Establishment of European Police Service

EUROPEAN PARLIAMENT

1999

2004

Summit document.

FINAL

A5-0312/2000

27 October 2000

REPORT

Regarding the initiative of the Portuguese Republic for a Council act concerning the establishment, based on Article 43, paragraph 1, of the Convention for the establishment of the European Police Office (Europol Convention), of a protocol to amend Article 2 and the annex of that convention.

(9426/2000 – C5-0359/2000 – 2000/0809(CNS))

Committee on Civil Liberties, Justice and Home Affairs.

Presenter: Anna Karamanou

Glossary of symbols used.

* Consultation process.
majority of the voters **I Collaboration process (first reading)
majority of those voting **II Cooperation procedure (second reading)
majority of the voters for the approval of the common position
majority of the members of Parliament for the rejection or amendment of the common position *** Agreement
majority of the members of Parliament, except in cases mentioned in Articles 105, 107, 161, and 300 of the EC Treaty and in Article 7 of the Treaty. ΕΕ ***I Co-decision procedure (first reading)
majority of those voting***II Co-decision procedure (second reading)
majority of the voters for the approval of the common position
majority of the members of Parliament for the rejection or amendment of the common position***III Co-decision process (third reading)
majority of the voters for the approval of the common proposal (The proposed procedure is based on the legal basis suggested by the Commission)

CONTENTS.

Page

HISTORICAL BACKGROUND OF THE PROCEDURE……………………………………………………………………………………. 4

LEGISLATIVE PROPOSAL………………………………………………………………………………………… 6

DRAFT LEGISLATIVE RESOLUTION……………………………………………………………….. 11

EXPLANATORY REPORT …………………………………………………………………………………………. 10

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS AND INTERNAL AFFAIRS

MARKET………………………………………………………………………………………………………………….. 13

OPINION OF THE ECONOMIC AND MONETARY COMMITTEE

POLITICAL…………………………………………………………………………………………………………….. 16

Background of the procedure

With its letter dated July 5, 2000, the Council invited the Parliament to deliver an opinion, in accordance with Article 39, paragraph 1, of the EU Treaty, regarding the initiative of the Portuguese Republic for a Council act on the establishment, based on Article 43, paragraph 1 of the Convention on the establishment of the European Police Service (Europol Convention), of a protocol to amend Article 2 and the annex of that Convention (9426/2000 – 2000/0809 (CNS)).

During the session of July 7, 2000, the President of the Parliament announced that she had referred the initiative for substantive examination to the Committee on Civil Liberties, Justice and Home Affairs, and for an opinion to the Committee on Economic and Monetary Affairs as well as the Committee on Legal Affairs and the Internal Market (C5-0359/2000).

During its meeting on August 29, 2000, the Committee on Civil Liberties, Justice and Home Affairs appointed Ms. Anna Karamanou as the rapporteur.

During its meetings on September 13-14, October 10-12, and October 23-24, 2000, the committee examined the initiative of the Portuguese Republic as well as the draft report.

During the last mentioned meeting, the committee approved the draft legislative resolution with 33 votes in favor, 2 votes against, and 1 abstention.

Present during the vote were the following members: Graham R. Watson, chair; Robert J.E. Evans and Bernd Posselt, vice-chairs; Anna Karamanou, rapporteur; Jan Andersson (substituting for Adeline Hazan), Alima Boumediene-Thiery, Rocco Buttiglione, Marco Cappato, Michael Cashman, Charlotte Cederschiöld, Carlos Coelho, Thierry Cornillet, Gérard M.J. Deprez, Georgios Dimitrakopoulos (substituting for Marcello Dell’Utri), Pernille Frahm, Evelyne Gebhardt (substituting for Sérgio Sousa Pinto), Bertel Haarder (substituting for Jan-Kees Wiebenga), Jorge Salvador Hernández Mollar, Margot Keßler, Timothy Kirkhope, Ewa Klamt, Alain Krivine (substituting for Giuseppe Di Lello Finuoli), Baroness Sarah Ludford, Minerva Melpomene Malliouri (substituting for Gerhard Schmid), Lucio Manisco (substituting for Fodé Sylla), Hartmut Nassauer, William Francis Newton Dunn (substituting for Daniel J. Hannan), Arie M. Oostlander (substituting for Enrico Ferri), Elena Ornella Paciotti, Hubert Pirker, Martin Schulz, Patsy Sörensen, Joke Swiebel, Anna Terrón i Cusí, Maurizio Turco (substituting for Frank Vanhecke), and Gianni Vattimo.

