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Published online by Cambridge University Press: 27 October 2017
One of the most serious problems troubling the European Union is the evolution of cross-border crimes and, in particular, international terrorism and organised crime. National law enforcement authorities cannot fight cross-border crimes efficiently if their efforts are made solely on a national level. Since the early 1990s, the (European) political authorities have become increasingly aware of this problem and have taken steps to facilitate the participation of the law enforcement and other relevant personnel from other state(s) in investigating offences. This has resulted in the adoption of a vast number of documents and new instruments (eg the European Arrest Warrant), and the creation of new agencies within the European Union, the aim of which is to facilitate cross-border activities to fight cross-border crimes.
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5 Plachta, M ‘Joint Investigation Teams—A New Form of International Cooperation in Criminal Matters’ (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 284 CrossRefGoogle Scholar.
6 The legal foundation for the creation of a European Police Office (Europol) as part of police and judicial cooperation in criminal matters was introduced by the Maasthicht Treaty in 1992 under the heading ‘Provisions on Cooperation in the Fields of Justice and Home Affairs’. The Council Act of 26 July 1995 drew up the Convention based on Art K.3 of the EU Treaty on the establishment of a European Police Office (Europol Convention), OJ 1995 C 316/2. According to Art 2(1) of the Europol Convention, the objective of Europol is to support the competent authorities of the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime. Europol’s core task is to support the police authorities of the Member States in their intelligence work. It has to notify the competent Member State authorities of the information concerning them and of any connections identified between criminal offences.
7 For an examination of the evolving EU policy against human trafficking, especially trafficking that targets migrant women for sexual exploitation, see Askola, H ‘Violence against Women, Trafficking, and Migration in the European Union’ (2007) 13 ELJ 204 CrossRefGoogle Scholar; Askola, H Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (Oxford, Hart Publishing, 2007)Google Scholar.
8 Council Act established in accordance with Art 34 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, adopted on 29 May 2000, OJ 2000 C 197/1; Plachta, M, above n 5, 287–91.
9 Action plan to Combat Organised Crime (Adopted by the Council on 28 Apr 1997), OJ 1997 C 251/1.
10 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—Text adopted by the Justice and Home Affairs Council of 3 December 1998, OJ 1999 C 19/01.
11 OJ 2000 C 357/7.
12 This Convention is designed to supplement the 1959 Convention. As a Treaty, it binds only those states that choose to ratify it. The Convention provides (inter alia) for a simplified system of transmitting letters rogatory, for the hearing of witnesses in foreign proceedings by means of videoconferencing and telephone conferences, for mutual legal assistance in ‘covert investigations’ and for requests for telephone-tapping. With regard to Art 27, it would come into force when 8 Member States ratified it—a state of affairs which eventually came about in Aug 2005.
13 The Framework Decision is a new legal instrument introduced by the Treaty of Amsterdam which replaces the Joint Action. The Framework Decision is binding on the Member States as regards the result to be achieved, but the national authorities are left to make the choice of form and methods. It can be adopted ‘for the purpose of approximation of the laws and regulations of the Member States’. The advantage of a Framework Decision over a Convention is that it does not have to be ratified before it enters into force. See Armone, G Diritto Penale Europeo e Ordinamento Italiano—Le decisioni quadro dell’Unione europea: dal mandato d’arresto alla lotta al terrorismo (Milan, Editore Giuffrè, 2006)Google Scholar.
14 During the Extraordinary Council Meeting on 20 Sept 2001, it was stated that: ‘[l]a gravité des événements récents justifie l’accélération des mesures pour la part de l’Union européenne dans le sens de la création d’un espace de liberté, de sécurité et de justice et au même temps, d’établir une coopération renforcée avec ses partenaires, spécialement les Etats-Unis ‘: Extraordinary Council Meeting on 20 Sept 2001, Justice, Home Affairs and Civil Protection, Brussels, 12019/01 (Press 327), 4.
