32000F0503

The Prevention and Control of Organised Crime:

A European Union Strategy for the beginning of the new Millennium

(2000/C 124/01)

The Amsterdam European Council, meeting on 16 and 17 June 1997, approved an action plan to combat organised crime.

During the brief period the action plan has been in force, substantial progress has been achieved in developing and implementing measures designed to prevent and control organised crime against the European Union and its Member States. Examples of this progress are that a mutual evaluation mechanism has been established to identify problems in implementation of measures and a first round of evaluation has been successfully launched, a European Judical Network, equipped with a telecommunications network, has begun to work to streamline international cooperation, a contact and support network has been established to further improve the annual situation reports on organised crime, joint actions have been adopted on the Falcone programme, on money laundering and asset tracing, on the criminalisation of participation in a criminal organisation and on best practices in mutual assistance, a pre-accession pact has been developed with the candidate countries, and further measures have been identified in respect of, for example, prevention of organised crime and the European Union strategy against high-tech crime. The Union has made its voice heard in the negotiations at the UN on the draft Convention on Transnational Organised Crime and in the Council of Europe on the draft Cyber-Crime Convention.

This substantial progress has to a large extent been due to the specificity of, and timetables contained in, the action plan. The strong consensus reached by Member States on the plan of action helped to create the political and professional climate required at both EU level and national level to take and implement the necessary decisions. National experts attached to the Council Secretariat contributed significantly to the implementation.

The Vienna European Council in December 1998 called for a strengthening of EU action against organised crime in the light of the new possibilities opened by the Amsterdam Treaty. Paragraph 47 of the 1998 Action Plan adopted by the Vienna European Council calls for finalisation of the 1997 action plan, evaluation of its implementation and consideration of a follow-up.

Paragraph 43 and the following paragraphs of the 1998 Action Plan provide some additional elements which have a direct bearing on an EU strategy against organised crime. Further elements are contained in the Council resolution on 21 December 1998 on the prevention of organised crime, or have been brought by other developments (for example the recommendations emerging in connection with the work on the annual situation reports, and the work on joint positions on the proposed UN Convention against Transnational Organised Crime and its Protocols, and on the proposed Council of Europe Cyber-Crime Convention).

The Tampere European Council, meeting on 15 and 16 October 1999, noted that people have the right to expect the European Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the European Union. The joint mobilisation of police and judicial resources is needed to guarantee that there is no hiding place for criminals or the proceeds of crime within the European Union (Presidency Conclusion No 6.) The Tampere European Council further noted that it was deeply committed to reinforcing the fight against serious organised and transnational crime. The high level of safety in the area of freedom, security and justice presupposes an efficient and comprehensive approach in the fight against all forms of crime. A balanced development of European Unionwide measures against crime should be achieved while protecting the freedom and legal rights of individuals and economic operators (Presidency Conclusion No 40).

The Tampere European Council established milestones for the creation of an area of freedom, security and justice in the European Union. One of the three main issues covered was the European Unionwide fight against crime. A number of the conclusions have a direct impact on further work on the prevention and control of organised crime.

At present, these elements as such remain rather disparate, and do not constitute a clear and coherent strategy for the European Union in this field. In line with the mandate of the Vienna European Council to consider a follow-up to the 1997 Action Plan, the different elements should be brought together into one document, with a specification of what action should be carried out and with what priority, who should have responsibility, and in accordance with what timetable.

In the present document, the various elements have been brought together and grouped by their general purpose. An attempt has also been made to place the draft recommendations in the context of developments within the European Union. The draft recommendations should be assessed in the light of the totality of what should be done, and of the priorities in the light of the available resources. The goal should be an integrated EU strategy to prevent and control organised crime, a strategy that sets priorities and clear target dates for the conclusion of action points, and allocates responsibility for their implementation.

The European Parliament was informed by the Finnish Presidency of the ongoing discussions in the Council through a letter by the President of the Council on 21 December 1999.

PART 1

BACKGROUND

The European Council, meeting at Vienna in December 1998, called for the Union to strengthen EU action against organised crime in the light of the new possibilities opened up by the Amsterdam Treaty. The present document responds to this request.

The level of organised crime in the EU is increasing. The contributions of Member States to the annual organised crime situation report provide evidence of this phenomenon and of the multifaceted way in which organised crime is infiltrating into many aspects of society throughout Europe.

Organised criminal activity is dynamic by nature. It need not be confined to rigid structures. It has shown itself to have the capacity to be entrepreneurial, business-like and highly flexible in responding to changing market forces and situations.

Organised criminal groups are generally not confined by national borders. They often form partnerships within and outside the territory of the European Union, either with individuals or with other networks for the commission of single or multiple offences. These groups appear to be becoming increasingly involved in the licit as well as the illicit market, using non-criminal business specialists and structures to assist them in their criminal activities. Moreover, they are taking advantage of the free movement of money, goods, personnel and services across the European Union.

As a result of the increased sophistication of many organised criminal groups, they are able to utilise legal loopholes and differences between Member States, exploiting the anomalies in the various systems.

Although the threat from organised crime groups outside the territory of the European Union appears to be increasing, it is the groups that originate and operate throughout Europe, composed predominantly of EU nationals and residents, that appear to pose the significantly greater threat. These groups are strengthening their international criminal contacts and targeting the social und business structure of European society for example through money laundering, drug trafficking and economic crime. They appear to be able to operate easily and effectively both within the European arena and in other parts of the world, responding to illegal demand by acquiring and supplying commodities and services ranging from drugs and arms to stolen vehicles and money laundering. Their concerted efforts to seek to influence and hamper the work of law enforcement and the judicial system illustrate the extent and professional capability of these criminal organisations.

This calls for a dynamic and coordinated response by all Member States, a response that not only takes into account national strategies but also seeks to become an integrated and multidisciplinary European strategy. Addressing the ever-changing face of organised crime requires that this response and strategy remain flexible.

The threat of national and international organised crime requires concerted action by the Member States of the European Union, and by the European Union itself, under the first, second and third pillars. Building on the Action Plan approved by the European Council at Amsterdam in 1997(1), the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, approved by the European Council at Vienna in 1998(2), and the conclusions of the European Council in Tampere held on 15 and 16 October 1999, the attached strategy sets out the framework for the work of the Council, the Commission, Europol, the European Judicial Network and the Member States in responding to this challenge.

PART 2

POLITICAL GUIDELINES AND DETAILED RECOMMENDATIONS

CHAPTER 2.1: Strengthening the collection and analysis of data on organised crime

Political guideline

The EU strategy should be based on reliable and valid data on organised crime and on offenders.

Existing mandates and initiatives

In accordance with recommendation 2 of the Action Plan to combat organised crime (referred to in the following as the 1997 Action Plan), Europol has produced annual reports on organised crime based on data provided by Member States. These have been used by the Council in the formulation of a common policy against organised crime. Paragraph 44(d) of the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security und justice (referred to in the following as the 1998 Action Plan), calls for the development of these annual reports on organised crime with a view to defining strategies. Paragraph 48(a)(iii) of the 1998 Action Plan, in turn, calls for the improvement of statistics on cross-border crime.

The mutual evaluation process that is being conducted on the basis of the Joint Action adopted by the Council on 5 December 1997 and of paragraph 47(c) of the 1998 Action Plan should also contribute to this process.

Europol has sought to develop an intelligence model that can be used, inter alia, to identify trends in organised crime.

The Commission has announced its intention to submit a proposal for closer alignment of the data gathered by national law enforcement and security agencies on suspected offences and offenders, including on suspected offences and offenders when there is a reasonable suspicion that organised crime is involved (the Euclid programme). The proposal seeks, in line with recommendation 2 of the 1997 Action Plan, to set out common standards for the collection and analysis of data, identify who should have access to different categories of data, and identify how this data can be used and exchanged between Member States.

The Commission has used the Falcone and other relevant European Union programmes, within the framework of the rules applicable to them, to encourage the closer involvement of the academic and scientific world in the analysis of organised crime. This is also in line with recommendation 2 of the 1997 Action Plan. It can also be seen to be in line with paragraph 22 of the Council Resolution of 21 December 1998 on the prevention of organised crime (referred to in the following as the 1998 Council Resolution on prevention), which encourages Member States and relevant institutions to use appropriate Community programmes also for activities related to the prevention of organised crime.

Analysis

Continued work is needed to improve the validity, reliability and international comparability of data on organised crime, and on the annual situation reports. In this connection, a uniform concept of collection and use of data on organised crime and related phenomena should, to the maximum extent possible, be established so that a practical strategic analysis can be made, leading to the adoption of the most appropriate control measures to combat and prevent organised crime.

