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Enhancing police and customs cooperation in the European Union
Cooperation between Member States' police forces and customs administrations is crucial to the maintenance of an area of security. In this Communication, the Commission is reviewing the measures and actions taken in this field since the adoption of the Treaty of Amsterdam, which entered into force on 1 May 1999. It proposes improvements that are necessary to enhance police and customs cooperation between Member States.
Communication from the Commission to the European Parliament and the Council: enhancing police and customs cooperation in the European Union [COM (2004) 376 final - Not published in the Official Journal].
Area of security: On 18 May 2004 the European Commission adopted a communication to enhance police and customs cooperation. It recommends increasing information exchange and strengthening cross-border cooperation. It was considered necessary to create a common culture and common instruments and methods. The need to make progress in this policy area is highlighted by the challenges of today's world, in particular combating terrorism. The Commission focuses on the following factors that adversely affect police and customs cooperation:
- the nature of police work;
- the lack of a strategic approach;
- the proliferation of non-binding instruments;
- the decision-making procedures in the Third Pillar;
- insufficient implementation of legal instruments adopted by the Council;
- the lack of empirical research on police and customs cooperation;
- databases and communication systems.
The Commission analyses police and customs cooperation in the European Union since the entry into force of the Treaty of Amsterdam in 1999. It focuses exclusively on cooperation between Member States' police and customs authorities in combating crime. The Communication does not address matters relating to judicial cooperation, administrative assistance in customs matters under the First Pillar and preventive measures, or does so only to a limited degree, Police cooperation within the Union supplements existing bilateral cooperation between Member States. The AGIS programme provides financial support for police and customs cooperation within the European Union.
The Commission covers and assesses the achievements of the police and other competent services in the context of Schengen cooperation, Europol, police cooperation at operational level, the European Police College (CEPOL) and other areas mentioned in Article 30 of the Treaty on European Union (TEU), such as investigative techniques and combating terrorism.
The Schengen Convention
The Treaty of Amsterdam incorporated the Convention implementing the Schengen Agreement of 1990 into the framework of the European Union. The aim of Schengen is to abolish checks at the common border on the movement of persons. Police cooperation appears as one of the complementary measures to safeguard internal security. Member States are subject to a number of obligations regarding police cooperation at the external borders of the Schengen territory (land, international airports and sea) to counteract any security deficit caused by the abolition of checks at the internal borders. The Vienna Action Plan of 1998 and the Conclusions of the 1999 Tampere European Council further underpin this area of freedom, security and justice.
The Commission takes stock of the articles in the Schengen Convention that it considers most relevant to police cooperation:
- Article 39 stipulates that Member States' police authorities are to assist each other to prevent and detect criminal offences. It finds that disputes occur because the competences of police in the different Member States differ widely. Nevertheless, it considers that bilateral and trilateral cooperation between Member States on the establishment of cooperation and information exchange structures in the form of Joint Police Stations and Police and Customs Cooperation Centres (PCCC) at internal frontiers has made good progress. Such cooperation centres have proved effective in addressing the "security deficits" in border regions caused by the abolition of border controls and the fact that law-enforcement services' intervention has to stop at the internal borders. The Vienna Action Plan calls for the extension of such cross-border cooperation;
- Article 44 seeks to improve communication links such as telephone, fax, computers in border areas. Since no data are available for cross-border operations, the Commission cannot assess whether real communication needs remain unattended but considers that the main obstacle to radio communications is a lack of interoperable communication systems;
- Article 45 stipulates that Member States must undertake to adopt the necessary measures to ensure that non-nationals complete and sign registration forms and confirm their identity by providing a valid identity document. This information can be crucial for the police. It is unclear to the Commission precisely how Member States implement this obligation and how the information is used in law-enforcement practice. It therefore considers that the matter needs to be discussed in the Council;
- Article 46 gives police authorities the right to exchange information with another Member State on their own initiative to prevent crime and threats to public order. In practice, it is not known whether the right is exercised. The Commission therefore proposes that the Council examine this question;
- Articles 93 et seq. are intended to maintain public order and security, including security of the State, through information exchange via the Schengen Information System (SIS).