15 Zagaris, B ‘European Council Issues Framework Decision on Joint Investigation Teams’ (2002) 18 International Enforcement Law Reporter 372 Google Scholar.
16 Council Framework Decision of 13 June 2002 on Joint Investigation Teams, 2002/465/ JHA, OJ 2002 L 162/1.
17 Recommendation of the Council on 8 May 2003 for a model agreement on the establishment of a JIT. This recommendation also includes an annex with a model agreement on the involvement of Europol, Eurojust and Olaf, OJ 2003 C 121/1.
18 De Kerchove, G and Weyembergh, A Mutual Trust in the European Criminal Law Area (Brussels, Institut d’Etudes Européennes, Editions de l’Université de Bruxelles, 2005)Google Scholar. That mutual trust, which has to be strengthened especially with regard to further and closer cooperation within the EU, follows also from the Communication on the Mutual Recognition of Judicial Decisions in Criminal Matters and the Strengthening of Mutual Trust between Member States, Brussels, 19 May 2005, COM(2005)195 final.
19 The process of enlargement has been permeated by the awareness of the enormous challenge posed by the need for the new candidates to fulfil the membership criteria. Admitting new countries provoked concerns in the old Member States, which feared that the enlargement process would undermine the efficiency and effectiveness of the EU institutions and threaten their achievements. Consequently, the issue of mutual trust is one of the most serious issues in terms of the accession to EU. See Pitto, E ‘Mutual trust and Enlargement’ in de Kerchove, G and Weyembergh, A, above n 18, 47. See also, in this sense, the Polish law of 16 Apr 2004 which transposes the provisions of the 2002 Council of the European Union Framework Decision on Joint Investigation Teams, in Plachta, M, above n 5, 297; Kellermann, A (ed) EU Enlargement—The Constitutional Impact at EU and National Level (The Hague TMC Asser Press, 2001)Google Scholar; Kellermann, A The Impact of EU Accession on the Legal Orders of New EU Member States and (Pre-)Candidate Countries (The Hague, TMC Asser Press, 2006)CrossRefGoogle Scholar.
20 For an analysis of JITs in the mutual relationship between the EU and the US see Plachta, M, above n 5, 294–6. See also the Agreement on Mutual Legal assistance between the European Union and the United States of America, OJ 2003 L 181/34.
21 An example of an agreement between a JIT and such persons was provided by the Council. See Recommendation of the Council of 8 May 2003 on a model agreement on the establishment of a JIT. This recommendation also includes an annex with a model agreement on the involvement of Europol, Eurojust and Olaf, OJ 2003 C 121/1.
22 Rijken, C and Vermeulen, G Joint Investigation Teams in the European Union—From Theory to Practice (The Hague, TMC Asser Press, 2006) 2-10CrossRefGoogle Scholar.
23 Rijken, C ‘JIT: Principles, Practice and Problems—Lessons Learnt from the First Efforts to Establish a JIT’ (2006) 12 Utrecht Law Review 99, 117-18Google Scholar.
24 Action Plan to Combat Organised Crime (Adopted by the Council on 28 Apr 1997), OJ 1997 C 251/01.
25 Furthermore, Europol must be able to request the authorised services of the Member States to investigate in specific cases and to develop specific expertise for the benefit of investigation into organised crime (guideline 10).
26 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, above n 10.
27 OJ 1995 C 316/1.
28 OJ 2000 C 298/8.
29 OJ 2000 C 357/7.
30 See Lopes de Lima, JA ‘Le rapport entre Europol et les équipes communes d’enquête’ Eurowarrant Project, available at http://www.eurowarrant.net (2007).
