Monday, 12 May 2008

EU TFEU: Europol I

The EU Treaty of Lisbon incorporates the foundations of Europol – the European Police Office – into the Treaty on the Functioning of the European Union (TFEU).

The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.

But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?


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Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 5 ‘Police cooperation’

Article 88 TFEU
(ex Article 30 TEU)

1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.

2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:

(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;

(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.

These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.

3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.

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In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):

POLICE COOPERATION

68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …

The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.

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The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):

Article 30 TEU

1. Common action in the field of police cooperation shall include:

(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;

(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;

(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;

(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.

2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:

(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;

(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate 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;

(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;

(d) establish a research, documentation and statistical network on cross-border crime.

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We look at the previous stages of the treaty reform process.

The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).

In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.

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The IGC 2004 adopted the text of the European Convention without change.

The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).

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The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.

The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.

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Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.

Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.

For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?

The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.

In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?

The application of coercive measures shall be the exclusive responsibility of the competent national authorities.

Force is the sole responsibility of the member states. How can you square this with invading armies?

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Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?

We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.

We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.

We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.

If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?

And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?



Ralf Grahn