ANNEX I

RESPONSE BY THE NETHERLANDS DELEGATION

1. Introduction

In general, it can be said that, compared to the Treaty of Amsterdam, the European Council of Tampere generated little news concerning the future developments of Europol. A fact which is hardly surprising seeing that this Treaty only recently entered into force on 1 May 1999. An important exception in this regard concerns conclusion 56 of the European Council of Tampere in which it was agreed to expand Europol’s mandate to tackle money laundering as such: in other words, without requiring any connection to those types of crimes belonging to Europol’s mandate (article 2(3), sub 1 of the Europol Convention).

Article 30(2) of the Treaty on European Union (further referred to as TEU) stipulates a term of five years in which to realise the measures aimed at promoting police co-operation via Europol. However, the Netherlands delegation draws attention to the fact that, on 11 and 12 December 1998, the European Council of Vienna approved the Action Plan drafted by the JHA Council and the Commission for an area of freedom, security and justice (DOC. 13844/98 JAI 41) and that, pursuant to point 43 of that Action Plan, the term referred to in article 30(2) of the TEU was reduced to two years after the coming into force of the Treaty of Amsterdam. This means that the required measures must be realised by 1 May 2001, at the latest.

In this light, the Netherlands delegation regrets that the Europol Working Group, charged with elaborating the provisions of the Treaty of Amsterdam concerning Europol, only met once during the last six months and that only four meeting days have been planned for the coming semester. We fear that such a meeting schedule will prove insufficient for the progress of the activities and that we will find ourselves in the paradoxical situation that, rather than injecting added impetus, “Tampere” will delay matters. Due to this, the Portuguese presidency is asked to set aside more meeting days for activities involved in implementing the Treaty of Amsterdam and the conclusions of the European Council of Tampere.

2. Dutch principles

In assessing article 30(2) of the TEU and the conclusions of the European Council of Tampere, the Netherlands delegation deploys the following three principles:

a) given its wording, article 30(2) of the TEU is directed at the Council and, as far as Europol is concerned, has no immediate effect: in other words, before Europol can assume the tasks stated here, the Council will need to have taken the required action.

Contrary to what is sometimes supposed, Europol is unable to base its activities in the sense referred to in the provisions concerned on either article 30(2), TEU or on any other provision. On this point there is absolutely no room for misunderstanding given the text (“The Council develops…” etc). The Council must first take the appropriate measures. The opinion of the Netherlands delegation on the measures to be taken will be detailed below.

b) In light of the fact that the tasks of Europol are laid down in a convention, notably in article 3 of the Europol Convention, expanding or amending the tasks can only be realised by means of a similar legal instrument; in this case the Europol Convention is to be amended or supplemented.

In as much as article 30(2) of the TEU and the conclusions of the European Council of Tampere contain amendments or expansion of Europol’s range of tasks, this must be realised by amending or supplementing the Europol Convention. The tasks of Europol are laid down in a convention and can only be amended or supplemented by means of a similar legal instrument. Tasks can not be expanded via any other legal instrument. To realise this aim, the Netherlands has in mind a protocol for the Europol Convention, of limited size and substance. Designing such a protocol – which will be discussed further below – should commence as soon as possible.

Where article 30(2) of the TEU and the conclusions of the European Council of Tampere contain themes that could be accommodated in Europol’s current package of tasks, this needs to be stated clearly and with reasoned motivation as to which of the tasks mentioned in Article 3 of the European Convention is involved.

c) The Netherlands delegation opposes granting executive powers to Europol and its staff. Europol is a facilitative and support organisation and the executive police powers should remain the preserve of the national services.

The Netherlands delegation finds that Europol and its staff should not be granted executive powers. Nor is this prompted by article 30(2) of the TEU and the Conclusions of Tampere. The Netherlands delegation wishes to state here clearly that in the discussion of new tasks for Europol it is essential that this expansion for Europol is not sought in the sphere of executive powers.

As regards the substantial aspects of expanding Europol’s tasks, the Netherlands delegation also refers to its commentary of 21 April 1999 on document 6245/99 Europol 7. The Netherlands delegation regrets that the discussion on its substance, initiated under the chairmanship of Germany, ground to a halt. This discussion must be recommenced at the earliest opportunity, then dynamically put into implementation.

3. Conclusion 43 – Strengthening co-operation in the fight against crime

“Maximum benefit should be derived from co-operation between Member States’ authorities when investigating cross-border crime in any Member State. The European Council calls for joint investigative teams as foreseen in the Treaty to be set up without delay, as a first step, to combat trafficking in drugs and human beings as well as terrorism. The rules to be set up in this respect should allow representatives of Europol to participate, as appropriate, in such teams in a support capacity”.