The opinions of the Committee on Economic and Monetary Affairs and the Committee on Legal Affairs and the Internal Market are attached to this report.

The report was submitted on October 27, 2000.

The deadline for submitting amendments will be indicated on the draft agenda for the session period during which the report will be considered.

LEGISLATIVE PROPOSAL

Initiative of the Portuguese Republic for a Council act on the establishment, based on Article 43, paragraph 1 of the Convention on the establishment of the European Police Service (Europol Convention), of a protocol to amend Article 2 and the annex of that Convention (9426/2000 – C5‑0359/2000 – 2000/0809(CNS)).

The aforementioned initiative is amended as follows:

Text proposed by the Portuguese Republic^[1]

Amendments of the Parliament

(Amendment 1)

Title

Justification:

See the justifications for the following amendments that expand the scope of the Protocol.

(Amendment 2)

Article 1, paragraph 1a (new)

Article 28 of the Europol Convention

1a) (news)
Article 28 of the Europol Convention is amended as follows:
The Management Board consists of one representative from each Member State. Each member of the Management Board has one vote. The EP is represented by two observers for the duration of a parliamentary term.

Justification:

This amendment to Article 28 of the Europol Convention aims at the necessary strengthening of the democratic oversight of Europol, oversight similar to that exercised by the EP in relation to the European Central Bank or the European Ombudsman (Article 112, paragraph 2b, 113, paragraph 3, and 195 of the EC Treaty).

(Amendment 3)

Article 1, paragraph 1b (new)

Article 29 of the Europol Convention

1b) (new)Article 29 of the Europol Convention is amended as follows: Director 1. Europol is managed by a director who is appointed by the Council.
by a two-thirds majority, in accordance with the procedure laid down in Title VI of the Treaty on European Union, following the opinion of the Management Board and after consultation with the EP, for a period of four years. Only one renewal of the term is permitted.
6. The director, as well as the deputy directors, may be dismissed by a decision of the Council, which must be adopted by a two-thirds majority of the votes of the Member States, in accordance with the procedure laid down in Title VI of the Treaty on European Union following the opinion of the Management Board and after consultation with the EP.

Justification:

The proposed amendments to Article 29 of the Europol Convention aim to strengthen the democratic oversight of Europol. In order for the EP to exercise democratic control, it must have a say in the appointment and possible dismissal of the director of Europol.

(Amendment 4)

Article 1, paragraph 1c (new)

Article 34 of the Europol Convention

1c) (new) Article 34 of the Europol Convention is amended as follows: Information to the European Parliament 1. The Presidency of the Council shall annually present a special report to the European Parliament on the activities carried out by Europol.
The Presidency of the Council presents this report to the EP, which may, on this basis, request a discussion. 1.3 (new)The director of Europol may, at the request of the EP or on his own initiative, visit the relevant committees of the EP for an exchange of views when circumstances require it.

Justification:

The proposed amendments to Article 34 of the Europol Convention also aim to strengthen the democratic oversight of Europol. In order for the EP to exercise democratic control, Europol should, like the European Central Bank or the European Ombudsman (Article 112, paragraph 2b, 113, paragraph 3, and 195 of the EC Treaty), account for its activities in an annual exchange of views. Additionally, the director of Europol should have the ability to visit the relevant committees of the EP when circumstances require it.

