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The Fight Against Organized Crime in Europe Building an Area of Freedom, Security and Justice in the E.U.

Published online by Cambridge University Press:  28 February 2019

Laura Ferola
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The consolidation of European integration in the most important institutional sectors and, in particular, the abolition of obstacles impeding the free circulation of persons, goods, services and capital, has made it imperative to attain a higher level of cooperation at a pan-European level in the areas of justice and internal affairs. The elimination of the frontiers has in fact drawn increasing attention to a rather worrying paradox: the retention of juridical and regulatory barriers has allowed organised crime to exploit the incongruities which derive from the existence of the fifteen different juridical systems of Member States of the European Union.

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Articles
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International Journal of Legal Information , Volume 30 , Issue 1 , Spring 2002 , pp. 53 - 91
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Copyright © 2002 by the International Association of Law Libraries 

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References

1 For a deeper analysis of the juridical consequences stemming from the globalization of economies, cf. G. M. Fuck, “Globalizzazione dei mercati e globalizzazione della giustizia,” in Rivista Trimestrale di Diritto Penale Dell ‘Economia 3 (2000): 591. The author rightly points out that the lack and obsolescence of traditional rules linked to single national sovereignties, as well as the fragility of supranational institutions, may lead to a potential destabilization. It is, therefore, essential to establish an efficient coordination between national and European legislation and institutions. In other words, “…Europe is a Europe of free, independent sovereign nations who choose to pool that sovereignty in pursuit of their own interests and the common good, achieving more together than [every Member State] can achieve alone. The EU remains a unique combination of the intergovernmental and the supranational. Such a Europe can, in its economic and political strength, be a superpower; a superpower, but not a superstate…” (Speech of Mr. Tony Blair, British Prime Minister, to the Polish Stock Exchange, 06 October 2000, in http://www.pm.gov.uk/news.asp?Newsled=1341&Sectionld=32.) For a further examination of the “weak” state and the necessity of common initiatives, see also M. Alan, “Transnational Police Cooperation in Europe and in North America: Revising the Traditional Border Between Internal and External Security Matters, or How Policing is being Globalized,” in European Journal of Crime, Criminal Law and Criminal Justice 9 (2001): 113; D. Van Zyl Smit, “The Place of Criminal Law in Contemporary Crime Control Strategies,” ibid., 8/4 (2000): 361.Google Scholar

2 TREVI allegedly stood for Terrorism, Radicalism, Extremism et Violence International. All the initiatives mentioned were based on cooperation carried out at intergovernmental level and thus lacked of transparency. The bureaucratization implemented with the Treaty on European Union must be considered, therefore, as a positive advancement in terms of democratic control, notwithstanding the limited role of the European Parliament in this field.Google Scholar

3 Single European Act (in O.J. 1987 L 169, p.1).Google Scholar

4 The doctrine refers that this phenomenon is known in the U.S. A. as “Delaware effect,” because of the attraction that the State of Delaware exerts on companies due to the lower degree of severity of its penalties for infringements of company law. H.G. Sevenster, “Criminal Law and EC Law,” in Common Market Law Review 29 (1992): 29, The Netherlands.Google Scholar

5 Indeed, as it will emerge in the following pages, implementation of cooperation in criminal matters between MSs covers not only substantial criminal law (i.e. the legal area, see par. 4-7, infra), but also the procedural criminal law (i.e. judicial area, see par. 8, infra). For a deeper discussion of the legal aspects of a crime prevention space in a EU political context, cf. N. Dorn & S. White, “Beyond ‘Pillars’ and ‘Passerelle’ Debates: The European Union's Emerging Crime Prevention Space, in Legal Issues on European integration,” The Hague - London - Boston 24 (1997): 79. The necessity of such a framework was pointed out also by the European Parliament (hereinafter EP) in the Resolution on the creation of a European legal and judicial area to protect the European Union's financial interests against international crime, B - 4 - 0457/97 [in Official Journal of the European Communities (hereinafter O.J.) 1997 C 200, p. 157].Google Scholar

6 The Treaty was signed in Maastricht on 7 February 1992 (in O.J. 1992 C 191, p.Google Scholar

7 It is important to stress that the nine areas listed in art. K.l TEU have “…to be understood basically as an exclusive enumeration for the applicability of the provisions of Title VI…,” being therefore impossible an extensive application of Title VI to other matters which are not explicitly enumerated in that article. Cf. P.C. MÜller-Graff, “The Legal Bases of the Third Pillar and Its Position in the Framework of the Union Treaty,” in Common Market Law Review 31 (1994): 493, The Netherlands.Google Scholar

8 This, by consequence, means that these provisions exert the primary function of international treaties, namely persuasive and political authority in practical political life, “…although there may be hardly any effective enforceability of the provisions on co operation in international matters, without prejudice to the somewhat remote use of the International Court in The Hague or to the possible involvement of national Courts…”, P.C. Müller-Graff, ibid.Google Scholar

9 See J. Monar, “JHA in the Treaty of Amsterdam: Reform at the price of fragmentation,” in European Law Review 23 (1998): 320, London.Google Scholar