The Netherlands delegation notes that the draft Convention on mutual assistance in criminal matters contains a number of provisions on joint investigation teams, notably in article 13. This article includes a number of lines on the setting up of joint investigation teams, their composition, management, the exchange of information and so on, plus wording on the possibility of allowing officials other than representatives of Member States to take part (section 11). This section was included specifically with reference to Europol that, according to a provision under article 30(2) under a of the TEU, should be able to take part in joint investigation teams.

With the exception of a parliamentary proviso of the United Kingdom and Sweden, on 2 December 1999, the JHA Council agreed with the regulation of joint investigation teams set down in article 13. We expect that, once the recommendations of the European parliament have been received, the decision on the draft Convention on mutual assistance in criminal matters will be rounded off in March 2000.

The Netherlands delegation considers it highly desirable that – also in the context of Europol – the use of the term “joint investigation teams” is reserved for the teams as referred to in article 13 of the draft Convention on mutual assistance in criminal matters. In other words, when it involves teams set up by the competent authorities of two or more Member States for a specific objective and a limited period to conduct an investigation in one or more of the Member States concerned (article 13(1)). Referring to other forms of co-operation while using the term “joint investigation team” will only lead to confusion. For example, a group of police officers from various member States which co-ordinates a cross-border activity in the Europol building should not, in the eyes of the Netherlands delegation, be referred to as a ” joint investigation team”.

The question that arises in the context of this commentary is as follows: if this is desired, how should the participation of Europol in a joint investigation team be shaped? Before answering this question, the Netherlands delegation would like to make a number of remarks in response to conclusion 43 of the European Council of Tampere. Although this conclusion seems clear, in fact it is not. The Netherlands delegation understands it as follows. The European Council instructed the JHA Council and the Member States to take all legal preparations, without delay, aimed at enabling a joint investigation team to be set up in suitable cases. In other words, the European Council calls for the Convention on mutual assistance in criminal matters to be signed immediately, to be ratified at the earliest opportunity and, if necessary, to be implemented in national legislation.

The Netherlands delegation feels that conclusion 43 does not entail the actual appointment of investigation teams without delay. This can hardly be the meaning of conclusion 43 because setting up joint investigation teams is only constructive in response to a concrete situation where such activities are clearly required and, pre-eminently, because the required legal grounds for such teams will have to be laid first. The Dutch interpretation of conclusion 43 is also supported by the last sentence which speaks of “the rules to be set up”.

In the lights of the above, the Netherlands delegation remarks that it is not in agreement with the considerations on conclusion 43 of the Finnish presidency. The premise proposed in document Europol 48 as to how a joint investigation team could function within the current legal framework is inaccurate if the intention is at least to allow a team to function so that implementing investigative activities in the Member States concerned is placed on entirely the same footing as investigative activities for national investigations and that a request for legal aid is no longer required (see article 13(6) of the draft Convention on mutual assistance in criminal matters). The Netherlands delegation makes no further comment as far as joint investigation teams are concerned in a general sense as this is not a subject for the Europol Working Group but for the Working Party on Co-operation in Criminal Matters.

In addition to the content side of the issue, the question that should engage the Europol Working group is whether a legal instrument is required to give Europol the option of taking part in joint investigation teams and if so, which would be the appropriate legal instrument ?

In answering this question, in contrast to what seems to be suggested by the Finnish presidency, the deciding factor is not the need of a speedy realisation, but the current legal regulations. It is the view of the Netherlands delegation that amending or supplementing Europol’s task is only possible by amending or supplementing the Europol Convention, as stated before under point 2 sub 2, that amending or supplementing Europol’s tasks is only possible by amending or supplementing the Europol Convention. Whether or not speed is exercised does nothing to alter this fact. But in concrete terms, this involves an answer to the question whether Europol’s participation in joint investigation teams (as referred to in article 13 of the draft Convention on mutual assistance in criminal matters) can be numbered among the tasks laid down in article 3 of the Europol Convention, rather than an expansion of Europol’s tasks.