A more proactive, intelligence-led approach is needed to detect and interrupt organised criminal activities, apprehend the offenders, demolish the criminal networks, and seize and confiscate the proceeds of crime. The targeting of investigation and the planning of the response of society to organised crime requires knowledge of the profile, motives and modus operandi of the offenders, the scope of and trends in organised crime, the impact of organised crime on society, and the effectiveness of the response to organised crime. This knowledge includes operational data (data related to individual suspected and detected cases) and empirical data (qualitative and quantitative criminological data). The timely and effective exchange of data between the various authorities should be ensured, with due respect to data protection.

Improved data on organised crime can also help Member States and the Council in the planning of crime prevention and, through this, in best protecting the potential victims of crime. Such improved data can be obtained in particular by supplementing the descriptions of the way in which offences were committed and where they were committed, and in general through improvements in the utility of the information processed through the criminal justice system.

Detailed recommendations

Recommendation 1. An evaluation mechanism and time-frame for implementing recommendations should become an integral part of the preparation and consideration of the annual reports on organised crime. One of the main aims of the contact and support network should be to seek to establish a uniform, EU concept of the topics and phenomena relating to organised crime. Attention should also be directed at identifying emerging trends. Further action is needed to encourage the academic and scientific world to contribute by their studies and research to the understanding of the phenomenon of organised crime.

Responsibility: Member States, Europol, Council, Commission

Target date: ongoing activity

Priority: 1(3)

CHAPTER 2.2: Preventing penetration of organised crime in the public and the legitimate private sector

Political guideline

The EU strategy should seek to prevent the penetration of organised crime in the public and legitimate private sector.

Existing mandates and initiatives

Recommendations 7, 8 and 29 of the 1997 Action Plan dealt with the collection and exchange of information in order to prevent the penetration of organised crime in the public and legitimate private sector. These recommendations called, inter alia, for the exclusion of persons who have committed offences connected with organised crime from participation in tender procedures conducted by Member States and the Community, and from receiving subsidies or governmental licences (recommendation 7), the collection of information on the physical persons involved in the creation and direction of legal persons registered in their territory, as well as on their funding (recommendation 8), and various means to prevent fiscal fraud (recommendation 29). All three recommendations stressed that the instruments and relevant legislation should be in conformity with the relevant rules relating to data protection.

All three recommendations were to have been carried out by the end of 1998, but have not yet been implemented. In respect of recommendation 7 on, inter alia, exclusion from public tenders, the results of a questionnaire issued by the Commission have been viewed by the MDG and subsequently a study, co-financed by the Falcone programme has been undertaken. Its recommendations are currently being considered by the Commission in order to present answers for a concrete follow-up.

The Commission has worked closely with the liberal professions on the drafting of a Charter of European professional associations in support of fight against organised crime. The Charter was signed on 27 July 1999.

Recommendation 10 called for regular consultation by Member States with the competent services of the Commission with a view to analysing cases of fraud affecting the financial interests of the Community. To this end, the Member States have met with UCLAF, which has subsequently been replaced by OLAF. Regular consultations would appear to continue to be desirable.

Analysis

Persons engaged in organised crime seek to enter the public and legitimate private sector for a number of reasons. Legitimate business activities can provide cover for criminal activities, and can at the same time offer new criminal opportunities (such as for fraud and embezzlement). Legitimate businesses can also provide a channel for the laundering of criminal proceeds.

Detailed recommendations

Recommendation 2. Member States and the European Commission should ensure that the applicable legislation provides for the possibility that an applicant in a public tender procedure who has committed offences connected with organised crime can be excluded from the participation in tender procedures conducted by Member States and 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 organised 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.

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.

For the purposes set out in this recommendation, an effective mechanism allowing the early identification of persons who have committed offences connected with organised crime should be established at EU level while taking full account of data protection requirements. This mechanism should comprise the Member States, the Commission and Europol in accordance with rules to be drawn up in consultation with the European Parliament.

Responsibility: Council, Commission, Member States

Target date: 31 December 2002

Priority: 2

Recommendation 3. Member States shall seek to collect information, in compliance with the relevant rules relating to data protection, on physical persons involved in the creation and direction of legal persons registered in the territory of Member States, as a means to prevent the penetration of organised crime in the public and legitimate private sector. A study shall be made of how such data can be systematically compiled and analysed and be available for exchange with other Member States and, where appropriate, with bodies responsible at European Union level for the fight against organised crime, on the basis of appropriate rules to be developed by the Council.

Responsibility: Council, Commission

Target date: 31 December 2000

Priority: 3

Recommendation 4. Legal instruments to combat organised crime in connection with fiscal fraud should be developed in conformity with the relevant rules relating to data protection. To this end the following should be examined so that:

- in cases linked with organised 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 States concerned, and in particular with the judiciary, while fully respecting fundamental rights,

- fiscal fraud linked with organised crime should be treated as any other form of organised 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, and

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

Responsibility: Council, Commission

Target date: 31 December 2001

Priority: 2

Recommendation 5. The Member States should consult regularly with 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, relations between Europol and the Commission's anti-fraud unit (OLAF) should be taken into account. The Commission is invited to develop, in close cooperation with the Council and Member States, training programmes for relevant authorities of the Member States to enable them to investigate cases of Community fraud more effectively.

Responsibility: Council, Commission, the Member States

Target date: 31 December 2002

Priority: 3

CHAPTER 2.3: Strengthening the prevention of organised crime and strengthening partnerships between the criminal justice system and civil society

Political guideline

The European Union strategy should emphasise the importance of the prevention of organised crime.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

41. The European Council calls for the integration of crime prevention aspects into actions against crime as well as for the further development of national crime prevention programmes. Common priorities should be developed and identified in crime prevention in the external and internal policy of the European Union and be taken into account when preparing new legislation.

42. The exchange of best practices should be developed, the network of competent national authorities for crime prevention and cooperation between national crime prevention organisations should be strengthened and the possibility of a Community-funded programme should be explored for these purposes. The first priorities for this cooperation could be juvenile, urban and drug-related crime.

Existing mandates and initiatives

Paragraph 51(b) of the 1998 Action Plan calls for the development of cooperation and concerted measures on matters relating to crime prevention.

The framework for prevention measures in respect of organised crime is provided by the Council Resolution of 21 December 1998 on the prevention of organised crime.

Paragraph 33 of the Council Resolution invites the Member States, Europol and the Commission, each within their respective competencies, to study the subject matter of the Resolution and related questions. The Commission and Europol are further invited to cooperate in the preparation of a comprehensive report by the end of 2000, which in particular:

- makes proposals on how prevention measures could be promoted in future work at European level, and in particular how they could be reflected in the legislative process,

- analyses what measures for the prevention of organised crime, by which bodies and at what level, seem appropriate with a view to optimum effectiveness,

- analyses proposals for the encouragement of the evaluation of measures for the prevention of organised crime,

- analyses to what extent prevention measures can be taken at the European level (particularly in the light of the Treaty of Amsterdam),

- makes proposals for drawing up and keeping up to date a repertory of good practice in the area of organised crime prevention,

- analyses to what extent ideas and measures for the prevention of organised crime could be taken into account in the process of enlargement and relations with third States.

Analysis

Organised crime, as is the case with crime in general, does not spread at random. The scope of such offences as drug trafficking, trafficking in persons, corruption and economic crime depends to a great deal on the presence of motivated offenders, on the existence of the opportunity for crime, and on the orientation of the work of those who seek to control organised crime. Member States should explore ways to ensure that committing crime is made more difficult, that committing crime involves greater risks to the offender (in particular the risk of detection and apprehension), and that the possible benefits to the offender of committing crime are decreased or eliminated. Such crime prevention measures should respect fundamental human rights.

It should also be recalled that the prevention of organised crime at the same time contributes to effective prevention and control of crime in general, and the prevention of crime in general conversely contributes to the effective prevention and control of organised crime.

The EU strategy should be designed to reinforce implementation of the Council Resolution on the prevention of organised crime by mobilising all segments of society in order to decrease the demand for illegal goods and services, and to prevent the infiltration of organised crime into society. In this, the principle of subsidiarity should be followed; the EU strategy should seek to reinforce and supplement action taken on the national and the local level.

Local community organisations, the business community and other sectors of society should be encouraged to develop partnerships with one another and with the authorities in preventing and controlling organised crime. Member States should examine whether any tasks related to the prevention and control of organised crime could not, in conformity with basic principles of their legal systems and internal policies, be carried out by non-public bodies at the national, regional and local level. However, public authorities should always be involved when decisions are made regarding the legal rights of individuals, and decisions on the use of coercive measures should be reserved only for criminal justice authorities.