(Amendment 5)

Article 1, paragraph 1d (new)

Article 40 of the Europol Convention

1d) (new)
Article 40 of the Europol Convention is amended as follows: Dispute resolution
(Paragraphs 1 and 2 are replaced by the following text):The Court of Justice of the European Communities is competent to rule on the resolution of disputes and conflicts between the Member States regarding the interpretation or application of the Convention, provided that these disputes cannot be resolved within the Council six months after they have been submitted.

Justification:

This amendment aims to place Europol under the judicial oversight of the Court of Justice of the European Communities, in accordance with Article 35, paragraph 7 of the Treaty on the EU.

(Amendment 6)

Article 2, paragraph 3

3. This Protocol shall enter into force 90 days after the notification referred to in paragraph 2, by the Member State that makes the last such notification and that was a member of the European Union on the date of adoption by the Council of the act establishing this Protocol.

3. This Protocol shall enter into force 90 days after the notification referred to in paragraph 2, by the Member State that makes the tenth such notification and that was a member of the European Union on the date of adoption by the Council of the act establishing this Protocol.

Justification:

Decision-making by majority will be of essential importance in an enlarged Union. A two-thirds ratio appears to be the appropriate majority among the Member States.

DRAFT LEGISLATIVE RESOLUTION.

Legislative resolution of the European Parliament on the initiative of the Portuguese Republic for a Council act on the establishment, based on Article 43, paragraph 1, of the Convention on the establishment of the European Police Service (Europol Convention), of a protocol to amend Article 2 and the annex of that Convention (9426/2000 – C5‑0359/2000 – 2000/0809(CNS)).

(Consultation procedure)

The European Parliament,

– having regard to the initiative of the Portuguese Republic (9426/2000^[2]),

– having regard to Article 34, paragraph 2, point b), of the TEU,

– having been invited by the Council to give its opinion in accordance with Article 39, paragraph 1, of the TEU (C5‑0359/2000),

– having regard to Articles 67 and 106 of its Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Economic and Monetary Affairs as well as the Committee on Legal Affairs and the Internal Market (A5‑0312/2000),

1. approves the initiative of the Portuguese Republic as amended;

2. calls on the Council, should it intend to depart from the text approved by the Parliament, to inform it accordingly;

3. requests to be consulted again in the event that the Council intends to make significant amendments to the initiative of the Portuguese Republic;

4. mandates its President to forward the position of the Parliament to the Council and the Commission as well as to the government of the Portuguese Republic.

EXPLANATORY REPORT.

1. Brief analysis of the Europol Convention

A. Europol Convention 1995

The Amsterdam Treaty paved the way for closer cooperation among the police forces of the EU Member States, both directly among themselves and through Europol, the embryonic European federal police force.

Article K2 of the Treaty outlines the initiatives that could be undertaken by the police forces and Europol. Within five years of the entry into force of the Treaty, Europol should be able to undertake joint investigative and operational actions with the police forces of the Member States and to establish a network for research, documentation, and statistical analysis on cross-border crime.

The head of Europol, Jurgen Starbeck, has stated that he envisions Europol coordinating investigations with the police forces of the Member States, that it should have the ability to interrogate suspects, but he believes that it should not have powers of arrest and detention.

The establishment of Europol was agreed upon within the framework of the Maastricht Treaty on European Union, on February 7, 1992, and came into force on the 1^{st of}October 1998. Following the approval of a series of legal acts related to the Convention, Europol fully assumed its activities on the 1^{st of}July 1999.

Europol is based in The Hague and is supported by the Member States in data and information exchange (TECS system and liaison officers). It has a staff of 220 and is accountable to the Justice and Home Affairs Council.

B. Powers of Europol and their expansion

The initiative of Portugal aims to expand the powers of Europol to encompass money laundering in general. Article 2 of the Europol Convention refers to Europol’s powers: illegal drug trafficking, crimes involving human smuggling networks, illegal trade in stolen vehicles, human trafficking, including child pornography, counterfeiting currency and forgery of other means of payment, illegal trafficking of radioactive and nuclear substances, terrorism, and activities related to the laundering of proceeds from the aforementioned forms of crime.