10 Council Act of 29/11/96 drawn up, on the basis of art. K.3 TEU, the Protocol on the interpretation, by way of preliminary rulings, by the European Court of Justice of the Convention on the protection of the European Community's financial interests (O.J. 1997 C 151, p. 1). It is necessary to disclose that according to the 1995 Convention on the protection of financial interests, the Court shall have jurisdiction to rule on disputes between MSs on the interpretation or application of the Convention itself if no solution is found in six months within the Council (art. 8). Instead, the 1997 Protocol provides, at its art. 1, that MSs may declare, at the time of signing the Convention and its Protocols, that they accept the jurisdiction of the European Court. Any national judicial authority of that MS may request, therefore, to give preliminary rulings on a question raised in a case pending before it and concerning the interpretation of the instruments de quibus (art. 2). The laborious procedure established in the 1995 Convention ex art. 8 is thus eliminated.Google Scholar

11 Treaty of Amsterdam amending the Treaty on European union, the Treaties establishing the European Communities and certain related acts (in O.J. 1997 C 340, p.1).Google Scholar

12 According to 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 (in O.J. 1999 C 19, p. 1), the concept of an area of freedom goes beyond the free movement of people, since it entails also the enjoyment of a full range of human rights, including protection from discrimination, of personal data, the respect of privacy, etc. The meaning of an area of justice is referred to the guarantee of safety and security of citizens, while the MSs’ primary responsibility is reaffirmed in maintaining law and order and the safeguarding of internal security. Finally, the objective of the area of justice is to give citizens a common sense of justice throughout the Union, in particular determining the conditions and limitations under which competent judicial and prosecutorial authorities of one MS may operate in the territory of another MS. The Action Plan also contains the related priorities and measures that have been undertaken at European level, cf. Further details may be recovered in Pour un espace judiciare Européen, Parlement Européenne, Direction Générale des Études, Série Liberté publiques, LIBE - 101 FR, 02-1998, Luxembourg.Google Scholar

13 See, for example, W. Schomburg, “Are We on the Road to a European Law-enforcement Area? International Cooperation in Criminal Matters. What Place for Justice?”, in European Journal of Crime, Criminal Law and Criminal Justice 8/1 (2000): 51, The Hague-London-Boston.Google Scholar

14 In any case, the principle of closer cooperation in JHA was reaffirmed and, above all, the related procedure was clearly defined ex art. 40 A with the Treaty of Nice amending the treaty on European Union, the Treaties establishing the European Communities and certain related acts (in O.J. 2001, C 80, p.1). An analysis of the Nice Treaty is contained, inter alia, in A. Dashwood, “The Constitution of the European Union after Nice: Law-making Procedures,” in European Law Review 26 (2001): 215, London, 2001; A. Johnston, “Judicial Reform and the Treaty of Nice,” in Common Market Law Review 38 (2001): 499, The Netherlands; J. wouters, “Institutional and Constitutional Challenges for the European Union. Some Reflections in the Light of the Treaty of Nice,” in European Law Review 26 (2001): 342, London.Google Scholar

15 Convention based on art. K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) (in O.J. 1995 C 316, p. 2). For a discussion about the necessity of police cooperation at supranational level, see H. Aden, “Convergence of Policing Policies and Transnational Policing in Europe,” in European Journal of Crime, Criminal Law and Criminal Justice 9 (2001): 99, The Hague-London-Boston. As regards police cooperation, recently a European Police College (hereinafter referred to as “CEPOL”) was established to train senior officers of police forces, such forces being understood to mean law enforcement officials. This body is set up as a network, by bringing together the national training institutes for senior police officers in the MSs, which shall cooperate closely to that end. See Council Decision of 22 December 2000 establishing a European Police College (CEPOL) (in O.J. 2000 L 336, p.1).Google Scholar

16 Action Plan to combat organised crime adopted by the Justice and Home Affairs Council on 28/04/97 and by the European Council of Amsterdam on 17/06/97 (in O.J. 1997 C 251, p. 1). An overview of the measures and actions taken by the all MSs in their fight against organised crime and transborder crime is contained in M. Den Boer, “The Fight Against Organised Crime in Europe: a Comparative Perspective,” in European Journal of Criminal Policy and Research 9 (2001) 250, Dordrecht-Boston-London.Google Scholar

17 For a deeper analysis on this particular way of action, see Commission staff working paper. Joint report from the Commission services and EUROPOL “Towards a European strategy to prevent organized crime,“ Brussels, 13/03/01, SEC (2001) 433.Google Scholar

18 Joint Action of 29 November 1996 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, concerning the creation and the maintenance of a directory of specialized competencies, skills and expertise in the fight against international organized crime, in order to facilitate law enforcement cooperation between the Member States of the European Union (in O.J. 1996 L 342, p. 2).Google Scholar

19 For example, it was established a mechanism enabling MSs to evaluate, in the framework of the EU and on a basis of equality and mutual confidence, the implementation by each of them of instruments of cooperation intended to combat international. See Joint Action of 5 December 1997 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organized crime (in O.J. 1997 L 344, p. 7).Google Scholar