A large number of methods have been shown by studies to be effective, at least in certain situations. An even larger number have been shown to be promising, even though there may not as yet be solid empirical evidence that they have an impact. Many other widely used methods, in turn, have been shown by research not to have a significant impact in crime prevention, at least in certain situations. In addition, more evidence is becoming available about the relative impact of different methods. As called for by the Council Resolution, this information on successful approaches and "best practices" needs to be made more generally available on the local and national level throughout the European Union, and the possibility of adapting successful approaches to different situations needs to be explored.

At the same time, Member States should explore ways to prevent marginalisation, since many criminogenic factors are connected with poor living conditions and marginalisation. This requires attention to fair, comprehensive and effective social security, educational and training systems, measures to combat unemployment and poverty, as well as the strengthening of crime prevention through urban planning.

In addition to general educational measures, special educational measures should be developed to strengthen respect for the law.

Particular attention should be paid to counteracting the development and spread of illegal markets, including the market for illegal drugs, in line with the Communication from the Commission on a European Union Drug Strategy (2000 to 2004) (COM(1999) 239). In line with paragraph 50 of the Presidency Conclusions from the Tampere European Council, this Drugs Strategy was endorsed by the European Council meeting in Helsinki on 10 to 11 December 1999.

In order to prevent recidivism, an attempt should be made to interrupt a developing criminal career at as early a stage as possible. Such attempts should be designed to use, wherever appropriate, diversionary and non-custodial measures in order to enhance social integration. The importance of measures to assist the social reintegration of offenders and the enforcement of sentences for purposes of preventing recidivism should be stressed.

Some opportunity for crime arises because insufficient attention may be given to the effects that decisions made by the authorities of Member States and of the European Union may have on crime, except in the case of decisions that are seen to directly affect the criminal justice system and the activity of criminal justice practitioners. The crime prevention perspective should be mainstreamed into the decision-making of the Member States and of the European Union. This requires recognition of the importance and impact of the crime prevention perspective regardless of the area of administration, sector of policy or Ministry mandate to which the measure belongs.

Detailed recommendations

Recommendation 6. Building on paragraphs 41 and 42 of the Presidency Conclusions from the Tampere European Council, the Commission is invited to cooperate with the Council in the preparation of a proposal for an instrument requiring all committees and other preparatory bodies on both the national and the EU level, when proposing legal reforms (even if these do not directly affect criminal policy), to assess as appropriate the impact of the reforms on crime, for example on fraud and other abuse. If such an assessment is not made, the reason for not doing so should be mentioned.

In respect of the effectiveness of instruments to be adpoted at the level of the European Union, the Council should be assisted, as appropriate, by suitably qualified experts on crime prevention, such as the national focal points, or by establishing a network of experts from national crime prevention organisations.

Responsibility: Council, Commission

Target date: 31 December 2001

Priority: 1

CHAPTER 2.4: Reviewing and improving legislation as well as control and regulatory policies at the national and the European Union levels

Political guideline

The relevant legislation as well as crime control and regulatory systems should be subjected to regular critical review.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

32. Having regard to the Commission's communication, minimum standards should be drawn up on the protection of the victims of crime, in particular on crime victims access to justice and on their rights to compensation for damages, including legal costs. In addition, national programmes should be set up to finance measures, public and non-governmental, for assistance to and protection of victims.

48. Without prejudice to the broader areas envisaged in the Treaty of Amsterdam and in the Vienna Action Plan, the European Council considers that, with regard to national criminal law, efforts to agree on common definitions, incriminations and sanctions should be focused in the first instance on a limited number of sectors of particular relevance, such as financial crime (money laundering, corruption, euro counterfeiting), drugs trafficking, trafficking in human beings, particulary exploitation of women, sexual exploitation of children, high tech crime and environmental crime.

Existing mandates and initiatives

A number of existing mandates and initiatives are designed to strengthen the legislative system as well as crime-control and regulatory systems.

Paragraph 46(a) of the 1998 Action Plan (which is to be implemented within two years) calls for the identification of the behaviour in the field of organised crime, terrorism and drug trafficking, for which it is urgent and necessary to adopt measures establishing minimum rules relating to the constituent elements and to penalties and, if necessary, elaborate measures accordingly. Paragraphs 50(c) and 51(a) (which, in turn, are to be implemented within five years) call, respectively, for continued elaboration of measures establishing minimum rules relating to the constituent elements of behaviour and to penalties in all fields of organised crime, terrorism and drug trafficking, and for identification of which specific forms of crime which can be best combated by a general EU approach.

In line with paragraph 46(b) of the 1998 Action Plan, the Council resolution of 28 May 1999 noted that the Council should adopt an instrument on the prevention, control and approximation of legislation on the counterfeiting of the euro. On 14 September 1999, the Commmission presented a proposal for a framework decision on counterfeiting and on means of payment other than cash.

Recommendation 6 of the 1997 Action Plan calls for the development of a comprehensive policy against corruption, taking into account also the work already carried out in other international forums, in order to enhance the transparency in public administration. The Multidisciplinary Group on Organised Crime (MDG) noted that the May 1997 Commission Communication sets out a basis for a comprehensive policy on corruption, and that in the light of the work that has been completed or initiated under the first and third pillars, the essential elements of the comprehensive policy have been identified and are being taken forward. The progress of the work in this area should be kept under constant review.

Paragraph 47(a) of the 1998 Action Plan invites the Commission to initiate a review of the possibilities for harmonised rules on data protection. Work has already been undertaken in this field.

Recommendation 18(b) of the 1997 Action Plan called for the introduction of the liability of legal persons where the legal person has been involved in organised crime. Although this recommendation was to have been implemented by the end of 1998, this has not yet been done. A paper on the legal liability of legal persons has been considered by the MDG, a seminar on the subject has been held on the basis of Grotius funding, and an additional questionnaire has been issued.

Paragraph 51(c) of the 1998 Action Plan called for the addressing of the question of victim support by making a comparative survey of victim compensation schemes and assessing the feasability of taking action within the European Union. The Commission has undertaken action to this end.

The principal mandate seeking to improve the tools for review of the system in place is paragraph 47(c) of the Action Plan, which calls for the continuation of the process of mutual evaluation under the Joint Action adopted by the Council on 5 December 1997.

Analysis

Considerable progress has been achieved at national and international level in improving the response to organised crime. However, further work is needed to ensure that recommendations, international undertakings and policies are in fact being implemented, to identify possible problems encountered, and to develop, as appropriate, new mechanisms and methods in order to overcome such problems. Recognition should also be given to the importance of maintaining some degree of flexibility in developing the appropriate response to what is a very multifaceted and continuously evolving phenomenon.

The work of the EU on the review and improvement of legislation and policies should proceed in a programmatic manner, placing the primary focus wherever possible on offences that appear to pose the greatest threat to the Member States and the European Union, and on legislation and policies which appear to hamper the development of a concerted response to organised crime. The focus of this work may well vary with changing circumstances and threats, as suggested for example by the annual situation reports on organised crime.

The work on the review of legislation and policies should utilise in particular the evaluations carried out in accordance with the Joint Action adopted by the Council on 5 December 1997.

Detailed recommendations

Recommendation 7. In line with paragraphs 46(a), 50(c) and 51(a) of the 1998 Action Plan and paragraph 48 of Presidency Conclusions of Tampere European Council, the Council should, where found necessary, adopt instruments with a view to approximate the legislation of Member States. These instruments should take into account minimum standards of the constituent elements of offences and penalties related to organised crime, terrorism and drug trafficking. Noting in particular the conclusions of Tampere, at least the following offences will be considered: high technology crime (computer fraud and offences committed by means of the Internet), drug trafficking related offences, trafficking in human beings (particularly exploitation of women) terrrorism related offences, financial crime (money laundering, corruption, euro counterfeiting) tax fraud, sexual exploitation of children, and environmental crime. Consideration should be given to the opportunity for the development of a more general EU policy towards these specific forms of crime, taking into account as appropriate, work being carried out in other international organisations.

Responsibility: Council

Target date: ongoing activity; different target dates need to be set for each offence. The investigation and examination of the first offence should be completed by 31 December 2000, and further offences should be examined at the rate of at least one per Presidency.

Priority: 2

Recommendation 8. The Council should continue and strengthen the process of mutual evaluation based on the Joint Action of 5 December 1997, with an appropriate balance between law enforcement, prosecutorial and judicial issues. The objective should be to be able to evaluate in an in-depth manner the international undertakings decided under Title VI of the TEU. The Council should consider the possibility of defining common standards for the mutual evaluations made by the different teams of experts, and provide sufficient and permanent resources to be able to undertake such evaluations.

The mutual evaluation mechanism established under the Joint Action of 5 December 1997 should be reserved for the most important activities of interest in the prevention and control of organised crime, such as mutual assistance in criminal matters, drugs and law enforcement aspects and extradition. In addition, the Council should further consider the possibility of supplementing this mutual evaluation mechanism with a simplified and expedited mechanism, to be applied to the implementation by Member States of specific undertakings. The simplified and expedited mechanism could be used for the evaluation of specific areas of implementation or for questions which necessitate rapid evaluation.

