Select Committee on European Communities Second Report


31.  REQUESTS MADE BY EUROPOL TO INITIATE INVESTIGATIONS

Letter from Barbara Roche MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  You wrote to me on 16 May enclosing a copy of a report in European Voice on the Portuguese Presidency's ideas of expediting agreement on joint investigation teams. In the light of the report, you asked for further information on document EUROPOL 5, 7369/00.

  I have today sent to you two further Explanatory Memoranda having a bearing on joint investigation teams. One of these is on EUROPOL 5 REV 1, 7369/1/00. It effectively replaces the EM relating to EUROPOL 5 and contains additional information. The other is on EUROPOL 6, 7370/00 which includes a Presidency suggestion that there should be a Council Declaration inviting the Europol Management Board to describe the modalities of participation by Europol officials in joint investigation teams within the existing limits of the Europol Convention.

  Briefly, the EM on EUROPOL 6 explains that the Portuguese Presidency initially had it in mind to take forward Tampere conclusion No 43, on the setting up of joint teams without delay, by promoting a new legal instrument modelled on Article 13 and associated provisions on joint investigation teams in the Convention on Mutual Legal Assistance in Criminal Matters. But the suggestion was not widely supported among the Member States partly because there were doubts that the legislation which some Member States would have to introduce to give effect to the new legal instrument could in practice be promoted any more quickly than the legislation which would be needed to give effect to the mutual legal assistance Convention.

  The Presidency has now adopted an alternative approach which concentrates for the time being on what is feasible within the existing domestic and EU legal framework. This approach takes into account that, notwithstanding the Tampere conclusion No 45, on asking Member States to undertake investigations, there is no impediment to Europol requesting Member States already to initiate, conduct or co-ordinate investigations, which might, or might not, be joint investigations and might, or might not, involve the participation of Europol. The approach also acknowledges that although a number of Member States may not be able to establish joint investigation teams until the mutual legal assistance Convention comes into effect, other Member States, including the United Kingdom, are not similarly constrained. The purpose in asking the Europol Management Board to consider the practicalities of Europol's involvement in joint teams under existing law, as suggested in EUROPOL 6, is to assist Europol and these other Member States in identifying and overcoming obstacles to establishing joint teams so that they can if necessary be set up quickly in fast moving situations with Europol's participation in a support capacity if appropriate. The opinions of the Board are also likely to be helpful in the longer term in considering what further rules and procedures might be appropriate to ensure that Tampere conclusion No 43 is implemented in full. The Government supports the suggestion that the Europol Management Board should be asked for advice, bearing in mind that the Board is well-placed to take account of the relevant practical considerations as well as the resource implications for Europol. The opinions of the Board would not be binding and would be without prejudice to the Government's position that to give Europol officers the sort of operational powers which police officers in this country have is neither necessary nor desirable.

  The Presidency's approach also takes into account that although Europol may already invite Member States to initiate, conduct or co-ordinate investigations, which as I have said need not be joint investigations, there is no obligation on Member States to respond to such requests. The principal purpose of the draft Recommendation in EUROPOL 5 and EUROPOL 5 REV 1 is to encourage Member States to give such requests due consideration, to inform Europol of the outcome of the request and to give Europol reasons if the request is refused. The Government is in principle content with the Recommendation. It imposes no obligations on the United Kingdom, but in general competent authorities in the United Kingdom already adhere to the principles in the Recommendation in dealing with requests from Europol received through the Europol National Unit. Although it will not always be appropriate for a Member State to give reasons for refusing a request, we consider that it would be good practice to do so wherever possible, so that for example Europol can take account of the reasons when submitting future requests.

  I hope that this letter will be helpful in putting the report in European Voice in context and in explaining the inter-relationship of EUROPOL 5 REV 1 and EUROPOL 6 in taking forward the implementation of Tampere conclusions Nos 43 and 45.

2 June 2000

Letter from Lord Tordoff, Chairman of the Committee, to Barbara Roche MP, Minister of State, Home Office

  Thank you for your letter of 2 June describing the background to the Presidency's latest two proposals. Sub-committee E (Law and Institutions) has also considered your Explanatory Memoranda on the draft Council Recommendation (Europol 5 Rev 1) and Declaration (Europol 6). I understand that the purpose of these proposals is to take forward two of the recommendations of the Tampere European Council without, at this stage, creating any new legally binding instruments. I am grateful for your explanation of the relationship between the two documents. I would, however, welcome clarification of a number of points.

EUROPOL 5, REV 1

  The draft Council Recommendation is based on Article 30(2)b TEU. Under this provision, the Council shall "adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and co-ordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime".