20 On the grounds of the Joint Action of 26 May 1997 adopted by the Council on the basis of art. K.3 of the Treaty on European Union with regard to cooperation on law and order and security (in O.J. 1997 L 147, p. 1), national authorities “…shall provide MSs concerned with information, upon request or unsolicited, via central bodies, if sizeable group which may pose a threat to law and order and security…” (like in meetings including sporting events, rock concerts, demonstrations and road-blocking protest campaigns) are travelling to another MS in order to participate in events. The information shall be supplied at as early a stage as possible to all MSs concerned, regardless of whether they are neighbours, including MSs of transit (art.1).Google Scholar

21 Pre-accesion pact on organized crime between the Member States of the European Union and the applicant countries of Central and Eastern Europe and Cyprus and Turkey (in O.J. 1998 C 220, p. 5). Indeed as it was underlined at the last Laeken European Council (Belgium 14-15 December 2001), in recent months considerable progress has been made in the negotiations; since candidacies have been assessed on their own merits, in accordance with the principle of differentiation, the EU is determined to bring the accession negotiations with the candidate countries that are ready to a successful conclusion by the end of 2002, so that those countries can take part in the EP elections in 2004 as members. In particular, if the present rate of progress of the negotiations and reforms in the applicant countries is maintained, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, the Czech Republic and Slovenia could be ready. As regards Bulgaria and Romania, the objective is to open negotiations with those countries on all chapters in 2002, while the progress towards complying with both economic and political criteria established for accession, notably with regard to human rights, made by Turkey - in particular through the recent amendment of its constitution - has brought forward the prospect of the opening of accession negotiations with this country in the next future.Google Scholar

22 Joint action of 21 December 1998 adopted by the Council on the basis of art. K.3 of the treaty on European Union, on making it a criminal offence to participate in a criminal organization in the Member States of the European Union (in O.J. 1998 L 351, p. 1).Google Scholar

23 For the first time, a European Council was entirely devoted to develop coordination of practices in judicial and criminal matters exclusively, with the specific aim to create an area of freedom, security and justice. The result was a series of political orientations (the so called “ten milestones of Tampere”), to be adopted according to fixed timetable, which specifically covered three selected areas: 1) asylum and immigration policy, in the view to implement common asylum procedures and homogeneous conditions of reception of asylum seekers respecting condition of security and justice; 2) the creation of a genuine European area of justice through the adoption of a programme of measures to achieve mutual recognition of judicial decisions in both civil and criminal matters, for example reaching the abolition of normal extradition procedure replaced by a simple transfer of such persons in compliance with art. 6 TEU (see par. 8, infra); 3) as regards the reinforcement of the fight against transnational crime, common priorities were targeting juvenile, urban or drug-related crimes and stepping up cooperation through the extension of the Europol tasks to terrorism, money laundering, drug and arms trafficking. In addition, it was decided to agree on common definitions, incriminations and sanctions in a limited number of financial crimes and to create a European Police College as well as Eurojust (see par. 8, infra). See http://europa.eu.int/council/off/conclu/oct99/oct99_en_htm.Google Scholar

24 The European Union Strategy for the Beginning of the New Millennium on the Prevention and Control of Organised Crime (in O.J. 2000 C 124, p. 1).Google Scholar

25 It must be noticed that several programs financed from the EU budget help the fight against organized crime and its prevention, cf. STOP II for incentives, training and exchanges for persons responsible in the fight against trafficking in human beings and sexual exploitation of children (in O.J. 2001 L 186, p. 7); Falcone for the prevention of, and the fight against, organized crime (in O.J. 1998 L 99, p. 2), Grotius II Criminal concerning incentives and exchanges for legal practitioners (in O.J. 2001 L 186, p. 1); Oisin II on incentives, training and cooperation for law enforcement authorities (in O.J. 2001 L 186, p. 4), Hippokrates establishing incentives, training and exchanges for the prevention of crime (in O.J. 2001 L 186, p.1); Daphne regarding preventive measures to fight violence against children, young persons and women (in O.J. 2000 L 34, p. 1). In addition, the European commission and the Council of Europe are jointly running the OCTOPUS program against corruption in East Eastern countries. For applicant countries, the PHARE program has also a section devoted to justice and home affairs (the PHARE program was created in December 1989 under Council Regulation (EEC) n. 3906/89 - in O.J. 1989 L 375, p. 1 - in order to support the process of reform in Poland and Hungary and, in particular, to finance economic restructuring projects. Since then the PHARE program has been extended, first to Bulgaria, Czechoslovakia and Romania, then to Albania, Estonia, Latvia, Lithuania, as well as Slovenia and, more recently, Croatia, Bosnia-Herzogovina and the former Yugoslav republic of Macedonia). For further details about the JHA programs, see http://www.europa.eu.int/comm/justice_home/jai/prog_en.htm.Google Scholar

26 On the grounds of the main findings and conclusions arising from the Algarve High Level Conference, it appeared evident the necessity to agree, at EU level, on common bases for preventing organized crime notwithstanding the fact that crimes differ from one country to another and that each type of crime calls for a particular approach. Therefore, the need for closer cooperation between the police and the judicial system of MSs was stressed again in a second meeting held under the Portuguese Presidency of the EU. Further details may be founded in Council of the European Union, II Forum on the Prevention of Organized Crime Held in Costa da Caparica (Portugal, 5-6 June 2000), Brussels, 22 June 2000, 9433/00.Google Scholar

