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Document 51997XG0815

Action plan to combat organized crime (Adopted by the Council on 28 April 1997)

OJ C 251, 15.8.1997, p. 1–18 (ES, DA, DE, EL, EN, FR, IT, NL, PT, FI, SV)

In force

51997XG0815

Action plan to combat organized crime (Adopted by the Council on 28 April 1997)

Official Journal C 251 , 15/08/1997 P. 0001 - 0016


ACTION PLAN TO COMBAT ORGANIZED CRIME (Adopted by the Council on 28 April 1997) (97/C 251/01)

PART I INTRODUCTION

Chapter I Background

1. Organized crime is increasingly becoming a threat to society as we know it and want to preserve it. Criminal behaviour no longer is the domain of individuals only, but also of organizations that pervade the various structures of civil society, and indeed society as a whole. Crime is increasingly organizing itself across national borders, also taking advantage of the free movement of goods, capital, services and persons. Technological innovations such as Internet and electronic banking turn out to be extremely convenient vehicles either for committing crimes or for transferring the resulting profits into seemingly licit activities. Fraud and corruption take on massive proportions, defrauding citizens and civic institutions alike.

In comparison, effective means of preventing and repressing these criminal activities are developing only at a slow pace, almost always one step behind. If Europe is to develop into an area of freedom, security and justice, it needs to organize itself better, and to provide strategic and tactical responses to the challenge facing it. This requires a political commitment at the highest level.

2. The European Council (Dublin 13 and 14 December 1996) underlined its absolute determination to fight organized crime and stressed the need for a coherent and coordinated approach by the Union. It decided to create a High Level Group to draw up a comprehensive Action Plan containing specific recommendations, including realistic timetables for carrying out the work. The Group was requested to examine the fight against organized crime in all its aspects on the clear understanding that it would refer any issues involving Treaty change to the Intergovernmental Conference (IGC) which is addressing Treaty changes in this area as a priority. The Group should complete its work by March/April 1997 (1). The letter of the Chairman of the High Level Group to the Chairman of the IGC containing the results of this examination is set out in an Annex to this report.

3. The High Level Group has held six meetings in pursuance of this mandate. Its findings have led to the drawing up of 15 Political Guidelines and 30 Specific Recommendations, together with a proposed timetable and an indication of where the responsibility for implementation of each recommendation might be considered to lie. These are set out in Part III of this report in the form of a detailed Action Plan.

4. In submitting this Action Plan to the Heads of State and Government, the High Level Group underlines its conviction that the fight against organized crime and terrorism is a never-ending endeavour. The fight must be uncompromising but must always use legitimate means and pay full respect to the principles of the Rule of Law, democracy and human rights, not losing sight of the fact that it is the protection of those values which is the raison raison d'être for fighting organized crime.

Chapter II General approach of the High Level Group

5. In seeking to respond to the high level of urgency and political importance attached by Heads of State and Government to the problem of combating organized crime, as reflected in the Dublin European Council conclusions, the Group has based its approach on the following elements:

(a) full account should be taken of the work already being pursued on this same question nationally, within the European Union itself and in a number of international fora. This has been particularly relevant since some of the most significant of these international fora, notably the P-8 and the Visby Group, involve several European Union Member States. It also means working closely with the countries that are candidates for membership of the Union, with the Union's Transatlantic partners, with other countries such as Russia and the Ukraine and with the major international players active in the fight against organized crime (Interpol, United Nations bodies such as the United Nations International Drug Control Programme (UNDCP) and the Commission on Crime Prevention and Criminal Justice, Council of Europe, the Financial Action Task Force (FATF) etc.);

(b) the Group's recommendations should, however, focus on the particular strengths and objectives of the European Union as such, as set out in the Treaty. This provides its Member States with a range of instruments, resources (including budgetary resources), institutions and mutual commitments not available to any other group of nations seeking to address a problem of this magnitude.

(c) the right balance should be sought between the respective contributions that can be mobilized by practical cooperation on the one hand and approximation or harmonization of laws on the other. The extent to which approximation or harmonization should be a long-term objective of the Union will remain the subject of ongoing study. In the meantime, the Group has sought to establish the degree of approximation or harmonization necessary to ensure the most effective possible framework for practical cooperation;

(d) judicial cooperation needs to be brought up to a comparable level to police cooperation. Otherwise, it will not, in the long run, be possible to enhance further police cooperation without distortions in the system. Therefore, it is necessary to seek to achieve maximum synergy in cooperation between law enforcement (2) and the judiciary;

(e) when it comes to the collection and analysis of data to fight organized crime, the relevant data protection rules have to be taken into account;

(f) prevention is no less important than repression in any integrated approach to organized crime, to the extent that it aims at reducing the circumstances in which organized crime can operate. The Union should have the instruments to confront organized crime at each step on the continuum from prevention to repression and prosecution. It is particularly important that legislation does not invite fraud and other undue exploitation. The Member States and, where applicable, the institution issuing such rules should ensure that this is not the case;

(g) the major driving force behind organized crime is the pursuit of financial gain. This both attracts it into an ever-increasing number of areas of activity where it sees possibilities for economic crime (corruption, counterfeiting, VAT and other fiscal fraud, piracy, fraud against the Community'sfinancial interests) and also faces it with a need to launder the profits thereafter;

(h) organized crime has shown itself well able to turn to its advantage the speed and anonymity offered by modern forms of communication. This is a vast and fast-moving area, deserving of the sustained attention of legislators and law enforcement authorities alike.