  The first recital, referring to recommendation 45 of the Tampere Conclusions, states that the European Council "instructs the Council to allow Europol to ask Member States to initiate, conduct or co-ordinate investigations in specific cases, while respecting systems of judicial control in Member States". The actual language of recommendation 45 is somewhat different. It uses the term "authorise" rather than "allow" and such authorisation extends to requests by Europol "to create joint investigative teams in certain areas of crime".

  Your Explanatory Memorandum states that "the draft recommendation is about investigations which might, but would not necessarily or possibly even usually, involve the setting up of joint investigation teams". You emphasise that it would not impose any obligations on Member States but would establish principles of "good practice" to enable Europol to exercise its support functions effectively and efficiently. However, the use of the term "authorise" in recommendation 45 might suggest an intention to confer some additional power on Europol which it does not, at present, enjoy. I would be grateful if you could clarify what significance, if any, attaches to the use of the term "authorise" in the Tampere recommendation, and the choice of the term "allow" in Article 30(2)(b) TEU and recital 1 of the draft Recommendation. It would also be helpful if you could confirm that requests by Europol would be limited to those areas of crime for which Europol itself has competence and which affect two or more Member States (in accordance with Article 2 of the Europol convention).

  Sub-Committee E noted that recital 5 of the draft Recommendation requires requests by Europol to be made "in accordance with Article 4 of the Europol Convention". The reference in an earlier draft to "the procedures set out in Article 4" is to be deleted. Article 4 of the Europol Convention essentially concerns the exchange of "information, intelligence and advice" between Europol and national liaison units and does not mention requests for investigations. The earlier reference to Article 4 procedures would seem to make clear that only the mechanism for transmitting requests would apply. I would therefore welcome an explanation of the reasons for the proposed deletion in recital 5 and the effect of that change. For example, to what extent would the grounds in Article 4(5) of the Europol Convention apply in determining whether to inform Europol of a decision not to conduct an investigation?

EUROPOL 6

  Article 30(2)(a) TEU and recommendation 43 of the Tampere Conclusions both refer to the participation of Europol officials in joint teams "in a support capacity". I would be grateful if you could explain why this qualification does not appear in the text of the draft Declaration.

  As the points raised above seek, essentially, to clarify certain aspects of the draft proposals, I am content to clear both documents from scrutiny but look forward to receiving your response.

15 June 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  You wrote to me on 15 June advising that the Scrutiny Committee had cleared Europol 5 Rev1 and Europol 6. You also asked for clarification on a number of points.

EUROPOL 5 REV 1

  You asked about the significance of the use of the word "authorise" in Tampere Conclusion 45 in contrast to the use of the word "allow" in Article 30(2)(b) TEU and recital 1 of the draft recommendation. You queried whether "authorise" might suggest an intention to confer some additional power on Europol which it does not at present enjoy. I do not attach any significance to the difference in wording. It is the Government's view that both "authorise" and "allow" signify only that Europol should be entitled to ask Member States to initiate, conduct or co-ordinate investigations.

  I can also confirm that any such requests would be limited to those areas of crime within Europol's mandate. The Europol Convention only allows Europol to process intelligence that falls within its competence. But requests would not necessarily be limited to requests for joint investigations involving two or more Member States. Requests could also be for investigations each involving just one Member State and where the establishment of joint teams would not be appropriate.

  With reference to Article 4 of the Europol Convention you asked for an explanation of the purpose of the amendment to recital 3 (previously 5) and the effect of it. The purpose of the amendment was to ensure that account would be taken of the Article 4 provisions as a whole. There would then be regard not only for the channels for communicating requests and the responses, but also for the grounds in Article 4(5) which might be relevant if a decision were taken not to respond. In the event, the following further amendment to paragraph 1 on page 3 of the text was tabled at the Article 36 meeting on 9 June:

    "If a Member State decides not to conduct an investigation, Europol should in principle, and without prejudice to Article 4(5) of the Europol Convention, be informed of this decision and the reasons for it".

  We have notified the Council Secretariat that we can accept this amendment, assuming its intention is simply to make clear that Member States are not obliged to give reasons for not conducting operations in the circumstances set out in Article 4(5). There may also be situations other than those set out in Article 4(5) in which a Member State would not consider it appropriate to give reasons. The Government's view is that the amendment would similarly not impose any obligation in these other circumstances.

EUROPOL 6

  You also asked why the draft Council Conclusions inviting the Europol Management Board to set out its own views on the practical arrangements for the participation of the Europol officials in joint investigative teams do not include the words "in a support capacity". The Conclusions do not seek to change the basis on which such participation should take place. As they make specific reference to Article 30(2) TEU and to Tampere Conclusion 43, both of which , as you say, make clear that Europol's participation would be "in a support capacity", it was not felt necessary to repeat these words. The Government's view remains that, whilst Europol could have a role to play in joint investigation teams, it would be in a purely support capacity.

7 July 2000


 
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