27 This principle was reaffirmed most recently in the Conference of European experts entitled “Towards a Strategy of Crime Prevention Based on Knowledge” held in Sundswall (Sweden, 21-23 February 2001). See Note from the Council of the European Union, Brussels 23 February 2001 (06.03) 6563/01.Google Scholar

28 In order to facilitate the concrete application of the various measures adopted, the Commission proposed to take into consideration the following definition of crime prevention: it “… covers all measures that are intended to reduce or otherwise contribute to reducing crime and citizens’ feeling of insecurity, both quantitatively and qualitatively, either through directly deterring criminal activities or through policies and interventions designed to reduce the potential for crime and the causes of crime. It includes work by government, competent authorities, criminal justice agencies, local authorities, and the specialist associations they have set up in Europe, the private and voluntary sectors, researchers and the public, supported by the media….” See Communication form the Commission to the Council and the European Parliament “The prevention of crime in the European Union. Reflection on common guidelines and proposal for Community financial support, Brussels 29/11/00, COM (2000) 786 final.Google Scholar

29 Council Decision of 28 May 2001 setting up a European crime prevention network (in O.J. 2001 L 153, p.1).Google Scholar

30 Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation of children (in O.J. 1997 L 063, p. 2). The extent and consequences of trading in human beings is analyzed in M. R. Saulle, “Trasporto illecito dei migranti, crimine organizzato e applicazione delle normative,” in Rivista Della Cooperazione Giuridica Internazionale 4 (2000): 21, Roma.Google Scholar

31 Council Decision of 29 May 2000 to combat child pornography on the Internet (in O.J. 2000 L 138, p. 1).Google Scholar

32 Since the adoption of the Joint Action in 1997, actions and initiatives against trafficking in human beings, as well as sexual exploitation of children and child pornography, have developed considerably in number and in substance at the level of the EU as well as at local, regional and international level in a wider context. That said, the continuing divergence of legal approaches in the MSs clearly demonstrates the need for further action against the menace of trafficking. Furthermore, art. 29 ToA provides an explicit reference to trafficking in human beings. The Tampere European Council made a clear call for further legislative action against trafficking. The specific character of an area of freedom, security and justice to be created within the EU should enable the MSs to develop two different Framework Decision in which certain aspects of criminal law and judicial cooperation are taken further than has been possible through instruments available before the entry into force of the Amsterdam Treaty and instruments developed at a wider international level. A Framework Decision should, for instance, address more precisely, issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition. See Proposal for a Council Framework Decision on combating trafficking in human beings, COM (2000) 854 def. (500PC0854 [01]) and Proposal for a Council Framework Decision on combating the sexual exploitation of children and child pornography, COM (2000) 854 def. (500PC0854 [02]).Google Scholar

33 Joint Action of 15 October 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning the creation and maintenance of a Directory of specialized counter-terrorist competences, skills and expertise to facilitate counter- terrorist cooperation between the Member States of the European Union (in O.J. 1996 L 273, p. 1).Google Scholar

34 Council recommendation of 9 December 1999 on cooperation in combating the financing of terrorist groups (in O.J. 1999 C 373, p. 1).Google Scholar

35 In that occasion it was decided to harness all the measures already adopted at EU level to combat this heinous acts, in particular to improve judicial and police cooperation, to counteract terrorism financing. In addition, some measures to improve cooperation with United States in this topic were analyzed. Cf. Conclusions adopted by the Council (Justice and Home Affairs), Brussels 20 September 2001, SN 3926/6/01 REV in http://www.europa.eu.int/comm/justice_home/news/terrorism/documents/concl_council20sep_en.pdf.Google Scholar

36 The EU reaffirmed its solidarity and cooperation with the United States and approved an Action Plan in order to enhance police and judicial cooperation, to develop international legal instruments, to combat the funding of terrorism, to strengthen air security, to play a greater part in the efforts of the international community to prevent and stabilize regional conflicts. Finally, the first agreement on the European arrest warrant (see par. 8, infra) and on a common definition of terrorism constituted two decisive steps forward. See Conclusions and Plan of action of the extraordinary European Council meeting on 21 September 2001, in http://www.europa.eu.int/comm/justice_home/news/terrorism/documents/concl_council_21sep_en.pdf.Google Scholar

37 Proposal for a Council framework decision on combating terrorism, presented by the Commission, Brussels 19/09/01, COM (2001) 521 final. Further details concerning the proposal for the framework decision, and current national rules on terrorism, are explained in the Explanatory memorandum which is contained on the same document.Google Scholar

38 This summit laid the foundations for the future of the EU. See Presidency Conclusions of the European Council meeting in Laeken in http://www.europa.eu.int/comm/laeken_council/index_en.htm.Google Scholar

39 Council Regulation (EC) n. 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (in O.J. 2001 L 344, p. 70). It must be noticed that the European Community acts always within the limits of the powers conferred on it by the treaties: according to its par. (12) only MSs lay down rules on sanctions applicable to infringements of the provisions of the regulations.Google Scholar