Chapter III Means to combat organized crime

6. Taking into account this general approach, the Group has identified the use of the following means, available to the Union, to ensure that the fight against organized crime is carried out in an effective and coordinated manner and that a new impetus is given to the protection of the citizens of the Union:

(a) the Union and its Member States must mobilize its full potential by introducing a maximum level of two-way involvement between those who draw up the initial legislation, often at Community level, and those whose task it is to enforce it in the police, the customs and the judiciary. This implies the full involvement of the Member States as well as the European Commission and a coordinated effort between the first and third pillars of the Union, including a full and reciprocal exchange of relevant information;

(b) in combating organized crime, there is a clear need to 'know your enemy` and to agree on the characteristics which make it both dangerous and, it is hoped, vulnerable. This in turn requires the building up and pooling of analytical expertise, including support from the scientific community, from all Member States and, where appropriate, the European Institutions and Europol. So far as possible, this should be done according to common definitions, common standards and a common methodology with a view to facilitating the recognition of the phenomenon when it appears and the formulation of an effective policy to counter it, including its repression at the level of law enforcement and prosecution;

(c) the adoption, ratification and effective implementation of all instruments directly or indirectly relevant to the fight against organized crime will continue to be an essential part of the Union's armoury. Political input from the European Council is needed to ensure:

- that any remaining obstacles to the finalizing of the texts of unfinished instruments (for example, the draft Conventions on Mutual Legal Assistance and on Corruption as well as the draft Third Protocol to the Convention on the Protection of the European Communities' Financial Interests and the Naples II Convention concerning customs cooperation) are quickly overcome,

- that any necessary ratification procedures are urgently put on the agenda of national parliaments,

- that the necessary implementing measures are rapidly and fully introduced;

(d) there is a need for an effective system to be introduced to monitor the implementation by Member States of all the relevant instruments adopted by the Union to combat organized crime. As far as instruments adopted under Community law is concerned, such a system to some extent exists in the form of the Article 169 procedure which the Commission is responsible for initiating. No comparable system exists under the existing provisions of the Third Pillar. This gap could be filled by drawing on the experiences of, for instance, the FATF;

(e) the problem of imperfect cooperation between the various authorities responsible for law enforcement and prosecution has to be addressed both within and among Member States. Centralized national points are recommended as an addition to, but not a replacement for, existing networks to facilitate exchanges of information between Member States;

(f) it is important to optimize the role Europol might play at each stage of the fight against organized crime. The Europol Convention, as presently drafted, provides scope for a considerable role, and priority must continue to be attached to the rapid ratification and implementation of the Convention, without prejudice to the need to enable the Europol Drugs Unit (EDU) to fully fulfil its mandate. However, following the ratification of the Europol Convention, the Group sees an enhanced role for Europol which is set out in the detailed recommendations and could be seen to go beyond that provided for in the Convention;

(g) To counter money laundering in particular the international community has drawn up a number of conventions, agreements and recommendations (Strasbourg, Vienna, the FATF) which are applied with varying degrees of rigour. The Union and its Member States must be totally rigorous, both in the implementation of the various international instruments to combat money laundering, as well as its own legislation (including the 1991 Directive), and in ensuring the maximum level of cooperation and two-way information exchange between its financial and fiscal institutions and its law enforcement and judicial authorities. This can in turn require adjustments in national procedures and a higher level of specialized training than is currently undertaken.

PART II POLITICAL GUIDELINES

7. The High Level Group recommends the European Council to approve this Action Plan and the time-frame indicated for its realization.

8. Among the recommendations set out in the Action Plan are a certain number which the Group considers appropriate to be drawn to the particular attention of Heads of State and Government, as they require a commitment at the highest level. The High Level Group recommends that the European Council adopts the following recommendations as its own political guidelines:

(1) The Council is requested rapidly to adopt a joint action aiming at making it an offence under the laws of each Member State for a person, present in its territory, to participate in a criminal organization, irrespective of the location in the Union where the organization is concentrated or is carrying out its criminal activity.

Moreover, the European Council calls upon the Council to examine to what extent, and within which priority areas, a possible approximation or harmonization of Member States' laws could contribute to the fight against organized crime.

(2) The European Council urges the early adoption of the Conventions, as listed in Recommendations 13 and 14 in Part III and within the time-frame indicated there, which are considered essential for the common fight against organized crime.

In order to further an effective implementation of the European Union Conventions on Extradition already drawn up, the European Council asks the Member States to take, at national level, the necessary measures to ensure that extradition requests can be dealt with in the most simple and expeditious manner.

In this context, the Council should also examine, taking into account the Member States' undertakings under international treaties, the means to ensure that the right of asylum is not abused to avoid justice by offenders involved in serious crime.

(3) The Council is requested to establish a mechanism, based on the experience with the model developed in the FATF, for mutually evaluating the manner in which instruments concerning international cooperation in criminal matters, are applied and implemented in each of the Member States.

(4) The European Council reiterates that it attaches the greatest importance to an early agreement on the draft Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. The draft should include, among other matters, provisions which aim at rendering reservations made to the Council of Europe Convention on Mutual Assistance in Criminal Matters and its Protocol superfluous in the relations between the Member States. In this context, special attention should be given to the reconsideration of the requirement of double criminality.

(5) The European Council encourages the Council and the Commission to define in common with the candidate countries of Central and Eastern Europe, including the Baltic States, a Pre-accession Pact on cooperation against crime, which shall be based on the acquis of the Union and may include provisions for close cooperation between those countries and Europol and undertakings by those countries to rapid ratification and full implementation of the Council of Europe instruments which are essential to the fight against organized crime.

The European Council stresses the need to develop closer cooperation in the fight against organized crime with other countries such as Russia and Ukraine and asks the Council and the Commission to develop proposals to that end.

(6) The European Council stresses the importance for each Member State to have competent law enforcement agencies coordinate their action, at national level, in the fight against organized crime as well as share information and act in a concerted manner.

(7) Each Member State shall ensure that, in order to facilitate contacts with other Member States, with Europol and with the Commission, it shall have a single contact point providing access to all the law enforcement agencies having a responsibility to fight organized crime.