En 1999, ten Member States were using the SIS and their number has now grown to 17. The current SIS was conceived for only 18 users and the ten Member States that acceded on 1 May 2004 must be connected in the future. The Commission has therefore been entrusted with the development of a second-generation SIS (SIS II). It considers that the SIS is crucial to police cooperation in Europe;
- The other articles of the Schengen Convention establish cooperation instruments concerning discreet surveillance of a suspect (Article 40) and where a person is caught in the act and avoids arrest by crossing international borders (Articles 41-43). The Commission finds that these instruments are rarely used.
Cooperation within Europol
Various measures concerning Europol that are listed in the TEU and the Vienna Action Plan have been implemented, producing mixed results, however. For example, a protocol extending Europol's competence to money laundering was adopted by the Council in 2000, but nine Member States had yet to ratify it on the date of the Communication. Moreover, the reluctance of Member States to transmit information and intelligence to Europol is hampering its operational development. The Communication reviews progress achieved through signing cooperation agreements with third countries, such as the United States, following the events of 11 September. The Commission notes that a key prerequisite for Europol's effective functioning will be the existence of the Europol Information System (EIS), which Europol has been working on for the past few years. The EIS will allow decentralised storage and retrieval of information on organised crime held by Member States. The Commission has made recommendations to improve democratic control of Europol. It takes the view that an awareness programme is essential to improve mutual understanding and cooperation between Europol and the Member States' law-enforcement services.
The Task Force of EU Police Chiefs
The Tampere European Council called for the establishment of a "European Police Chiefs Operational Task Force" (TFPC) to exchange experience, best practices and information on current trends in cross-border crime, in cooperation with Europol. It meets twice a year. It has taken a large number of initiatives, particularly regarding the protection of the euro, which have, however, failed to lead to an operational added value at EU level. The Commission explains this lack of effectiveness by the fact that leading police officials of the Member States usually have to deal with a great number of issues, so that European issues are only one of many priorities. In addition, there are considerable differences in the competences of police representatives. In some Member States there is one national head of police, whereas in countries with federal systems the representation is quite complex. In addition, organisational weaknesses have added to the problems of the TFPC's work: since only one meeting of the Task Force is held per Council Presidency, agendas are overloaded, which does not make for effective work. Nevertheless, TFPC meetings are considerably improving bilateral contacts. A meeting in March 2004 discussed a reflection document dealing with the future of the TFPC in the light of the proposals set out in the Treaty on a Constitution for Europe.
The European Police College
By decision of 22 December 2000 [Official Journal L 336 of 30 December 2000] the Council established the European Police College (CEPOL). CEPOL assists the national police in increasing their knowledge of the operational structures of police in other Member States. In addition it aims to improve mutual understanding of Europol and police cooperation in the EU and at international level.
CEPOL has had a difficult beginning: it lacked a budget, did not have legal personality and faced administrative difficulties. By decision of 24 July 2004 the Council gave CEPOL legal personality [Decision 2004/556/JAI, Official Journal L 251 of 27 July 2004]. Despite the institution's difficult beginning considerable progress has been achieved in the following areas:
- its range of specialised training is constantly increasing, extending from cooperation in counter-terrorism to public order and border control at the Union's internal frontiers, etc.;
- it has set up its own CEPOL website;
- it has established the European Police Learning Network (EPLN), an Internet site offering virtual police training. The Commission has supported the development of the EPLN through the OISIN and AGIS programmes.
The Commission notes that insufficient knowledge of foreign languages among members of European police forces may hinder effective cooperation. CEPOL should draw up joint programmes and courses for priority areas of policy cooperation.
Other subjects of police cooperation
The Communication deals with other significant subject areas of police cooperation:
- investigative techniques;
- forensic science;
- public order and security of high-level meetings;
- Article 32 of the TEU requiring the Council to fix the conditions and limitations under which the authorities of a State may operate in the territory of another Member State.
Customs cooperation plays a vital role in combating serious international crime such as elicit traffic in drugs, weapons, munitions, explosive materials, the theft of cultural goods, materials or equipment intended for the manufacture of atomic, biological and/or chemical weapons, etc.