40 This Regulation was completed by other two acts. First of all, the Council Common Position of 27 December 2001 on combating terrorism (in O.J,. 20001 L 344, p. 90) sets out a series of measures aiming to enhance cooperation among MSs or between MSs and third countries to prevent and suppress terrorist attacks and take actions against perpetrators of terrorists acts. Secondly, the Common Position of 27 December 2001 on the application of specific measures to combat terrorism (in O.J. 2001 L 344, p. 93) contains a list of persons, groups and entities whose funds or other economic resources shall be frozen; this “… in close cooperation with the United States…” (par. 3).Google Scholar

41 Historically, actions taken by of EC in relation of crime control arose somewhat from the EC's attempt to address regulatory problems that emerged in the achievement of some particular policies. In the first place, action was required at EC level, in order to facilitate the development of the Single Market by ensuring a common regulatory environment. From the late 1980s on, divergent national rules were harmonised in order to ensure minimum levels of safety and security concerning the free movement of potentially dangerous products such as explosives, weapons, and radioactive and nuclear waste materials. With regard to the specific problems resulting from crimes committed against environment, the EC adopted a broad range of instruments concerning the surveillance of toxic waste, prevention air and water pollution, noise and wild life protection. All these acts leave MSs free to determine the penalties to be applied, to legal or moral persons, for infringements to European rules. Among the most important are Council Directives on reduction of air pollution (in O.J. 1989 L 203, p. 50), on control of the acquisition and possession of weapons (O.J. 1991 L 256, p. 51), on the supervision and control of shipments of waste (in O.J. 1991 L 377, p. 20), etc.Google Scholar

42 Council Directive of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (91/308/EEC) (in O.J. 1991 L 166, p. 77). For a discussion of the dimension and character of the problem see L. Shelley, “Transnational Organized Crime and Seized Assets: Moral Dilemmas Concerning the Disposition of the Fruits of Crime,” in Maastricht Journal of European and Comparative Law 7 (2000): 35, Maastricht; N. Parisi. “Il riciclaggio di denaro ‘sporco’ fra cooperazione intergovernativa e attivitá istituzionale dell'Unione europea,” in Jus 1 (Milano): 443; M.C. Bassiouni - D.S. Gualtieri, International and national responses to the globalization of money laundering, in Responding to Money Laundering. International Perspectives, edited by E.U. Savona, The Netherlands, 1997, p. 107; W. C. Gilmore, International Initiatives, in Buttesworths International guide to money laundering: law and practice, edited by Richard Parlour, London/Boston, 1995, p. 15; P.J. cullen, The European Community Directive, in MacQueen H.L. ed., Money Laundering, Edinburgh, 1993, p. 34.Google Scholar

43 As explained in the Commission's first report, it had not been possible to reach agreement in the Council on a requirement in the Directive to criminalise money laundering because of the obstacle of the lack of criminal competence of the Community. Nonetheless the interpretative statement annexed to the Directive gave this commitment (albeit outside the framework of the Directive) and all of the MSs have in fact made money laundering a criminal offence. See First report of the Commission to the European Parliament and the Council on the application of directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, COM (95) 54 def.Google Scholar

44 As regards this specific topic, at the Santa Maria da Feira European Council (Portugal, 19-20 June 2000) it was decided to endorse a step-by-step development towards realization of the exchange of information as the basis for the taxation of savings income of non-residents, in order to abolish the bank secrecy, thought the adoption of a Directive on the taxation of savings. Before its issue, the EU shall enter into discussions with the U.S. and key third countries (Switzerland, Liechtenstein, Monaco, Andorra, San Marino) to promote the adoption of equivalent measures in those countries and thus preserve the competitiveness of European financial market. With the same aim, MSs concerned commit themselves to promote the adoption of the same measures in all relevant dependent or associated territories (the Channel Islands, Isle of Man, and the dependent or associated territories in the Caribbean). In the medium term, MSs shall exchange information on savings income with other MSs or operate a withholding tax (the rate should be at least 20-25 %). In any case MSs shall agree to implement exchange of no later than seven years after the entry into force of the directive, in order to achieve the ultimate objective of the EU: the concrete elimination of the bank secrecy by the 2010 (see europa.eu.int/council/off/ june2000/june2000_en.pdf).Google Scholar

45 In particular, in 1998 a Joint Action was adopted: MSs agreed that no reservations should be made or upheld in respect of art. 6 of the 1990 Strasbourg Convention in so far as serious offences are concerned: the result of this act is therefore that the MSs have agreed to criminalise the laundering of the proceeds of all serious crimes (see Joint Action of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime, in O.J. 1998 L 333, p. 1). Most recently, this instrument was amended by the Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, in O.J. 2001 L 182, p. 1).Google Scholar

46 See Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering (in O.J. 2001 L 344, p. 76). In order to have a thoroughly examination of the reasons which lead to the adoption of this instrument, cf. the Proposal for a European Parliament and Council directive amending Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, Brussels 14/07/99, COM (1999) 352 def.Google Scholar

