Europol: Operational powers & new mandate
01 May 2001
Convention to be re-written on the basis of a Europol "shopping list" but is it operational already?
The 1995 Europol Convention is to be rewritten next year in a legislative overhaul that will extend Europol's mandate to another 18 forms of crime and give the agency operational powers it has long coveted. Europol officials have drawn?up a "shopping list" of 25 amendments that they would like to see made to the Convention which, after discussions in EU working parties, will be adopted by EU justice and home affairs ministers as a political mandate for officials to draw up concrete proposals.
Meanwhile, a forthcoming Statewatch report on the development of Europol suggests that activities to date may have been of a far more operational nature than the Convention envisaged.
From a proposed amendment to a complete overhaul
The "shopping list" has followed lengthy negotiations on how to allow Europol officials to participate in joint investigation teams operating in two or more member states, and separate discussions on extending Europol's mandate from specific forms of "organized crime" to serious crime in general. The joint teams proposals began as a recommendation from the Tampere summit in October 1999. Policy?makers had hoped to allow Europol participation in joint teams without amending the Convention but a formal amendment was eventually proposed in 2001. Discussions on expanding Europol's mandate, which does not expressly require amendment of the Convention, date back to late last year.
Since any amendment of the Convention requires national parliaments to ratify an agreement, the new Belgian presidency of the EU is taking the opportunity to:
initiate a procedure to amend the Europol Convention, which will cover a number of topics, allowing afterwards the Convention to remain unchanged for a number of years (9273/01, 11.6.01).
A shopping list of possible amendments followed, drawn?up by Europol and its Management Board (senior officials appointed by the member states). The document is described as "guidance" by the Belgian presidency, who says "it is not [their] intention to start a general overhaul of the Convention". Nonetheless, 25 amendments are on the table, covering all the key areas of the 1995 agreement which entered into force in October 1998 (Europol "officially" became operational in July 1999).
Operational powers
Top of the shopping list (Item 1, 10979/01, 18.7.01) is the proposal to delete article 4(2) of the Convention which prevents Europol officers from liaising directly with national law enforcement agencies. There is already political agreement on this point. Article 4(2) reads:
The [Europol] national unit shall be the only liaison body between Europol and the competent national authorities.
Europol national units, and liaison officers, are appointed by the member states and seconded from national forces. The amendment is to empower Europol's staff, whose number will grow to 260 by the end of 2002. It will allow their participation in joint investigations teams which can be set?up under the 2000 EU Mutual Legal Assistance Convention (MLA).
The MLA Convention contains basic rules on the powers and liability of member state officers operating in another member state. Joint teams are "set up" in one member state and can operate in all the countries participating in the investigation. Police officers from outside the member state where the team is working are regarded as seconded to the competent domestic authorities and can be present when investigative measures and operational activities occur. The leader of the investigation comes from the state that set up the team, but the team must always work in accordance with the laws of the state in which they are operating. In any case, Europol officers have complete immunity from the legal process and cannot be prosecuted or made to testify in court (unless the Europol Director waives the immunity). Next year Europol will draw?up the o