ANNEX V

POSITION OF THE AUSTRIAN DELEGATION

The Austrian delegation has the following observations to make with regard to 13370/99 – Europol 48 from the Presidency of the Europol Working Party concerning certain Tampere conclusions:

Re: 2.i) Rec. 43 of the conclusions on joint investigative teams

In this connection, use should be made of the extensive work undertaken under the German Presidency of the Council in the first half of 1999. Austria maintains the views it expressed in reply to the questionnaire from the German Presidency (6245/99 – Europol 7), in particular on Section B.I.(1), outlined in its fax of 22 April 1999 to the Council General Secretariat. A copy of this position is annexed hereto for the record.

The discussions that took place in the Europol Working Party on 6 December 1999 demonstrated that the delegations clearly have different opinions about the nature, tasks and powers of any such joint investigative team. Any plans to give the joint investigative teams more powers than those foreseen in the Austrian position of 22 April 1999 and the related matter of Europol’s participation in such teams would be possible only following the creation of an appropriate legal basis, i.e. by supplementing the Europol Convention.

However, no decision can be taken on the correct legal form for measures to be implemented until the content of such measures is clear.

Re: 2.ii) Rec. 44 of the conclusions on a European Police Chiefs Task Force

The very ambivalent wording of this conclusion would undoubtedly lead to coordination problems and uncertainty about powers if the Task Force were set up within the framework of the Council. Moreover, the Council’s structures do not seem to be suitable for discussing “operational” matters.

Likewise, holding meetings in the framework of, or alongside, Europol would merely result in parallel activities which would add little value to the existing bodies and fora.

Accordingly, Austria believes it would be useful to hold the Task Force meetings in an informal framework, as planned by the incoming Portuguese Presidency of the Council.

Re: 2.iv) Rec. 46 of the conclusions on the relationship with Eurojust

The conditions for establishing formal relations between Eurojust and Europol cannot be assessed conclusively until such time as the legal status of Eurojust is determined. This should not, however, require an amendment of the Europol Convention since Article 10(4) and Article 42(1) thereof already contain legal bases for cooperation relations with EU bodies and the Management Board of Europol has also already adopted the rules for such cooperation relations pursuant to Article 42(1).

Re: 2.v), vi) Recs. 51 and 56 of the conclusions on money laundering

Extending the competence of Europol to combating money laundering, regardless of the predicate offence, requires amendment of the Europol Convention.

ANNEX TO THE AUSTRIAN CONTRIBUTION

Further to the discussions within the Europol Working Party meeting on 5 March 1999, below are the Austrian delegation’s comments on the questions raised in 6245/99 EUROPOL 7.

General

As was evident from the first exchange of views at the Working Party meeting held on 5 March 1999, several delegations consider the relevant provisions of the Amsterdam Treaty as rather generally worded, not particularly clear and in need of discussion. Such technical considerations, which obviously could not be dealt with in the framework of the Intergovernmental Conference, have to be addressed now before taking further decisions on the legal development of this matter.

However, it should be borne in mind that the top priority is to enable Europol to take up its activities. Tackling new problem areas should not interfere with this objective. Further development of concepts for police cooperation within the European Union is not an end in itself, but should be based on the practical demands encountered in the joint fight against crime. It would therefore be wise to consider the activities and results of the operation of the European Police Office, EUROPOL, before taking any further decisions on the possible extension of powers.

This requires a coherent approach within the Council’s working structures; consequently, the views of the Presidency of the Working Party on Mutual Assistance in Criminal Matters put forward in 6667/99 JUSTPEN 13 EUROPOL 16 CRIMORG 34 seem premature to say the least.

The powers conferred in the Europol Convention were obviously not taken into account when drafting Articles 29 et seq of the Amsterdam Treaty; a whole series of objectives set in the Amsterdam Treaty can therefore be implemented using the existing legal basis.

Re: Point B.I.(1) “Operational actions of joint teams”

It would not seem desirable to set up joint teams with “real” investigative powers, whereby all team members could actively exercise sovereign investigative powers. The wording of Article 30(2)(a) of the TEU should moreover be interpreted as excluding the participation of Europol officials in joint investigative teams of the Member States with “real” investigative powers (“in a support capacity”).

