WHAT KIND OF "OPERATIVE POWERS" FOR EUROPOL?
Until very recently, government officials throughout the EU dispelled widespread concern in some member countries about a EUROPOL with its own operational powers with assurances that EUROPOL would never become a "European FBI". Without this pledge, the adoption of the Europol Convention by the member state governments in the summer of 1995 would probably have been politically impossible. Two years later, and before the conclusion of the ratification process within the member states, the EU Intergovernmental Conference (IGC) is discussing how to confer "operative powers" on Europol without the need for a new ratification process, i.e approval by national parliaments.
"Operative powers"
The Presidency Conclusions on the Dublin Summit of December 1996 says: "Europol should have operative powers working in conjunction with the national authorities to this end". The so-called "Dublin II outline" of the then Irish Presidency for the draft revision of the TEU (Maastricht Treaty) proposes that the Council adopt, within binding time limits:
a) measures "enlarging the functions of Europol" allowing it to "facilitate and assist in the preparation and carrying out of specific cooperative actions by the judicial, police and customs authorities of the Member States, including operational actions of joint teams" (our italics);
b) measures "allowing Europol to call on police forces in Member States to conduct investigations in specific cases and providing Europol with one or more technical units to assist Member States in investigating cases of international crime" (our italics).
"Operative tasks" tantamount to "executive powers"?
In the aftermath of the Dublin Summit it quickly appeared that the above declaration and proposals are far from expressing a common view of the member state governments. This clearly follows from a confidential German report on a meeting of the IGC representatives on 27-28 January, where the Europol issue was discussed. The report notes that "further discussion on the formulation of the tasks of Europol" is necessary. While the German representative, Secretary of State Hoyer, once again insisted on the importance of conferring operational powers on Europol, Britain, Denmark and "some other delegations" continue to oppose such a change. In particular, the British and Danish representatives rejected as unacceptable the formulation in the Dublin II outline according to which Europol would be empowered to "call on police forces in member states to conduct investigations". Instead, they said, Europol's role should remain limited to tasks of a merely supportive character. This view drew some support from the Greek, Spanish and Swedish representatives. While showing "flexibility" with regard to the final wording of the provisions in question, they demanded that a clear distinction be made between "executive powers" and "operative tasks".
Strong majority in support of time limits
Britain also objected to setting time limits in the revised TEU for the gradual extension of Europol's competencies, while Italy, Austria, and - remarkably enough - Sweden agreed to such a scheme, strongly advocated by Germany and France. Commenting on his country's position, which strikingly differs from earlier government statements on the matter, the Swedish representative, Gunnar Lund, said to journalists: "We think Europol should have powers and competencies beyond what we have so far agreed on. Europol should be allowed to enter into close and intimate cooperation with national police forces".
The delegate of the European Parliament, Elmar Brok, for his part emphasised the importance of establishing an obligation for national authorities to cooperate with Europol.
Lacking ratification no obstacle to extension of Europol competencies?
Secretary of State Hoyer listed the following competencies, which, in his words, would result in a genuine improvement of policing and could be conferred to Europol as first "intermediary steps" in a more far-reaching process of extending Europol powers according to a binding time-table:
"coordination" of investigations in specific cases;
initiation of joint investigation teams;
providing staff and logistical support to member states;
dispatching Europol liaison officers to the police authorities of the member states;
"active obtaining of information"; and
running a "European criminal search system".
The fact that most member states have not yet ratified the Convention is no obstacle to such an agenda, Mr Hoyer contended.
Defining "specific operative actions"
Jürgen Storbeck, the German Coordinator of EDU/Europol, said to the German Police magazine Deutsche Polizei, that the following definitions of "specific operative actions" (according to the Dublin outline II) were being considered:
Operational research (Own investigations run by Europol);
Operational support (support by Europol to national investigations through information, tactical advice, provision of other assistance, including personnel);
Operational coordination (coordination of investigations, surveillance operations concerning controlled deliveries, a "right of initiative" aiming at "parallel national investigations" according to "guidelines" set by Europol.
Operational teams (creation of task forces, whereby the scope of action can range from mere support to "investigative powers in specific cases").
Storbeck further said powers for Europol to conduct investigations and interrogations were "conceivable and desirable", but advised against a power of seizure or arrest, since such a right would "interfere too much with civil liberties and should therefore be reserved to national police authorities".
The problem of how to avoid parliamentary scrutiny
According to the German report, the Dutch presidency raised the thorny issue of how the proposed extension of Europol's powers can be achieved "without the requirement of an amendment to the Convention with an ensuing need for ratification". The Presidency may have found some comfort in an assessment of the Council's Legal Service. According to the German report, this Service is of the opinion that "the Europol Convention contains provisions allowing a modification of the Convention in a simplified way" [i.e. without having to submit the changes for parliamentary approval].
The report does not say which particular provisions in the Convention the Legal Service is referring to.
Sources: Dublin II Outline for a draft revision of the treaties, Brussels, 5.12.96, Conf 2500/96 limite; Dublin European Council, 13/14.12.96, Presidency Conclusions; German confidential session report on the 23rd IGC meeting on 27-28.1.97, Federal Department of Foreign Affairs, Bonn, 31.1.97 (quotations above are our translations from German); Operative Befugnisse für EUROPOL, article in 'Deutsche Polizei', 2/97.