(8) Similarly, and without prejudice to the need to foster direct contacts between judicial authorities of the Member States, a network for judicial cooperation should be established at the European level. In order to develop this network, each Member State shall set up, where this does not already exist, in accordance with its constitutional structure, a central contact point permitting the exchange of information between national judicial authorities.

(9) Within the Council a permanent multidisciplinary Working Party on organized crime shall be established, consisting of competent authorities, to develop policies to coordinate the fight against organized crime. The setting up in each Member State of comparable multidisciplinary teams with the same tasks and their input into the Council Working Party would facilitate a coordinated approach at a European level.

(10) The European Council reiterates its view that Europol should be given operative powers working together with national authorities. To that end, and without prejudice to the outcome of the IGC, Europol should, as soon as possible, be enabled to:

(i) facilitate and support the preparation, coordination and carrying out of specific investigative actions by the competent authorities of Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;

(ii) ask the competent authorities of the Member States to conduct investigations in specific cases and develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organized crime;

(iii) be instrumental in the collation and exchange of information by the law enforcement agencies of reports on suspicious financial transactions.

Insofar as the legal instruments of the Union have to be changed in order to enable Europol to carry out this mandate, the European Council requests the Council to take the necessary steps rapidly to do so. In the meantime, the European Council stresses the need to enable the EDU to fully fulfil its mandate.

An in-depth study should be carried out with a view to examining the place and the role of judicial authorities in their relations with Europol, in step with the enlargement of Europol's competences.

(11) The European Council stresses the importance for each Member State of having well-developed and wide ranging legislation in the field of confiscation of the proceeds from crime and the laundering of such proceeds. The Council, and the Commission, are requested to develop proposals aiming at a further enhancement of such legislation bearing in mind the importance of:

- introducing special procedures for tracing, seizure and confiscation of proceeds from crime,

- preventing an excessive use of cash payments and cash currency exchanges by natural and legal persons from serving to cover up the conversion of the proceeds from crime into other property,

- extending the scope of the laundering provisions to the proceeds from all forms of serious crime, and making a failure to comply with the obligation to report suspicious financial transactions liable to dissuasive sanctions,

- addressing the issue of money laundering on the Internet and via electronic money products.

(12) The European Council stresses the need for developing closer cooperation, at the national level, between fiscal and law enforcement authorities, in the fight against organized crime. Rules should be examined so that:

- financial centres and offshore facilities subject to the jurisdiction of Member States shall have adequate defences against being used by organized crime,

- in cases linked with organized crime, there is no legal bar to allowing or obliging the fiscal authorities to exchange information with the competent authorities of the Member States concerned, and in particular with the judiciary, while fully respecting fundamental rights,

- fiscal fraud linked with organized crime is treated as any other form of organized crime, notwithstanding that fiscal laws may contain special rules on recovering the proceeds of fiscal fraud,

- disbursements for criminal purposes such as corruption, are not tax-deductible.

Moreover, the prevention and the suppression of organized fiscal fraud such as VAT and excise fraud, including in particular its transnational aspects, should be considerably improved at both national and European level.

(13) The European Council stresses the importance of enhancing transparency in public administration and in businesses and preventing the use by organized crime of corrupt practices. In this context, the Member States, the Council and the Commission, should

- develop, while taking account of work carried out in other international fora, a comprehensive policy to tackle corruption, including appropriate and efficient sanctions, but also tackling all aspects linked with the proper functioning of the internal market and other internal policies, as well as external assistance and cooperation,

- develop rules allowing the exchange of information between Member States with respect to legal persons registered in each Member State and the physical persons involved in their creation, direction and funding, with a view to preventing the penetration of organized crime in the public and legitimate private sector,

- taking necessary steps to allow the exclusion of criminal organizations or their members from participation in tendering procedures, receiving subsidies or governmental licences. Specific attention should be paid to the illicit origin of funds as a possible reason for exclusion from tendering procedures.

Moreover,

- standards should be studied and developed, where necessary, at the European level aimed at preventing the liberal professions and other professions particularly exposed to influences of organized crime, from being involved in such crime or being exploited by criminals. The active assistance of the professional organizations involved should be sought to that end,

- the Union institutions as well as the Member States should, when drawing up legal instruments, emphasize crime prevention aspects in order to ensure that the rules do not invite fraud or other undue exploitation, or in other ways may be used to commit or conceal crime.

(14) The possibilities offered by the structural funds, notably the European Social Fund and the URBAN programme, should be mobilized to prevent large cities in the Union from becoming breeding grounds for organized crime. Particular attention should be given to the circumstances in which socially weakgroups become vulnerable to the prospect of a criminal career. The exchange of information on projects which proved successful in this field should be enhanced.

(15) A cross-pillar study on high-technology crime should be carried out. This study should pave the way for a policy ensuring that law enforcement and judicial authorities have the possibility to prevent and combat the abuse of these new technologies. Special attention should be given to both illegal practices and illegal content.

Moreover, the Council and the Commission should address the issue of fraud and counterfeiting relating to all payment instruments, including electronic payment instruments.

The High Level Group recommends that the European Council should ask the Council to report to it in June 1998 on the progress made in the carrying out of the measures proposed in the Action Plan.

The High Level Group recommends that the European Council should instruct the Council to monitor at regular intervals, for instance through the meetings of the K.4 Committee, progress made in the carrying out of this Action Plan.

PART III DETAILED ACTION PLAN

This Detailed Action Plan translates in operational terms the Political Guidelines in Part II and adds some technical elements to ensure a coherent approach to the fight against organized crime. The Recommendations made in the Detailed Action Plan should be seen as a work programme, indicating the direction which further work by the various Union institutions and bodies shall take, rather than as a legal instrument.

Chapter I An approach to the phenomenon of organized crime

This Chapter draws inspiration from political guidelines Nos 5-7 and 15 set by the European Council.

