[ARTICLE 69G]

POLICING:

TREATY CREATES NEW POWERS FOR EUROPEAN POLICE FORCE TO

COORDINATE, ORGANISE AND UNDERTAKE INVESTIGATIONS =

BEYOND CROSS-BORDER CRIMES

[ARTICLE 69G]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area:

Treaty= on the Functioning of the European Union, Part Three Policies and Internal Act= ions of the Union, Title IV – Area of Freedom, security and Justice, Chapt= er 5 – Police cooperation, Article 69G

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 68, inserted Chapter 5 and Ar= ticles 69F to 69H TEC (TFEU) relating to police cooperation; and=

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(ii)’.

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<= st1:City w:st=3D"on">Lisb= on Treaty: =

“= ;POLICE COOPERATION<= /span>

68) The following Chapter 5 and Articles 69 F, 69 G and = 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article= 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof.

"CHAPTER 5 POLICE COOPERATION

ARTICLE 69 G

1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious c= rime affecting two or more Mem= ber States, terrorism a= nd forms of crime which affect a common interest covered by a Union policy.

2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:

(a) the collection, storage, processing, analysis and exchange of information, in particular that forwar= ded by the authorities of the Member States or third cou= ntries or bodies;

(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropria= te in liaison with Eurojust.

These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.

3. Any operational action by Europol must be carried out= in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities= .”

Consolidated Treaty Article(s):

“Article 30<= /span>

2. The Council shall promote cooperation through Europol= and shall in particular, within a period of five years after the date of entry = into force of the Treaty of Amsterdam:

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

(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigat= ions in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;

(c) promote liaison arrangeme= nts between prosecuting/investigating officials specialisi= ng in the fight against organised crime in close cooperation with Europol;

(d) establish a research, documentation and statistical network on cross-border crime.”

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Expl= anation:

The Council and Parliament are waiting for the Lisbon Treaty to be enacted so that the European Police Office (Eur= opol) powers can be greatly enhanced beyond cross-border crime – this inevitably has implied that the Lisbon Treaty will ensure new crime measures above and beyond national laws. According to Article 2 (1) of the Europol Convention the objective of Europol, the European Law Enforcement Organisation, is to improve “effectiveness and cooperation of the competent authorities in the Member States in preven= ting and combating terrorism, unlawful drug trafficking and other serious forms = of international crime where there are factual indications that an organized criminal structure is involved and two or more Member States are affected by the forms of crime in question in such a way as to require a common approac= h by the Member States owing to the scale, significance and consequences of the offences concerned.” The future of Europol has been recently debated = at the EU institutional level. The European Commission has put forward proposal for a C= ouncil Decision to replace the previous Europol Convention with all the amendments already incorporated in the three Protocols, as well as some new provisions. The Commission has also proposed that Europol’s competence should not= be limited to cross-border organised crime and tha= t it should extend Europol’s mandate to any serious cross border crime. The Justice and Home Affairs Council have been discussing this proposal and have already reach agreement for different Chapters of the Convention. The Counc= il Decision is expected to be finalised by the sum= mer of 2008. The Europol will be a Union agency funded by the EU budget. The Europ= ean Parliament is already calling for the Council Decision to be revised within= a period of six months following the Lisbon Treaty’s entry into force, = as it will have a greater say on decision-making (co-deci= son powers), on which it has always be in favour fo= r the sake of increasing Europol powers. These encroaching powers will not work in the UK’s favour.

Equally concerning is that Europol’s mandate will no longer be limited to o= rganised crime. The new Article 69G extends and enhances the role and the powers of Europol to “serious crime affecting two or more Member States.” Article 2 of the Europol Convention provides for the Council, acting unanimously, to “decide to instruct Europol to deal with other forms = of international crime listed in the Annex to this Convention. The Annex conta= ins a long list of crimes concerning crimes against life, limb or personal free= dom, against property or public goods including fraud illegal trading and harm to the environment. The competence of Europol will be significantly increased = as its mandate will no longer be limited to organized crime. “Serious crime” is a very broad term, subject to different interpretations whi= ch will bring harm to legal certainty.