31 The objections articulated by a British police officer illustrate very well all the troubles concerning the setting up of the ‘new Europol’: ‘[t]here are those who would like to see Europol with executive power. That seems so utopian, that it is hardly worth thinking about at the moment. Where would you get the police officers from, what would their status be? Would they have to be multi-lingual? Would they be accountable? Would their status change when they moved to a different country? I can’t see the police of one country relinquishing their authority to a multi-national agency within their own borders. It would cause terrible resentment. You would have to have a situation where the domestic police actually made the arrests’: Anderson, M ‘Old Systems—New Systems’ in Anderson, M et al., above n 2, 83.
32 Decision of the Management Board of 20 Mar 2007 laying down the rules governing the arrangemnents regulating the administrative implementation of the participation of Europol official is Joint Investigating Teams,, OJ 2007 C 72/16.
33 Council Act of 28 Nov 2002 drawing up a Protocol amending the Convention on the establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, OJ 2002 C 312/1.
34 The information gathered and exchanged during the operational phase of a JIT is of crucial importance for the success of the concept of the JIT, in the absence of which its aim—enhancing mutual co-operation in criminal matters—cannot be achieved. Several ques tions can emerge in relation to the process of information gathering and exchange: the legal basis, the conditions, the formalities and the obstacles in respect of this process. For a proper analysis of this important issue see Balcaen, A ‘Law Enforcement Information Exchange in the Operational Phase of a JIT’ in Rijken, C and Vermeulen, G (eds), above n 3, 85.
35 See Bigo, D, Bruggeman, W, Burgess, P and Mitsilegas, V ‘The Principle of Information Availability’ in Challenge Liberty & Security, available at http://www.libertysecurity.org.
36 See de Zwaan, JW (ed) Freedom, Security and Justice in the European Union— Implementation of the Hague Programme (The Hague, TMC Asser Press, 2006)CrossRefGoogle Scholar.
37 COM(2005)490 final, 12 Oct 2005.
38 The proposal of 18 Oct 2005 for an action plan to combat trafficking in human beings specifically urges an improvement in the exchange of information between the national police services and Europol. The Member States ‘should ensure that national law enforcement agencies regularly involve Europol in the exchange of information, in joint operations and Joint Investigative Teams’. See COM(2005)514 final, 18 Oct 2005.
39 Nilsson, HG ‘Organs and Bodies of the Third Pillar as Instruments of External Relations of the Union’ in De Kerchove, G and Weyembergh, A (eds) Sécurité et justice: Enjeu de la politique extérieure de l’Union européenne (Brussels, Institut d’Etudes Européennes, Editions de l’Université de Bruxelles, 2003) 201-10Google Scholar.
40 For an analysis of the importance and the role of the EU acquis in negotiations with third countries see Stessens, G ‘The EU–US Agreements on Extradition and on Mutual Legal Assistance: How to Bridge Different Approaches’ in ibid, 269–73.
41 Tricot, J ‘Ministère Public Européen et Systèmes Pénaux Nationaux: Les Enjeux de l’Articulation Verticale’ in Manacorda, S and Giudicelli-Delage, G (eds) L’intégration pénale indirecte (Paris, Société de Législation Comparée, 2005) 207 Google Scholar.
42 Morgan, C ‘Proposal for a Framework Decision on Certain Procedural Rights Applying in Proceedings in Criminal Matters throughout the European Union’ in Leaf, M (ed) Cross border Crime—Defence Rights in a New Era of International Judicial Co-operation (London, Justice, 2006) 93-102Google Scholar.
43 Professor John Spencer has made a similar remark concerning the European Public Prosecutor: ‘[i]n principle, a properly constructed single European prosecution system might well provide better safeguards for defendants accused of trans-border crimes than a “horizontal” system made up of a patchwork of independent national systems, held together by a principle that each one recognises and enforces its neighbours’ rulings and procedural steps. Not only is it possible for defendants to vanish down the cracks that exist between different national systems; the same thing can happen to defendants’ rights’: Spencer, J ‘EU Criminal Law—Turning Fantasy into Fact?’ [2003] 4 Archbold News 9 Google Scholar.