The Netherlands finds that the participation of Europol in joint investigation teams in the Member States essentially contains such new elements that this participation cannot be seen as one of the tasks stated in article 3 of the Europol Convention. This is also the case when, in accordance with Dutch views, Europol’s contribution is supportive and its staff are not granted executive powers. Those who drafted the Europol Convention had not envisaged such a role for Europol while those responsible for drawing up the Treaty of Amsterdam were concerned with expanding Europol’s tasks. Those who experienced or followed the negotiations on the draft Treaty that resulted in the Treaty of Amsterdam are aware that this subject has been thoroughly debated. This would not have been necessary if participation in the joint investigative teams would have been included in the current package of tasks.

For the sake of clarity, the Netherlands delegation observes that the content of article 30(2), TEU was extensively debated during the parliamentary discussion of the bill to adopt the Europol Convention. On that occasion, Government and Parliament have more than once expressly taken the view that this article does concern expanding Europol’s tasks and that this expansion can only be realised by amending or supplementing the Europol Convention.

Under point 2 of this paper, the Netherlands delegation has stated it’s consideration of a protocol of limited size and substance. The Netherlands delegation proposes making an immediate start on putting together a draft protocol which will set down the expansion of Europol’s tasks as given in article 30(2) of the TEU and the conclusions of the European Council of Tampere.

The Netherlands standpoint favours laying down, with reference to article 13 of the draft Convention on mutual assistance in criminal matters, the conditions under which officials of Europol will be able to take part in joint investigation teams and which activities they will – or will not – be able to perform. According to the Netherlands opinion, this must stipulate, among other things, that a Europol staff member taking part in a joint investigation team will carry out his activities subordinate to the authority that, in conformity with article 13(3) of the draft Convention on mutual assistance in criminal matters, is charged with managing the team. Article 30(1), of the Europol Convention prohibits the staff of Europol from asking for or accepting instructions from

any government or any authority, organisation or person outside Europol save as otherwise provided in the Convention. The protocol to be drawn up will need to contain an express measure which determines that this rule is not applicable when a staff member is part of a joint investigation team.

Perhaps unnecessarily, in this regard it is observed that, pursuant to article 17(1), first sentence of the Protocol on privileges and immunities, immunity from legal process, stated in article 8(1) under a of that Protocol is not valid for exercising new tasks. The Netherlands considers such immunity entirely undesirable in the context of participation in joint investigation teams.

4. Conclusion 44 – Operational Task Force of European Heads of Police

“The European Council calls for the establishment of a European Police Heads operational Task Force to exchange, in co-operation with Europol, experience, best practices and information on current trends in cross-border crime and contribute to the planning of operative actions.”

In implementing this conclusion, the Netherlands delegation assigns a key role to two aspects. Firstly, it must be borne in mind that this concerns an operational task force that must, among other things, be designated the task of contributing to the planning of operational activities. Secondly, the heads of the Europol national units play an essential role within Europol’s working relationship. The national desires and needs and the activities to be carried out by Europol are co-ordinated through these heads of units in particular. According to the Netherlands delegation, these two aspects imply that the shaping of a task force of police chiefs should take place within the Europol structure and that the heads of the National Units should function as a framework for this task force of police chiefs. Nothing is stopping the appointment of such a task force by a “simple” Council decision because no official powers are (nor should be) granted to the task force of national police heads. By way of further elucidation, we observe that the Europol Convention (article 4(7) did not devote a convention provision to the advisory role of the heads of the national units as this was considered necessary at the time, but because by so doing more emphasis was placed the heads’ periodical meetings.

The arguments in favour of setting up the task force within the Europol structure argue against such a unit being set up as an advisory body within the Council context. Given the mainly operational nature of this task force, the Netherlands objects to it being structured as a Council advisory body as, from the perspective of the co-ordination desired, it would be solely counterproductive given that the co-operation at operational level must and shall be increasing shaped via Europol.

5. Conclusion 45 – strengthening the role of Europol

“Europol has a key role in supporting union-wide crime prevention, analyses and investigation. The European Council calls on the Council to provide Europol with the necessary support and resources. In the near future its role should be strengthened by means of receiving operational data from Member States and authorising it to ask Member States to initiate, conduct or co-ordinate investigations or to create joint investigative teams in certain areas of crime, while respecting systems of judicial control in Member States.”

This conclusion deals with various aspects, all intended to strengthen the role of Europol.

5.1. Support and resources

In order to offer Europol the opportunities to function properly, the JHA Council will need to support this organisation and provide the resources required. As regards the latter, general agreements were made during the JHA Council held in May 1998 in the sense that Europol’s entire personnel will need to expand considerably over the first few years. A starting point which receives Netherlands support. In this context, we must of course acknowledge that the activities to be undertaken by Europol justify substantial expansion of staff numbers. This section of conclusion 45 of the European Council of Tampere must be further worked out by the Europol Management Board and the JHA Council within the structure of the annual budget cycle.