47 As far as cooperation between national and European Authorities is concerned specifically, all MSs have set up financial intelligence units (FIUs) to collect and analyse information received under the provisions of Directive 91/308/EEC in order to establish links between suspicious financial transactions and underlie criminal activity, thus preventing and combating money laundering. FIUs are a single unit for each MS and shall correspond to the following definition: “A central, national unit which, in order to combat money laundering, is responsible for receiving (and to the extent permitted, requesting), analysing and disseminating to the competent authorities, disclosures of financial information which concern suspected proceeds of crime or are required by national legislation or regulation” (art. 2). See Council Decision of 17 October 2000 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information (in O.J. 2000 L 271, p. 4).Google Scholar

48 Convention drawn up on the basis of art. K.3 of the Treaty on European Union, on the protection of the European Communities ‘financial interests (in O.J. 1995 C 316, p. 49).Google Scholar

49 Council Regulation of 18 December 1995 on the protection of the European Communities financial interests (in O.J. 1995 L 312, p. 1).Google Scholar

50 Protocol drawn up, on the basis of art. K.3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests (in O.J. 1996 C 313, p. 3).Google Scholar

51 Second Protocol drawn up on the basis of art. K.3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests (in O.J. 1997 C 221, p. 1).Google Scholar

52 Convention drawn up on the basis of art. K.3 (2) c of the Treaty on European Union on the fight against corruption involving officials of the European Union or officials of Member States of the European Union (in O.J. 1997 C 195, p. 1).Google Scholar

53 Joint action of 22 December 1998 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, on corruption in the private sector (in O.J. 1998 L 358, p. 2).Google Scholar

54 It is based on the Action Plan to combat organised crime, adopted by the JHA Council on 28/04/97 and by the European Council in Amsterdam on 17/06/97; more precisely it intends to implement Recommendation n. 6 of Chapter II of the Action Plan (Prevention of organised crime).Google Scholar

55 See Report on a draft joint action on making corruption in the private sector a criminal offence, Committee on Civil Liberties and Internal Affairs, The European Parliament, Rapporteur: R. Bontempi, Doc. A4-0348/97, 05/11/97. In order to have an overview about the single national rules adopted by the fifteen MSs to curb corruption, both in the private and in the public sector, see Measures to Prevent Corruption in EU Members States, The European Parliament, Directorate General for Research, Legal Affairs series, JURI 101 EN, 03-1998, Luxembourg.Google Scholar

56 In the light to strengthen the fight against fraud, corruption and all other forms of illegal activities that harm the financial interests of the Communities, it was established OLAF (Office européen de lutte antifraude), an independent body set up within the Commission able to carry out internal investigations in all the institutions, organs and organisms created by the treaties establishing the European Communities. OLAF was instituted following the Commission Decision 1999/352 of 28 April 1998 and has replaced the Task force to co-ordinate the fight against fraud (UCLAF, Unité de coordination de la lutte antifraude). The EC Regulation n. 1073/1999 (O.J. 1999 L 136, p. 20) regulates its competencies. For a critical analysis of the powers and functions of OLAF, cf. E. bruti liberati, “The fight Against Fraud and Corruption in the European Union. OLAF and the Prospect of a European Public Prosecutor,” in Responding to the Challenges of Corruption 2000: 57, UNICRI, Rome/Milan; A. Saccucci, “Nominato in Europa il super-investigatore antifrode,” in Diritto Penale e Processo 1 (2000): 117, Rome; J. A. E. Vervaele, “Towards an Independent European Agency to Fight Fraud and Corruption in the EU?,” in European Journal of Crime, Criminal Law and Criminal Justice 3 (1999): 331, The Hague - London - Boston.Google Scholar

57 Proposal for a directive of the European Parliament and of the Council on the criminal-law protection of the Community's financial interests, Brussels 23/05/01, COM (2001) 272 final. As the Commission has underlined in its proposal, “…the Amsterdam treaty, signed and ratified by all the MSs after the PFI instruments, brought about a major chance for the protection of Community financial interests by replacing the former art. 209a of the TEC by art. 280. This new provision requires the Community and the MSs alike to take measures for the protection of Community financial interests which afford effective and equivalent protection in all the MSs. In other words, art. 280 TEC constitute the specific legal basis which now must be used for the adoption of measures in the area of protection of Community financial interests. The Nice intergovernmental conference in December 2000 also confirmed that the protection of EC financial interests is essentially a first-Pillar matter….” The advantage of an act adopted on the grounds of art. 280 TEC is that it affords the benefits that go with first-Pillar Community legislation, which offers supervisory mechanisms not available under the III Pillar, namely the powers conferred on the Commission, as guardian of treaties, and the powers of the Court of Justice in this context. This powers can be used to ensure correct transposal and application of Community law in national legislation and hence effective and equivalent protection in all the MSs. The benefits should also be taken into account when it comes to having the applicant countries take over the acquis communautaire.Google Scholar

58 The European single currency was adopted by twelve of the fifteen MSs, in particular: Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Portugal, The Netherlands, Spain.Google Scholar

59 Council Regulation (EC) n. 974/98 of 3 May 1998 on the introduction of the euro (in O.J. 1998 L 139, p. 1).Google Scholar