Responsibility: Council. Close cooperation, where appropriate, with Commission, Europol or European Judicial Network.

Target date: ongoing activity; supplementary mechanism in place before 31 December 2000

Priority: 1

Recommendation 9. The Commission is invited to prepare a proposal for an instrument on the criminal, civil or administrative liability of legal persons where the legal person has been involved in organised crime.

Responsibility: Commission, Council

Target date: 31 December 2001

Priority: 3

CHAPTER 2.5: Strengthening the investigation of organised crime

Political guideline

The effectiveness of investigative means should be increased, with due respect to fundamental human rights.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

23. The European Council is determined to tackle at its source illegal immigration, especially by combating those who engage in trafficking in human beings and economic exploitation of migrants. It urges the adoption of legislation foreseeing severe sanctions against this serious crime. The Council is invited to adopt by the end of 2000, on the basis of a proposal by the Commission, legislation to this end. Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved. The rights of the victims of such activities shall be secured with special emphasis on the problems of women and children.

33. Enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial cooperation in both civil and criminal matters within the European Union. The principle should apply both to judgements and to other decisions of judicial authorities.

36. The principle of mutual recognition should also apply to pre-trial orders, in particular to those which would enable competent authorities quickly to secure evidence and to seize assets which are easily movable; evidence lawfully gathered by one Member State's authorities should be admissible before the courts of other Member States, taking into account the standards that apply there.

44. The European Council calls for the establishment of a European police chiefs' operational task force to exchange, in cooperation with Europol, experience, best practices and information on current trends in cross-border crime and contribute to the planning of operative actions.

47. A European Police College for the training of senior law enforcement officials should be established. It should start as a network of existing national training institutes. It should also be open to the authorities of candidate countries.

Existing mandates and initiatives

Paragraph 44(a) of the 1998 Action Plan calls for the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime (cf. Article 30(1)(d) TEU).

Paragraph 44(b) of the 1998 Action Plan calls for consideration of the arrangements under which a law enforcement service from one Member State could operate in the territory of another (cf. Article 32 TEU), taking into consideration the Schengen acquis. The 1998 Action Plan further notes that consideration should be given to two points in particular:

- the determination of the conditions and limitations under which the competent law enforcement authorities of one Member State may operate in the territory of another Member State, in liaison and in agreement with the latter,

- in return, what types of operation - and under what arrangements - is each Member State willing to accept in its own territory.

The creation of a collective framework for this type of operation is one of the priorities of police cooperation. This framework can be a flexible one.

Paragraph 43(1)(a)(iii) of the 1998 Action Plan calls for making the fight against illegal immigration networks one of the priorities of operational cooperation, particularly by using the national units as a network of national contact points responsible for dealing with them.

Paragraph 44(c) of the 1998 Action Plan calls for the development and expansion of operational cooperation between law enforcement services in the European Union and the strengthening of technical police cooperation. The joint action carried out in particular by the Member States' customs administrations should be used where appropriate as a model and should be expanded in cooperation with national police forces and gendarmeries and in close conjunction with the judicial authorities. In the medium term, Europol could serve as a backup for these future initiatives, which it will be possible to activate under what that Amsterdam Treaty has established as "decisions for any other purpose consistent with" the objectives of Title VI of the TEU.

Paragraph 44(e) of the 1998 Action Plan calls for the ratification of the CIS and Naples II Conventions by 31 July 2001 and the taking of measures for their effective implementation.

Paragraph 48(a)(vii) calls for a study on the possibility of setting up a system of exchanging fingerprints electronically between Member States.

Paragraph 48(b)(iii) calls for the promotion of cooperation and joint initiatives in the training of law enforcement personnel, the exchange of liaison officers, secondment, the use of equipment and forensic research.

Analysis

Because of the secretive nature of much organised crime, and because there are often no individual victims or the victim has either been coopted or intimidated, attention should be paid to ensuring that sufficient resources are provided to the investigation of organised crime, and that the investigators have at their disposal an appropriate range of legal means to conduct various investigations and to secure the needed evidence. The use of such mechanisms as electronic surveillance, undercover agents, and promises of immunity or reduction of sentences in exchange for cooperation requires finding the proper balance between effectiveness and the protection of fundamental human rights.

Improving the effectiveness of investigations also requires developing new investigative means, providing appropriate training to investigators and judical authorities, providing the requisite resources, and providing the appropriate structure for work, which may sometimes require a high degree of specialisation.

The investigation of the international aspects of organised crime requires closer international cooperation between law enforcement agencies. One possibility is the establishment of international investigative teams.

Detailed recommendations

Recommendation 10. In line with paragraph 43(1)(a)(iii) of the 1998 Action Plan and paragraph 23 of the Presidency Conclusions from the Tampere European Council, combating illegal immigration networks should be a high priority of operational cooperation. With this in mind, Member States shall undertake, in close cooperation with Europol, the Commission and the European Judicial Network, to ensure that clear rules on the coordination of investigations into such networks are laid down at both the law enforcement and the judicial level. Furthermore the Council shall review the operation of investigations in this field with a view to further improving the effectiveness of the prevention and disruption of illegal immigration networks. Guidelines should be prepared, in close cooperation with Europol, the Commission and the European Judicial Network, on the exchange of information between national law enforcement units on illegal immigration networks, and on other forms of cooperation in identifying and responding to such networks. In order to be able to pool resources at the level of the European Union, the possibility of establishing a task force consisting of the competent authorities should be explored.

Responsibility: Member States, Council, Commission, Europol, European Judicial Network

Target date: 31 December 2001

Priority: 1

Recommendation 11. The relevant specialised law enforcement agencies should seek to develop, on the international level, common standards for investigations, and expertise in all Member States on new developments, and promote exchanges of experience and technical equipment. A project-based approach in accordance with already decided standards should be the main driving force in the prevention and control of organised crime within the EU.

Responsibility: Member States, Council, Europol

Target date: 31 December 2002

Priority: 2

CHAPTER 2.6: Strengthening Europol

Political guideline

The potential of Europol to become an effective tool of the Member States in the prevention and control of organised crime should be developed.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

43. Maximum benefit should be derived from cooperation 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.

45. Europol has a key role in supporting European Unionwide 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 coordinate investigations or to create joint investigative teams in certain areas of crime, while respecting systems of judicial control in Member States.

56. 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.

Existing mandates and initiatives

Paragraph 25(a) to (c) of the 1997 Action Plan called for further development of Europol's mandate and tasks, assessment of whether the Europol Convention requires amendment, and an in-depth study with a view to examining the place and role of judicial authorities in their relations with Europol. Along the same lines paragraph 45(g) of the 1998 Action Plan calls for an examination of the role and the place of the judicial authorities in the framework of a further development of Europol in accordance with the Amsterdam Treaty, with a view to improving the efficiency of the institution. Considerable developments have taken place in respect of paragraphs 25(a) and 25(b) of the 1998 Action Plan, and the matter is being kept under continuous review by Member States and the Europol Management Board.

Paragraph 25(d) of the 1997 Action Plan states that full use should be made of the possibilities of Europol in fields of operational techniques and support, analysis and data analysis files (for instance registers on stolen cars or other property).

The development of operational techniques could take the form of studies of practice at national and European 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 organisation 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.

Paragraph 43(1)(a)(i) of the 1998 Action Plan calls for an examination of the feasibility of setting up a database of pending investigations, within the framework of the provisions of the Europol Convention, making it possible to avoid any overlap between investigations and to involve several European competent authorities in the same investigation, thus combining their knowledge and expertise.

Paragraph 43(1)(a)(ii) of the 1998 Action Plan (to be implemented within two years), calls for the directing of Europol's documentary work towards operational activity, stating that wherever possible its analyses should lead to operational conclusions. Paragraphs 48(a)(ii) and 48(b)(ii) of the 1998 Action Plan (to be implemented within five years), call, respectively, for the establishment of a research and documentation network on cross-border crime, and for the organisation of the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data.

Paragraph 43(1)(a)(iv) of the 1998 Action Plan added terrorism as one of the offences to be dealt with by Europol, and called for the reinforcement of exchanges of information and the coordination of competent authorities of Member States in the fight against crimes committed or likely to be committed in the course of terrorist activities, using Europol in particular.

Paragraph 43(1)(b) of the 1998 Action Plan called for the drafting of an adequate legal instrument extending Europol's powers to the activities referred to in Article 30(2) TEU and focusing Europol's work on operational cooperation. An important subject is the place and the role of judicial authorities in their relations with Europol. One of the priorities stated by the Treaty is to determine the nature and scope of the operational powers of Europol, which will have to be able to "ask the competent authorities of the Member States to conduct and coordinate [their] investigations" and also to act within the framework of "operational actions of joint teams".