Recommendations:

1. It is for each Member State to decide on the organization of its own structures to fight organized crime. Nevertheless, the High Level Group considered it appropriate that the European Council should stress the importance of an appropriate coordination between competent agencies at national level (see political guideline No 6). Such a coordination might in particular enable law enforcement agencies better to share information and act in a concerted manner. Therefore, each Member State should examine whether it would be appropriate, in accordance with its constitutional law or practice, to designate a body at national level which would have an overall responsibility for the coordination of the fight against organized crime. It will be for the authorities of the Member State - and for them alone - to draw the consequences of such an examination.

Target date: end of 1997.

Responsible (3): Member States.

2. The Member States, and the Commission, should, where it does not already exist, set up or identify a mechanism for the collection and analysis of data which is so construed that it can provide a picture of the organized crime situation in the Member State and which can assist law enforcement authorities in fighting organized crime. Member States shall use common standards for the collection and analysis of data. The information so collected and analysed shall be organized in such a way that it is readily accessible for investigations and prosecutions at national level and can be effectively used and exchanges with other Member States.

To that end, the Member States and the Commission shall set up a Contact and Support Network to serve as advising mechanism for the collection of data and the analysis at European level. Europol shall be integrated in this work and produce annual reports on the basis of the information from the Member States. The academic and scientific world should be further encouraged to contribute by their studies and research to the understanding of the phenomenon of organized crime.

Target date: mid 1998.

Responsible: Member States/Council/Europol/Commission.

3. The European Council encourages the Council and the Commission to define in common with the candidate countries of Central and Eastern Europe, including the Baltic States, a Pre-accession Pact on cooperation against crime, which may include provisions for close cooperation between these countries and Europol and undertakings for the rapid ratification and full implementation of the Council of Europe instruments which are essential to the fight against organized crime (see political guideline No 5). The Pact should be based on the acquis of the Union in the field of organized crime and form part of the pre-accession strategy in which the potential of the existing instruments such as the Phare programme should be fully explored. In the discussions with the candidate countries, the need should be underlined for them to reach a standard which is comparable to that of the Member States of the Union, in particular as regards undertakings contained in international instruments such as those relating to terrorism. In this context, it should be examined whether these countries could be associated with some of the activities of the Multidisciplinary Party on Organized Crime.

Target date: end 1998.

Responsible: Council/Commission.

4. Separate from the discussions on a Pre-accession Pact, it is necessary to develop closer cooperation with other countries and international organizations and bodies involved in the fight against organized crime. In particular relations with the Union's Transatlantic partners as well as with Russia and Ukraine need to be developed, the latter two for instance through the Tacis programme. Concrete proposals for closer cooperation, for instance through the intermediary of Europol, should be developed by the Council and the Commission (see political guideline No 5).

Target date: end 1998.

Responsible: Council/Commission.

5. A cross-pillar study on high-technology crime and its use and links with organized crime should be carried out within the Union (see political guideline No 15). This study should pave the way for a policy ensuring an efficient public protection. While avoiding undue restrictions, law enforcement and judicial authorities should have the means, as a complement to the specific responsibilities incumbent on the technology and service-providers, to prevent and combat the misuse of these new technologies. Attention should be paid both to illegal practices (such as the use of these technologies by criminal organizations to facilitate their activities) or illegal contents (such as child pornography or dissemination of synthetic drug recipes).

Target date: end 1998.

Responsible: Commission/Europol/Council.

Chapter II Prevention of organized crime

This Chapter draws inspiration from political guidelines Nos 13-14 set by the European Council.

Recommendations:

6. A comprehensive policy against corruption should be developed, taking into account the work already carried out also in other international fora, in order to enhance the transparency in public administration, at the level of both the Member States and the Communities (see political guideline No 13). This policy should primarily focus on elements of prevention, addressing such issues as the impact of defective legislation, public-private relationships, transparency of financial management, rules on participation in public procurement, and criteria for appointments to positions of public responsibility, etc. It should also cover the area of sanctions, be they of a penal, administrative or civil character, as well as the impact of the Union's policy on relations with third States.

Target date: mid 1998.

Responsible: Commission/Council/Member States.

7. The Member States and the European Commission should ensure that the applicable legislation provides for the possibility for an applicant in a public tender procedure who has committed offences connected with organized crime to be excluded from the participation in tender procedures conducted by Member States and by the Community. In this context it should be studied whether and under what conditions persons who are currently under investigation or prosecution for involvement in organized crime could also be excluded. Specific attention should be paid to the illicit origin of funds as a possible reason for exclusion. The decision of exclusion of the person from participation in the tender procedure should be capable of being challenged in court.

Similarly, the Member States and the Commission should ensure that the applicable legislation provides for the possibility of rejecting, on the basis of the same criteria, applications for subsidies or governmental licences (see political guideline No 13).

Appropriate Community instruments and instruments of the European Union, enabling inter alia exchange of information among Member States and between Member States and the Commission, and containing specific provisions relating to the role of the Commission both in administrative cooperation and the setting up of black-lists, should be drawn up to ensure that these commitments can be carried out, while ensuring conformity with the relevant rules relating to data protection.

Target date: end 1998.

Responsible: Member States/Commission.

8. Member States shall, with respect to legal persons registered in their territory, seek to collect information, in compliance with the relevant rules relating to data protection, with respect to the physical persons involved in their creation and direction, as well as their funding, as a means to prevent the penetration of organized crime in the public and legitimate private sector. It should be studied how such data could be systematically compiled and analysed and be available for exchange with other Member States and, where appropriate, with bodies responsible at Union level for the fight against organized crime, on the basis of appropriate rules to be developed by the Council (see political guideline No 13).

Target date: end 1998.

Responsible: Member States/Council/Commission.

9. The possibilities offered by structural funds, notably the European Social Fund in the context of action to assist the labour market, and the Urban programme, should be mobilized to prevent large cities in the Union from becoming breeding grounds for organized crime. Those funds can help those most at risk of exclusion from the labour market and thus alleviate the circumstances that could contribute to the development of organized crime. Particular attention should be given to groups not fully integrated in society, since these may be vulnerable targets for criminal organizations. The exchange of information on projects which proved successful in this field should be enhanced. The results of the annual consultations of Chiefs of police from the capitals of Member States should be taken into account in this context (see political guideline No 14).