60 Council Resolution of 28 May 1999 on increasing protection by penal sanctions against counterfeiting in connection with the introduction of the euro (in O.J. 1999 C 171, p. 1).Google Scholar

61 Council framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (in O.J. 2000 L 140, p. 1).Google Scholar

62 Council Regulation (EC) n. 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting (in O.J. 2001 L 181, p. 6). It is interesting to notice that, most recently, in order to ensure a comprehensive protection of financial ways of payment, by one hand it was ensured that fraud and counterfeiting involving all forms of non-cash means of payment are recognised as criminal offences and in all MSs cannot be sufficiently achieved by national authorities in view of the international dimension of those offences and can therefore be better achieved at Union level: therefore MSs are called to are subject to effective, proportionate and dissuasive sanctions against fraud and counterfeiting of credit cards, eurocheque cards, other cards issued by financial institutions, travellers’ cheques, eurocheques, other cheques and bills of exchange (see Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment, in O.J. 2001 L 149, p. 1). By the other, measures necessary for the protection of euro were extended also to third countries by means of the Council Regulation (EC) n. 1339/2001 of 28 June 2001 extending the effects of Regulation (EC) n. 1338/2001 laying down measures necessary for the protection of the euro against counterfeiting to those Member States which have not adopted the euro as their single currency, in O.J. 2001 L 181, p. 11).Google Scholar

63 Joint Action of 22 April 1996 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union (in O.J. 1996 L 105, p.1).Google Scholar

64 Joint action of 29 June 1998 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, on good practice in mutual legal assistance in criminal matters (in O.J. 1998 L 191, p. 1).Google Scholar

65 Joint Action of 29 June 1998 adopted by the Council on the basis of art. K.3 of the Treaty on European Union, on the creation of a European Judicial Network (in O. J. 1998 L 191, p. 4).Google Scholar

66 The EJN has developed a website (in http://ue.eu.int/ejn/index.htm) which collates all the relevant legal instruments in the European Union for dissemination among practitioners. It has also produced an atlas which, when complete, should make it possible for a national judicial authority to identify the corresponding authority with territorial jurisdiction anywhere in the EU.Google Scholar

67 See the Communication from the Commission on the establishment of Eurojust, Brussels 22/11/200, COM (2000) 746 final.Google Scholar

68 The new service does not change national laws nor try to harmonise them in any way. It will work to help national judges and prosecutors in crossborder cases, working alongside the European Judicial Network (EJN). The EJN is a decentralised network between EU lawyers and judges working on criminal cases and tries to help them exchange information rapidly and effectively, whereas EURO JUST is a central unit. EJN has specialist contact points in all member states, which can be contacted and asked for advice. Eurojust will be able to give immediate legal advice and assistance in crossborder cases to the investigators, prosecutors and judges in different EU member states. It will advise judges and prosecutors where to look for information that they need from another EU country and on how to proceed in a crossborder cases. It will handle letters rogatory, which ask for information or enquiries to be carried out by the authorities in another country, and send them to the right authorities for action. It will also help and cooperate with OLAF, the EU's anti-fraud organisation, in cases affecting the EU's financial interests.Google Scholar

69 Council decision of 14 December 2000 setting up a Provisional Judicial Cooperation Unit (in O.J. 2000 L 140, p. 1).Google Scholar

70 Programme of measures to implement the principle of mutual recognition of decisions in criminal matters (in O.J. 2001 C 12, p. 10). It must be noticed that, as regards the enforcement of sentences, the Council is currently examining a proposal to facilitate the mutual recognition of decisions imposing fines. Finally, the work programme also calls for the recognition of orders for confiscation or depriving offenders of their rights.Google Scholar

71 See Proposal for a Council framework decision on the European arrest warrant and the surrender procedures between the Member States, Brussels 19/09/01, COM (2001) 522 final in http://europa.eu.int/comm/external_relations/cfsp/doc/com_01_522.pdf. As regards the particular instrument which was chosen, i.e. a framework decision, was originated from the concern for effectiveness: the many Conventions drawn up under the Council of Europe, in European political cooperation or in the EU have had limited success, as progress in ratifications attests (see note 72, infra). Both the legal order flowing from the ToA and the advanced state of judicial cooperation between MSs justify the creation of the European arrest warrant by a Framework Decision which, under art. 34 ToA, would be “binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods.” Cf. the Report on the Commission Proposal for a Council framework decision on the European arrest warrant and the surrender procedures between the Member States, The European Parliament, Rapporteur: G. R. Watson, doc. A5-0397/01, 14 November 2001.Google Scholar

72 Until now extradition was the only instrument available to the judiciary of a MS to catch criminals beyond its national borders. This procedure entails a cumbersome and complex process, and it is not suited to a frontier-free area such as the EU in which there is a high degree of trust and cooperation between States that share a sophisticated concept of the State based on the rule of law. It must be noticed that there were adopted already some mechanisms to facilitate extradition, like the European Extradition Convention of 13 December 1957, in addition, the 1995 Convention on the Simplified Extradition Procedure Between the Member States of the European Union (in O. J. 1995 C 78, p. 2) and the 1996 Convention on the Extradition Between the Member States of the European Union (in O.J. 1996 C 313, p. 11) are intended to accelerate and simplify the mechanisms of the 1957 Convention and to remove most of the grounds for reservations with respect to it. But they do not break with the extradition mechanism that is by definition political and intergovernmental. And they have been ratified only by nine and eight MSs respectively.Google Scholar