Paragraph 43(1)(c) of the 1998 Action Plan calls for an examintation of Europol access to Schengen information system (SIS) or European information system (EIS) investigation data, and paragraph 48(a)(v) calls for an examination of whether and how Europol could have access to the Customs information system.

Paragraph 48(a)(vi) of the 1998 Action Plan calls for the elaboration and implementation, in cooperation with Europol, of an information strategy on making the work and powers of Europol known to the public.

Analysis

The entry into force of the Europol Convention has provided the European Union with an important tool in the field of law enforcement of organised crime by developing and strengthening the operative exchange of information and intelligence between law enforcement parties in Member States. It has also provided the European Union with a mechanism of fundamental importance in deepening and strengthening international cooperation in the prevention and control of organised crime.

Detailed recommendations

Recommendation 12. Member States shall ensure that Europol's role as an organ for criminal intelligence is supported and strengthened in order for Europol to fulfil its tasks to provide Member States with information and intelligence leading to the most effective results in preventing and combating organised crime. The study called for by paragraph 43(1)(a)(i) of the 1998 Action Plan should involve also the expertise of judicial authorities. The establishment of compatible criminal intelligence systems among Member States should be a long-term goal.

Responsibility: Council, Europol, European Judicial Network

Target date: 31 July 2001

Priority: 1

Recommendation 13. On-going work relating to the use of Europol in developing and implementing operational techniques, and in support and analysis should be continued. In particular, the possible role of Europol in the coordination of international investigations between the competent authorities of the Member States in order to combat criminal organisations operating in more than one Member State should be explored, including the possibility of operational actions of joint teams that include representatives of Europol in a support capacity, of asking the competent authorities of the Member States to conduct investigations in specific cases, and of developing specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime.

Responsibility: Council, Euopol

Target date: 31 July 2001

Priority: 2

CHAPTER 2.7: Tracing, freezing, seizing and confiscating the proceeds of crime

Political guideline

Particular attention should be devoted to depriving organised crime of its major motivation, the proceeds of crime.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

48. Without prejudice to the broader areas envisaged in the Treaty of Amsterdam and in the Vienna Action Plan, the European Council considers that, with regard to national criminal law, efforts to agree on common definitions, incriminations and sanctions should be focused in the first instance on a limited number of sectors of particular relevance, such as ... money laundering ...

51. Money laundering is at the very heart of organised crime. It should be rooted out wherever it occurs. The European Council is determined to ensure that concrete steps are taken to trace, freeze, seize and confiscate the proceeds of crime.

52. Member States are urged to implement fully the provisions of the Money Laundering Directive, the 1990 Strasbourg Convention and the Financial Action Task Force recommendations also in all their dependent territories.

53. The European Council calls for the Council and the European Parliament to adopt as soon as possible the draft revised directive on money laundering recently proposed by the Commission.

54. With due regard to data protection, the transparency of financial transactions and ownership of corporate entities should be improved and the exchange of information between the existing financial intelligence units (FIU) regarding suspicious transactions expedited. Regardless of secrecy provisions applicable to banking and other commercial activity, judicial authorities as well as FIUs must be entitled, subject to judicial control, to receive information when such information is necessary to investigate money laundering. The European Council calls on the Council to adopt the necessary provisions to this end.

55. The European Council calls for the approximaton of criminal law and procedures on money laundering (e.g. tracing, freezing and confiscating funds). The scope of criminal activities which constitute predicate offences for money laundering should be uniform and sufficiently broad in all Member States.

57. Common standards should be developed in order to prevent the use of corporations and entities registered outside the jurisdiction of the European Union in the hiding of criminal proceeds and in money laundering. The European Union and Member States should make arrangements with third-country offshore-centres to ensure efficient and transparent cooperation in mutual legal assistance following the recommendations made in this area by the Financial Action Task Force.

58. The Commission is invited to draw up a report identifying provisions in national banking, financial and corporate legislation which obstruct international cooperation. The Council is invited to draw necessary conclusions on the basis of this report.

Existing mandates and initiatives

Recommendation 26 of the 1997 Action Plan called for a variety of measures in the field of money laundering and confiscation; similarly, paragraph 45(d) of the 1998 Action Plan urges the strengthening and development of the prevention and control of money laundering.

More specifically, recommendation 26(a) of the 1997 Action Plan called for a system for exchanging information concerning suspected money laundering; along the same lines, paragraph 48(a)(iv) of the 1998 Action Plan calls for the setting up of a system for the exchange of information and analysis on money laundering.

Recommendation 26(b) of the 1997 Action Plan calls for making criminalisation of the laundering of the proceeds of crime as general as possible, and the creation of as broad as possible a legal basis for a range of powers of investigation into it.

Recommendation 26(b) of the 1997 Action Plan also called for an examination of the opportunity of extending laundering to negligent behaviour, and for the undertaking of a study with a view to strenghtening the tracing and seizure of illegal assets and of the enforcement of court decisions on the confiscation of assets of organised crime. A Joint Action on laundering and the proceeds of crime was adopted, accordingly, on 3 December 1998, and a questionnaire on negligence has been issued to the MDG.

Recommendation 26(c) calls for the introduction of rules authorising confiscation regardless of the presence of the offender. Recommendation 26(d) calls for a study on the possibility of the international sharing of confiscated assets; a draft Joint Action on asset sharing has been discussed by the MDG. Recommendation 26(e) calls for an extension of the reporting obligation. Recommendation 26(f) calls for the addressing of 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. Recommendation 26(g) deals with the excessive use of cash payments; and recommendation 26(h) calls for a study of economic and commercial counterfeiting.

In general regarding action taken in respect of recommendation 26, it may be noted that the matter has been under constant review by the MDG, and several recommendations are being pursued in conjunction with proposals from Europol. The Commission has submitted a formal proposal to amend the 1991 Directive that deals with several of the points referred to in the recommendation.

Paragraph 47(d) of the 1998 Action Plan calls for continuation and development of the work started under the action plan on organised crime on the question of safe havens and fiscal paradises.

Paragraph 50(b) of the 1998 Action Plan calls for the improvement and approximation, where necessary, of national provisions governing seizures and confiscation of the proceeds from crime, taking account of the rights of third parties in bona fide.

Analysis

The primary motive of much organised crime is financial gain. Effective prevention and control of organised crime, therefore, would focus on tracing, freezing, seizing and confiscating the proceeds of crime. However, this has been hampered for example by the slowness of the exchange of information, the differences in legislation and the cumbersome nature of bureaucratic procedures. Moreover, the legitimate concerns for data protection have made discussions complex.

Means should be found to promote the expedient exchange of information (including details from financial institutions) between financial intelligence units within the European Union regardless of their internal structures. Means should also be found to speed up implementation in another Member State of judicial decisions on the freezing of bank accounts and in general on assistance in tracing illegal assets.

A particular problem is the emergence of those off-shore and on-shore financial centres and "fiscal paradises" that can in effect provide criminals with safe havens and that are used to further criminal ends. Means should be found to ensure that the various international provisions and recommendations regarding money laundering are implemented by Member States in their dependent territories. In this context needs to be taken into account the substantial work that has been carried out within the framework of the FATF on non-cooperative territories.

The possibility of the mitigation of the burden of proof, after the conviction of the offender for a serious offence, concerning the origin of assets held by the offender should be considered. Such mitigation would require that the sentenced person proves that he or she has acquired the assets in question in a legal manner. If this is not done to the satisfaction of the court, the assets can be held to be the illegal proceeds of crime, and confiscated.

Detailed recommendations

Recommendation 14.

(a) In line with paragraph 57 of the Presidency Conclusions from the Tampere European Council, an instrument should be adopted on measures that should be taken by Member States in respect of off-shore and on-shore financial centres and fiscal paradises operating in their territory, and on a common European Union policy towards financial centres and fiscal paradises lying outside the European Union. The instrument should address the use of trustees and other techniques which can be used to disguise the true ownership of property.

(b) The Council should prepare a model agreement for negotiations, under Article 38 TEU, with off-shore and on-shore financial centres and fiscal paradises with a view to ensuring that they maintain accepted standards and cooperate effectively in the prevention and control of organised crime. Such agreements should further be negotiated with off-shore and on-shore financial centres and fiscal paradises. In this respect, close cooperation should be secured between the JHA Council and the Ecofin Council.

Responsibility: Council, Member States, Commission

Target date: ongoing activity; model agreement to be completed by 31 December 2001

Priority: 2

Recommendation 15. The Council, in cooperation with the Commission, with due regard to data protection issues and following discussions with the relevant banking organisations, should address 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.