Target date: end 1998.

Responsible: Commission/Member States.

10. The Member States should consult regularly the competent services of the Commission with a view to analysing cases of fraud affecting the financial interests of the Community, and deepening the knowledge and understanding of the complexities of these phenomena within existing mechanisms and frameworks. If necessary, additional mechanisms shall be put in place with a view to arranging such consultations on a regular basis. In this context, future relations between Europol and the Commission's anti-fraud unit (Uclaf) should be taken into account.

Target date: end 1997.

Responsible: Member States/Commission/Europol.

11. The Council should adopt a joint action establishing a specific multi-annual programme to combat organized crime, including fraud affecting the financial interests of the Communities, permitting specific actions in the fields of training for key players responsible for preventive policies, exchanges of information, research, and other forms of improving skills and operational methods.

Target date: end 1997

Responsible: Council/Commission.

12. Measures to shield certain vulnerable professions from influences of organized crime should be developed, for instance through the adoption of codes of conduct. A study should propose specific measures, including legislative action, to prevent notaries, lawyers, accountants and auditors from being exploited or getting involved in organized crime and ensure that their professional organizations are engaged in the establishment and enforcement of such codes of conduct at the European level (see political guideline No 13).

Target date: mid 1998 and, possibly, joint action mid 1999.

Responsible: Council/Commission/Member States (in cooperation with the professional organizations concerned, e. g. the Council of the Bars and Law Societies of the European Community (CCBE)).

Chapter III Legal instruments, scope, implementation

This Chapter draws inspiration from political guidelines Nos 1-5 and 15 set by the European Council.

Recommendations:

13. Member States consider that the conventions mentioned below and in recommendation 14 are essential to the fight against organized crime (see political guideline No 2). Those States which have not yet ratified them should make proposals to their Parliaments with a view to a speedy ratification within the given timetable. Should any convention not have been ratified by the set target date, they shall report to the Council in writing on the reasons therefor every six months until the convention has been ratified.

If a Member State has not ratified a convention within a reasonable time for any given reason, the Council shall assess the situation with a view to solving it. As part of the Pre-accession Pact (see political guideline No 5) to be defined with the candidate countries of Central and Eastern Europe, including the Baltic States, undertakings should be sought from these countries of a similar character.

1. European Convention on Extradition, Paris 1957.

2. Second Protocol to the European Convention on Extradition, Strasbourg 1978.

3. Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg 1978.

4. Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg 1990.

5. Convention on Mutual Assistance between Customs Administrations and Protocol thereto, Naples 1967.

6. Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Strasbourg 1995.

7. Convention on the Fight against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna 1988.

8. European Convention on the Suppression of Terrorism, Strasbourg 1977.

Target date: end 1998.

Responsible: Member States.

14. The following European Union conventions should each be ratified (see political guideline No 2) by the target dates set out below, while taking into account availability of explanatory reports, where applicable. When drawing up new conventions, the Council should set a target date for their adoption and implementation in accordance with the constitutional requirements of the Member States.

1. Convention on simplified extradition procedure between the Member States of the European Union - end 1998.

2. Europol Convention - end 1997 as an absolute latest date.

3. Convention on the Protection of the European Communities' Financial Interests - mid 1998.

4. Convention on the Use of Information Technology for Customs Purposes - end 1998.

5. Convention relating to Extradition between the Member States of the European Union - end 1998.

6. Protocols to the Convention on the protection of the European Communities' Financial Interests - mid 1998.

Responsible: Member States/Council.

Moreover, all efforts should be made to ensure that current discussions on draft instruments, and in particular those relating to the draft Third Protocol to the Convention on the Protection of the European Communities' Financial Interests, the draft Convention on Corruption and the so-called Naples II draft Convention on customs cooperation are finalized by the end of 1997.

Responsible: Council.

15. A mechanism should be established, based on the experience with the model developed in the FATF, to mutually evaluate the application and implementation at national level of the European Union and other international instruments and undertakings in criminal matters as well as ensuing national law, policies and practices (see political guideline No 3). Such a mutual 'peer-evaluation` should as a priority be carried out in respect of judicial cooperation and, could, if the experience proves positive, be extended to other areas of implementation.

The evaluation should be based on the following principles: parity of the Member States, mutual trust, pre-established scope and criteria for the evaluation in the form of a self-evaluation and, in respect of the mutual evaluation procedure, check-lists and an assurance that experts from all Member States will participate, at some stage, in the evaluation process. The results of the evaluation shall remain confidential unless the Member State concerned wishes to make them public.

Target date: end 1997/mid 1998.

Responsible: Council/Member States/Commission.

16. In order to render judicial cooperation in the fight against organized crime more efficient, the ongoing work on a draft Convention on Mutual Assistance in Criminal Matters should be finalized before the end of 1997 (see political guideline No 4). As soon as possible, the content of the Convention should be enlarged, while taking into account the necessity to accelerate procedures for judicial cooperation in matters relating to organized crime and considerably reducing delay in transmission and responses to requests.

Instruments adopted by the Council regarding individuals who cooperate with the judicial process and on the protection of witnesses as well as the specific needs of police cooperation connected with pre-trial investigations and judicial cooperation in certain countries should be considered.

Specific consideration to the needs to fight organized crime should be given in the ongoing work on a draft Convention. To this end, the competent working party should examine how:

(a) reservations entered with regard to the 1959 European Convention on Mutual Assistance and its Protocol can be rendered superfluous among Member States of the European Union, for instance by including provisions in the draft providing for the safeguarding of principles of non bis in idem, by reconsidering requirements of double criminality or by making use of the right of refusal under the Convention only in cases where the request is likely to prejudice the sovereignty, security, public order, or other essential interests of the Member State;

(b) a legal basis could be created for the trans-boundary application of certain modern investigative methods, such as controlled delivery, deployment of undercover agents and the interception of various forms of telecommunications.

