Europol to be given the power to initiate criminal investigations (feature)
01 September 2000
At the meeting on 28 September the JHA Council adopted as an "A" Point (that is, without debate) a Recommendation to allow Europol to request EU member states to undertake criminal investigations. It went through unnoticed and unreported.
The Treaty on European Union (as amended by the Amsterdam Treaty) says, in Article 30.2.b, that steps should be taken to allow "Europol to ask competent authorities of the Member States to conduct and coordinate their investigations in specific cases". The special EU Summit on justice and home affairs in October last year in Tampere, Finland, said Europol should be authorised to "ask Member States to initiate, conduct or coordinate investigations" (conclusion 45). It also says, as a broad policy, that Europol's role should be strengthened "to receive operational data". A similar provision is made in TEU Article 30.2.a and Tampere conclusion 43 for Europol to be allowed to "support" joint investigative teams.
Article 30.2. also sets out that these provisions should be in place within five years of the treaty coming into effect (that is, by April 2004) - it was clearly envisaged that the implementing decisions would involve either framework decisions or amendments to the European Convention which because of parliamentary scrutiny would take several years.The TEU also lays down four decision-making instruments in Article 34: common positions, framework decisions, decisions and conventions. Moreover, in the Mutual Assistance Convention which includes "joint teams" (Article 13) was agreed on 29 May and will be ratified by national parliaments within two years.
To pursue this objective the Europol Working Party had before it, in November 1999, a report which said that if Europol "asks" a member state: "to conduct or coordinate an investigation, special provisions need to be introduced in the Europol Convention.." Moreover, the same report says that Europol is authorised to receive operational data (ie: that gathered in a criminal investigation) but only if the data is:
"needed for analysis work.. Any action above and beyond.. requires an amendment to the Europol Convention and other Europol rules (eg: rules on analysis files, protocols on privileges and immunities)"
So for Europol to carry out the objective set out in the Amsterdam Treaty and the Tampere Conclusions the Europol Convention would need to be amended both to allow it to "ask" for a member state to start a criminal investigation and to allow it to receive such operational data.
However, EU governments are not keen, indeed are decidedly reluctant, to amend Conventions. As an EU report on the subject put it, officials:
"agreed at the very beginning to avoid as far as possible amending the [Europol] Convention - always a lengthy procedure."
Amending a Convention requires getting it ratified by all 15 EU national parliaments. This is based on democratic consultation but is much, much too slow for the governments.
In February in a survey of member states on the issue the UK delegation, in common with others, responded simply:
"We do not believe that it will be necessary to re-open the Convention to achieve this."
In April the Council's Europol Working Party (comprised of police officers from all 15 EU states) had before it a report from Europol (comprised of police officers from all 15 EU states) in the Hague. The report said there was a:
"a consensus.. that under the provisions of the Europol Convention Europol is already able to request the initiation, conduct or coordination of investigations"
The Europol report then cites Article 2.4 and Article 4.2 of the Europol Convention. But neither of the Articles in any conceivable way authorises Europol to "ask" a member state to start a criminal investigation. Article 2.4 simply defines "competent authorities" for the purpose of the Convention, while Article 4.2 simply says the national unit (National Criminal Intelligence Service i