Responsibility: Council, Commission

Target date: 31 December 2001

Priority: 2

Recommendation 16. In line with paragraph 36 of the Presidency Conclusions from the Tampere European Council, and in the framework of the programme of measures referred to in paragraph 37 of the Presidency Conclusions, the Council should adopt an instrument calling on the Member States to review their legislation and its application in respect of decisions on the tracing, freezing, seizure and confiscation of assets from crime and, where necessary, subsequently establish minimum standards with a view to allowing mutual recognition and execution of such decisions at as early a stage as possible in the investigation and criminal proceedings, taking into account the rights of third parties in bona fide.

Responsibility: Council

Target date: 31 December 2002

Priority: 3

Recommendation 17.

(a) In line with paragraph 55 of the Presidency Conclusions from the Tampere European Council, criminalisation of the 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. In line with recommendation 26(b) of the 1997 Action Plan and Article 6(3)(a) of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, the possibility of extending the criminalisation of laundering to cases where the offender ought to have assumed the property in question was the proceeds of crime should be examined.

(b) Member States should consider according to national law establishing units which are specifically dedicated to the process of tracing, seizure and confiscation of assets derived from offences covered by the Joint Action adopted by the Council on 3 December 1998, taking into account the experience of such units operating successfully in some Member States. Member States should furthermore examine whether their manpower, operational and technical resources are sufficient to combat money laundering. In addition to the evaluation process which is undertaken in the FATF framework, Member States should examine measures which will further strengthen effective implementation of the FATF recommendations, including the possibility of making specific reports to the Council on the implementation of such measures.

Responsibility: Council, Member States

Target date: 31 December 2000

Priority: 1

Recommendation 18. The Commission is invited to initiate a study on the possibility of preventing the excessive use of cash payments and cash exchanges by natural and legal persons from serving to cover up the conversion of the proceeds of crime into other property. Consideration should be given to setting up an adequate system of declarations which would enable the competent authorities to carry out the appropriate investigations. In its study, the Commission is invited, inter alia, to take account of national legislation relating for instance to the role of professionals, casinos and gambling houses.

Responsibility: Commission

Target date: 31 December 2003

Priority: 3

Recommendation 19. An examination should be made of the possible need for an instrument which, taking into account best practices operating in the Member States and with due respect to fundamental legal principles, introduces the possibility of mitigating, under criminal, civil or fiscal law, as appropriate, the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

Responsibility: Council

Target date: 31 December 2001

Priority: 3

Recommendation 20. An examination should be made of the possible need for an instrument on confiscation regardless of the presence of the offender, to cover cases where the offender has died or absconded.

Responsibility: Council

Target date: 31 December 2002

Priority: 3

Recommendation 21. Consideration should be given to whether an instrument on the sharing of confiscated assets among Member States is compatible with the nature of judicial assistance and with legal traditions of judicial assistance in the Member States. This should take into account recent developments in international criminal law.

Responsibility: Council

Target date: 31 December 2002

Priority: 3

CHAPTER 2.8: Strengthening cooperation between law enforcement and judicial authorities nationally and within the European Union

Political guideline

An integrated, multidisciplinary approach is required in order to be able to prevent and control organised crime effectively.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

35. With respect to criminal matters, the European Council urges Member States to speedily ratify the 1995 and 1996 EU Conventions on extradition. It considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 TEU. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of fair trial. The European Council invites the Commission to make proposals on this matter in the light of the Schengen implementing agreement.

37. The European Council asks the Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition. In this programme, work should also be launched on a European enforcement order and on those aspects of procedural law on which common minimum standards are considered necessary in order to facilitate the application of the principle of mutual recognition, respecting the fundamental legal principles of Member States.

46. 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 coordination of national prosecuting authorities and of supporting criminal investigations in organised crime cases, notably based on Europol's analysis, as well as of cooperating 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.

49. Serious economic crime increasingly has tax and duty aspects. The European Council therefore calls upon Member States to provide full mutual legal assistance in the investigation and prosecution of serious economic crime.

Existing mandates and initiatives

Recommendations 13 and 14 of the 1997 Action Plan called upon those Member States that had not yet done so to ratify speedily key conventions that are essential to the prevention and control of organised crime. Some instruments have not yet been ratified by all Member States. Paragraph 45(c) of the 1998 Action Plan, in turn, calls for effective implementation in law and in practice of the two existing conventions on extradition adopted under the TEU.

Recommendation 16 of the 1997 Action Plan urges finalisation of the draft Convention on Mutual Assistance in Criminal Matters before the end of 1997 and, as soon as possible, enlargement of the content of the Convention, while taking into account the necessity to accelerate procedures for judicial cooperation in matters relating to organised crime and considerably reducing delays in transmission and responses to requests. Work on finalisation of the draft Convention, however, is still in progress, with a view towards completion by early 2000.

Recommendation 16 also calls for consideration of 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. Reports on the implementation of this recommendation have been considered by the Council.

Recommendation 16(a) calls for examination of reservations with regard to the 1959 European Convention on Mutual Assistance and its Protocol. This is currently being considered by the Judicial Cooperation Working Group, within the context of the finalisation of the draft Convention on Mutual Assistance in Criminal Matters.

Recommendation 16(b) calls for the creation of a legal basis for the transboundary application of certain modern investigative methods, such as controlled delivery, deployment of undercover agents and the interception of various forms of telecommunications. Also these measures are currently being considered by the Judicial Cooperation Working Group within the context of the draft Convention.

Paragraph 45(a) of the 1998 Action Plan call for the effective implementation and, where appropriate, further development of the European Judicial Network. It also notes that the effective implementation of the European Judicial Network is a priority matter. It will bring about a practical improvement in cooperation and needs to be equipped with modern tools to enable efficient cooperation. Consideration ought to be given now to making it more operational.

Paragraph 45(e) of the 1998 Action Plan calls for the facilitation and acceleration of cross-border cooperation between the competent ministries and judicial or equivalent authorities of the Member States.

Paragraph 45(f) of the 1998 Action Plan calls for the initiation of a process with a view to facilitating mutual recognition of decisions and enforcement of judgments in criminal matters. A work programme on mutual recognition has been discussed in the MDG, with the immediate priority on the mutual recognition of asset restraint orders and of sentences imposing a fine.

Paragraph 45(g) of the 1998 Action Plan calls for an examination of the role and the place of the judicial authorities in the framework of a further development of Europol in accordance with the Amsterdam Treaty, with a view to improving the efficiency of the institution.

Paragraph 48(a)(i) of the 1998 Action Plan calls for the promotion of liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol (cf. Article 30(2)(c), TEU).

Paragraph 48(b)(i) encourages general policy and operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services and the judicial authorities of the Member States in relation to the prevention, detection and investigation of criminal offences (cf. Article 30(1)(a) of the TEU). The paragraph notes that in this context it would be useful to develop and enhance existing bilateral and regional cross-border cooperation, for instance by continuing and extending on a similar basis the experiments with joint police stations. It would also be desirable to continue the development of customs risk analysis techniques and the improvement of customs control methods such as the implementation of the container control action plan and to consider the new avenues where there is a possibility for fraud, such as Internet.

Paragraph 49(a) calls for a consideration of whether substantive and formal improvements can still be made to extradition procedures, including rules to reduce delay.

Paragraph 49(b) calls for further facilitation of cross-border cooperation between ministries and judicial authorities in the field of criminal proceedings. Paragraph 49(c) calls for an examination of the feasibility of improved cross-border cooperation on the transfer of proceedings and the enforcement of sentences. Paragraph 49(d) calls for a study of the feasibility of extending and possibly formalising the exchange of information on criminal records, and paragraph 49(e) calls for the prevention of conflicts of jurisdiction between Member States, by, for instance, examining the possibility of registering whether there are proceedings against the same persons on the same offences pending in different Member States.

Paragraph 50(a) of the 1998 Action Plan calls for the ensurance of compatibility of the rules applicable between Member States in so far as necessary to improve judicial cooperation. A reflection should also be started on possibilities for avoiding that abuse of judicial remedies that can affect or delay cooperation. The paragraphs notes that efficient procedural standards should be sought that will improve mutual assistance in criminal matters while complying with the requirements of fundamental freedoms. Consideration should begin in the field of telecommunication interception and also on civil actions relating to criminal offences. In that connection, compensation for the victims of crime must be an avenue not to be neglected.

Analysis

One area of concern is inter-agency cooperation on the national and the international level, including cooperation between fiscal and law enforcement authorities. Many crimes can be prevented or speedily resolved if intelligence available to one agency can be shared with other agencies, nationally and internationally. However, this intelligence may not be recognised as being useful to other agencies, there may not be secure channels through which the intelligence can be passed on, or these other agencies may be distrusted. As a result, investigation, prosecution, adjudication and enforcement do not form a coherent and inter-linked system nationally, much less internationally.