Target date: end 1997/mid 1998.

Responsible: Member States/Council.

17. The Council is requested rapidly to adopt a joint action aiming at making it an offence under the laws of each Member State for a person, present in its territory, to participate in a criminal organization, irrespective of the location in the Union where the organization is concentrated or is carrying out its criminal activity (see political guideline No 1). Such an offence could consist in the behaviour described in Article 3(4) of the Extradition Convention, adopted by the Council on 27 September 1996. Since legal traditions differ among Member States, it could be considered acceptable, for a limited period of time, that not all Member States will be able to sign up immediately to the agreed definition.

Target date: end 1997.

Responsible: Council.

Moreover, the Council should examine to what extent, and within which priority areas, a possible approximation or harmonization of Member States' laws could contribute to the fight against organized crime. The study should in particular make concrete proposals as to the areas which could be considered as priority areas and assess the practical effects in the fight against organized crime of an approximation or harmonization of the laws of the Member States in those areas.

Target date: end 1999.

Responsible: Council.

18. Furthermore, the following specific starting points for future discussions on organized crime, most of them agreed by the Council in the 1993 report on organized crime should be established, while taking account of the rights of indivifuals and in particular the alleged offender and bona fide third parties:

a) combating those forms of crime which affect the Communities' financial interests in close cooperation between the Member States and the Commission;

b) liability of legal persons should be introduced where the legal person has been involved in organized crime;

c) fairly long time limits for prosecution of serious offences connected with organized crime should be provided for;

d) addressing the issue of fraud and counterfeiting relating to all payment instruments including electronic payment instruments (see political guideline No 15).

Target date: end 1998.

Responsibile: Council/Member States/Commission.

Chapter IV Practical cooperation between police, judicial authorities and customs in the fight against organized crime

This Chapter draws inspiration from political guidelines No 6-9 set by the European Council.

Recommendations:

19. Central national contact points, where they do not already exist, should be designated, while fully respecting the constitutional structure of each Member State, in order to speed up the exchange of information and the completion of application procedures for law enforcement cooperation, wherever a national authority in a Member State considers that it would be more efficient to direct itself to a central contact point instead of making direct contact with the authority in another Member State (see political guideline No 7). With regard to the Europol Convention, the central national unit referred to therein should be the contact point on behalf of all law enforcement authorities in the Member States. It is advisable that existing contact points, such as the Interpol NCB, Sirene bureaux, etc. should be brought together in this central contact point, or least, that close relations between such units should be established.

These contact points should serve as an interface in bringing the competent authorities in the Member States and the Commission into contact with each other rapidly. A second function of these contact points might be to act as a national focus point for information to law enforcement agencies on national legislation, jurisdiction and procedures. The relevant information concerning these central contact points shall be kept by the General Secretariat of the Council and shall be regularly updated.

Target date: end 1997.

Responsible: Member States/Council/Commission.

20. Political guideline No 6 underlines the importance of coordination between competent law enforcement authorities at national level. Therefore, while taking into account constitutional structures and national traditions, and taking into account the fact that each Member State decides on its own internal structures, it is advisable that multidisciplinary integrated teams should be set up at national level, if they do not already exist, specifically in the area of organized crime (see political guideline No 6 and 9). Unlike the contact points referred to in Recommendation No 19, the primary function of which is to facilitate contacts and to relay information to other Member States, these coordinating teams should have sufficient insight into national criminal investigations to be able to contribute to the development of national policies in the fight against organized crime.

These teams could discuss the results of Europol's analyses with a view to initiating large-scale joint multidisciplinary investigations involving two or more Member States. Given the broad range of tasks involved, it is necessary to ensure an efficient coordination between the investigating authorities and the judicial authorities. In the interests of smooth cooperation, it is advisable that the national contact points and the multidisciplinary integrated team cooperate very closely with one another.

Target date: mid 1998.

Responsible: Member States/Europol/Commission.

21. While taking into account national legal systems, safeguarding judicial independence and taking into account the fact that each Member State decides on its own internal structures, the Member States should seek to pool their resources at European level by setting up a network for judicial cooperation. The network should be given a special mandate and consist of practitioners having extensive practical experience in fighting organized crime. In this context, the study being conducted by the Belgian authorities under the Grotius programme in the setting up of a judicial contact network may be examined (see political guideline No 8).

In order to develop this network, each Member State should designate a central contact point permitting the exchange of information between national judicial authorities, while fully respecting safeguards provided for by national law.

This network shall be given the appropriate logistical support by the Third Pillar structures, to discuss questions of practical judicial cooperation and it shall act as a clearing house, problem-solver and contact maker between judicial authorities at national level (4).

An in-depth study should be carried out with a view to examining the place and the role of judicial authorities in their relations with Europol, in step with the enlargement of Europol's competences (see political guideline No 10). In that context, and if the experience of the network proves to be positive, it could in the future be examined whether it should in the long term be transformed into a more permanent structure, which could become an important interlocutor of Europol.

Target date: mid 1998.

Responsible: Council.

22. Within the Council, a multidisciplinary Working Party on Organized Crime, should be established within the Third Pillar structures, consisting of competent high level authorities, for the purpose of developing policy orientations to coordinate the fight against organized crime. At the same time, the Working Group on International Organized Crime, set up under Steering Group III, should be abolished and the Working Group on Drugs and Organized crime should either limit its remit to drugs issues relevant to tasks performed in accordance with Article K of the Treaty or be abolished. Coreper is requested to examine the matter with a view to taking a decision.

The fact that the multidisciplinary working party has been established should not hinder items relating for instance purely to police cooperation against organized crime being dealt with by other Council working groups. It is a matter for the K4 Committee to decide on the appropriate coordination between working groups under its responsibility.

