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EU Joint investigation teams: scope changed from tacking terrorism, drugs and illegal immigration, to any criminal offence - "however minor" (1)

01 December 2001

As part of its anti-terrorism programme, the EU is to agree the early entry into force of the provisions in the EU Mutual Legal Assistance (MLA) Convention on joint investigation teams. This will allow member states to set-up joint police teams that will operate in two or more participating countries; with representatives of Europol, (the European Police Office) and Eurojust (the EU prosecutions Unit).

The MLA Convention was agreed in June 2000 after five years of negotiations, and its entry into force requires ratification by the 15 national parliaments. As yet, no member state has ratified the Convention but following the terrorist attacks in US on 11 September, the UK, France, Belgium and Spain proposed that Article 13 of the MLA Convention should be brought into effect early through an EU Framework Decision, to be agreed on 6 December 2001 and implemented by the member states by 1 July 2002 (11990/01, 19.9.01).

It allowed for joint teams to be set-up to combat terrorism and trafficking in drugs and human beings, and this provision was carried through to a second draft of the proposal, dated 9 October (12442/01, 9.10.01).

However, on 16 November, the permanent representatives of the four member states behind the proposal, declared that the Framework Decision should correspond to that of the original Article 13 of the MLA Convention, which would remove any limitation on the scope of offences, allowing joint teams to be set-up for:

"criminal offences [that] require difficult and demanding investigations having links with other Member States" (art. 13(1)(a))

During the discussion on the drafting of the Mutual Legal Assistance Convention there was much confusion as to its scope as it simply referred to a 1959 Council of Europe Convention on the same issue. When pressed the UK Home Office admitted that the Convention could, as described in the words of the 1959 Convention cover any crime "however minor".

How the joint teams will work

Members of a joint investigation team working in a member state other than their own are regarded as seconded to the national authorities (art. 1(4), proposed Framework Decision) and may be entrusted to undertake certain investigative measures and be present when investigative measures take place with the consent of their hosts (art. 1(5-6)). Any intelligence that seconded agents lawfully come across during the course of investigations in a 'foreign' jurisdiction may be used for any purpose whatsoever with the consent of the authorities of the member state in which it originated (art. 1(10) (d)). There is no reference to international data protection law in the proposed Framework Decision.

The proposal authorises the participation of Europol and pro-Eurojust in joint teams (art. 1(12) with the consent of the state setting-up the team and the pre-amble suggests that the member states: "should have the possibility to decide" whether "representatives of authorities of non-member states, and in particular …[from] the United States" can participate (para. 9).

For Europol officers to participate in joint teams, the 1995 Europol Convention will have to be amended by way of a protocol, again requiring ratification by the 15 national parliaments. However, a joint counter-terrorism team has already been set-up at Europol HQ in The Hague, and a forthcoming report from Statewatch suggests that the agency has been participating in joint teams for some time, in possible breach of the Convention. Prosecutors from Eurojust will be able to participate once the EU Decision formally creating the agency has been adopted (also scheduled for 6 December) and must be informed when any joint team is set-up.

The Commission is due to propose a measure on the democratic control of Europol and joint investigation teams during the fourth quarter of 2001. As yet there is no sign of it, but it is clear already that it will not receive the same fast-track treatment.

Tony Bunyan, Statewatch editor, c