The Vienna Action Plan sets out more specific aims for customs cooperation, in particular the ratification of the following:
- Convention on mutual assistance and co-operation between Member States (Naples II). The Commission considers that the Member States do not make sufficient use of the special forms of cooperation such as hot pursuit, cross-border surveillance, etc. provided for in the Convention;
- Convention on the use of information technology for customs purposes (CIS). The Commission, with the support of the Member States, has made good progress with the technical development of the database. It calls on the Member States to supplement the CIS database.
Customs cooperation was introduced into the intergovernmental part of the Maastricht Treaty on European Union in 1992. However, an important element in customs cooperation comes under the First Pillar: Article 135 of the Treaty establishing the European Community authorises the Council, acting on the Commission's proposal, to take measures to strengthen customs cooperation between Member States.
PROGRESSING TOWARDS EFFECTIVE COOPERATION
The Commission is focusing on the following improvements:
- the nature of police work: police work goes to the heart of what constitutes a sovereign State. It is therefore understandable that States are reluctant to participate in international arrangements which encroach on national sovereignty. The Commission hopes to build up a culture of trust and cooperation with the competent authorities for sharing information that is essential for international cooperation. It considers it essential to designate central national contact points for the international exchange of information. Member States must have an electronic system for the safe and rapid exchange of information. Technical investigative tools facilitating cooperation must be used effectively by the judicial authorities;
- strategic approach: the Commission regrets the lack of a strategic approach. Thus every Council Presidency defines a set of priorities according to its own priorities. The requirement of unanimity in decision-making in this area slows progress even more. The Convention on the future of Europe proposes improved decision-making mechanisms;
- proliferation of non-binding instruments: a problem with intergovernmental cooperation under the Third Pillar remains the non-binding nature of the instruments approved, such as recommendations. If Member States consider a given subject important enough to be discussed at Council level, then such discussions should result in measures which are effectively implemented by all;
- decision-making procedures in the Third Pillar: the Commission considers that the slow progress in police and customs cooperation can be linked to the decision-making rules. The Council, in relation to third-pillar subjects, must decide by unanimity. The right of initiative is shared between the Commission and the Member States. The Commission believes that the balance achieved in the Constitutional Treaty well reflects the respective competences of the Member States and the Union. The Constitution offers a considerable improvement in the decision-making procedure. It provides that decisions relating to the framework and mechanisms for cooperation (e.g. Europol) are to be taken by qualified majority and co-decision. Decisions on operational cooperation (e.g. operation by one Member State in the territory of another) remain subject to unanimity;
- implementation of legal instruments: the Commission is critical of the slow implementation of legal instruments adopted by the Council. It points out that the Laeken European Council of December 2001 reaffirmed the need for decisions taken by the Union to be transposed quickly into national law;
- research on police and customs cooperation: the Commission finds that scientific research into police and customs cooperation has a number of shortcomings. Adequate funding needs to be made available for research, as a shared responsibility of the Member States and the Union;
- cooperation between police and customs: the Commission hopes to secure more effective coordination and communication between police forces and customs authorities;
- databases and communication systems: a number of databases and communication systems exist at European level. The main examples are: the EIS, the SIS, the CIS and the Customs Files Identification Database. There is a risk of duplication between some of them. The Commission also questions their interoperability. Three possible options should be considered:
- to merge the existing systems into a single "Union Information System";
- to keep the systems independent and allow the creation of new systems as required;
- to investigate and implement the harmonisation of the data formats and the respective access rules between the various systems.
The Commission recalls the legal obligations and political commitments for police and customs cooperation under the Treaty and European Council decisions. In addition, it analyses the main factors preventing police and customs cooperation.
Legal obligations and political commitments for police and customs cooperation arise under the following measures:
- the Treaty on European Union;
- the Schengen Convention;
- the 1998 Vienna Action Plan;
- the Conclusions of the Tampere European Council of October 1999.
The Commission points out that certain events have given a political impulse to move forward in this area. The public order disturbances during the European Councils at Nice and Gothenburg in 2001 led to an intensification in cooperation in the maintenance of public order. Similarly, the events of 11 September 2001 in the United States have given rise to increased cooperation in the fight against terrorism.