(a) the deployment of joint investigative teams is authorised in accordance with national law under the following terms: investigative actions are undertaken in Austria by Austrian officers pursuant to Austrian law; members of foreign security forces may be present during certain investigative actions, but may not themselves exercise any sovereign powers unless international law provides otherwise. Austria does not know to what extent other legal systems confer additional powers on members of foreign security forces or international organisations. Cooperation between officers from different countries is based on ongoing information exchange (requests for and provision of police cooperation).

It should be left to the participating States to determine the circumstances in which a joint investigative team should be deployed; an abstract description of the physical preconditions would reduce the flexibility (in the context of the current legal systems) that exists in this area at present and therefore seems ill-advised.

(b) The decision to deploy a joint investigative team is taken by the participating States.

There does not have to be a Europol representative on the team; joint investigative teams may also be deployed in areas of crime which do not fall within Europol’s remit.

(c) Investigations undertaken by a joint team are subject to the legal system of the territorial State (State in which the investigative action is undertaken) and as a result, are the ultimate responsibility of that State’s authorities. Fundamental management and coordination decisions on the activities of joint investigative teams are taken in agreement with the participating Member States.

Europol’s “support capacity” is to be seen as serving a practical function, in particular through quick access to Europol’s information databases, its links with evaluation groups and the fact that it can offer any specialist knowledge that proves necessary. The powers of the Europol officials concerned are established by the Europol Convention and, if necessary, by the legal system of the State in which the joint investigative team is operating. Accordingly, the actions of Europol officials operating in such circumstances are, in principle, attributable to Europol, whereas the exercise of powers conferred by the legal system of a Member State are attributable to that Member State.

(d) Austria has given a brief outline of the basic legal conditions in reply to (a) above.

(e) The investigative intelligence of joint teams is the sum of the investigative intelligence of the individual participating States which frequently work together in teams in the course of police cooperation. The legal systems of the participating States determine in which State and to what extent criminal proceedings are to be instigated and investigative intelligence used. Austrian legal provisions do not prevent the use of such investigative intelligence in criminal proceedings.

Since recourse to/ the exercise of sovereign powers is always based on a national legal order, legal protection is also governed by that same legal order. However, in the case of Joint Teams with “real” investigative powers, legal protection arrangements would be absolutely essential.

Re. Section B.I (2) “Other specific investigative actions”

(a) In particular, investigative actions which result from holding and appraising analysis projects in the framework of Europol could be considered.

(b) The involvement of Europol in such investigative actions can be inferred from the tasks of Europol set out in Article 3 of the Europol Convention. The corresponding decision-making powers are governed by the actual legal framework in question and by how far the investigations have come, meaning that sometimes decisions should be taken by the analysis team, sometimes by the participating States, and sometimes by just one of the participating States.

The coordinating role referred to should obviously not imply the authority to give instructions; the function of Europol here is not to coordinate but to promote coordination. In this instance, coordination is a function of the combined efforts of the Member States. Support will be afforded by fulfilling the duties of Europol pursuant to Article 3 of the Europol Convention. To this end Europol officials have the powers conferred upon them by the Europol Convention and, where appropriate, powers on the basis of the legal order of a Member State.

Re. Section B.1(3) “General questions”

(a) The involvement of prosecuting authorities from one State on the sovereign territory of another State does not have any intrinsic value. It is only necessary in cases where the authorities of the host State cannot ensure that the investigation will be successful, or that it will be completed in time.

There is not so much a need for uniformity as for a clear legal basis. In addition to the Schengen arrangements, in this context particular consideration should be given to the “Naples II” Convention on customs cooperation as indicative of the way forward.

(b) The authority which is to have judicial control of the proceedings can be inferred from the national legislation applicable for the particular investigation, or from the international law (European Union law?) applicable for a cross-border investigation. Accordingly, the judicial control of proceedings does not extend to the activities of a Europol official pursuant to the Europol Convention, and hence not to the involvement of Europol.

(c) On the basis of the Europol Convention, Article 38 thereof applies with respect to liability for unlawful acts of a Europol official. If a Europol official commits an unlawful act in exercising powers conferred by a national legal order then the liability law of that legal order applies.

(d) Whether it strictly follows that implementation of Article 30(2)(a) TEU requires legal acts within the meaning of Article 34(2) TEU to be adopted, as depicted, is still being studied, and consideration is being given to framework decisions or conventions pursuant to Article 34(2) TEU.