The new Working Party on Organized Crime, to be attended by competent authorities such as representatives of comparable coordination teams wherever such teams have been designated, or at least with the input of such teams, together with officials involved in policy-making and representatives of Europol, could be assigned the task of pinpointing, on the basis of assessment of practical cooperation, difficulties resolvable only by means of political decision-making, and design the strategies and policies of the Union in the fight against organized crime and prepare matters which require decisions at a high level. Examples that come to mind are decisions on new instruments (for instance relating to practical police cooperation), priorities in tackling organized crime and other forms of agreements needed for the efficient fight against organized crime.

Target date: end 1997.

Responsible: Council/Coreper.

Chapter V Development of a fully-fledged Europol and extension of Europol's mandate and tasks

This Chapter draws inspiration from political guidelines No 5 and 10 by the European Council.

Recommendations:

23. The Member States and the Council should take all necessary preparatory and budgetary measures with a view to enable Europol to take up its activities at the latest by mid 1998.

Responsible: Member States/Council.

24. The possibilities for Europol to cooperate and liaise with third countries and international organizations should be elaborated. To that end, the Council should draw up one or more suitable legal instruments which ensure that contacts may be entertained with the Commission and third countries which are the most important partners for the Member States in the fight against organized crime, with relevant international organizations such as Interpol and the World Customs Organization (WCO).

Target date: end 1999.

Responsible: Member States/Council/Europol.

25. Without prejudice to the outcome of the IGC, Europol's mandate and tasks will, as soon as possible, be further developed, taking into account the decision of the Heads of State and Government at the Dublin Summit, to include the following:

(a) Europol should be enabled to facilitate and support the preparation, coordination and carrying out of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity. The legislation of each Member State will determine which authority is competent, be they police, customs or judicial authorities;

(b) Europol should be allowed to ask Member States to conduct investigations in specific cases. Europol could in this respect take the initiative of drawing the attention of the competent authorities of one or more Member States to the importance of having certain matters investigated, although such an initiative would not oblige the Member State(s) concerned to take action as requested;

(c) Europol should develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organized cross-border crime (see political guideline No 10);

(d) Full use should be made of possibilities of Europol in fields of operational techniques and support, analysis and data analyses files (for instance registers on stolen cars or other property). The development of operational techniques could take the form of studies of practices at national and Union level and their effectiveness, and the development of common strategies, policies and tactics. The development of operational support could, inter alia, take the form of the organization of meetings, the development of common action plans and their implementation, strategic analyses, facilitating information and intelligence exchange, analytical support for multilateral national investigations, technical and tactical support, legal support, offering technical facilities, development of common manuals, facilitating training, evaluation of results and giving advice to the competent authorities of the Member States;

(e) Access by Europol may be sought to the Schengen Information System or its European successor.

The Council will need to assess, without prejudice to the rapid ratification and implementation of the Europol Convention, whether the development of the role of Europol requires amendment to the Convention, and, if so, immediate steps should be taken. In the meantime, the EDU should be able of fully fulfil its mandate.

An in-depth study should be carried out with a view to examining the place and the role of judicial authorities in their relations with Europol, in step with the enlargement of Europol's competences.

Target date: end 1998.

Responsible: Member States/Council/Europol.

Chapter VI Organized crime and money

This Chapter draws inspiration from political guidelines No 5, 10-12 set by the European Council.

Recommendations:

26. In the field of money-laundering and confiscation of the proceeds from crime, the following measures should be envisaged:

(a) to improve the international exchange of police data, it is necessary to set up a system for exchanging information concerning suspected money-laundering at the European level, in conformity with the relevant rules relating to data protection. To this end, the Europol Convention should be supplemented with a provision permitting Europol to be instrumental therein (see political guideline No 10);

(b) criminalization of laundering of the proceeds of crime should be made as general as possible, and a legal basis should be created for as broad as possible a range of powers of investigation into it. The opportunity of extending laundering to negligent behaviour should be examined. A study should be undertaken with a view to strengthening the tracing and seizure of illegal assets and of the enforcement of court decisions on the confiscation of assets of organized crime (see political guideline No 11);

(c) confiscation rules should be introduced which enable confiscation regardless of the presence of the offender, such as when the offender has died or absconded (see political guideline No 11);

(d) there should be a study of the possibility to share, at the level of Member States, assets, confiscated following international cooperation (see political guideline No 11);

(e) the reporting obligation in Article 6 of the Money-Laundering Directive should be extended to all offences connected with serious crime and to persons and professions other than the financial institutions mentioned in the Directive. Member States should examine the opportunity of making the failure to report suspicious transactions liable to dissuasive sanctions (see political guideline No 11). At the same time, fiscal authorities should be subjected in the national law to a similar reporting obligation for transactions connected with organized crime, at least for transactions relating to VAT and excise. Cooperation between contact points under the Directive need to be improved;

(f) addressing the issue of money-laundering on the Internet and via electronic money products and requiring, in electronic payment and message systems, that the messages sent give details of the originator and the beneficiary (see political guideline No 11);

(g) preventing an excessive use of cash payments and cash exchanges by natural and legal persons from serving to cover up the conversion of the proceeds from crime into other property (see political guideline No 11);

Moreover, the Council and the Commission should consider in the light of existing national and international instruments the need to put in place common provisions to combat organized crime in the fields of economic and commercial counterfeiting as well as counterfeiting and falsification of banknotes and coins in view of the introduction of the single currency.

Target date: end 1998.

Responsible: Council/Europol/Commission.

27. Adequate legislation, and public awareness, particularly in the financial sector, to combat money-laundering and other forms of financial crime is necessary for potential members of the Union. This subject should be given high priority in the structured dialogue and programmes such as Phare. The need for the countries concerned to join international commitments in this field, and in particular the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime, should also be addressed in the Preaccession Pact on cooperation against crime (see political guideline No 5).