Local, national and international cooperation among law enforcement agencies, and between law enforcement and judicial authorities, should be strengthened. In that context, priority should be given to the question of judicial authorities and Europol.

Detailed recommendations

Recommendation 22. In line with paragraph 45(b) of the Action Plan of freedom, security and justice, and paragraph 37 of the Presidency Conclusions from the Tampere European Council, the Commission is invited to cooperate with the Council in the adoption, by December 2000, of a programme for measures to implement the principle of mutual recognition of judicial decisions in criminal cases.

Responsibility: Council, Commission

Target date: 31 December 2000

Priority: 1

Recommendation 23. In line with paragraph 46 of the Presidency Conclusions from the Tampere European Council, the Council is requested to draw up and adopt, as soon as possible, a legal instrument concerning the establishment of Eurojust specifying its structure, sphere of competence, powers and responsibilities. Particular attention should be given to determining the general framework of the new body's relations with national prosecuting authorities, Europol, Commission (OLAF) and the European Judicial Network.

Responsibility: Council

Target date: 31 December 2001

Priority: 1

Recommendation 24. The European Judicial Network should be implemented effectively and, where appropriate, further developed, for example by exploring ways in which to equip it with modern tools to make efficient cooperation possible, and ways in which to make it more operational. Particular attention should be paid to the development of efficient procedural standards that will improve mutual assistance in criminal matters while complying with the requirements of fundamental rights.

The General Secretariat of the Council serves also as the secretariat of the European Judicial Network, and must therefore be given, on a permanenet basis, the necessary resources to ensure that the European Judicial Network will be able to fulfil its tasks.

Responsibility: Member States, Council

Target date: ongoing activity

Priority: 2

Recommendation 25. A proposal shall be prepared for an instrument on the position and protection of witnesses and of persons who participate or who have participated in criminal organisations, and who are prepared to cooperate with the judicial process by supplying information useful for investigative and evidentiary purposes or by providing information that may contribute to depriving criminal organisations of their resources or of the proceeds of crime. The proposal should consider the possibility, in appropriate cases, inter alia, of mitigating punishment of an accused person who provides substantial cooperation in such cases. An EU model agreement should be developed, taking into account the experiences of Europol, and used on a bilateral basis.

Responsibility: Council, Member States, Commission

Target date: 31 July 2001

Priority: 3

Recommendation 26. The possible need for additional funding, and in particular the possibility of greater flexibility and expedited procedures in the use of EU funding for training and support activities should be explored, in particular in the light of TEU 41(3). Examples include the supporting of interpretation services, the provision of language training, and the acquisition of international experience for specialised law enforcement officers, prosecutors and judges. The possibility of the use of such funds in improving the organisation of meetings of practitioners at the EU level (including meetings related to the use of joint investigative teams) should be considered. The attention of competent authorities should be drawn to the possibility of using three-way conferences between two officials using an interpreter, and the Member States should encourage such use by making available resources to that end. With due regard to the need to safeguard the legitimate interests of control of public funds, the use of such funds to promote judicial cooperation should not impinge on judicial independence.

Responsibility: Commission, Council, European Judicial Network, Europol, Member States

Target date: 31 December 2001

Priority: 2

Recommendation 27. Those States which have not yet ratified(4), the following European Union, Council of Europe and United Nations conventions, which are essential to the prevention and control of organised crime, should make proposals to their Parliaments with a view to 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 therefore, 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, undertakings shall be sought from the candidate countries of a similar character. When drawing up new conventions and other instruments, the Council should set a target date for their adoption and implementation in accordance with the constitutional requirements of the Member States and the Treaty of Amsterdam.

1. European Convention on Extradition, Paris 1957 - end 2001

2. Second Protocol to the European Convention in Extradition, Strasbourg 1978 - end 2001

3. Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg 1978 - end 2001

4. Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, Strasbourg 1990 - end 2001

5. Convention on Mutual Assistance and Cooperation between Customs Administrations (Naples II) - end 2001

6. Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Strasbourg 1995 - end 2001

7. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna 1988 - end 2001

8. European Convention on the Suppression of Terrorism, Strasbourg 1977 - end 2001

9. Council of Europe Criminal Law Convention on the fight against Corruption, Strasbourg 1999 - end 2001

10. Convention on Simplified Extradition Procedure between the Member States of the European Union - end 2001

11. Convention on the Protection of the European Communities' Financial Interests - mid-2001

12. Convention on the Use of Information Technology for Customs Purposes - end 2000

13. Convention relating to Extradition between the Member States of the European Union - end 2001

14. Protocols to the Convention on the Protection of the European Communities' Financial Interests - end 2001

15. Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of the Member States of the EU - end 2001

Several other Conventions may also be relevant to the fight against organised crime. Among those conventions are the Convention for the Suppression of Counterfeiting Currency, Geneva 1929 as well as the Council of Europe Convention on the Protection of the Environment through Criminal Law, Strasbourg 1998.

Responsibility: Member States, Council

Target date: as noted

Priority: 1

Recommendation 28. Extradition should be facilitated through effective implementation of the two existing conventions on extradition adopted under the TEU. In particular, Member States should take, at the national level, the necessary measures to ensure that extradition requests can be dealt with in the most simple and expeditious manner. As called for by paragraph 35 of the Presidency Conclusions from the Tampere Summit, the Commission is invited to make proposals for expedited extradition of convicted persons fleeing from justice as well as on fast-track extradition procedures. An evaluation of extradition procedures, based on the Joint Action adopted by the Council on 5 December 1997, should begin no later than 30 June 2001. In this respect, consideration should be given to the long-term possibility of the creation of a single European legal area for extradition. The issue of extradition in relation to procedures in absentia, with full respect to fundamental rights granted by the European Convention on Human Rights, might also be examined in this context.

Responsibility: Council, Member States, Commission

Target date: 2002; 2010 for the long-term objective

Priority: 1

Recommendation 29. In accordance with paragraph 36 of the Presidency Conclusions from the Tampere European Council, the Member States shall consider different ways and means, including minimum standards for decisions on the collection of evidence, and the Council should adopt the necessary instrument with a view towards ensuring that evidence lawfully gathered by one Member State's authorities is admissible before the courts of other Member States, subject to the principle of judicial independence and taking into account the standards that apply in such other Member States.

Responsibility: Council

Target date: 31 December 2004

Priority: 4

Recommendation 30: With a view to rendering investigations into cross-border organised crime more efficient, the Council is requested to work towards the approximation of national legislation on criminal procedure governing investigative techniques so as to make their use more compatible.

Responsibility: Council

Target date: December 2002

Priority: 3

CHAPTER 2.9: Strengthening cooperation with the applicant countries

Political guideline

Cooperation with the applicant countries should be strengthened with a view to their gradual incorporation into the EU strategy for the prevention and control of organised crime.

Existing mandates and initiatives

In line with recommendation 3 of the 1997 Action Plan, a pre-accession pact was adopted on 28 May 1998. A pre-accession pact expert group (PAPEG) has been established. The acquis of the European Union has been presented to the candidate countries on a multilateral basis. In addition, a bilateral session has taken place with each candidate country in order to assess its level of preparation for the European Union standards.

The Commission has taken various initiatives through different tools such as the Title VI programmes (such as Phare and TAIEX funds) to strengthen cooperation with candidate countries in the area of the fight against organised crime.

Paragraph 43(d) of the 1998 Action Plan calls for strengthening of the Europol role in information exchange in implementation of the pre-accession pact, and the giving of sufficient resources to Europol for it to be able to meet that goal.

Analysis

Organised crime in the Member States of the European Union is to a large extent indigenous. None the less, a truly effective EU strategy must look beyond the Member States of the EU. This should be done not only in order to promote cooperation in respect of individual offences and offenders, but also in order to exchange information on best practices and on trends in organised crime. In the first instance, using the pre-accession pact on organised crime more effectively, cooperation should be improved with the applicant countries.

This cooperation is mutually advantageous, in that, while the candidate countries can be informed about the acquis of the European Union, they themselves can, building on their extensive experience, contribute to the strengthening of the response to organised crime in the European Union itself.

The role of the pre-accession pact on organised crime of 28 May 1998 in strengthening this cooperation is of particular importance. The Council should consider if additional resources for the implementation of the pact should be provided.

In this work, particular attention should be given to the prevention and control of such offences as money-laundering, illegal immigration networks and financial crime.

Detailed recommendations

Recommendation 31. The European Union and Member States should seek to strengthen practical and direct forms of cooperation in law enforcement and criminal justice with the candidate countries.

Responsibility: Council, Commission, Member States

Target date: ongoing activity

Priority: 3

Recommendation 32. The applicant countries should be integrated into the preparation and analysis of the annual situation reports on organised crime.