(e) The scenario depicted for the implementation of Article 30(2)(a) TEU would imply that there appears to be no need for a European Public Prosecutor’s Office nor for the ECJ to have criminal jurisdiction.

Re. Section B.II Article 30(2)(b) TEU

(1) The competent authorities of the Member States may investigate. Requests for investigations are not binding.

Under Austrian law requests of this nature are classed as letters rogatory from Europol in its capacity as a “security organisation” addressed to the competent Austrian security authority (Federal Ministry of the Interior). This would be possible under Article 4(2) of the Europol Convention, as the national unit for Austria is within the Federal Ministry of the Interior. The need for criminal proceedings to be instituted under national law depends on the findings of the investigation.

(2) The competent authorities of the Member States may coordinate. The coordinating role does not necessarily have any binding effect on any other Member States concerned. Neither is there any need for a binding effect of this nature, as it is in the best interests of the competent authorities concerned to take account of investigative aspects from another Member State in whichever way is most appropriate.

(3) The competent authority in Austria is the Federal Ministry of the Interior, as the addressee, by law, of letters rogatory from security organisations. If the request cannot be executed by a security authority and therefore has to be forwarded to a Public Prosecutor’s Office or a Court, the police mutual assistance channels are not followed and, as this is cannot be termed as mutual judicial assistance within the meaning of existing international standards, this creates a new form of cooperation. In this case, the request can only be interpreted as a mere suggestion to the Public Prosecutor’s Office or the Court that an investigation be conducted.

(4)(a) The exact point of the question in this place in the text is unclear – see above B.I (3) (a).

(4)(b) The role of Europol with regard to exercising the role set out in Article 30(2)(b) TEU will have to be settled while making provision for the corresponding powers in the Europol Convention. The issue here is not of judicial control of the proceedings by a public prosecutor/judge. National law contains provisions on conducting and coordinating investigations by the competent authorities of the Member States, and for Austria see the replies under (1) and (3).

(5) (6) The first case under Article 30(2)(b) TEU, on allowing Europol to ask the competent authorities of the Member States to conduct or coordinate investigations, has to be settled by supplementing the Europol Convention, so as to create a new task for Europol.

The development of specific expertise is not a legal obligation; the existing legal basis contained in Article 3(2) and (3) of the Europol Convention would have to already provide for the development of specific expertise, the second element in Article 30(2)(b) TEU.

Re Section B.III

At present no further specific measures are proposed. However, the term “in particular” makes it possible to avoid interpretation problems relating to incomprehensible differences in the wording of the objective of the measures listed (“organised crime”, “cross-border crime”, “investigative acts”).

Re Section C “Other aspects of the implementation of No 43 of the Action Plan”

(1) (2) The possibility of Europol’s using data from alerts as a basis for its analyses should not be ruled out. The objective should be to give Europol direct access to SIS/EIS. The corresponding legal basis would have to be supplemented to this end, in particular Articles 101 and 102 of the Schengen Convention. However, it is uncertain as to whether under the Schengen Convention it would be admissible for a Member State which had not issued an alert to forward data from the SIS/EIS to Europol.

Re Section D “Long-term measures pursuant to No 48 (a) of the Action Plan”

(1)(a) The current version of Articles 3(3) and 3(2) of the Europol Convention covers the objectives set in Article 30(2)(c) and (d) TEU.

(1)(b) The delegation agrees with the suggested meaning of the term.

(1)(c) Reference should be made to the term pursuant to Article 2(4) of the Europol Convention.

(1)(d) The development of expertise does not necessarily require a separate organisational unit to be set up, as this expertise can be sought from experts in the individual fields of crime. Europol does not necessarily have to be involved in the network that is to be established pursuant to Article 30(2)(d) TEU. Since the tasks set out in Article 3(3) of the Europol Convention are subject to the budgetary resources at its disposal, given past experience with how Europol’s draft budget is discussed, it would be wise to study the matter very closely.

(2) Money laundering is not the only area in which Europol’s competence does not correspond to the scope outlined in the provisions, as its competence is limited to certain areas of crime. The wording of Article 30(1)(b) TEU should therefore not be taken to mean that Europol should be given a predominant role in dealing with information on suspect transactions, in particular.

~~~~~

Source of this document: SEMDOC database

Statewatch European Monitoring and Documentation Centre

e-mail: office@statewatch.org