ANNEX XII

GERMAN DELEGATION’S POSITION

The German delegation enters a provisional scrutiny reservation on the reference document and its position for the time being is as follows:

1. Joint Investigation Teams

(EUROPOL 48 paragraph 2(i), point 43 of the Tampere Conclusions)

Point 43 of the Tampere Conclusions reflects the substance of the measure setting up joint investigative teams already provided for in Article 30(2)(a) of the EU Treaty and in the Vienna Action Plan of 1998. Over and above this, it calls only for joint investigative teams for the criminal activities in question to be set up “without delay”.

The debate on the participation of EUROPOL in the joint investigative teams was opened under the German presidency on the basis of EUROPOL 7. The conclusion in EUROPOL 29 was that the investigations of the joint team would be conducted under the direction of the Member States concerned, on the basis of the relevant national law. It was agreed that Europol staff would have no independent powers; their role would be purely supportive and advisory.

This view is in conformity with the text of both Article 30(2)(a) of the EU Treaty and the related text of the Vienna Action Plan of 1998 and Point 43 of the Tampere conclusions.

As joint investigative teams can be engaged solely for the purposes of a criminal investigation, it is logical that the legal basis for joint investigative teams has been included in the draft Convention on Mutual Assistance in Criminal Matters between the Union’s Member States (Article 13). Article 13 of this draft intentionally omits a more precise description of the form of participation of EUROPOL staff and simply contains an enabling clause.

We see no need for a legal act replacing the future Convention on Mutual Assistance in respect of the deployment of joint investigative teams in which EUROPOL participates.

How far the enabling clause in Article 13(11) of the Draft Convention on Mutual Assistance authorises EUROPOL staff to participate in the activities of the joint investigative team and what supplementary legal bases are required for EUROPOL to promote the activity of the joint investigative teams – where appropriate in accordance with the Convention on Mutual Assistance – needs further examination.

Also significant here is what precisely is meant by a merely “supportive” role for EUROPOL; this should be clarified before there can be any examination of the legal aspects of the question whether there is any need to amend the Europol Convention.

In this connection, the following points should be made re the Annex “Scenario for Joint Teams”:

– The terminology provisions in the introductory passage should be supplemented by a basic definition or description of the term “Joint Teams” (in accordance with the draft Convention on Mutual Assistance between the Member States of the European Union).

– “Lead authority” for Joint Team investigations can only be an organisation or body from the Member State concerned, not EUROPOL, which has a purely supportive role.

– The role of the judicial authorities in setting up a joint team as well as their positions should also be clarified as, at least according to German law on criminal procedure, the Public Prosecutor’s Office either conducts investigations itself or has them carried out by police force authorities and officials.

– It should also be made clear that the role of EUROPOL is purely one of initiating the setting-up of joint investigative teams.

– As EUROPOL’s integration depends on whether its mandate under Article 2 of the Europol Convention extends to the crimes in question, the question of how to proceed when the crimes lie partly within and partly outside that mandate also needs to be resolved.

As EUROPOL’s participation in the joint investigative team has been specifically requested, questions relating to the further development of Europol – inter alia through participation in joint investigative teams – should be clarified through theme-related joint discussions between the Europol and Judicial Cooperation Working Parties or by setting up an ad hoc Police/Justice Working Party .

2. Requests for investigations by EUROPOL

(EUROPOL 48, paragraph 2(iii), Tampere conclusions point 45)

As a result of previous discussions on this question, the conclusion in EUROPOL 29 was that requests for investigations by EUROPOL could not be binding, as it could only play a supportive role. EUROPOL 48 already refers to the fact that procedures differ in the Member States because of differing legal systems (is action taken by law enforcement bodies subject to the principle of legality?).

3. Access to SIS and CIS data

EUROPOL must first give reasonable justification for requiring access to operative SIS and CIS data .

4. Operative Task Force

(EUROPOL 48, paragraph 2(ii), Tampere conclusions point 44)

The question of how the operational Task Force is to be incorporated into the institutional framework of the Third Pillar has already been discussed in the Article 36 Committee but not yet conclusively decided.

For the German delegation, the point is to avoid duplicating work and competence with the Article 36 Committee, on the one hand, and with Europol bodies, on the other.

5. Relationship with EUROJUST

(EUROPOL 48 – point 2(iv) – Tampere conclusions point 46)

It remains to be seen what structure and tasks EUROJUST will be given.

6. Money laundering

(EUROPOL 48 – point 2(v) and (vi) – Tampere conclusions points 51 and 56)

Extending Europol’s mandate to “competence in general” for money laundering in any case means that the EUROPOL Convention will have to be amended with all that this entails. What is meant by “competence in general” should also be clarified. Efforts are currently under way to align further the list of predicate offences in the individual EU Member States.

We do not advocate extending the mandate to money laundering in connection with every conceivable criminal offence.

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Source of this document: SEMDOC database

Statewatch European Monitoring and Documentation Centre

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