Responsibility: Council, Europol

Target date: ongoing activity

Priority: 2

Recommendation 33. The possibility should be explored of cooperation with the applicant countries in the use of the Schengen information system, taking into account the legal and technical feasibility of such cooperation.

Responsibility: Council

Target date: ongoing activity

Priority: 3

Recommendation 34. The Member States should explore the appropriateness, on a bilateral basis, of entering into commitments and practical cooperation with the applicant countries relating to cooperation with them in respect of the tracing of stolen property such as motor vehicles, and to the use of investigative techniques such as controlled deliveries and undercover operations.

Responsibility: Member States

Target date: ongoing activity

Priority: 2

Recommendation 35. The European Union and Member States should seek to strengthen technical assistance and expertise to the applicant countries in order to support the development of efficient and democratic law-enforcement systems and appropriate public administration, and the adjustment of institutions and laws to more closely align with European Union legislation. The possibilities of twinning programmes funded under the EU Phare programme should be further encouraged.

Responsibility: Council, Commission, Member States

Target date: ongoing activity

Priority: 1

CHAPTER 2.10: Strengthening cooperation with third countries and other international organisations

Political guideline

The prevention and control of organised crime requires global cooperation, and should be seen in that context.

The relevant Presidency Conclusions from the Tampere European Summit are the following:

7. The area of freedom, security and justice should be based on the principles of transparency and democratic control. We must develop an open dialogue with civil society on the aims and principles of this area in order to strengthen citizens' acceptance and support. In order to maintain confidence in authorities, common standards on the integrity of authorities should be developed.

8. The European Council considers it essential that in these areas the Union should also develop a capacity to act and be regarded as a significant partner on the international scene. This requires close cooperation with partner countries and international organisations, in particular the Council of Europe, OSCE, OECD and the United Nations.

59. The European Council underlines that all competences and instruments at the disposal of the Union, and in particular, in external relations must be used in an integrated and consistent way to build the area of freedom, security and justice. Justice and home affairs concerns must be integrated in the definition and implementation of other Union policies and activities.

60. Full use must be made of the new possibilities offered by the Treaty of Amsterdam for external action and in particular of common strategies as well as Community agreements and agreements based on Article 38 TEU.

61. Clear priorities, policy objectives and measures for the Union's external action in justice and home affairs should be defined. Specific recommendations should be drawn up by the Council in close cooperation with the Commission on policy objectives and measures for the Union's external action in justice and home affairs, including questions of working structure, prior to the European Council in June 2000.

62. The European Council expresses its support for regional cooperation against organised crime involving the Member States and third countries bordering on the Union. In this context it notes with satisfaction the concrete and practical results obtained by the surrounding countries in the Baltic Sea region. The European Council attaches particular importance to regional cooperation and development in the Balkan region. The European Union welcomes and intends to participate in a European Conference on Development and Security in the Adriatic and Ionian area, to be organised by the Italian Government in Italy in the first half of the year 2000. This initiative will provide valuable support in the context of the south-eastern Europe stability pact.

Existing mandates and initiatives

Recommendation 4 of the 1997 Action Plan called for closer cooperation with third States and international organisations and bodies involved in the prevention and control of organised crime. The potential for cooperation provided by existing mechanisms, such as the transatlantic partnership, and the Tacis programme and the partnership agreements with the Russian Federation and Ukraine, should be used more effectively. The possibility of the development of corresponding arrangements with other countries should be explored. Specific proposals for closer cooperation, for instance through the intermediary of Europol, should be developed by the Council and the Commission.

Considerable work has been carried out by the Council and the Commission in response to this recommendation (see Crimorg 67). However, the recommendation requires on-going activity.

Analysis

Cooperation should be improved with third countries, including within the framework of the transatlantic dialogue and in cooperation with the Russian Federation and Ukraine. In addition, consideration should be given to strengthening cooperation with, for example, partners around the Mediterranean and in south-eastern Europe, China, and the Latin American and Caribbean countries.

An effective EU strategy should be tailored so that it can build on and complement the results of successful work that has already been carried out or is being carried out bilaterally or multilaterally, for example within the framework of the Council of Europe, the Group of Eight Industrialised Countries, the Financial Action Task Force, the International Criminal Police Organisation, the Organisation for Economic Cooperation and Development, and the United Nations. Furthermore, the Union should seek to act more coherently to make its voice heard in international forums.

Detailed recommendations

Recommendation 36. Closer cooperation should be developed with third States and international organisations and bodies involved in the prevention and control of organised crime. The potential for cooperation provided by existing mechanisms, such as the transatlantic partnership and the partnership agreements with the Russian Federation and Ukraine, should be used more effectively. The possibility of the development of corresponding arrangements with other countries should be explored. Specific proposals for closer cooperation, for instance in association with Europol, should be developed by the Council and the Commission.

Responsibility: Council, Commission, Europol

Target date: ongoing activity

Priority: 2

Recommendation 37. The full political weight of the European Union should be carried in all forums where all Member States participate, such as the Council of Europe, the Organisation for Economic Cooperation and Development, the Financial Action Task Force, the International Criminal Police Organisation, and the United Nations. This requires effective coordination among European Union Member States in these forums and, where appropriate, the seeking of agreement in a timely manner on joint positions which should then be defended by the Member States in accordance with Article 37 TEU. Where not all Member States participate in meetings in such forums, non-attending Member States should be given full information on discussions which might affect them.

Responsibility: Council, Member States

Target date: ongoing activity

Priority: 1

Recommendation 38. The European Union and Member States, on the entry into force of the United Nations Convention against Transnational Organised Crime and its protocols, should review this strategy in the light of the provisions of the Convention with a view to seeking to assist countries on request in the full implementation of the Convention.

Responsibility: Council, Member States

Target date: ongoing activity

Priority: 2

CHAPTER 2.11. Monitoring the strengthening of the implementation of measures for the prevention and control of organised crime within the European Union

Political guideline

Specific monitoring of the implementation of the European Union strategy against organised crime is essential in order to maintain coherence and follow-up on the national and the EU level.

Existing mandates and initiatives

Document 9239/2/97 CK4 24 (which is based on recommendation 22 of the 1997 Action Plan sets out the mandate of the Multidisciplinary Group on Organised Crime. The MDG is charged with the development of policies to coordinate the prevention and control of organised crime. This development essentially includes (a) direct implementation of mandates principally addressed to the Council, (b) the monitoring of the implementation of other mandates, (c) the assessment of practical cooperation (in particular through evaluation mechanisms), (d) the designing of EU strategies and policies in the prevention and control of organised crime, (e) preparation, in full cooperation with the other relevant Council working groups, of high-level decisions, in particular for the Article 36 Committee, (f) providing the Article 36 Committee with information which is useful for drawing up interim progress reports, and (g) preparation of proposals for increased coordination between the first, second and third pillars in combating organised crime.

Analysis

The European Union strategy against organised crime should be flexible, both so that the lessons learned in the process of implementation can be taken into consideration, and so that crime prevention and control measures can be tailored as appropriate to changes in the phenomenon of organised crime itself.

The detailed recommendation and timetables contained in the 1997 Action Plan have contributed to the success achieved in its implementation. Further impetus has been given by the work of the Multidisciplinary Group on Organised Crime, which consists of senior officials, a group that has benefited from its multidisciplinary approach and the support of specialists.

Detailed recommendations

Recommendation 39. The Multidisciplinary Group on Organised Crime shall prepare regular reports for submission, through the Article 36 Committee, to the Council and the European Council, on the implementation of this strategy.

The Multidisciplinary Group shall, no later than 30 June 2003, submit a comprehensive report on the measures and steps taken with regard to the implementation of each recommendation in this strategy. The Council shall take appropriate measures.

The European Council shall not later than 30 June 2005 receive a general report on the implementation of the EU strategy to combat organised crime and shall take the necessary measures to ensure that where this strategy has not been implemented in full the European Council will give appropriate orientations on further measures to be taken.

Responsibility: Council, Commission

Target date: ongoing activity; general report 30 June 2005

Priority: 1

(1) OJ C 251, 15.8.1997, p. 1.

(2) OJ C 19, 23.1.1999, p. 1.

(3) For each recommendation, a priority of 1 to 5 has tentatively been set. A priority of 1 means that work should begin immediately with a view to rapid finalisation. A priority of 3 means that work may begin if there are resources to do so, or that the recommendation requires ongoing activity. A priority of 5 means that work could be deferred until later, although the recommendation is nonetheless of such importance as to be incorporated in the Action Plan. The level of priority assigned to the various action points may change in time along with circumstances.

(4) All Member States have already ratified the 1959 Convention on Mutual Assistance in Criminal Matters and the 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Those Conventions are also of importance in the fight against organised crime.