The aim of the proposed amendment by the Portuguese Republic is to establish a general framework for Europol’s powers regarding money laundering. Therefore, the proposed amendment includes, in paragraph 2 of Article 2, the combating of money laundering as a new power of Europol. However, paragraph 3 of the same article stipulates that Europol’s powers concerning the laundering of proceeds from crime do not extend to the primary offenses, that is, the crimes that precede money laundering, unless they are mentioned in paragraph 2 of Article 2.

2. Brief analysis of the proposal for the amendment of the Europol Convention.

The issue of money laundering has taken on huge dimensions worldwide. Therefore, we cannot but agree with the idea of expanding Europol’s powers. This protocol is one of the necessary measures under consideration for achieving a European strategy for police and judicial cooperation in matters of money laundering.

However, the European Parliament cannot accept that, unless it takes on a formally advisory role, its powers are limited to advising solely on the proposed expansion of Europol’s powers, without addressing other aspects of its operations in such an important matter.

Indeed, the European Parliament is not in a position to assess Europol’s operations, its effectiveness, the quality of the TECS data processing system, or the measures used to combat money laundering, for example, without achieving enhanced democratic and judicial oversight of this European institution.

A. The lack of democratic oversight of Europol.

The European Parliament has expressed its dissatisfaction with the lack of democratic oversight of Europol in relation to Article 39 of the Treaty on the EU on multiple occasions. Article 39 refers to the right of the Parliament to be consulted and informed on matters falling under Title IV, which pertains to police and judicial cooperation in criminal matters. On the other hand, Article 34 of the Europol Treaty restricts the Parliament’s role to merely receiving annual reports. The reports by Cederschiöld and Nassauer on the same issue highlighted this serious “anomaly.”

Can we therefore expand Europol’s powers without amending Article 34 of the Europol Convention, which restricts the role of the European Parliament?

In order for the European Parliament to exercise democratic oversight, Europol should, like other European institutions (e.g., the European Central Bank or the European Ombudsman), be accountable for its activities through an annual exchange of views. Additionally, the director of Europol should have the opportunity to visit the relevant committees of the Parliament when circumstances require it. Finally, the European Parliament should have a say in the selection of the director of Europol.

B. The lack of judicial oversight of Europol.

It is equally unacceptable that potential disputes or disagreements between member states or between Europol and member states cannot be referred to the European Court of Justice, despite what is stated in Article 35 of the Treaty on the EU regarding police and judicial cooperation in criminal matters. This contradiction clashes with our democratic values, especially concerning human rights, and is particularly dangerous as Europol appears to be taking on increasing responsibilities.

C. The validity of the protocol.

It is regrettable that the process for the protocol to enter into force is based on the same procedures that applied to the original Europol Convention, meaning it requires adoption by the last member state.

This process will delay the adoption of the protocol at the EU level. For this reason, the rapporteur proposes using the procedure applicable to treaties under Title VI of the Treaty on the EU, meaning that the protocol would enter into force after its adoption by eight member states, as stipulated in Article 34, paragraph 2(d).

Conclusion

Indeed, there is no point in consulting the European Parliament if we do not seize the opportunity presented by the proposed expansion of Europol’s powers to enhance the effectiveness of this institution and its capacity for democratic oversight. This is beneficial for a genuine future of police cooperation at the EU level.

17 October 2000

OPINION of the Committee on Legal Affairs and

Internal Market

to the Committee on Civil Liberties, Justice and Home Affairs.

(9426/2000 – C5‑0359/2000 – (2000/0809 (CNS))

Draftsman of the opinion: Klaus-Heiner Lehne.

PROCEDURE

At its meeting on September 13, 2000, the Committee on Legal Affairs and the Internal Market appointed Mr. Klaus-Heiner Lehne as the draftsman of the opinion.