5.2. Providing Europol with operational data

The Netherlands delegation reads this section of the conclusion as follows: the Member States are summoned loyally to meet their undertaking laid down in the Europol Convention to provide data, including operational data, for the Europol information system and the analysis data bases. On the provision of information for the analysis data bases (the information system is not yet up and running), during the last meeting of the Management Board on 16 November 1999, the director of Europol observed that the provision was sorely lacking. It is to be hoped that this shortcoming will be eradicated as time goes on; in any event, this is a task for the Europol Management Board and possibly the JHA Council, not for the Europol Working Group.

This is not the case with regard to the possible access of Europol to the SIS and DIS. The Netherlands delegation does not object to Europol gaining access to the SIS and is prepared to work towards investigating whether and under which conditions access to the DIS could be facilitated.

5.3. Request from Europol to the Member States to instigate an investigation and other new tasks

The last section of conclusion 45 of the European Council of Tampere refers essentially to expanding the tasks of Europol as expressed in article 30(2) TEU.

In its policy document, the Finnish presidency makes a number of observations on the possibility for Europol to request the Member States to instigate, conduct or co-ordinate an investigation, and on the possible consequences of such a request. There is no doubt that, also within the current framework of the Europol Convention, Europol – via the national units – can request the Member States to instigate an investigation. In the current situation such a request is entirely non-obligatory and nothing compels the Member States to respond to such a request or take action in that regard.

Referring to the aforementioned Netherlands delegation’s commentary of 21 April 1999 on Europol 7, we again observe that only the competent authorities in the Member States may conduct or order investigations. On the basis of concrete analysis results, Europol can acquire the competence to advise the Member States (unrequested) and instigate an investigation but such advice is not – legally – binding. Nonetheless, this formal legal standpoint does not alter the fact that when a co-operation via Europol does not have a follow-up in national investigation and prosecution, it’s point is substantially reduced. Within this context, politically, the Netherlands attaches great value to a request or advice from Europol to start a particular investigation. The Netherlands delegation thus also speaks out for giving this competence of advice the necessary weight and to set it down in the protocol for expanding Europol’s tasks. For the remainder, the Netherlands delegation wishes to refer to its response of 21 April 1999 to Europol 7.

6. Conclusion 46 – Eurojust and the possible relations with Europol

“To reinforce the fight against serious organised crime, the European Council has agreed that a unit (EUROJUST) should be set up composed of national prosecutors, magistrates, or police officers of equivalent competence, detached from each Member State according to its legal system. EUROJUST should have the task of facilitating the proper co-ordination of national prosecuting authorities and of supporting criminal investigations in organised crime cases, notably based on Europol’s analysis, as well as of co-operating closely with the European Judicial Network, in particular in order to simplify the execution of letters rogatory. The European Council requests the Council to adopt the necessary legal instrument by the end of 2001.”

The Netherlands delegation shares the vision of the Finnish presidency that the key question for the Europol Working Group is the relation between Eurojust and Europol. At present, no substantial comments can be made on this point.

7. Conclusion 56 – Europol and money laundering

“The European Council invites the Council to extend the competence of Europol to money laundering in general, regardless of the type of offence from which the laundered proceeds originate.”

During the European Council of Tampere, the Netherlands argued for expanding Europol’s mandate with the prevention and fight against money laundering as such and no longer restricting it, as is currently the case, to money laundering activities connected to those forms of crime belonging to Europol’s mandate. The vision of the presidency that amendments and supplements to the Europol Convention are required here, is shared. This could be shaped in the protocol for expanding Europol’s tasks, proposed by the Netherlands.

8. Summary

The Netherlands delegation concludes that, compared with the Treaty of Amsterdam, the European Council of Tampere has generated little news as far as Europol is concerned. Expanding the mandate of Europol with the prevention and fight against money laundering as such is the only significant exception. This expansion should gain shape at the earliest opportunity by means of a protocol in which expanding the tasks of Europol (participation in joint teams, requesting Member States to instigate investigations and so) must be laid down. Expanding Europol’s package of tasks without a basis in conventional provisions is unacceptable to the Netherlands. Given the description of tasks, the operational task force of police heads should be set up within the structure of Europol. The Netherlands objects to it being structured in the form of an advisory body within the structure of the Council.

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Source of this document: SEMDOC database

Statewatch European Monitoring and Documentation Centre

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