Under the terms of Lisbon, Europol will vastly extend its = own powers and Member States will no longer be able to block any further extens= ion of powers. Presently, the Europol Convention amendments are decided by the Council acting unanimously after consulting the European Parliament. It is amended through protocols which are then ratified by national Parliaments. Hence, national parliaments can influence the content of a Protocol and blo= ck its ratification. When the Europol Convention is replaced by a Council decision, rules governing Europol will be amended by Council decisions unanimously adopted but national ratification is not required. With the Lis= bon Treaty and the collapse of the pillars, legislation concerning Europol is subject to the Community method. According to Article 69G (2) the European Parliament and the Council, acting by QMV, through the ordinary legislative procedure (codecision), shall adopt regulations (directly applicable in all Member States) concerning Europol’s structure, operation, field of action and tasks. Therefore, such aspects wi= ll be defined by secondary legislation rather than by Protocols amending the Convention. The Lisbon Treaty puts forward some tasks that Europol will hav= e in the future – it is clear that the list is not exhaustive and also tha= t Member States will no longer be able to block further extension of Europol powers.=

Europol has set our objectives to dev= elop into a European police force which will be able to co-ordinate, organise and even undertake investigations and operations together with national police forces. According to Article 69 G (2) (b) Europol’s tas= ks with regard to “serious crime affecting two or more Member StatesR= 21; may include “the coordination, organisation and implementation of investigative and operational action carried out jointly = with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.” These tasks are already foreseen in the Draft Council Decision establishing the Europol although this = Draft Decision adds “where appropriate in liaison with European or t= hird countries bodies.” Hence, the coordinating role of Europol will be ex= tended. The Europol is intentionally and with clear objectives developing into a European police force as it will be able to co-ordinate, organise and even undertake investigations and operations together with the nati= onal police forces. The Europol will have not only investigative but operational powers which should be kept to the national police forces. Arti= cle 69 G provides the single restriction to the Europol action stating that “Any operational action by Europol must be carried out in liaison and= in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.” However, “coercive measures” have always be= en subject to different interpretations.

Presently, there are some ‘loose’ safeguards: the ECJ, according to Article 35 (7) has jurisdiction to rule on disputes between Member States regarding the interpretation or application of the Europol Convention. Moreover, the ECJ = has jurisdiction to receive a preliminary reference but only from the courts of= a Member State which has expressly accepted such jurisdiction. The UK has not submitted a declar= ation under Article 35 EU – thus it does not yet accept the jurisdiction of= the Court to give preliminary rulings on third pillar matters. Under the Lisbon Treaty, national courts against whose decisions there is no judicial remedy under national law may to refer a question to the ECJ concerning interpreta= tion of the Europol legislation.

The Treaty does offer some attempts at scrutiny of Europol which, however, come no way near to the amount and qual= ity of scrutiny needed for it to be a an actual European police force as demand= ed in the Treaty provisions. Article 69 G (2) provides that regulations concer= ning Europol structure, operation, field of action and tasks “shall also l= ay down the procedures for scrutiny of Europol’s activities by the Europ= ean Parliament, together with national Parliaments.” This new legal base = is likely to enhance Europol accountability although it remains to be seen how national Parliaments will be involved. Nevertheless, Europol will never be accountable as a national police force. The Europol's activities will be also subject to judicial review by the European Court of Justice. According to new Article 230 the Court of Justice “shall also review = the legality of acts of bodies, offices or agencies of the Un= ion intended to produce legal effects vis-à-vis third parties." However, while The Treaty does offer some attempt to provide scrutiny of Europol it falls drastically short of the kind of scrutiny needed for it to= be a an actual European police force as demanded in the Treaty provisions. This provision must be completely rejected.