At its meetings on October 9 and 17, 2000, the Committee on Legal Affairs and the Internal Market examined the draft opinion.

At its most recent meeting, the Committee on Legal Affairs and the Internal Market unanimously approved the following amendments.

Present during the vote were Members Willi Rothley, chair; Ward Beysen, vice-chair; Klaus-Heiner Lehne, draftsman of the opinion; Luis Berenguer Fuster, Maria Berger, Philip Charles Bradbourn, Bert Doorn, Janelly Fourtou, Marie-Françoise Garaud, Heidi Anneli Hautala, Lord Inglewood, Ioannis Koukiadis, Kurt Lechner, Arlene McCarthy, Donald Neil MacCormick, Hans-Peter Mayer, Bill Miller, Elena Ornella Paciotti, Feleknas Uca, Diana, Paulette Wallis, Christos Zacharakis, and Stefano Zappalà.

BRIEF JUSTIFICATION

Background

Since the European Council in Tampere (October 15-16, 1999), which established the creation of a community area of freedom, security, and justice, the fight against organized crime, and specifically against money laundering, has become one of the priorities of the European Union. In the conclusions of the Finnish Presidency, we can indeed read that:

“Money laundering is at the core of organized crime. It must be eradicated wherever it exists. The European Council is determined to ensure the adoption of specific measures for the detection, freezing, and confiscation of the proceeds of crime.” On this occasion, the European Council called on the Council to expand Europol’s powers in the area of money laundering, regardless of the type of offense underlying the laundered money.

The establishment of a European police organization, Europol, which had been planned since June 1991 by the European Council of Luxembourg, was agreed upon within the framework of the Treaty on European Union (TEU) on February 7, 1992. The convention allowing for the creation of Europol (Europol Convention) was signed on July 26, 1995, and came into force on October 1, 1998, with practical implementation starting on July 1, 1999.

Its purpose is to improve police cooperation through a continuous, reliable, and intensive exchange of information between Europol and the competent authorities of the member states. Initially limited to the fight against drugs, the organization gradually saw its powers expanded to include other criminal activities, as these could no longer be addressed solely within a national framework.

Thus, Europol’s duties were expanded to other areas, such as human trafficking, including child pornography, “to the extent that specific indications reveal the existence of a criminal structure or organization and that the matter concerns two or more member states” (Article 2.1 of the Europol Convention).

Legal basis.

As stated in Article 2.2 of the aforementioned Convention, the Council can decide unanimously, based on the procedure provided for in Title VI of the TEU, to amend the Europol Convention to expand its powers. The protocol proposed by Portugal under Article 43.1 of the Europol Convention aims to extend the organization’s powers “to the illegal activities of money laundering.” To this end, the draft provides for granting Europol more effective tools to combat money laundering and to enhance its capabilities to assist member states in this fight.

CONCLUSION

Due to the widespread nature of money laundering across all member states, the Portuguese initiative was welcomed by the European Council to strengthen the legal framework of the Union.

To this end, and despite the existence of legal mechanisms (the directive on money laundering, the 1990 Strasbourg Convention, recommendations from the Financial Action Task Force on money laundering), the European Union decided to strengthen its fight against serious forms of organized and transnational crime by expanding Europol’s powers into this new area.

The Committee on Legal Affairs and the Internal Market therefore supports the text proposed by the Council regarding the fight against money laundering, subject to a simple adjustment that it would be advisable for the competent substantive Committee on Civil Liberties, Justice, and Home Affairs to adopt.

AMENDMENTS

The Committee on Legal Affairs and the Internal Market calls on the Committee on Civil Liberties, Justice, and Home Affairs, which is responsible for the substantive aspect, to incorporate the following amendment into its report:

Text proposed by the Portuguese Republic

Amendment of the Parliament

Article 1

1a, 2, second paragraph (new).

