5 of the
draft Recommendation requires requests by Europol to be made "in
accordance with Article 4 of the Europol Convention". The
reference in an earlier draft to "the procedures set out
in Article 4" is to be deleted. Article 4 of the Europol
Convention essentially concerns the exchange of "information,
intelligence and advice" between Europol and national liaison
units and does not mention requests for investigations. The earlier
reference to Article 4 procedures would seem to make clear that
only the mechanism for transmitting requests would apply. I would
therefore welcome an explanation of the reasons for the proposed
deletion in recital 5 and the effect of that change. For example,
to what extent would the grounds in Article 4(5) of the Europol
Convention apply in determining whether to inform Europol of a
decision not to conduct an investigation?
EUROPOL 6
Article 30(2)(a) TEU and recommendation 43 of
the Tampere Conclusions both refer to the participation of Europol
officials in joint teams "in a support capacity". I
would be grateful if you could explain why this qualification
does not appear in the text of the draft Declaration.
As the points raised above seek, essentially,
to clarify certain aspects of the draft proposals, I am content
to clear both documents from scrutiny but look forward to receiving
your response.
15 June 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
You wrote to me on 15 June advising that the
Scrutiny Committee had cleared Europol 5 Rev1 and Europol 6. You
also asked for clarification on a number of points.
EUROPOL 5 REV
1
You asked about the significance of the use
of the word "authorise" in Tampere Conclusion 45 in
contrast to the use of the word "allow" in Article 30(2)(b)
TEU and recital 1 of the draft recommendation. You queried whether
"authorise" might suggest an intention to confer some
additional power on Europol which it does not at present enjoy.
I do not attach any significance to the difference in wording.
It is the Government's view that both "authorise" and
"allow" signify only that Europol should be entitled
to ask Member States to initiate, conduct or co-ordinate investigations.
I can also confirm that any such requests would
be limited to those areas of crime within Europol's mandate. The
Europol Convention only allows Europol to process intelligence
that falls within its competence. But requests would not necessarily
be limited to requests for joint investigations involving two
or more Member States. Requests could also be for investigations
each involving just one Member State and where the establishment
of joint teams would not be appropriate.
With reference to Article 4 of the Europol Convention
you asked for an explanation of the purpose of the amendment to
recital 3 (previously 5) and the effect of it. The purpose of
the amendment was to ensure that account would be taken of the
Article 4 provisions as a whole. There would then be regard not
only for the channels for communicating requests and the responses,
but also for the grounds in Article 4(5) which might be relevant
if a decision were taken not to respond. In the event, the following
further amendment to paragraph 1 on page 3 of the text was tabled
at the Article 36 meeting on 9 June:
"If a Member State decides not to conduct
an investigation, Europol should in principle, and without
prejudice to Article 4(5) of the Europol Convention, be informed
of this decision and the reasons for it".
We have notified the Council Secretariat that
we can accept this amendment, assuming its intention is simply
to make clear that Member States are not obliged to give reasons
for not conducting operations in the circumstances set out in
Article 4(5). There may also be situations other than those set
out in Article 4(5) in which a Member State would not consider
it appropriate to give reasons. The Government's view is that
the amendment would similarly not impose any obligation in these
other circumstances.
EUROPOL 6
You also asked why the draft Council Conclusions
inviting the Europol Management Board to set out its own views
on the practical arrangements for the participation of the Europol
officials in joint investigative teams do not include the words
"in a support capacity". The Conclusions do not seek
to change the basis on which such participation should take place.
As they make specific reference to Article 30(2) TEU and to Tampere
Conclusion 43, both of which , as you say, make clear that Europol's
participation would be "in a support capacity", it was
not felt necessary to repeat these words. The Government's view
remains that, whilst Europol could have a role to play in joint
investigation teams, it would be in a purely support capacity.
7 July 2000
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