Target date: end 1999.

Responsible: Council/Commission.

28. A study should be undertaken on the basis of practical experiences as to what extent legislation of the Member States relating to criminal proceedings and procedures for international cooperation in the tracing, seizure and confiscation of assets from crime, and financial investigations for that purpose, should be further developed.

Target date: end of 1999.

Responsible: Member States/Commission.

29. Legislation to combat organized crime in connection with fiscal fraud should be developed in conformity with the relevant rules relating to data protection (see political guideline No 12). To this end the following should be examined so that:

- in cases linked with organized crime, there should be no legal bar to allowing or obliging the fiscal authorities to exchange, at the national level, information with the competent authorities of the Member State concerned, and in particular not with the judiciary, while fully respecting fundamental rights,

- fiscal fraud linked organized crime should be treated as any other form of organized crime, notwithstanding that fiscal laws may contain special rules on recovering the proceeds of fiscal fraud,

- disbursements for criminal purposes such as corruption, should not be tax deductible,

- the prevention and suppression of organized fiscal fraud such as VAT and excise fraud, including its transnational aspects, should be improved at both the national and the European level.

Target date: end of 1998.

Responsible: Member States/Council/Commission.

30. Member States should examine how to take action and provide adequate defenses against the use by organized crime of financial centres and off-shore facilities, in particular where these are located in places subject to their jurisdiction. With respect to those located elsewhere, the Council should develop a common policy, consistent with the policy conducted by Member States internally, with a view to prevent the use thereof by criminal organizations operating within the Union (see political guideline No 12).

Target date: 1998.

Responsible: Member States/Council/Commission.

(1) It is recalled that the European Council also welcomed the report made by the Irish Presidency on stepping up the fight against organized crime (see 11564/4/96 CK4 53, REV 4) and asked the Council to reinforce its Secretariat, in order to implement rapidly the measures proposed in the report.

(2) Where this Action Plan mentions law enforcement agencies, it includes, where appropriate, its financial regulators as well as customs agencies even if in a particular Member State they are not considered to be a law enforcement agency.

(3) Each recommendation given an indication of the body or bodies to be considered responsible for implementation. In each case it is clearly understood that the body or bodies concerned will exercise that responsibility within its competences as laid down in the Treaty on European Union.

(4) See the document approved by the Dublin European Council, CK4 53, REV 4.

ANNEX

Letter from the High Level Group to the IGC

The High Level Group, created by the European Council (Dublin, 13 and 14 December 1996), and tasked to examine the fight against organized crime in all its aspects, has also been requested to refer any issues involving Treaty change to the Intergovernmental Conference.

The High Level Group has, at its meeting on 9 April 1997, adopted an Action Plan containing political guidelines to be endorsed by the European Council (Amsterdam, 16 and 17 June 1997), as well as a detailed action plan which, as necessary, translates the political guidelines into a work programme to be implemented by the Union and its Member States. The Action Plan is in an Annex to this letter.

In adopting the report, sometimes after lengthy discussions on certain points, the High Level Group agreed that the consensus reached was without prejudice to any positions delegations might take in the Intergovernmental Conference. This is true in particular with a view to certain proposals already on the table in the Intergovernmental Conference.

First of all, it was felt that a distinction should be made between recommendations of the Group to the European Council that could require Treaty change, and recommendations which might be implemented on the basis of the present Treaty, but might be translated into provisions of the new Treaty, in order for the Treaty to better reflect the priority that the Union is to give to the fight against organized crime.

Secondly, whilst the Group on a number of occasions touched upon the question of improving the effectiveness of European cooperation in the field of Justice and Home Affairs, it felt that it should not focus on questions of a primarily institutional character, such as decision-making and instruments of the Union. While these questions are of considerable importance also for the Union's ability to fight against organized crime, the Group abstained from taking a position since these questions are under consideration in the IGC anyway.

In the political guidelines presented by the Group, it is recommended that Europol be granted operative powers as defined in political guideline No 10. The Group invites the Intergovernmental Conference to consider whether this requires a change of Article K.1.9. of the Treaty and to act accordingly.

Some other recommendations, whilst not necessarily leading to Treaty change, might still be even better implemented if the future Treaty were to provide for a legal and institutional basis. This is the case for political guideline No 3, which calls for a mutual evaluation mechanism of the application and implementation of instruments concerning international cooperation in criminal matters. Moreover, political guideline No 5 stresses the need for closer cooperation in the fight against organized crime with relevant third countries. Such cooperation might equally merit a reflection in the Treaty.

The deliberations of the Group as reflected in Chapters II and III might provide even further material for consideration by the IGC. This is particularly the case with regard to the need to bring practical judicial cooperation to a comparable level with police cooperation.

The Group has spent some time discussing the contribution that legislative approximation or harmonization might offer to the fight against organized crime. It limited itself to a political guideline related to criminal organizations (namely political guideline No 1), with a view to ensuring the most effective possible framework for practical cooperation. The Intergovernmental Conference will note that in the opinion of the Group, the question whether approximation or harmonization of Member States' laws could contribute to the fight against organized crime, is a matter to be examined (namely political guideline No 1).

Close coordination, both at the national and the Union level, between the various agencies (police, justice, customs) that take part in the fight against organized crime is considered by the Group to be of paramount importance. Although such coordination is primarily to be achieved through organizational measures, it might merit to be reflected in the Treaty as a matter of principle.

The same applies to the notion of prevention as a necessary corollary to repression. As the report states at various places (namely political guideline No 13), prevention (notably in the area of corruption, fraud and money-laundering) requires not only increased efforts by Member States and closer cooperation between them at European Union level but also full exercise of the Union's possibilities in the first pillar.

Finally, given the overall need for the Union to organize itself better in the fight against organized crime in all its forms, the phenomenon should be mentioned as such among the objectives of the Union's cooperation in the third pillar.

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