Europol also deals with crimes committed or potentially committed in the context of terrorist activities that threaten the life, physical integrity, and freedom of individuals, as well as property.

Justification:

Since the Portuguese presidency amends paragraph 2, first sentence, it is necessary to adjust the second sentence of that paragraph 2.

The established connections between terrorism and the laundering of proceeds from illegal activities should also not be overlooked.

OPINION of the Committee on Economic and Monetary Affairs.

to the Committee on Civil Liberties, Justice and Home Affairs.

(9426/2000 – C5‑0359/2000 – (2000/0809 (CNS))

Author of the opinion: Carles-Alfred Gasòliba i Böhm.

PROCEDURE

During its meeting on September 5, 2000, the Committee on Economic and Monetary Affairs appointed Mr. Carles-Alfred Gasòliba i Böhm as the rapporteur.

During its meeting on October 11, 2000, the committee examined the draft opinion.

At the aforementioned last meeting, the committee unanimously approved the following conclusions.

Present during the vote were the following Members: Christa Randzio-Plath, Chair; Ioannis Theonas, Vice-Chair; Richard A. Balfe, Luis Berenguer Fuster, Pervenche Berès, Renato Brunetta (substituting José Manuel García-Margallo y Marfil), Hans Udo Bullmann, Harald Ettl (substituting Simon Francis Murphy), Jonathan Evans, Ingo Friedrich (substituting Alexander Radwan), Robert Goebbels, Christopher Huhne, Liam Hyland, Pierre Jonckheer, Othmar Karas, Georgios Katiforis, Piia-Noora Kauppi, Werner Langen (substituting Christoph Werner Konrad), Alain Lipietz, Astrid Lulling, Peter Michael Mombaur (substituting Ioannis Marinou), Fernando Pérez Royo, Bernhard Rapkay, Karin Riis-Jørgensen, Amalia Sartori, Peter William Skinner, Charles Tannock, Marianne L.P. Thyssen, Helena Torres Marques, Bruno Trentin, Theresa Villiers, and Karl von Wogau.

SUMMARY OF THE RATIONALE

Determined to make the Union an area of freedom, security, and justice, the European Council repeatedly inquired about the means to combat organized crime, particularly regarding the prevention of money laundering generated by criminal activities. During its special session in Tampere dedicated to these issues on June 16, 2000, it specifically urged the Council to extend Europol’s powers to cover money laundering in general, regardless of the offense from which the laundered proceeds derive.

On this basis, Portugal, which was then holding the Presidency of the Council, presented on June 26, 2000, the initiative for a Council act aimed at amending the Convention for the establishment of a European Police Office (Europol Convention) with a protocol, so that the fight against money laundering would be included within Europol’s areas of competence.

The protocol attached to the draft act consists of a legally substantive text that amends the relevant sections of the Europol Convention: in Article 2.2, the concept of “criminal activities related to money laundering” is included second in the list of Europol’s tasks, immediately following the prevention and combating of drug trafficking. However, in the subsequent paragraph (2.3), primary offenses related to money laundering are clearly excluded from Europol’s competences. Finally, since the text of the annex refers to Article 2.2, it has been amended accordingly.

CONCLUSIONS

In its approved reports and opinions, particularly that of March 1, 2000, to the Committee on Civil Liberties, Justice and Home Affairs regarding financial intelligence units (Directive 91/308/EEC), the Economic and Monetary Affairs Committee repeatedly emphasized the need to combat money laundering, which serves as the necessary foundation for the economic goals of all criminal activities and poses a threat to the legitimate economy due to its volume. It can therefore only express its satisfaction with this extension of Europol’s competences, which should enable it to more effectively support the efforts of member states in this area and ensure better coordination of these efforts at the European level.

The Economic and Monetary Affairs Committee believes that the proposed text can be approved without modification and therefore recommends the approval of the Council act proposal.

^[1] ΕΕ C 200 of 13.07.2000, p. 1.

^[2] ΕΕ C 200, of 13.07.2000, p. 1.