73 The conclusions of the Tampere European Council state that “…the formal extradition procedure should be abolished among the MSs 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 art. 6 TEU. Consideration should also be given to fast-track extradition procedures, without prejudice to the principle of fair trial…” (item 35). This mandate was recalled in Recommendation 28 of the Strategy of the European Union for the Next Millennium as regards prevention and control of organised crime, which calls on the Commission “to make proposals for expedited extradition of convicted persons fleeing from justice as well as on fast-track extradition procedures.” It further recommends that “…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….” Most recently, following the unprecedented, tragic and murderous terrorist attacks against the people of the United States of America on 11 September 2001, the heads of State and Government of the European Union, the President of the European Parliament, the President of the European Commission, and the High Representative for the Common Foreign and Security Policy have called for “…the creation of a European warrant for arrest and extradition in accordance with the Tampere conclusions, and the mutual recognition of legal decisions and verdicts….” See Brussels Extraordinary European Council, cit. note 36, supra.Google Scholar

74 The principle of the direct communication of the European arrest warrant from judicial authority to judicial authority is taken over from art. 6 of the Convention of 29 May 2000 on mutual assistance in criminal matters, which further on simplified the extradition procedures. See Convention Established by the Council in Accordance with Art. 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union (in O.J. 2000 C 197, p. 3).Google Scholar

75 According to art. 2, par. 2 of the framework decision, the European arrest warrant may be issued for a list of serious crimes, including participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in arms, ammunition and explosives, corruption, fraud including fraud pertaining to the financial interest of the EU, recycling the benefits of crime, counterfeiting of money including the Euro.Google Scholar

76 Among the most relevant, it must be quoted the following provisions: it is requested the presence of legal counsel and, if necessary, an interpreter as from the time of arrest under a European arrest warrant (art. 11); if a person is arrested on the basis of a this instrument he/she may be released if appropriate assurances are given to his/her subsequent appearance (art. 14); a person against whom a judgement has been given in absentia must be retried after lodging an opposition with the executing judicial authority (art. 35); transfers that are neither useful nor necessary will be avoided by the use of videoconferencing (art. 34). Similarly the execution of a penalty in the place where the condemned person can best be reintegrated should be encouraged (art. 33 and 36); criminal proceedings will be accelerated, in particular because of the increased practice of temporary transfers from one State to another (art. 39 and 40); the possibility for a State of making the execution of a European arrest warrant conditional on a guarantee that life imprisonment will not be imposed is stated (art.37); the removal of the principle of double criminal liability is not at the expense of States with the most lenient legislation. The negative list mechanism allows MSs which choose to decriminalise certain acts to exclude them from the scope of the European arrest warrant (art. 27).Google Scholar

77 Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (in O.J. 2001 L 82, p. 1). As far as this topic is concerned, see also the Commission's Green Paper. Compensation to Crime Victims, Brussels 28/05/01 COM (2001) 536 final, in http://www.europa.eu.int/eur-lex/en/com/gpr/2001/com2001_0536en01.pdf.Google Scholar

78 Resolution of the Council of 23 November 1995 on the protection of witnesses in the fight against international organized crime (in O.J. 1995 C 327, p. 5).Google Scholar

79 Council Resolution of 20 December 1996 on individuals who cooperate with the judicial process in the fight against international organized crime (in O.J. 1997 C 10, p. 1).Google Scholar

80 Cf. Corpus Juris portant dispositions pénales pour la protection des intérěts financiers de l'Union Européenne, sous la direction de M. Delmas-Marty, Direction Générale du Contrôle Financier, Paris 1997.Google Scholar

81 As regards the technique of legislative integration, it must borne in mind that in the criminal field there are different degrees of normative approximation. the first step, after cooperation (when each country retains its prerogatives, based on different laws while recognising other's court decisions), is assimilation (i.e. MSs have to protect EU interests through the same measures they would implement to protect their own interests). Harmonisation is the following level, a sort of “soft harmonisation.” Finally unification provides for a uniform system, where laws are identical in every aspect.Google Scholar

82 Actually, this is a fundamental step in the fight against organized crime for the years ahead at European level, as it was widely stand out by T.-L. Margue, “La coopération en matiére de prévention et de lutte contre le crime dans le cadre du noveau troisiéme pilier,” in Revue du Droit de l'Union Européenne 4, (2000): ???, Paris. As regards this specific perspective, also interesting is the paper of C. Harding, “European Regimes of Crime Control: Objectives, Legal Bases and Accountability,” in Maastricht Journal of European and Comparative Law 7 (2000): 224, Maastricht.Google Scholar

83 Laeken Declaration on the future of the European Union, Europe at a crossroads, in Laeken European Council, cit. note 38, supra.Google Scholar

84 European Commission Translation service, English Style Guide, List of common abbreviations and acronyms Annex 10 http://europa.eu.int/comm/translation/en/stygd/index.htm.Google Scholar